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Anthony M. Collins, Chamber President, EU General Court

RECENT DEVELOPMENTS IN EU CASE-LAW ON

ELECTRONIC COMMUNICATIONS

Background:

Merger of Spanish NRA with other regulatory bodies with consequent dismissal of a board member and president of NRA before expiry of term of office.

CASE C-424/15 GARAI & ALMENDROS V. ADMINISTRACIÓN DE ESTADO - I

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Decision:

�Framework Directive does not preclude NRA merging with other national regulatory authorities provided that, in performing the tasks entrusted to NRAs by EU law, that body meets the requirements of competence, independence, impartiality and transparency in the Framework Directive and that there is an effective right of appeal to an independent body.�Art. 3(3a) FD prohibits dismissals of NRA members that occur for a reason other than those persons no longer fulfilling the conditions required for the performance of their duties as laid down in advance in national law.�Member States autonomy over the organisation and structure of NRAs will not justify the dismissal of NRA members before the expiry of their terms of office in the absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of those members.

CASE C-424/15 GARAI & ALMENDROS V. ADMINISTRACIÓN DE ESTADO - II

Art 3 FD & Ar t. 12 Authorisation D

�Italian Council of State asked if the financial independence of an NRA is compromised when a Member State limits the annual increase in its budget, makes it subject to public finance legislation applicable to all administrative authorities and reduces its operating costs by 10%.

�The impartiality and independence afforded to NRAs and their substantial self-financing do not preclude national legislation which makes such authorities subject, in general, to legislation on public finances and, in particular, to specific provisions relating to limiting and streamlining expenditure incurred by public administrative authorities.

CASE C-240/15 AGCOM V. ISTAT & ORS.

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Definition of an “electronic communications network”, “electronic communications ser vice” (Ar t . 2(c) FD) and “public communications network” (Ar t. 2(a) , (c) and (d) FD)

Facts:

�Fjarskipti operates “WEB-SMS” service. Subscribers logged into web server on its web domain and identified themselves by a telephone number and a password. After log in, s/he selected recipient’s telephone number, wrote message and pressed send. This action caused the web server to convey signals to software located on the web domain which processed the signals, sent them to an SMS server on the Fjarskipti’s mobile telephone system, which then sent signals over the mobile phone network to the recipient’s mobile (para. 14).

�After Fjarskipti’s web domain had been hacked, IPTA asserted jurisdiction over it . Fjarskipti claimed its web domain did not come within any of the aforementioned definit ions.

CASE E-6/16 FJARSKIPTI HF. V. ICELANDIC POST & TELECOM ADMINISTRATION - I

Ruling:

�EFTA Court gave a broad interpretation to “electronic communications network”, to include any measure permitting the conveyance of signals by electromagnetic means. The software on the web domain that received, processed and forwarded the signals, together with Fjarskipti’s mobile telephone system, were essential for the conveyance of the signals and thus in context constituted an “electronic communications network”. �It also met the definit ion of “electronic communications service” in Art. 2(c) since it was provided for remuneration (subscription); consisted wholly or mainly in the conveyance of signals on electronic communications networks (thus falling outside beyond the “ information society service” exemption); and did not in fact provide or exercise editorial control over content.�The “public communications network” definit ion was met by defining publicly available as any part of the public being able to make use of the network.

CASE E-6/16 FJARSKIPTI HF. V. ICELANDICPOST & TELECOM ADMINISTRATION - II

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Art. 4(1) FD

Question:Supreme Court of Poland asked if Art 4(1) FD allowed a national court hearing an appeal against a decision of an NRA to annul it with retroactive effect.

Answer:Art 4 FD is an expression of the principle of effective judicial protection (Art. 47 of the Charter – see Case C-282/13, T-Mobile Austria, para. 33). It does not lay down specific procedural rules, including the temporal effect of a decision to annul an NRA decision. Principles of equivalence and effectiveness thus apply. National court must be able to annul with retroactive effect where it is necessary to provide effective judicial protection.

C-231/15 PUKE & PETROTEL V. POLKOMETEL

Arts 7(3) FD; 8 &13(1) AD

�Art. 7(3) FD consolidation procedure applies by reference to subject matter of measure and effect on trade between Member States (C-3/14 PUKE & Telefonia Dialog v. T-Mobile Polska SAfollowed).�Authorisation in respect of mobile call termination rates “has a broad meaning” and is “by its nature” a price control obligation pace Article 13(1) AD.�NRA must apply Art. 7(3) consolidation procedure where it imposes price control obligation on an SMP Operator and before making authorisations caught by, inter alia, Article 13(1) AD.�NRA measure affects trade between Member States if it may have, other than in an insignificant manner, an influence, direct or indirect, actual or potential, on that trade.�Mobile call termination fees have such an effect.

