Case C‑475/12

UPC DTH Sàrl

v

Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

(Request for a preliminary ruling from the Fővárosi Törvényszék)

‛Telecommunications sector — Electronic communications networks and services — Freedom to provide services — Article 56 TFEU — Directive 2002/21/EC — Cross-border provision of a package of radio and television programmes — Conditional access — Competence of the national regulatory authorities — Registration — Requirement of establishment’

Summary — Judgment of the Court (Second Chamber), 30 April 2014

1. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Substantive scope — Cross-border provision of a basic package of radio and television programmes — Included — Service including a conditional access system — No effect

   (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140, Art. 2(c), (ea) and (f))

2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Scope ratione personae — Operator supplying, for consideration, conditional access to a basic package of radio and television programmes — Included

   (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140)

3. Freedom to provide services — Provisions of the Treaty — Scope — Cross-border radio and audio-visual broadcast services transmitted by satellite — Included

   (Art. 56 TFEU)

4. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Surveillance of electronic communications services — Recognition in the State in which those services are received of authorisation decisions taken in the State of transmission — Competence of the national regulatory authorities of the receiving State

   (European Parliament and Council Directive 2002/20, as amended by Directive 2009/140)

5. 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

   (Art. 267 TFEU)

6. Freedom to provide services — Restrictions — Telecommunications sector — Cross-border radio and audio-visual broadcast services transmitted by satellite — Requirement to register the provider with the authorities of the State in which the services are received — Lawfulness — Requirement of an establishment in the territory of that State — Not permissible

   (Arts 52 TFEU, 56 TFEU and 62 TFEU; European Parliament and Council Directive 2002/20, as amended by Directive 2009/140)

1.  Article 2(c) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, must be interpreted as meaning that a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite falls within the definition of ‘electronic communications service’ within the meaning of that provision.

   The fact that that service includes a conditional access system within the meaning of Article 2(ea) and (f) of the directive is irrelevant in that regard. In any situation in which the operator of the conditional access system is simultaneously the provider of the radio or television programme broadcasting service, the service is a unified service in which the supply of the radio or television service is the core element of the activity carried out by that operator, the conditional access system being the ancillary element. In view of its ancillary nature, a conditional access system may be attached to an electronic communications service for the broadcasting of radio or television programmes, without that service losing the status of an electronic communications service.

   (see paras 51, 52, 58, operative part 1)

2.  An operator supplying, for consideration, conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite must be regarded as a provider of electronic communications services under Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140.

   (see para. 58, operative part 1)

3.  A service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services and is retransmitted by satellite constitutes a provision of services for the purposes of Article 56 TFEU. As long as EU law has not been fully harmonised in the electronic communications services sector, the legislation of a Member State must be considered in the light of Article 56 TFEU so far as concerns those aspects that are not covered by the EU regulatory framework applicable to those services.

   (see paras 70, 78, operative part 2)

4.  Surveillance proceedings relating to electronic communications services, such as systems, supplied for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services, will be subject to the authorities of the Member State in which the recipients of those services are resident.

   As EU law currently stands, Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140, does not lay down any obligation for the competent national authorities as regards the recognition of authorisation decisions taken in the State from which the services concerned are supplied. Therefore, the Member State in whose territory the recipients of the electronic communications services are resident may make the provision of those services subject to certain conditions, in accordance with the provisions of that directive.

   (see paras 86-88, operative part 3)

5.  See the text of the decision.

   (see paras 92, 93)

6.  Article 56 TFEU must be interpreted as meaning that:

   —

   Member States are not precluded from requiring undertakings which supply electronic communications services in their territory to register those services, as expressly permitted by Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140, provided that Member States act in compliance with the requirements set out in Article 3 of that directive; and

   —

   on the other hand, undertakings wishing to supply electronic communications services in a Member State other than that in which they are established cannot be required to establish in that State a branch or a legal entity separate from that located in the Member State of transmission. A requirement of establishment is the very negation of the freedom to provide services and has the result of depriving Article 56 TFEU of all effectiveness. (see paras 100, 104, 106, operative part 4)

Case C‑475/12

UPC DTH Sàrl

v

Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese

(Request for a preliminary ruling from the Fővárosi Törvényszék)

