Český telekomunikační úřad v T-Mobile Czech Republic a.s. and Vodafone Czech Republic a.s.
Date: 2015-10-06
20. According to the Městský soud v Praze, Article 31 of the Telecommunications Law infringed Articles 12 and 13 of that directive, because Czech law made provision for determining the amount of the loss and for a method of calculating and determining the justifiable loss which are different from those provided for under that directive. Thus, in applying national law, the Czech telecommunications regulatory authority was wrong to take into account every loss, of any kind, where, under Directive 2002/22, only a loss representing an ‘unfair burden’ should have been taken into account, as was stipulated by the Court in the judgment in Commission  v Belgium  (C‑222/08, EU:C:2010:583, paragraphs 35, 37, 42 and 43). Furthermore, national law did not allow the intangible benefits of providing the universal service to be taken into account when determining the amount of the loss.
28. Under Article 267 TFEU, it is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor (see, inter alia, judgment in Singer , 44/65, EU:C:1965:122, p. 965, and, to that effect, judgment in Santesteban Goicoechea , C‑296/08 PPU, EU:C:2008:457, paragraph 46).
29. Moreover, to answer requests to amend the questions formulated by the parties in the main proceedings would be incompatible with the function given to the Court by Article 267 TFEU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties (see, inter alia, judgment in Phytheron International , C‑352/95, EU:C:1997:170, paragraph 14, and, to that effect, judgment in Santesteban Goicoechea , C‑296/08 PPU, EU:C:2008:457, paragraph 47).
33. According to Articles 12 and 13 of Directive 2002/22, in order to determine the amount of compensation that may be due to an undertaking designated to provide universal service, it is necessary, as a first step, to calculate the net cost of the universal service obligation for the undertaking designated as provider and, next, where the 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, and/or to share the net cost of universal service obligations between providers of electronic communications networks and services.
37. Article 3(2) of Directive 2002/22 stresses the need to ensure the implementation of universal service using the most efficient approach and minimising market distortions. As recital 4 in the preamble to that directive states, ensuring universal service may involve the provision of some services to some end-users at prices that depart from those resulting from normal market conditions. The EU legislature therefore provided — as is clear from recital 18 in the preamble to the directive — that Member States should, where necessary, establish mechanisms for financing the net cost of universal service obligations in cases where it is demonstrated that the obligations can be fulfilled only at a loss or at a net cost which falls outside normal commercial standards (see judgment in Base and Others , C‑389/08, EU:C:2010:584, paragraph 34).
40. In that respect, the Court has previously held that compensation representing consideration for the services provided by the recipient undertakings in order to discharge public service obligations cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of those obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations (see, by analogy, judgment in Altmark Trans and Regierungspräsidium Magdeburg , C‑280/00, EU:C:2003:415, paragraph 92).
42. As the Czech telecommunications regulatory authority and the Commission stated, paragraph 61 of the Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest and Article 5(5) of Decision 2012/21 give guidance on how to evaluate the ‘reasonable profit’, which is defined as the rate of return on capital. Although that communication is not a binding rule of law, it may, none the less, serve as a guide for interpreting the notion of ‘net cost’, for the purposes of Directive 2002/22.
47. According to settled case-law, a directive cannot of itself impose obligations on individuals, but can only confer rights. Consequently, an individual may not rely on a directive against a Member State where it is a matter of a State obligation directly linked to the performance of another obligation falling, pursuant to that directive, on a third party (see judgments in Wells , C‑201/02, EU:C:2004:12, paragraph 56 and the case-law cited, and Arcor and Others , C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 35).
48. On the other hand, mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from relying on the provisions of a directive against the Member State concerned (see judgments in Wells , C‑201/02, EU:C:2004:12, paragraph 57 and the case-law cited, and Arcor and Others , C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 36).
52. It is clear from settled case-law that, 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 upon before the national courts by individuals against the Member State where it has failed to implement the directive correctly (see judgments in Pfeiffer and Others , C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 103 and the case-law cited, and Arcor and Others , C‑152/07 to C‑154/07, EU:C:2008:426, paragraph 40).
53. Articles 12 and 13 of Directive 2002/22 satisfy those criteria, given that they clearly state that any financing of the universal service obligations must be made on the basis of the calculation of the net cost, which must be interpreted as also including ‘reasonable profit’, equivalent to the rate of return on capital, and that that obligation is not qualified by any condition. Even though Directive 2002/22 allows the national regulatory authorities a certain degree of discretion when implementing those provisions, that does not alter the precise and unconditional nature of the obligation arising out of those provisions (see, by analogy, judgment in GMAC UK , C‑589/12, EU:C:2014:2131, paragraphs 29, 30 and 32).
58. In the absence of such provisions, Directive 2002/22 became applicable to the Czech Republic from the date of its accession to the European Union, pursuant to Articles 2, 53 and 54 of the Act of Accession (see, to that effect, judgment in Saldanha and MTS , C‑122/96, EU:C:1997:458, paragraph 14; order in Pannon , C‑143/09, EU:C:2009:564, paragraph 17; judgment in Elektrownia Pątnów II , C‑441/08, EU:C:2009:698, paragraph 32; and order in RANI Slovakia , C‑298/09, EU:C:2010:343, paragraph 38).