Presentation

1. 1/16/2017
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Anthony M.
Collins,
Chamber
President, EU
General Court
RECENT DEVELOPMENTS
IN EU CASE-LAW ON
ELECTRONIC
COMMUNICATIONS
Background:
Merger of Spanish NRA with other regulatory bodies with
consequent dismissal of a board member and president of
NRA before expiry of term of office.
CASE C-424/15 GARAI & ALMENDROS V.
ADMINISTRACIÓN DE ESTADO - I

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Decision:
Framework Directive does not preclude NRA merging with other
national regulatory authorities provided that, in performing the
tasks entrusted to NRAs by EU law, that body meets the
requirements of competence, independence, impartiality and
transparency in the Framework Directive and that there is an
effective right of appeal to an independent body.
Art. 3(3a) FD prohibits dismissals of NRA members that occur for
a reason other than those persons no longer fulfilling the
conditions required for the performance of their duties as laid
down in advance in national law.
Member States autonomy over the organisation and structure of
NRAs will not justify the dismissal of NRA members before the
expiry of their terms of office in the absence of any rules
guaranteeing that such dismissals do not jeopardise the
independence and impartiality of those members.
CASE C-424/15 GARAI & ALMENDROS V.
ADMINISTRACIÓN DE ESTADO - II
Art 3 FD & Art. 12 Authorisation D
Italian Council of State asked if the financial independence of
an NRA is compromised when a Member State limits the annual
increase in its budget, makes it subject to public finance
legislation applicable to all administrative authorities and
reduces its operating costs by 10%.
The impartiality and independence afforded to NRAs and their
substantial self-financing do not preclude national legislation
which makes such authorities subject, in general, to legislation
on public finances and, in particular, to specific provisions
relating to limiting and streamlining expenditure incurred by
public administrative authorities.
CASE C-240/15 AGCOM V. ISTAT & ORS.

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Definition of an “electronic communications network”, “electronic
communications service” (Art. 2(c) FD) and “public communications
network” (Art. 2(a), (c) and (d) FD)
Facts:
Fjarskipti operates “WEB-SMS” service. Subscribers logged into web
server on its web domain and identified themselves by a telephone
number and a password. After log in, s/he selected recipient’s
telephone number, wrote message and pressed send. This action
caused the web server to convey signals to software located on the web
domain which processed the signals, sent them to an SMS server on the
Fjarskipti’s mobile telephone system, which then sent signals over the
mobile phone network to the recipient’s mobile (para. 14).
After Fjarskipti’s web domain had been hacked, IPTA asserted
jurisdiction over it. Fjarskipti claimed its web domain did not come
within any of the aforementioned definitions.
CASE E-6/16 FJARSKIPTI HF. V. ICELANDIC
POST & TELECOM ADMINISTRATION - I
Ruling:
EFTA Court gave a broad interpretation to “electronic communications
network”, to include any measure permitting the conveyance of signals by
electromagnetic means. The software on the web domain that received,
processed and forwarded the signals, together with Fjarskipti’s mobile
telephone system, were essential for the conveyance of the signals and
thus in context constituted an “electronic communications network”.
It also met the definition of “electronic communications service” in Art.
2(c) since it was provided for remuneration (subscription); consisted
wholly or mainly in the conveyance of signals on electronic
communications networks (thus falling outside beyond the “information
society service” exemption); and did not in fact provide or exercise
editorial control over content.
The “public communications network” definition was met by defining
publicly available as any part of the public being able to make use of the
network.
CASE E-6/16 FJARSKIPTI HF. V. ICELANDIC
POST & TELECOM ADMINISTRATION - II

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Art. 4(1) FD
Question:
Supreme Court of Poland asked if Art 4(1) FD allowed a national
court hearing an appeal against a decision of an NRA to annul it
with retroactive effect.
Answer:
Art 4 FD is an expression of the principle of effective judicial
protection (Art. 47 of the Charter – see Case C-282/13, T-Mobile
Austria, para. 33). It does not lay down specific procedural rules,
including the temporal effect of a decision to annul an NRA
decision. Principles of equivalence and effectiveness thus apply.
National court must be able to annul with retroactive effect where
it is necessary to provide effective judicial protection.
C-231/15 PUKE & PETROTEL V.
POLKOMETEL
Arts 7(3) FD; 8 &13(1) AD
Art. 7(3) FD consolidation procedure applies by reference to
subject matter of measure and effect on trade between Member
States (C-3/14 PUKE & Telefonia Dialog v. T-Mobile Polska SA
followed).
Authorisation in respect of mobile call termination rates “has a
broad meaning” and is “by its nature” a price control obligation
pace Article 13(1) AD.
NRA must apply Art. 7(3) consolidation procedure where it
imposes price control obligation on an SMP Operator and before
making authorisations caught by, inter alia, Article 13(1) AD.
NRA measure affects trade between Member States if it may
have, other than in an insignificant manner, an influence, direct or
indirect, actual or potential, on that trade.
Mobile call termination fees have such an effect.
CASE C-395/14 VODAFONE GMBH V.
GERMANY

