C-462/99

OPINION OF MR GEELHOED — CASE C-462/99

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 13 December 2001 1

I — Introduction mobile and personal communications 4 and Articles 9 and 11 of Directive 97/13/EC of the European Parliament and of the Coun- cil of 10 April 1997 on a common frame- 1. The Austrian Verwaltungsgerichtshof work for general authorisations and indi- vidual licences in the field of telecommuni- (Federal Administrative Court) has referred cations services 5— is about the admissi- two questions in this case. bility of certain allocations of extra DCS 1800 frequencies. DCS 1800 is part of the existing systems for GSM telephony. The referring court requires an answer to this second question only in so far as 2. The first question concerns the interpre- Article 5a(3) of Directive 90/387/EEC has tation of Article 5a(3) of Council Directive direct effect. 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (ONP), 2 as amended by Directive 97/51/EC of the European Parliament and II — The legal framework of the Council of 6 October 1997. 3More particularly, the Verwaltungsgerichtshof asks about the direct effect of that provi- sion, which gives certain parties a right of appeal to an independent body. European law

4. Article 5a(3) of Directive 90/387/EEC 3. The second question — concerning the reads as follows: interpretation of Article 82 EC, Article 86 EC and Article 2 of Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to '3. Member States shall ensure that suitable mechanisms exist at national level under 1 — Original language: Dutch. 2 — OJ 1990 L 192, p. 1. Where reference is made in this Opinion to that directive, the reference is to the text as it reads after amendment by Directive 97/51/EC. 4 — OJ 1996 L 20, p. 59. 3 — O J 1997 L 295, p. 23. 5 — OJ 1997 L 117, p. 15.

4. Member States shall adopt, where required, measures to ensure the implemen- tation of this article taking account of the requirement to ensure effective competition 'In the context of mobile and personal between operators competing in the rel- communications systems radiofrequencies evant markets.' are a crucial bottleneck resource. The allocation of radiofrequencies for mobile and personal communications systems by 6 — Although, as will be seen, I do not get the opportunity to Member States according to criteria other answer the second question in this Opinion, I will never- theless cite in this legal framework a couple of provisions than those which are objective, transparent which are under discussion in the context of the second and non-discriminatory constitutes a question. Those provisions give a good idea of the statutory system and serve here to illustrate my ohservations in restriction incompatible with Article 90 in relation to the first question. conjunction with Article 59 of the Treaty to

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the extent that operators from other States may extend this time limit to up Member States are disadvantaged in these to four months in objectively justified allocation procedures. The development of cases which have been defined specifi- effective competition in the telecommuni- cally in those provisions....' cations sector may be an objective justifi- cation to refuse the allocation of fre- quencies to operators already dominant in the geographical market.'

8 Article 11 of the same directive states:

National law independent collegiate authority. It consists of three members appointed by the Federal Government. One member must belong to the judiciary. The Commission takes its decisions at final (and sole) instance. 9. The Telekommunikationsgesetz (Law on Telecommunications) 7 provides that the allocation of frequencies for public mobile telecommunications is made by way of a licence granted in accordance with the procedure laid down in Article 22 et seq. 11. An appeal against a decision of the of that Law. The national regulatory auth- Telekom-Control-Kommission can be ority grants the licence to the party that made to the Verfassungsgerichtshof (Fed- guarantees the most efficient use of the eral Constitutional Court) under Article frequencies, which is determined on the 144(1) of the Bundes-Verfassungsgesetz basis of the level of the price offered by the (Federal Constitutional Law) (hereinafter party concerned for the use of the fre- the 'B-Vg'). The power of review of the quencies. The frequencies are allocated Verfassungsgerichtshof is limited. That according to open, just and non-discrimi- Court examines only whether there has natory principles on the basis of a public been an infringement of a constitutionally invitation to tender. The allocation of guaranteed right or an infringement of a additional frequencies to the holder of a right by reason of the application of an licence for the same service constitutes an unlawful regulation, an unlawful statute oí- extension of the existing licence and takes an unlawful State treaty or convention. effect pursuant to the provisions of the licence. If the licence contains no provisions on this, the normal procedure is applied.

