Case C‑85/14

KPN BV

v

Autoriteit Consument en Markt (ACM)

(Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven)

‛Reference for a preliminary ruling — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22/EC — Article 28 — Access to numbers and to services — Non-geographic numbers — Directive 2002/19/EC — Articles 5, 8 and 13 — Powers of the national regulatory authorities — Price control — Call transit services — National legislation requiring providers of telephone call transit services not to charge higher tariffs for calls to non-geographic numbers than for calls to geographic numbers — Undertaking without significant market power — Relevant national authority’

Summary — Judgment of the Court (Third Chamber), 17 September 2015

1. EU law — Interpretation — Methods — Literal, systematic and teleological interpretation

2. Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Access to numbers and electronic communication services — Non-geographic numbers — Power of the national regulatory authority to impose a tariff obligation on an operator without significant market power on the market in order to remove an obstacle — Observance of the principle of proportionality — To be determined by the national court

   (European Parliament and Council Directive 2002/21, as amended by Directives 2009/140, Arts 6, 7, 7a and 8, and 2002/22, as amended by Directive 2009/136, Art. 28)

3. Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Access to numbers and electronic communication services — Non-geographic numbers — National legislation providing for the possibility for a national entity other than the national regulatory authority to impose a tariff obligation on operators — Lawfulness — Conditions

   (European Parliament and Council Directive 2002/21, as amended by Directives 2009/140, Art. 3(2), 4 and 6, and 2002/22, as amended by Directive 2009/136, art. 28)

1.  See the text of the decision.

   (see para. 33)

2.  EU law must be interpreted as allowing a relevant national authority to impose a tariff obligation, under Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, as amended by Directive 2009/136, to remove an obstacle to calling non-geographic numbers within the European Union which is not technical in nature, but which results from the tariffs applied, without a market analysis having been carried out showing that the undertaking concerned has significant market power, if such an obligation constitutes a necessary and proportionate step to ensure that end-users are able to access services using non-geographic numbers within the European Union.

   It is for the national court to determine whether that condition is satisfied and whether the tariff obligation is objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives laid down in Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, and whether the procedures laid down in Articles 6, 7 and 7a of Directive 2002/21, as amended by Directive 2009/140, have been followed.

   (see paras 43, 49, operative part 1)

3.  EU law must be interpreted as meaning that a Member State may provide that a tariff obligation under Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, as amended by Directive 2009/136, be imposed by a national authority other than the national regulatory authority usually responsible for applying the European Union’s new regulatory framework for electronic communications networks and services, provided that that authority satisfies the conditions of competence, independence, impartiality and transparency required by Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, and that the decisions which it takes can form the subject of an effective appeal to a body independent of the interested parties, this being a matter for the referring court to determine.

   In accordance with Article 3(2), (4) and (6) of Directive 2002/21, the Member States must not only guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from, and functionally independent of, all organisations providing electronic communications networks, equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken in accordance with the new regulatory framework by those authorities, in particular where the tasks are granted to several bodies, and notify to the Commission the names of the authorities entrusted with carrying out those tasks, and their respective responsibilities. As a consequence, where those functions are to be discharged, even partially, by a national authority other than the national regulatory authority usually responsible for applying the new regulatory framework, each Member State must ensure that that other authority is neither directly nor indirectly involved in operational functions within the meaning of that directive.

   (see paras 55-58, operative part 2)