UPC Nederland BV v Gemeente Hilversum.
Date: 2013-11-07
36. In this connection, it must be observed that, under Article 2(a) and (c) of the Framework Directive, ‘electronic communications service’ means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but excluding services providing, or exercising editorial control over, content transmitted using electronic communications networks, including cable television networks, and services. That article of the Framework Directive also specifies that the concept of ‘electronic communications service’ does not include information society services, as defined in Article 1 of Directive 98/34, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks.
37. That definition of electronic communications services was reproduced in equivalent terms in Article 1(3) of the Competition Directive.
38. As is apparent from recital 5 in the preamble to the Framework Directive, the convergence of the telecommunications, media and information technology sectors means all transmission networks and services should be covered by a single regulatory framework and in the establishment of that framework, it is necessary to separate the regulation of transmission from the regulation of content. According to that same recital, the NRF does not cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is therefore without prejudice to measures taken at European Union or national level in respect of such services, in compliance with European Union law, in order to promote cultural and linguistic diversity and to ensure the defence of media pluralism.
41. It follows from the foregoing that, as the Advocate General observed in point 33 of his Opinion, the relevant directives, in particular the Framework Directive, the Competition Directive and the Audiovisual Media Services Directive, make a clear distinction between the production of content, which involves editorial responsibility, and the transmission of content, which does not entail any editorial responsibility. Content and transmission are covered by different measures which pursue their own specific objectives, without referring to customers of the services supplied or to the structure of the transmission costs charged to them.
43. Although UPC’s customers take out a subscription for the purposes of gaining access to the basic cable package offered by that company, that does not mean that UPC’s business, which consists in broadcasting programmes produced by the content editors (in this case radio and television channels) by transmitting those programmes to the connection point of its cable network in its subscribers’ homes, must be excluded from the definition of ‘electronic communications service’ within the meaning of Article 2(c) of the Framework Directive and, consequently, from the scope of the NRF.
44. On the contrary, it follows from the observations made in paragraphs 36 to 41 above that the provision of a basic cable package falls within the definition of electronic communications service and, therefore, the substantive scope of the NRF, in so far as that service includes the conveyance of signals on the cable network.
45. Any other interpretation would considerably reduce the scope of the NRF, undermine the effectiveness of its provisions and therefore compromise the achievement of the objectives pursued by that framework. Since the purpose of the NRF, as is apparent from recital 5 in the preamble to Directive 2009/140, is to establish a genuine internal market for electronic communications, in which those communications must, eventually, be governed solely by competition law, the exclusion of the activities of an undertaking such as UPC from its scope, on the pretext that it does not restrict itself to conveying signals, would deprive the NRF of all meaning.
46. On the same grounds, the fact that the transmission costs charged to subscribers incorporate the payments made to broadcasting channels and the royalties paid to copyright collecting societies in connection with the transmission of programme content cannot preclude the service supplied by UPC from being characterised as an ‘electronic communications service’ for the purposes of the NRF.
50. The regulatory tasks of the NRAs are defined in Article 8 to 13 of the Framework Directive. Specifically, Article 8 of that directive places on the Member States the obligation to ensure that the NRAs take all reasonable measures aimed at promoting competition in the provision of electronic communications services, ensuring that there is no distortion or restriction of competition in the electronic telecommunications sector and removing remaining obstacles to the provision of those services at European Union level (see, to that effect, Case C‑380/05 Centro Europa 7 [2008] ECR I‑349, paragraph 81, and Case C‑227/07 Commission  v Poland  [2008] ECR I‑8403, paragraphs 62 and 63).
52. According to Article 3 of the Framework Directive, the Member States must, inter alia, ensure that the tasks assigned to the NRAs are undertaken by competent and independent bodies. Furthermore, the Member States must notify to the Commission the names of the NRAs and their respective responsibilities.
53. The file submitted to the Court clearly shows that Hilversum is not a NRA. It is sufficient to observe, in that regard, that the Kingdom of the Netherlands did not notify the Commission of any decision or intention to designate that municipality a NRA, that Member State having, on the contrary, designated the OPTA. Hilversum’s situation, moreover, may not in any way be equiparated with that of a national legislature, such as that referred to by the Court in paragraph 30 of the judgment in Case C‑389/08 Base and Others  [2010] ECR I‑9073.
59. It is important to note that, in the fields covered by European Union law, including that of electronic communications services, the public authorities of the Member States are bound by a duty of sincere cooperation. Under that principle, they must take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union and refrain from any measure which could jeopardise the attainment of the European Union’s objectives (see, to that effect, inter alia, Case 85/85 Commission  v Belgium  [1986] ECR 1149, paragraph 22; Case C‑344/01 Germany  v Commission [2004] ECR I‑2081, paragraph 79; and Case C‑61/11 PPU El Dridi  [2011] ECR I‑3015, paragraph 56).