TDC A/S v Teleklagenævnet and Erhvervs- og Vækstministeriet.
Date: 2016-12-21
41


Next, it must be found that, unlike the universal service as defined in Chapter II of the Universal Service Directive, Article 32 thereof does not provide for a compensation mechanism for the additional mandatory services, but merely provides that a financing mechanism for those services involving specific undertakings cannot be imposed. Consequently, the financing mechanism provided for in Article 13(1)(b) of the Universal Service Directive cannot be extended to such services (see judgment of 11 June 2015, Base Company and Mobistar , C‑1/14, EU:C:2015:378, paragraph 41).
46


Thus, in accordance with Articles 12 and 13 of the Universal Service Directive, in order to determine the amount of any compensation due to an undertaking designated to provide a universal service, it is necessary, as a first step, to calculate the net cost of the universal service obligation to the undertaking designated as the provider and, next, where national regulatory authorities find that an undertaking is subject to an unfair burden, those authorities must decide to introduce a mechanism to compensate that undertaking for the determined net costs, transparently and from public funds, and/or to share the net cost of universal service obligations between providers of electronic communications networks and services (see judgment of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic , C‑508/14, EU:C:2015:657, paragraph 33).
52


Thus, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied (judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg, C‑280/00, EU:C:2003:415, paragraph 88).
53


Firstly, the undertaking receiving such compensation must actually have public service obligations to discharge, and the obligations must be clearly defined. Secondly, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings. Thirdly, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations. Fourthly, the compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the requisite means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations (judgments of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraphs 89, 90, 92 and 93, and of 10 June 2010, Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraphs 37 to 40).
77


The Court has previously held, in that regard, that the existence of the special arrangements between the European Union and OCTs results in the general provisions of the FEU Treaty, namely those which are not referred to in Part Four of that treaty, not being applicable to OCTs in the absence of an express reference (see, to that effect, judgments of 28 January 1999, van der Kooy, C‑181/97, EU:C:1999:32, paragraphs 36 and 37, and of 5 June 2014, X and TBG, C‑24/12 and C‑27/12, EU:C:2014:1385, paragraph 45 and the case-law cited).
84


According to settled case-law of the Court, whenever the provisions of a directive appear, so far as their subject matter is concerned, to be unconditional and sufficiently precise, they may be relied on before the national courts by individuals against the State where the latter has failed to implement the directive in domestic law by the end of the period prescribed or where it has failed to implement the directive correctly (judgments of 24 January 2012, Dominguez , C‑282/10, EU:C:2012:33, paragraph 33 and the case-law cited, and of 6 October 2015, T-Mobile Czech Republic and Vodafone Czech Republic, C‑508/14, EU:C:2015:657, paragraph 52 and the case-law cited).
90


In the absence of rules laid down in EU law concerning the procedural requirements for the submission and examination of an application for compensation for loss from the performance of a universal service applicable to Denmark, it is for the domestic legal system of that Member State, in accordance with the principle of cooperation in good faith now enshrined in Article 4(3) TEU, to govern those arrangements, provided, firstly, that the requirements are not less favourable than those governing similar domestic situations (principle of equivalence) and, secondly, that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the EU legal order (principle of effectiveness) (see, to that effect, judgments of 27 June 2013, Agrokonsulting , C‑93/12, EU:C:2013:432, paragraph 36 and the case-law cited, and of 20 October 2016, Danqua , C‑429/15, EU:C:2016:789, paragraph 29 and the case-law cited).
92


As regards the principle of equivalence, it should be recalled that observance of that principle requires that a national rule be applied without distinction to procedures based on EU law and those based on national law (judgment of 20 October 2016, Danqua , C‑429/15, EU:C:2016:789, paragraph 30 and the case-law cited).
93


In order to establish whether the principle of equivalence has been observed in the main proceedings, it is for the national court, which has direct knowledge of the procedural rules governing actions under national law, to ensure, in national law, that the procedural rules intended to ensure that the rights derived by individuals from EU law are safeguarded respect that principle (see, to that effect, judgment of 8 September 2011, Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 90 and the case-law cited).
97


In that regard, it must be noted that the Court has previously held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary, inter alia, to take into consideration, where relevant, the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure (see, to that effect, judgments of 8 July 2010, Bulicke , C‑246/09, EU:C:2010:418, paragraph 35 and the case-law cited; of 8 September 2011, Rosado Santana , C‑177/10, EU:C:2011:557, paragraph 92; and of 20 October 2016, Danqua , C‑429/15, EU:C:2016:789, paragraph 42 and the case-law cited).
98


It is settled case-law that the setting of time limits must, in principle, satisfy the requirement of effectiveness since it constitutes an application of the fundamental principle of legal certainty which protects both the person and the administration concerned. Such time limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law In respect of national legislation which comes within the scope of EU law, it is for the Member States to establish those periods in the light of, inter alia, the significance for the parties concerned of the decisions to be taken, the complexities of the procedures and of the legislation to be applied, the number of persons who may be affected and any other public or private interests which must be taken into consideration. Subject to that reservation, the Member States are free to provide for longer or shorter time limits (see, to that effect, judgments of 15 April 2010, Barth , C‑542/08, EU:C:2010:193, paragraph 28 and the case-law cited; of 8 July 2010, Bulicke , C‑246/09, EU:C:2010:418, paragraph 36 and the case-law cited; and of 20 October 2016, Danqua , C‑429/15, EU:C:2016:789, paragraph 44 and the case-law cited).
102


In that regard, it must be noted that it is true that the Court has held that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’s delay in initiating proceedings against it in order to protect rights conferred upon that individual by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time (see judgment of 25 July 1991, Emmott , C‑208/90, EU:C:1991:333, paragraph 23).
103


Nevertheless, in accordance with the settled case-law of the Court subsequent to the judgment of 25 July 1991, Emmott (C‑208/90, EU:C:1991:333), the Court has acknowledged that a defaulting Member State may rely on the expiry of a limitation period as a defence against legal proceedings, even though by the date on which the actions in question were brought that Member State had not yet correctly transposed the directive in question, ruling that the solution established in the judgment of 25 July 1991, Emmott (C‑208/90, EU:C:1991:333) had been justified by the circumstances particular to that case, in which a time-bar had had the result of depriving the applicant in the main proceedings of any opportunity whatever to invoke her right under a directive (see, to that effect, judgments of 19 May 2011, Iaia and Others , C‑452/09, EU:C:2011:323, paragraph 19, and of 8 September 2011, Q-Beef and Bosschaert , C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 50 and the case-law cited).
104


In that regard, the Court has held that EU law does not preclude a national authority from relying on the expiry of a reasonable limitation period unless the conduct of the national authorities combined with the existence of a limitation period result in totally depriving a person of the opportunity to enforce his rights before the national courts (judgment of 8 September 2011, Q-Beef and Bosschaert , C‑89/10 and C‑96/10, EU:C:2011:555, paragraph 51 and the case-law cited).