13. The Austrian national legislation has, 15. With regard to the allocation of 'the incidentally, since been amended. As of remaining frequency band reserved for 1 July 2000 the Verwaltungsgerichtshof has DCS 1800', paragraph 3a was added to had jurisdiction to hear and determine Article 125 of the Telekommunikationsge- appeals against decisions of the Telekom- setz 9in 1998. That paragraph provides Control-Kommission. This was also the that in any event a further licence with a reason why the Commission did not pursue duty to provide a service throughout Aus- an action for infringement against the tria and further localised concessions will Republic of Austria, as the Commission be allocated, whereby again holders of let it be known during the hearing in the existing licences are excluded from the present case. award of an additional licence with a duty to provide a service throughout Austria. Holders of existing licences may ask to be allocated new frequencies, but they are not permitted to use those frequencies prior to the expiry of the three-year period referred to in Article 125(3).

14. Article 125(3) of the Telekommunika- tionsgesetz is relevant for the purpose of answering the second question put by the referring court. That provision reads as follows:

I I I— Factual and procedural framework

20. Connect Austria appealed against the decision of 10 August 1998 to the Ver- fassungsgerichtshof, which ruled by a decision of 24 February 1999 that a con- 18. On 19 August 1997 the licence in the stitutionally guaranteed right of the appel- DCS 1800 sector was granted, pursuant to lant had not been infringed by the con- a public invitation to tender, to Connect tested decision and that its rights had not Austria Gesellschaft für Telekommuni- been infringed through application of an kation GmbH, the applicant in the main unlawful rule. The appeal was dismissed. proceedings (hereinafter 'Connect Aus- tria'). Connect Austria had to pay ATS 2.3 billion for that licence. It was allocated a frequency band of 2 x 16.8 MHz (84 channels). It was also offered the prospect 21. In the grounds of its decision, the of an extension to 2 x 22.5 MHz (112 Verfassungsgerichtshof also considers channels) if it achieved a user volume of Article 5a(3) of Directive 90/387/EEC. 300 000 and a 75% cover rate. The Verfassungsgerichtshof considers the content of that provision 'in regard to the right to appeal against the decision of a national regulatory authority, sufficiently precise as to be directly effective, within the meaning of the established case-law of the Court of Justice of the European Commu- nities..., 10 to the extent to which it must 19. By decision of 10 August 1998 the provide an effective legal remedy to an Telekom-Control Kommission allocated an independent body.' The directive does not additional frequency band for DCS 1800 to indicate which national court or tribunal Mobilkom, as an extension to the licence has jurisdiction. granted to it previously. That additional frequency band was granted with effect from 1 January 1999 to the extent of 2 x 5 10 — The Verfassugsgerichtshof refers to the judgment in Joined Cases C-6/90 and C-9/90 Erancomch and Others MHz (24 DCS 1800 channels) for the [1991] ECR I-5357.

22. The Verfassungsgerichtshof goes on to The questions referred for a preliminary infer from Article 131(1), point 1, and ruling Article 133, point 4, of the B-Vg 'that an appeal against judicial decisions of colle- giate authorities can lie only to the Ver- waltungsgerichtshof.' The Verfassungsge- richtshof explains that Article 133, point 4, of the B-Vg appears to preclude 25. The Verwaltungsgerichtshof (Austria) an appeal to the Verwaltungsgerichtshof. subsequently referred the following ques- Nevertheless, the precedence enjoyed by tions for a preliminary ruling by order of Community law — the Verfassungsger- 24 November 1999, which was received at ichtshof proceeds on the assumption that the Court Registry on 2 December 1999: Article 5a(3) of Directive 90/387 has direct effect — means that Article 133, point 4, of the B-Vg must be disapplied for the purpose of applying the directive. An appeal against a decision of the Telekom- Control-Kommission in its role as the 'national regulatory authority' can there- 1. On a proper c o n s t r u c t i o n of fore be lodged with the Verwaltungsge- Article 5a(3) of Directive 90/387/EEC, richtshof. does that provision have direct effect in the sense that, overriding a contrary domestic rule of jurisdiction, it estab- lishes the jurisdiction of a specific 'independent body' at national level to implement a 'suitable mechanism' 23. The reasoning of the Verfassungsge- for dealing with an appeal brought by richtshof is also influenced by the fact that an aggrieved party against a decision the possibility of appeal to the Verfassungs- taken by the national regulatory auth- gerichtshof itself cannot be regarded as a ority? right of appeal within the meaning of Article 5a(3) of the said directive, since the Verfassungsgerichtshof has only a limited power of review. In contrast, the review of the legality of administrative action, which it is the function of the Verwaltungsgerichtshof to exercise, does satisfy the requirements of Community 2. If the answer to the first question is in law. the affirmative: are Articles 82 EC and 86(1) EC, Article 2(3) and (4) of Directive 96/2/EC, and Articles 9(2) and 11(2) of Directive 97/13/EC, or other provisions of Community law, to be construed as precluding a provision 24. On the basis of the foregoing reason- of national law under which existing ing, the Verfassungsgerichtshof referred the holders of a licence for the provision of appeal by order of 3 March 1999 to the mobile telephony may be granted addi- Verwaltungsgerichtshof for a decision pur- tional frequencies for DCS-1800 in the suant to Article 144(3) of the B-Vg. following circumstances:

