Court of Justice of the European Communities (including Court of First Instance Decisions)

(Electronic communications Networks and services Articles 3(2) and 10(1) of Directive 2002/21/EC (Framework Directive) National numbering plans Specific regulatory authority)

In Case C-82/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal Supremo (Spain), made by decision of 23 January 2007, received at the Court on 15 February 2007, in the proceedings

Comisión del Mercado de las Telecomunicaciones

v

Administración del Estado,

composed of C.W.A. Timmermans, President of the Chamber, L. Bay Larsen, K. Schiemann, P. Klūris (Rapporteur) and C. Toader, Judges,

Advocate General: M. Poiares Maduro,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

the Comisión del Mercado de las Telecomunicaciones, by F. Ramos Cea, procurador and M. Sánchez Blanco, abogado,

the Spanish Government, by M. Muñoz Pérez, acting as Agent,

the Belgian Government, first by A. Hubert and subsequently by C. Pochet, acting as Agents,

the Greek Government, by S. Spyropoulos, I. Pouli and S. Trekli, acting as Agents,

the Italian Government, by I.M. Braguglia, acting as Agent, and by P. Gentili, avvocato dello Stato,

the Netherlands Government, by C. Wissels and M. de Grave, acting as Agents,

the Commission of the European Communities, by R. Vidal Puig, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1. This reference for a preliminary ruling concerns the interpretation of Articles 3(2) and 10(1) 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) ('the Framework Directive'), read in conjunction with Recital (11) in the preamble thereto.
2. The reference has been made in the course of an action in which the Comisión del Mercado de las Telecomunicaciones ('the CMT') is seeking the annulment of all or part of Royal Decree 2296/2004 adopting the regulation on electronic communications markets, network access and numbering (Real Decreto 2296/2004 por el que se aprueba el Reglamento sobre mercados de comunicaciones electrónicas, acceso a las redes y numeración) of 10 December 2004 (BOE No 314 of 30 December 2004, p. 42372) and certain points of the National Telephone Numbering Plan annexed to that Royal Decree, on the ground that they are contrary to General Law 32/2003 on Telecommunications (Ley General 32/2003 de Telecomunicaciones) of 3 November 2003 (BOE No 264 of 4 November 2003, p. 38890) ('the GTL') which transposed the Framework Directive into national law.

Community legal framework

3. Recital (11) in the preamble to the Framework Directive states:

'In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 295 of the Treaty. National regulatory authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.'

4. Recital (20) of that directive states:

'Access to numbering resources on the basis of transparent, objective and non-discriminatory criteria is essential for undertakings to compete in the electronic communications sector. All elements of national numbering plans should be managed by national regulatory authorities, including point codes used in network addressing. ...'

5. Article 2(g) of the Framework Directive defines the 'national regulatory authority' as 'the body or bodies charged by a Member State with any of the regulatory tasks assigned in this Directive and the Specific Directives'.
6. Under Article 2(m) of the Framework Directive, the 'provision of an electronic communications network' is defined as the establishment, operation, control or making available of such a network.
7. Article 3 of the Framework Directive, entitled 'National regulatory authorities', provides:

'1. Member States shall ensure that each of the tasks assigned to national regulatory authorities in this Directive and the Specific Directives is undertaken by a competent body.

2. Member States shall 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. Member States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.

3. Member States shall ensure that national regulatory authorities exercise their powers impartially and transparently.

4. Member States shall publish the tasks to be undertaken by national regulatory authorities in an easily accessible form, in particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and cooperation between those authorities, and between those authorities and national authorities entrusted with the implementation of competition law and national authorities entrusted with the implementation of consumer law, on matters of common interest. Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks of each authority are published in an easily accessible form.

...

6. Member States shall notify to the Commission all national regulatory authorities assigned tasks under this Directive and the Specific Directives, and their respective responsibilities'.

8. Paragraph 1 of Article 10 of the Framework Directive, which is entitled 'Numbering, naming and addressing', provides:

'Member States shall ensure that national regulatory authorities control the assignment of all national numbering resources and the management of the national numbering plans. Member States shall ensure that adequate numbers and numbering ranges are provided for all publicly available electronic communications services. National regulatory authorities shall establish objective, transparent and non-discriminatory assigning procedures for national numbering resources.'

The dispute in the main proceedings and the questions referred for a preliminary ruling

9. On 9 December 2005, the CMT lodged an application with the Tribunal Supremo seeking the annulment, with cessation of effects, of Articles 27(1), 27(3), 28(2), 34, 36, 38, 40(1), 40(3), 49 and 55 of Royal Decree 2296/2004 and paragraphs 5(4) and 10(1) of the National Telephone Numbering Plan, annexed to that decree, on the ground that they are contrary to the GTL.
10. The CMT submits that those provisions do not respect the division of powers, with respect to the management of public numbering resources, provided for in Articles 16 and 48 of the GTL. The residual competence of the Ministry of Industry, Tourism and Commerce in that field, provided for under earlier legislative provisions and those of the GTL, is set out in such detail in Royal Decree 2296/2004 that the role of the CTM is reduced merely to implementing the decisions taken by that ministry. Further, the CTM argues that the royal decree goes beyond the GTL, in breach of the principles of legality, the hierarchy of norms and legal certainty, and disregards the provisions of Article 10(1) of the Framework Directive.
11. By judgment of 23 January 2007, the Tribunal Supremo decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'1. Do Articles 3(2) and 10(1) of the [Framework] Directive, in conjunction with Recital (11), require Member States to allocate to separate authorities 'regulatory functions' on the one hand and 'operational' functions on the other, in relation to assigning national numbering resources and managing national numbering plans?

