Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Appeal – Electronic communications networks and services – Directive 2002/21/EC, as amended by Directive 2009/140/EC – Consolidating the internal market for electronic communications – Article 7(3) and (7) – Draft measure made accessible by the national regulatory authority – Wholesale fixed access market in the Netherlands – Joint significant market power – Comments of the European Commission communicated to the national regulatory authority – Obligation for the national regulatory authority to take the utmost account of them – Scope – Article 263 TFEU – Action for annulment – Admissibility – Challengeable act – Article 47 of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby:
130) By its third ground of appeal, VodafoneZiggo claims that the General Court erred in law by ruling that its fundamental right to effective judicial protection was not infringed by the action being declared inadmissible, even though the General Court’s interpretation of the Framework Directive in the order under appeal leads to a conflict between the Framework Directive and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
136) In so far as, by this third ground of appeal and, in essence, by the third complaint of the third limb of its first ground of appeal, VodafoneZiggo claims, in the first place, that the General Court failed to interpret the Framework Directive and, therefore, to assess the admissibility of its action in the light of its fundamental right to effective judicial protection as guaranteed by Article 47 of the Charter, thereby infringing that article, it should be noted that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the explanations relating to Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration when interpreting the Charter (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43 and the case-law cited, and of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 68 and the case-law cited).
138) Therefore, the interpretation of the concept of ‘challengeable act’, for the purposes of Article 263 TFEU, in the light of Article 47 of the Charter cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the FEU Treaty on the Courts of the European Union (see, to that effect, judgments of 25 October 2017, Romania v Commission, C‑599/15 P EU:C:2020:530, paragraph 68 and the case-law cited, and of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 52).
140) In addition, it is apparent from the order under appeal that, contrary to VodafoneZiggo’s contention, the General Court did in fact explain how its finding that the action brought by that company had to be dismissed as inadmissible was reconcilable with the right to effective judicial protection guaranteed by Article 47 of the Charter.
150) In the light of those points, the General Court did not err in law when it found, in essence, in paragraphs 115 and 116 of the order under appeal that the possibility for VodafoneZiggo of bringing an action before a national court in respect of the decision adopted by the NRA following the communication by the Commission of comments pursuant to Article 7(3) of the Framework Directive ensured that its right to effective judicial protection, within the meaning of Article 47 of the Charter, was respected, notwithstanding the fact that its action before the General Court for annulment of the act at issue was inadmissible.