‛Telecommunications sector — Electronic communications networks and services — Freedom to provide services — Article 56 TFEU — Directive 2002/21/EC — Cross-border provision of a package of radio and television programmes — Conditional access — Competence of the national regulatory authorities — Registration — Requirement of establishment’

Summary — Judgment of the Court (Second Chamber), 30 April 2014

1. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Substantive scope — Cross-border provision of a basic package of radio and television programmes — Included — Service including a conditional access system — No effect

   (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140, Art. 2(c), (ea) and (f))

2. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Regulatory framework — Directive 2002/21 — Scope ratione personae — Operator supplying, for consideration, conditional access to a basic package of radio and television programmes — Included

   (European Parliament and Council Directive 2002/21, as amended by Directive 2009/140)

3. Freedom to provide services — Provisions of the Treaty — Scope — Cross-border radio and audio-visual broadcast services transmitted by satellite — Included

   (Art. 56 TFEU)

4. Approximation of laws — Telecommunications sector — Electronic communications networks and services — Authorisation — Directive 2002/20 — Surveillance of electronic communications services — Recognition in the State in which those services are received of authorisation decisions taken in the State of transmission — Competence of the national regulatory authorities of the receiving State

   (European Parliament and Council Directive 2002/20, as amended by Directive 2009/140)

5. 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

   (Art. 267 TFEU)

6. Freedom to provide services — Restrictions — Telecommunications sector — Cross-border radio and audio-visual broadcast services transmitted by satellite — Requirement to register the provider with the authorities of the State in which the services are received — Lawfulness — Requirement of an establishment in the territory of that State — Not permissible

   (Arts 52 TFEU, 56 TFEU and 62 TFEU; European Parliament and Council Directive 2002/20, as amended by Directive 2009/140)

1.  Article 2(c) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140, must be interpreted as meaning that a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite falls within the definition of ‘electronic communications service’ within the meaning of that provision.

   The fact that that service includes a conditional access system within the meaning of Article 2(ea) and (f) of the directive is irrelevant in that regard. In any situation in which the operator of the conditional access system is simultaneously the provider of the radio or television programme broadcasting service, the service is a unified service in which the supply of the radio or television service is the core element of the activity carried out by that operator, the conditional access system being the ancillary element. In view of its ancillary nature, a conditional access system may be attached to an electronic communications service for the broadcasting of radio or television programmes, without that service losing the status of an electronic communications service.

   (see paras 51, 52, 58, operative part 1)

2.  An operator supplying, for consideration, conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite must be regarded as a provider of electronic communications services under Directive 2002/21 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140.

   (see para. 58, operative part 1)

3.  A service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services and is retransmitted by satellite constitutes a provision of services for the purposes of Article 56 TFEU. As long as EU law has not been fully harmonised in the electronic communications services sector, the legislation of a Member State must be considered in the light of Article 56 TFEU so far as concerns those aspects that are not covered by the EU regulatory framework applicable to those services.

   (see paras 70, 78, operative part 2)

4.  Surveillance proceedings relating to electronic communications services, such as systems, supplied for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services, will be subject to the authorities of the Member State in which the recipients of those services are resident.

   As EU law currently stands, Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140, does not lay down any obligation for the competent national authorities as regards the recognition of authorisation decisions taken in the State from which the services concerned are supplied. Therefore, the Member State in whose territory the recipients of the electronic communications services are resident may make the provision of those services subject to certain conditions, in accordance with the provisions of that directive.

   (see paras 86-88, operative part 3)

5.  See the text of the decision.

   (see paras 92, 93)

6.  Article 56 TFEU must be interpreted as meaning that:

   —

   Member States are not precluded from requiring undertakings which supply electronic communications services in their territory to register those services, as expressly permitted by Directive 2002/20 on the authorisation of electronic communications networks and services, as amended by Directive 2009/140, provided that Member States act in compliance with the requirements set out in Article 3 of that directive; and

   —

   on the other hand, undertakings wishing to supply electronic communications services in a Member State other than that in which they are established cannot be required to establish in that State a branch or a legal entity separate from that located in the Member State of transmission. A requirement of establishment is the very negation of the freedom to provide services and has the result of depriving Article 56 TFEU of all effectiveness. (see paras 100, 104, 106, operative part 4)