CASE C-395/14 VODAFONE GMBH V. GERMANY

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Arts 4(1) FD & 8 & 13 AD & Recommendation 2009/396/EC

Facts:

�ACM (NL NRA) imposed price caps for fixed and mobile call termination services by SMP operators by applying the ‘pure Bulric’ model on the grounds that (a) it was appropriate for determining cost-oriented termination rates and (b) it was the only cost-oriented model that conformed to EU law.

�Operators challenged decision on the ground that price caps fixed by reference to the ‘pure Bulric’ model were neither cost-oriented nor appropriate and that the call termination rates were below those obtainable in a competitive market.

CASE C-28/15 KPN V. ACM - I

Ruling:

�NRAs not bound by Recommendation 2009/396 when imposing cost recovery and price control obligations on SMP operators providing specific types of interconnection and/or access (TFEU Art. 288 & Art. 19(2) FD).

�Although NRAs have broad discretion in regulating markets they must “take the utmost account” of Commission Recommendations. When imposing price control and cost accounting obligations under Art. 13 AD of the Access Directive, they must, as a rule, follow the guidance in Recommendation 2009/396. It is only where it appears to an NRA, or to a national court reviewing an NRA decision, that the ‘pure Bulric’ model is inappropriate that it may depart therefrom, giving reasons for so doing.

CASE C-28/15 KPN V. ACM - II

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Ruling:

�NRAs and national courts reviewing NRA decisions imposing obligations on operators on the basis of Arts 8 & 13 AD must ensure that those obligations meet all of the objectives set out in Art. 8 FD and Art. 13 AD. The burden of proof in proceedings before a national court is on the appellants and an NRA may not be required to show that the obligation actually attains the objectives of Art. 8 FD.

�All such decisions must take account of the interests of end-users and consumers, irrespective of the market in which the regulatory obligations are imposed.

CASE C-28/15 KPN V. ACM - III

Art. 28 USD & Ar ts 5(1) & 8(3) AD

Facts:

�Dispute between Polkomtel and Orange Polska resolved by President of PUKE ordering Polkomtel to allow its subscribers to access services using non-geographic numbers provided on Orange Polska’s network. President of PUKE fixed the charge for originating a call directed to Orange Polska’s network by reference to the rate for terminating a call on Polkomtel’s network.

CASE C-397/14 POLKOMTEL V. PUKE & ORANGE POLSKA - I

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Ruling:

�Since guaranteeing access to non-geographic numbers may contribute to the achievement of the internal market, Art . 28 USD did not prevent a Member State from providing that an operator of a public electronic communications network must ensure that all end-users can access its network in that state.

�FD and AD allow NRAs to adopt measures in disputes between operators aimed at ensuring adequate access and interconnection as well as interoperability of services, including requiring operators to ensure that end-users can access services using non-geographic numbers provided on another operator’s network .

�Whilst Art . 8(3) AD did not permit NRAs to impose price control obligations on non-SMP operators under Art icle 13 AD, they could impose “comparable” tarif f obligations on such operators under Art 28 USD where that obligation constituted a necessary and proport ionate measure to ensure that end-users can access services using non-geographic numbers in the European Union.

CASE C-397/14 POLKOMTEL V. PUKE & ORANGE POLSKA - II

Facts:

�TDC (former state owned monopoly and USO) was required to provide, free of charge, marit ime safety and emergency services enabling vessels to request assistance when are in distress in, inter alia, Greenland. Marit ime safety and emergency services are provided by Tele Greenland A/S, owned by the Greenland authorit ies. TDC covers the costs related thereto. TDC carried out no other act ivity in Greenland.

�At relevant t ime Danish law forbade TDC from receiving compensation for costs connected with the provision of marit ime safety and emergency services in Denmark and Greenland as it made a profit in providing USO services and its addit ional mandatory service obligations.

�Art . 32 USD allows Member States to make publically available services addit ional to the USO services as defined in Chapter I I : however they may not create compensation mechanisms involving specific undertakings.

CASE C-327/15 TDC V. TELEKLAGENÆVNET I

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Ruling:

�The prohibition on creating compensation mechanisms for specific undertakings in Art. 32 USD prevented use of the financing mechanism in Art. 13(1)(b) USD. However Art. 32 USD also meant that an undertaking designated as the provider of an additional mandatory service must not be made to bear the cost of providing that service.

�The compensation mechanisms in the USD relating to USOs and to additional mandatory services are independent of each other and the net costs of each of those services must be the subject of separate accounts. Added to the requirements of the Altmark criteria (Case C-280/00), Art. 32 USD prohibited the set-of f contemplated by the Danish legislation.

�The prohibition on creating compensation mechanisms involving specific undertakings in Art. 32 USD has direct ef fect.

CASE C-327/15 TDC V. TELEKLAGENÆVNET II