— there is no requirement that a separate fee be paid for the use of the additional frequencies? 11 28. Mobilkom raised an entirely different point. Article 5a(3) of Directive 90/387/EEC does not cover the present 26. Written observations have been sub- case, according to Mobilkom. That provi- mitted to the Court by the appellant in the sion gives a right of appeal to tenderers for main proceedings, Connect Austria, the the provision of telecommunications ser- respondent in the main proceedings, the vices against decisions of the national Telekom-Control-Kommission, and also by regulatory authority addressed to them Mobilkom Austria, the Austrian Govern- concerning access to networks and inter- ment, the Swedish Government and the connection. That article does not give the Commission. At the Court's hearing on protection of competition law. Interested 11 October 2001, all those involved, apart third parties cannot derive a right of appeal from the Swedish Government, orally from that article. Mobilkom proposes that explained their positions. for that reason the Court should reformu- late the question put to it.

IV — The first question

Observations submitted 29. Both the Austrian and Swedish Govern- ments point out that Article 5a(3) does not 27. Connect Austria infers the jurisdiction have direct effect given that it is not of the Verwaltungsgerichtshof from the unconditional and sufficiently precise, as the established case-law of the Court requires. The Member States must, in fact, 11 — To make the second question more readable in Dutch. I have radically changed the structure of this question while adopt additional measures. They designate of course retaining the substance. the competent authority and determine

32. The Commission claims specifically that Article 5a(3) of Directive 90/387/EEC 31. The Commission points out that the has not been properly transposed in the character of Article 5a(3) is the same as Austrian legislation, since there is no inde- that of Article 41 of Council Directive pendent authority that reviews the lawful- 92/50/EEC of 18 June 1992 relating to the ness of the decisions made by the national coordination of procedures for the award regulatory authority.

12 — Case C-54/96 Dorsch Consult v Bundesbaugesellschaft 13 — OJ 1992 L 209, p. 1. Berlin [1997] ECR I-4961. 14 — Case C-111/97 EvoBus Austria [1998] ECR I-5411.

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36. The Court then gave further consider- 34. First of all the Court dealt in general ation to the significance of the failure to with the responsibility to ensure an transpose Directive 92/50 in due time. The adequate legal procedure in the event of Court reiterated that the obligations arising disputes involving individual rights derived from a directive were binding on all the from Community law. The Court took the authorities of the Member States and there- view that it was not for it to involve itself in fore also, for matters within their jurisdic- the resolution of questions of jurisdiction to tion, on the courts. The same held for the which the classification of certain legal obligation to interpret provisions of situations based on Community law might national law in conformity with the direc- give rise in the national judicial system. It tive. was for the legal system of each Member State to determine which court or tribunal had jurisdiction to hear disputes involving

15 — See point 31 of my Opinion. 37. Under certain conditions individuals 16 — Paragraph 40 et seq. of the judgment. The Court follows the same line of reasoning in the EvoBus Austria judgment had the right, the Court stated, to rely in (cited in footnote 14). law on a directive as against a defaulting

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Member State, without, incidentally, this 39. In short, in a situation where a directive minimum guarantee being able to justify a has not been transposed, an individual Member State absolving itself from taking cannot derive a right of appeal directly in due time the requisite implementing from Community law. Such a right of measures. If an interpretation in conformity appeal could — but this falls to the with the directive was not possible, the national court — be derived from an inter- persons concerned, using domestic law pretation of the national law in conformity procedures, could claim compensation for with the directive. To that end the Court the damage incurred owing to the failure to went on to suggest a suitable provision of transpose the directive within the time national law. prescribed.

