ECJ Hands Down Judgment in Vodafone ‘Roaming’ Case
Case C-58/08 – Vodafone and others
This reference was made in proceedings between Vodafone, O2 Europe, T-Mobile, Orange and the Secretary of State for Business, Enterprise and Regulatory Reform concerning the validity of provisions for the implementation of Regulation No 717/2007 adopted by the UK and Northern Ireland relating to the prices payable by users of public mobile telephone networks for retail roaming services,
The regulation lays down maximum charges that mobile phone operators may charge for calls made and received by users outside their own network. The regulation also imposes a ceiling for wholesale roaming charges – the price paid by the consumer’s network to the foreign network which that consumer uses.
The leading European mobile telephone operators challenged the validity of the regulation before the High Court. The High Court asked the Court of Justice whether the Community was entitled to adopt the regulation on the basis of Article 95 EC which permits the community to adopt legislative measures in order to approximate the laws of the Member States in cases of disparity or potential disparity capable of obstructing the establishment and functioning of the internal market, and whether, by setting the maximum retail price, the Community legislature had infringed the principles of subsidiarity and/or proportionality.
The Court found that the object of the regulation is to improve the conditions for the functioning of the internal market and that it could be adopted on the basis of Article 95 EC.
With regards the proportionality of the regulation in so far as it does not only lay down ceilings for wholesale charges but also for retail charges, the Court found that maximum retail charges could be considered to be appropriate and necessary for the purpose of protecting consumers against high levels of charges.
The Court examined the regulation in the light of the principle of subsidiarity, according to which the Community may not act unless the Member States are not in a position to achieve the same goal adequately. The Court concluded that, give the interdependence of retail and wholesale charges, the community legislature could legitimately take the view that a common approach at Community level was necessary to ensure the smooth functioning of the internal market, thus allowing operators to act within a single coherent regulatory framework.
Jon Turner QC and Tim Ward represented the United Kingdom
Ronit Kreisberger represented Vodafone