Keywords
Summary

Keywords

1. Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects

(Art. 230 EC; European Parliament and Council Directive 2002/21, Arts 7(2) to (5), 8(3)(d) and 16(4))

2. Actions for annulment – Actionable measures

(Art. 230 EC; European Parliament and Council Directive 2002/21, Art. 7(3) and (4))

3. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Whether directly concerned – Criteria

(Art. 230, fourth para., EC; European Parliament and Council Directive 2002/21, Art. 7(3) and (5))

Summary

1. Any measure, in whatever form it is cast, the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action for annulment under Article 230 EC.

That is not the case with a letter of comments on a draft national measure sent by the Commission to a national regulatory authority (NRA) pursuant to Article 7(3) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services.

First, on the one hand, whilst it is true that Directive 2002/21 assigns an important role to the Commission in the context of the procedures to ensure the harmonised application of the regulatory framework throughout the Community, the fact remains that, in accordance with Article 7(2) and Article 8(3)(d) of that directive, NRAs are to ensure the consistent application of the regulatory framework by cooperating with each other and with the Commission in a transparent manner. NRAs therefore also have a key responsibility for ensuring the consistent application of the regulatory framework in the Community on the basis of cooperation between the Commission and other NRAs. On the other hand, Article 7(5) of Directive 2002/21 does not provide that the Commission’s comments are to prevail over those of other NRAs. Accordingly, in a case where the comments of an NRA and of the Commission are contradictory, the notifying NRA would not infringe Article 7(5) by following, after careful review of the various comments, the approach proposed by the other NRA and not that proposed by the Commission.

Second, the fact that the Commission may, in the circumstances referred to in Article 7(4) of Directive 2002/21, initiate the second phase of the procedure, which may lead to a veto decision, does not however mean that it is the Commission’s letter of comments pursuant to Article 7(3) of that directive that entitles the NRA concerned to adopt the proposed national measure. Article 16(4) of Directive 2002/21 directly authorises the NRA concerned to adopt the measure in question in so far as it provides that where an NRA determines that a market is not effectively competitive it shall identify undertakings with significant market power on that market and shall impose appropriate specific regulatory obligations on such undertakings.

Third, having regard to the advisory role assigned to the Commission and to the other NRAs under the procedure of Article 7(3) of Directive 2002/21, a Commission letter of comments under that provision constitutes a preparatory Community act in the context of a procedure which leads to the adoption of a national measure by the NRA concerned, such acts not being capable of forming the subject-matter of an independent action for annulment.

(see paras 69, 92-93, 95-97)

2. Even if the actual exercise of the right of veto provided for by Article 7(4) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services gives rise to binding legal effects in that the NRA in question would no longer be entitled to adopt the proposed measure, non-exercise of the right of veto can be treated as non-adoption of a decision which does not give rise to any binding legal effect. It follows that, if the Commission merely makes comments in accordance with Article 7(3) of Directive 2002/21 and does not exercise its right of veto provided for in Article 7(4), the Commission’s intervention does not have any binding legal effects. If the NRA decides to adopt the national measure, the binding legal effects deriving from that measure are attributable to the NRA in question and not to the Commission’s comments or the fact that the procedure under Article 7(4) of Directive 2002/21 is not set in motion.

(see paras 105-106)

3. For a contested Community act to be of direct concern to a natural or legal person within the meaning of the fourth paragraph of Article 230 EC, it must directly affect the legal situation of the person concerned and its implementation must be purely automatic and result from Community rules alone without the application of other intermediate rules. That is the case, in particular, where the possibility that addressees will not give effect to the Community measure is purely theoretical and their intention to act in conformity with it is not in doubt.

That is not the case with a letter of comments on a draft national measure sent by the Commission to an NRA pursuant to Article 7(3) of Directive 2002/21 on a common regulatory framework for electronic communications networks and services, having regard to the central role exercised by the NRAs for the purposes of achieving the objectives of Directive 2002/21. The procedure under Article 7(3) of Directive 2002/21 constitutes a consultation and cooperation procedure between NRAs and the Commission in the context of which not only the Commission, but also other NRAs may, in accordance with that provision, make comments on a notified draft measure. Even though, in accordance with Article 7(5), an NRA must take ‘the utmost account of comments of other [NRAs] and the Commission’, it has some leeway to determine the content of the final measure, so that a Community act based on Article 7(3) of Directive 2002/21 cannot be regarded as directly affecting the legal situation of the undertakings concerned.

(see paras 158-160)