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Arts 4(1) FD & 8 & 13 AD & Recommendation 2009/396/EC
Facts:
ACM (NL NRA) imposed price caps for fixed and mobile call
termination services by SMP operators by applying the ‘pure Bulric’
model on the grounds that (a) it was appropriate for determining
cost-oriented termination rates and (b) it was the only cost-oriented
model that conformed to EU law.
Operators challenged decision on the ground that price caps fixed
by reference to the ‘pure Bulric’ model were neither cost-oriented
nor appropriate and that the call termination rates were below
those obtainable in a competitive market.
CASE C-28/15 KPN V. ACM - I
Ruling:
NRAs not bound by Recommendation 2009/396 when imposing
cost recovery and price control obligations on SMP operators
providing specific types of interconnection and/or access (TFEU
Art. 288 & Art. 19(2) FD).
Although NRAs have broad discretion in regulating markets they
must “take the utmost account” of Commission Recommendations.
When imposing price control and cost accounting obligations under
Art. 13 AD of the Access Directive, they must, as a rule, follow the
guidance in Recommendation 2009/396. It is only where it
appears to an NRA, or to a national court reviewing an NRA
decision, that the ‘pure Bulric’ model is inappropriate that it may
depart therefrom, giving reasons for so doing.
CASE C-28/15 KPN V. ACM - II

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Ruling:
NRAs and national courts reviewing NRA decisions imposing
obligations on operators on the basis of Arts 8 & 13 AD must
ensure that those obligations meet all of the objectives set out
in Art. 8 FD and Art. 13 AD. The burden of proof in proceedings
before a national court is on the appellants and an NRA may not
be required to show that the obligation actually attains the
objectives of Art. 8 FD.
All such decisions must take account of the interests of end-
users and consumers, irrespective of the market in which the
regulatory obligations are imposed.
CASE C-28/15 KPN V. ACM - III
Art. 28 USD & Arts 5(1) & 8(3) AD
Facts:
Dispute between Polkomtel and Orange Polska resolved by
President of PUKE ordering Polkomtel to allow its subscribers to
access services using non-geographic numbers provided on
Orange Polska’s network. President of PUKE fixed the charge for
originating a call directed to Orange Polska’s network by
reference to the rate for terminating a call on Polkomtel’s
network.
CASE C-397/14 POLKOMTEL V. PUKE &
ORANGE POLSKA - I

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Ruling:
Since guaranteeing access to non-geographic numbers may contribute to the
achievement of the internal market, Art. 28 USD did not prevent a Member
State from providing that an operator of a public electronic communications
network must ensure that all end-users can access its network in that state.
FD and AD allow NRAs to adopt measures in disputes between operators
aimed at ensuring adequate access and interconnection as well as
interoperability of services, including requiring operators to ensure that end-
users can access services using non-geographic numbers provided on another
operator’s network.
Whilst Art. 8(3) AD did not permit NRAs to impose price control obligations
on non-SMP operators under Article 13 AD, they could impose “comparable”
tariff obligations on such operators under Art 28 USD where that obligation
constituted a necessary and proportionate measure to ensure that end-users
can access services using non-geographic numbers in the European Union.
CASE C-397/14 POLKOMTEL V. PUKE &
ORANGE POLSKA - II
Facts:
TDC (former state owned monopoly and USO) was required to provide, free of
charge, maritime safety and emergency services enabling vessels to request
assistance when are in distress in, inter alia, Greenland. Maritime safety and
emergency services are provided by Tele Greenland A/S, owned by the
Greenland authorities. TDC covers the costs related thereto. TDC carried out
no other activity in Greenland.
At relevant time Danish law forbade TDC from receiving compensation for
costs connected with the provision of maritime safety and emergency
services in Denmark and Greenland as it made a profit in providing USO
services and its additional mandatory service obligations.
Art. 32 USD allows Member States to make publically available services
additional to the USO services as defined in Chapter II: however they may not
create compensation mechanisms involving specific undertakings.
CASE C-327/15 TDC V. TELEKLAGENÆVNET I

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Ruling:
The prohibition on creating compensation mechanisms for specific
undertakings in Art. 32 USD prevented use of the financing mechanism in
Art. 13(1)(b) USD. However Art. 32 USD also meant that an undertaking
designated as the provider of an additional mandatory service must not
be made to bear the cost of providing that service.
The compensation mechanisms in the USD relating to USOs and to
additional mandatory services are independent of each other and the net
costs of each of those services must be the subject of separate accounts.
Added to the requirements of the Altmark criteria (Case C-280/00), Art.
32 USD prohibited the set-off contemplated by the Danish legislation.
The prohibition on creating compensation mechanisms involving specific
undertakings in Art. 32 USD has direct effect.
CASE C-327/15 TDC V. TELEKLAGENÆVNET II