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42. Directive 90/387/EEC forms part of a 44. The national regulatory authorities package of Community measures adopted play an important role in that context. in the 1990s with the aim of liberalising the Their action must, as is apparent inter alia telecommunications sector. Detailed legis- from the ninth recital of the directive, be lation was often necessary to ensure that first and foremost independent or impar- newcomers would actually gain access to a tial, as the case may be. They must be market which until then had been con- independent of the operators in the market trolled by a monopolist. A characteristic of and also of central government services in a large proportion of that legislation is that so far as this is necessary in connection it imposes obligations on the former mon- with the financial interest that the govern- opolist, from which the newcomers to the ment often still has in the former monopol- market are meant to benefit. By way of ist. An independent authority of this very illustration I would refer here to the recitals sort — which is essentially composed of of Directive 96/2/EC cited in point 6 of this experts in the professional field, and par- Opinion. The need to stimulate investment liamentary review of which is, at best, by new entrants to the market even meant indirect — has its place in a State under that existing operators of GSM systems the rule of law only if judicial review of its might not be able to get DCS 1800 licences. decisions is possible. This is the context Thus in this case, Article 125 of the into which I would put Article 5a(3) of Austrian Telekommunikationsgesetz Directive 90/387/EEC, which states that 'a resulted in the existing operators Mobil- party affected by a decision of the national kom and max.mobil being eligible for a regulatory authority has a right of appeal to DCS 1800 frequency only under very a body independent of the parties involved'. restrictive conditions. It was necessary to guarantee in that way that newcomers to the market such as Connect Austria were actually able to enter the Austrian GSM market.

46. The Austrian Government's position 48. Neither in the body of the directive nor that the national regulatory authorities in its recitals, therefore, can I find any themselves should be able to refer questions argument to support Mobilkom's view that for a preliminary ruling is therefore Article 5a(3) does not relate to disputes obviously incorrect. At the risk of stating concerning the allocation of frequencies by the obvious, I would also point out that, the Telekom-Control-Kommission. even if the Court were to endorse the Article 5 a is general in nature and is Austrian Government's position, this intended to ensure that the decisions made would not mean that Article 5a(3) of by the national regulatory authorities are Directive 90/387 was complied with, since accompanied by the necessary safeguards. that provision requires there to be a right of It certainly cannot be the case that inter- appeal against a decision of the regulatory ested third parties who are directly affected authority. The body of the directive implies by the decision do not have a right of that the regulatory authority cannot itself appeal. Indeed, Article 5a(3) is, precisely, be the appeal body. intended partly to protect the interests of newcomers to the market such as Connect Austria.

47. The right of appeal is, in my opinion, essential in the system of the directive and

49. Moreover, it is not possible, in my 17 —Case C-178/99 Doris Salzmann [2001] ECR i -4421, paragraphs 13 and 14 of the judgment. opinion, for the provision relating to the

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52. I come to the same opinion also in the light of the Court's case-law on the direct effect of directives. Only unconditional and sufficiently precise provisions of directives 50. That being the case, it is clear to me that have not been transposed may be that Austria has failed to transpose relied on by individuals as against Member Article 5a(3) of Directive 90/387, since it States. On this point I believe, following on is not possible to appeal against (certain) from what the Commission has said, that decisions of the Telekom-Control-Kommis- although Article 5a(3) of Directive 90/387 sion in a way which complies with the is sufficiently precise and unconditional as requirements laid down by the directive. regards the content of that provision, this does not mean that individuals may rely on that provision before the national courts. 18 In all cases, the intervention of the national legislature is required to designate the court or tribunal which has jurisdiction to hear appeals.

54. The third step concerns the question whether an interpretation in conformity 56. Nor does the Court's approach in with the directive can provide relief. Dorsch Consult lead me to take a different According to this doctrine, 20 which has view. In Dorsch Consult the Court directed frequently been applied by the Court, the the national court to examine whether national court must, as far as possible, interpret national law in the light of the jurisdiction could be inferred from national wording and the purpose of the directive in law, in particular jurisdiction on the part of order to achieve the result pursued by the the bodies that decided very similar dis- latter and thereby comply with the third putes. paragraph of Article 249 EC.

60. To summarise, although Article 5a(3) 58. Essentially, the Court's solution in the of Directive 90/387 has not been trans- Dorsch Consult judgment boils down to a posed in the Austrian legislation, an indi- request to the referring court to examine vidual cannot base his right of appeal on whether it can acquire jurisdiction for itself the direct effect of that provision, nor on an through an interpretation of national law interpretation of the national legislation which is in conformity with the directive. I that is in conformity with the directive. will not discuss here what that examination What remains is an application for com- by the national court in Dorsch Consult pensation as against the Austrian State. produced or may have produced. In the present case, however, I do not consider such an examination useful. Under the Austrian national legislation there is no doubt whatever that the Bundesverwal- tungsgericht does not have jurisdiction. This has been firmly established.

V — The second question

(2) The second question does not require an answer.

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