Case C‑231/15

Prezes Urzędu Komunikacji Elektronicznej

and

Petrotel sp. z o.o. w Płocku

v

Polkomtel sp. z o.o.

(Request for a preliminary ruling from the Sąd Najwyższy)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/21/EC — Article 4(1) — Right of appeal against a decision taken by a national regulatory authority — Effective appeal mechanism — Decision of a national regulatory authority to continue to apply pending the outcome of the appeal — Temporal effects of a decision of a national court annulling a decision of a national regulatory authority — Possibility of annulling a decision of the national regulatory authority with retroactive effect — Principles of legal certainty and protection of legitimate expectations’

Summary — Judgment of the Court (Second Chamber), 13 October 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Questions bearing no relation to the subject-matter of the case in the main proceedings — Lack of jurisdiction of the Court

   (Art. 267 TFEU)

2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Right of appeal against a decision taken by a national regulatory authority — Obligations of national courts — Annulment of a decision of that authority with retroactive effect — Infringement of the principles of legal certainty and the protection of legitimate expectations — No such infringement)

   (Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2002/21, as amended by Directive 2009/140, Art. 4(1), first and second subparas)

1.  See the text of the decision.

   (see para. 16)

2.  Article 4(1), first subparagraph, first and third sentences, and second subparagraph, of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140 (Framework Directive), in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as meaning that a national court hearing an appeal against a decision of the national regulatory authority must be able to annul that decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal.

   Article 4(1) of the Framework Directive, which lays down the requirement to ensure that an effective appeal mechanism exists, is an expression of the principle, enshrined in Article 47 of the Charter, of effective judicial protection of an individual’s rights under EU law. In that regard, the second subparagraph of Article 4(1) of the Framework Directive in no way precludes or restricts the ability of a national court to annul, with retroactive effect, a decision of the national regulatory authority. Indeed, all that follows from that provision is that the appeal brought against a decision of that authority does not have suspensory effect, unless interim measures are granted in accordance with national law. The national regulatory authority’s decision will, as a rule, thus apply throughout the proceedings: that does not mean that it is not possible, at the end of the proceedings, to annul that decision with retroactive effect if the national court finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal.

   Moreover, the fact that a national court has the possibility of annulling a decision of the national regulation authority with retroactive effect is not incompatible with observance of the principles of legal certainty and the protection of legitimate expectations. It is clear from the second subparagraph of Article 4(1) of the Framework Directive that, under that provision, the decision of the authority against which the appeal has been brought is to continue to apply only pending the outcome of the appeal. In those circumstances, economic operators who are parties to an appeal such as that provided for in Article 4(1) of the directive cannot have a legitimate expectation that, in the event of the decision of the national regulation authority in question being annulled, that annulment will not produce effects ex tunc.

   (see paras 24-28, 30, 31, operative part)