KPN BV v Autoriteit Consument en Markt (ACM).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 17 September 2015

JUDGMENT OF THE COURT (Third Chamber)

17 September 2015 ( *1 )

‛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’

In Case C‑85/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 12 February 2014, received at the Court on 18 February 2014, in the proceedings

KPN BV

v

Autoriteit Consument en Markt (ACM),

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, A. Ó Caoimh, C. Toader, E. Jarašiūnas (Rapporteur) and C. G. Fernlund, Judges,

Advocate General: Y. Bot,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 March 2015,

after considering the observations submitted on behalf of:

— KPN BV, by L. Mensink, T. van der Vijver and C. Schillemans, advocaten,

— the Netherlands Government, by M. Bulterman and J. Langer, acting as Agents,

— the Italian Government, by G. Palmieri, acting as Agent, assisted by A. De Stefano, avvocato dello Stato,

— the European Commission, by F. Wilman, G. Braun and L. Nicolae, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 April 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 28(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11), (‘the Universal Service Directive’).

2 The request has been made in proceedings between KPN BV (‘KPN’) and the Autoriteit Consument en Markt (Authority for Consumers and Markets; ‘the ACM’) concerning an injunction, together with a financial penalty, requiring KPN to lower its tariffs for call transit services to non-geographic numbers.

Legal context

EU law

The new regulatory framework applicable to electronic communications services

3 The new regulatory framework applicable to electronic communications services (‘the NRF’) consists of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37), (‘the Framework Directive’), and specific directives accompanying it, namely Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), the Universal Service Directive and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).

– The Framework Directive

4 Article 2 of the Framework Directive provides: ‘For the purposes of this Directive: ... (g) “national regulatory authority” means the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive and the Specific Directives; ... (l) “Specific Directives” means [the Authorisation Directive], [the Access Directive], [the Universal Service Directive] and Directive 2002/58 … ...’

5 Article 6 of the Framework Directive, entitled ‘Consultation and transparency mechanism’, provides for the implementation of national consultation procedures between the national regulatory authorities (‘the NRAs’) and the interested parties in cases where the NRAs intend to take measures, in accordance with that directive or the specific directives, which have a significant impact on the relevant market.

6 Article 7 of the Framework Directive, entitled ‘Consolidating the internal market for electronic communications’, provides for, inter alia, the obligation on the NRA of a Member State to make the draft measure which it intends to take accessible to the European Commission and the NRAs in other Member States in the cases provided for in Article 7(3). Article 7a of that directive lays down the procedure for the consistent application of remedies concerning, inter alia, the imposition, amendment or withdrawal of various obligations on operators.

7 Article 8 of the Framework Directive defines the policy objectives and regulatory principles which the NRAs must ensure are observed when carrying out their regulatory tasks specified in that directive and in the specific directives.

8 Article 16 of that directive lays down the rules on the implementation of the market analysis procedure.

– The Universal Service Directive

9 Under Article 2(d) and (f) of the Universal Service Directive: ‘(d) “geographic number” means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point (NTP); ... (f) “non-geographic number” means a number from the national numbering plan that is not a geographic number. It includes, inter alia, mobile, freephone and premium rate numbers.’

10 Paragraph 1 of Article 28 of the Universal Service Directive, entitled ‘Access to numbers and services’, provides: ‘Member States shall ensure that, where technically and economically feasible, and except where a called subscriber has chosen for commercial reasons to limit access by calling parties located in specific geographical areas, relevant national authorities take all necessary steps to ensure that end-users are able to: (a) access and use services using non-geographic numbers within the [European Union]; and (b) access all numbers provided in the [European Union], regardless of the technology and devices used by the operator, including those in the national numbering plans of Member States, those from the [European Telephony Numbering Space; ‘the ETNS’] and Universal International Freephone Numbers (UIFN). …’

– The Access Directive

11 Article 1 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), as amended by Directive 2009/140, (‘the Access Directive’) provides: ‘1. Within the framework set out in [the Framework Directive], this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. The aim is to establish a regulatory framework, in accordance with internal market principles, for the relationships between suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits. 2. This Directive establishes rights and obligations for operators and for undertakings seeking interconnection and/or access to their networks or associated facilities. It sets out objectives for [NRAs] with regard to access and interconnection, and lays down procedures to ensure that obligations imposed by [NRAs] are reviewed and, where appropriate, withdrawn once the desired objectives have been achieved. Access in this Directive does not refer to access by end-users.’

12 Article 5 of the Access Directive, entitled ‘Powers and responsibilities of the [NRAs] with regard to access and interconnection’, reads as follows: ‘1. [NRAs] shall, acting in pursuit of the objectives set out in Article 8 of [the Framework Directive], encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users. In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, [NRAs] shall be able to impose: (a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case; (ab) in justified cases and to the extent that is...