Case C‑518/11

UPC Nederland BV

v

Gemeente Hilversum

(Request for a preliminary ruling from the Gerechtshof te Amsterdam)

‛Electronic communications networks and services — Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Scope ratione materiae — Provision of a basic package of radio and television programmes via cable — Sale by a municipality of its cable network to a private undertaking — Contractual clause concerning the tariff — Powers of the national regulatory authorities — Principle of sincere cooperation’

Summary — Judgment of the Court (Third Chamber), 7 November 2013

1. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Substantive scope — Electronic communications service — Definition — Provision of a basic package of radio and television programmes via cable — Included

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21, Art. 2(c) and 2002/22)

2. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Provision of a basic package of radio and television programmes via cable — Direct intervention in retail tariffs by an entity which is not a national regulatory authority — Unlawful

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21 and 2002/22)

3. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Principle of sincere cooperation — Provision of a basic package of radio and television programmes via cable — Contract concluded prior to the adoption of the new regulatory framework — Contractual clause concerning the tariff — Not applicable

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21 and 2002/22)

1.  Article 2(c) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directives 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services, constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer.

   (see para. 47, operative part 1)

2.  Directives 2002/21 on a common regulatory framework for electronic communications networks and services, 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity which is not a national regulatory authority from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable.

   (see para. 55, operative part 2)

3.  Directives 2002/21 on a common regulatory framework for electronic communications networks and services, 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as precluding, having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs.

   By insisting on the continuous and unaltered application of that restriction on the freedom of the supplier of the electronic communications services to set tariffs, such an entity contributes to an infringement, within that municipality, of the rules of the new regulatory framework applicable to electronic communications services, which do not impose such a restriction on those suppliers but, on the contrary, stress the freedom to set tariffs, subject to specific restrictions which may, on the basis of market analysis and under precisely determined procedures, be set by the national regulatory authorities.

   (see paras 62, 63, operative part 3)

Case C‑518/11

UPC Nederland BV

v

Gemeente Hilversum

(Request for a preliminary ruling from the Gerechtshof te Amsterdam)

‛Electronic communications networks and services — Directives 97/66/EC, 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC — Scope ratione materiae — Provision of a basic package of radio and television programmes via cable — Sale by a municipality of its cable network to a private undertaking — Contractual clause concerning the tariff — Powers of the national regulatory authorities — Principle of sincere cooperation’

Summary — Judgment of the Court (Third Chamber), 7 November 2013

1. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Substantive scope — Electronic communications service — Definition — Provision of a basic package of radio and television programmes via cable — Included

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21, Art. 2(c) and 2002/22)

2. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Provision of a basic package of radio and television programmes via cable — Direct intervention in retail tariffs by an entity which is not a national regulatory authority — Unlawful

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21 and 2002/22)

3. Approximation of laws — Electronic communications networks and services — Directives 2002/19, 2002/20, 2002/21, 2002/22 and 97/66 — Principle of sincere cooperation — Provision of a basic package of radio and television programmes via cable — Contract concluded prior to the adoption of the new regulatory framework — Contractual clause concerning the tariff — Not applicable

   (European Parliament and Council Directives 97/66, 2002/19, 2002/20, 2002/21 and 2002/22)

1.  Article 2(c) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directives 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services, constituting the new regulatory framework applicable to electronic communications services, in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer.

   (see para. 47, operative part 1)

2.  Directives 2002/21 on a common regulatory framework for electronic communications networks and services, 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as meaning that, from the expiry of the deadline for their implementation, they preclude an entity which is not a national regulatory authority from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable.

   (see para. 55, operative part 2)

3.  Directives 2002/21 on a common regulatory framework for electronic communications networks and services, 97/66 concerning the processing of personal data and the protection of privacy in the telecommunications sector, 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, 2002/20 on the authorisation of electronic communications networks and services and 2002/22 on universal service and users’ rights relating to electronic communications networks and services must be interpreted as precluding, having regard to the principle of sincere cooperation, an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs.

   By insisting on the continuous and unaltered application of that restriction on the freedom of the supplier of the electronic communications services to set tariffs, such an entity contributes to an infringement, within that municipality, of the rules of the new regulatory framework applicable to electronic communications services, which do not impose such a restriction on those suppliers but, on the contrary, stress the freedom to set tariffs, subject to specific restrictions which may, on the basis of market analysis and under precisely determined procedures, be set by the national regulatory authorities.

   (see paras 62, 63, operative part 3)