2. Where a Member State, on transposing the [Framework] Directive into its national law, has charged a specific authority with assigning national numbering resources and managing national numbering plans, may it at the same time reduce that authority's powers in that sphere, conferring them on other authorities or on its own State administration, with the result that management of those resources is in reality shared between various authorities?'

The questions referred

The first question

12. It should be noted at the outset that, according to Recital (1) of the Framework Directive, the new regulatory framework for telecommunications 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 2002/22/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), and 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) was adopted after the previous regulatory framework had been successful in creating the conditions for effective competition in the telecommunications sector during the transition from monopoly to full competition.
13. That is the appropriate context in which to assess Recital (11) of the Framework Directive, according to which the Member States must, under the principle of the separation of regulatory and operational functions, guarantee the independence of the national regulatory authority or authorities ('the regulatory authorities') in order to ensure the impartiality of their decisions.
14. Article 3(2) of the Framework Directive specifies the means by which it should be possible to guarantee the independence of the regulatory authorities, providing that they must be legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services. Where Member States retain ownership or control of undertakings providing electronic communications networks and/or services, they are to take care, specifically, to ensure effective structural separation of the regulatory function, on the one hand, from activities associated with ownership or control of those undertakings, on the other.
15. As regards the assigning of the national numbering resources and the management of the national numbering plans, it should be pointed out at the outset that such functions form no part of the functions exercised by entities which ensure services and/or networks provision, as defined in Article 2(m) of the Framework Directive. They must therefore be regarded, not as 'operational functions' within the meaning of Recital (11) of that directive, but as 'regulatory functions'.
16. Moreover, the referring court seems to be unsure whether the Framework Directive allows Member States to allocate, on the one hand, the regulatory functions, and on the other, the management functions involved in assigning national numbering resources and national numbering plans, to separate regulatory authorities.
17. In that regard, it is clear from Article 10(1) of the Framework Directive, read in conjunction with Article 3(2) thereof, that (i) Member States must allocate to one or more regulatory authorities control of the assignment of all national numbering resources, as well as the management of the national numbering plans; (ii) those regulatory authorities must be legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services; and (iii) Member States which retain ownership or control of undertakings providing electronic communications networks and/or services must ensure effective structural separation of activities associated with ownership or control of those undertakings, on the one hand, and regulatory functions (including the assignment of national numbering resources and the management of the national numbering plans), on the other.
18. That finding is substantiated both by Recital (11) of the Framework Directive, in accordance with which Member States should guarantee the independence of the national regulatory authority or authorities, and by Article 3(4) of that directive, which provides that Member States must publish the tasks to be undertaken by those regulatory authorities, in particular where those tasks are assigned to more than one body.
19. Moreover, the potentially pluralist nature of regulatory authorities is clear from the very definition of 'national regulatory authority' set out in Article 2(g) of the Framework Directive.
20. In contrast, it must be noted that there is no provision in the Framework Directive, under which the regulatory authority to which the tasks of assigning national numbering resources and management of national numbering plans have been assigned is required to be distinct from or independent of the other regulatory authorities and, in particular, from the authority with responsibility for adopting the national numbering plan or the control and management procedures of that plan.
21. In the light of all of the foregoing, the reply to the first question must be that Articles 3(2), 3(4) and 10(1) of the Framework Directive, read in conjunction with Recital (11) thereof, must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities.

The second question

22. By its second question, the referring court wishes to know whether a Member State may allocate the regulatory functions referred to in Article 10(1) of the Framework Directive to a number of regulatory authorities.
23. It is clear from the wording of Articles 2(g) and 10(1) of the Framework Directive that it is possible for more than one regulatory authority to have control over the assignment of national numbering resources and the management of national numbering plans.
24. Although the Member States enjoy institutional autonomy as regards the organisation and the structuring of their regulatory authorities within the meaning of Article 2(g) of the Framework Directive, that autonomy may be exercised only in accordance with the objectives and obligations laid down in that directive.
25. Thus, in accordance with Article 3(2), (4) and (6) of the Framework Directive, the Member States must not only guarantee the functional independence of regulatory authorities in relation to the organisations providing electronic communications networks, equipment or services, but must also publish, in an easily accessible form, the tasks to be undertaken by the national regulatory authorities, and notify to the Commission the names of the regulatory authorities entrusted with carrying out those tasks, and their respective responsibilities.
26. As a consequence, where those functions are to be discharged, even partially, by ministerial authorities, each Member State must ensure that those authorities are neither directly nor indirectly involved in 'operational functions' within the meaning of the Framework Directive.
27. It follows from all of the foregoing that the reply to the second question referred must be that Article 10(1) and Article 3(2), (4) and (6) of the Framework Directive must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission.

Costs

28. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1. Articles 3(2), 3(4) and 10(1) 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), read in conjunction with Recital (11) in the preamble to that directive, must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities.

2. Article 10(1) and Article 3(2), (4) and (6) of Directive 2002/21 must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission of the European Communities.

[Signatures]

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* Language of the case: Spanish.