Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 23 April 2026 (1)
Case C‑164/25
T–2 družba za ustvarjanje, razvoj in trženje elektronskih komunikacij in opreme d.o.o.
v
TELEKOM SLOVENIJE, d.d.
(Request for a preliminary ruling from the Vrhovno sodišče Republike Slovenije (Slovenia))
( Reference for a preliminary ruling – Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks – Access to existing physical infrastructure – Obligation to ensure that either party is entitled to refer a dispute to the competent national dispute settlement body – Requirement to discontinue the proceedings before the national dispute settlement body if a claim is brought before a court – Principle of effectiveness – Right to an effective remedy )
I. Introduction
1. Directive 2014/61/EU (2) seeks to facilitate and encourage the fast roll-out of high-speed electronic communications networks, in particular by promoting the joint use of existing physical infrastructure.
2. To that end, Member States are required to establish an out-of-court dispute settlement mechanism, to which both parties to a dispute may resort if access to a physical infrastructure is refused, or if they fail to agree on terms and conditions for such access.
3. What if one party first starts proceedings before the national dispute settlement body (‘the DSB’) to seek access to a physical infrastructure, following which the counterparty brings the matter before a court seeking a declaration that such access should not be granted?
4. It is in this context that the present reference for a preliminary ruling arises. First, the referring court asks whether Directive 2014/61 imposes an obligation to bring the matter first before the DSB (a ‘sequential system’) or if the parties may choose between dispute settlement proceedings and court proceedings (a ‘parallel system’). Secondly, if a parallel system is in line with that directive, the referring court seeks guidance on how to interpret the principle of effectiveness and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in the light of a national procedural rule requiring out-of-court proceedings to be discontinued if the same matter is subsequently brought before a court.
II. Legal framework
A. European Union law
5. Recitals 2, 9, 11, 13, 14, 19, 34 and 39 of Directive 2014/61 are worded as follows:
‘(2) Acknowledging the importance of high-speed broadband roll-out, Member States have endorsed the ambitious broadband targets … to ensure that, by 2020, all Europeans have access to much higher internet speeds of above 30 Mbps and 50% or more of Union households subscribe to internet connections above 100 Mbps.
…
(9) Measures aiming at increasing efficiency in the use of existing infrastructures … should provide a substantial contribution to ensuring a fast and extensive deployment of high-speed electronic communications networks …
…
(11) This Directive aims at laying down some minimum rights and obligations applicable across the Union … While ensuring a minimum level playing field, this should be without prejudice to existing best practices and measures adopted at national and local level entailing more detailed provisions and conditions as well as additional measures complementing those rights and obligations, in accordance with the subsidiarity principle.
…
(13) It can be significantly more efficient for electronic communications network operators, in particular new entrants, to re-use existing physical infrastructures, including those of other utilities, in order to roll out electronic communications networks …
(14) With a view to improving the deployment of high-speed electronic communications networks in the internal market, this Directive should lay down rights for public communications network providers to access physical infrastructure irrespective of its location under fair and reasonable terms …
…
(19) In the event of a disagreement during the commercial negotiation …, each party should be able to call on a [DSB] at national level to impose a solution on the parties, in order to avoid unjustified refusals to deal or the imposition of unreasonable conditions …
…
(34) In line with the principle of subsidiarity, this Directive should be without prejudice to the possibility of Member States to allocate the regulatory tasks provided for to the authorities best suited to fulfil them in accordance with the domestic constitutional system of attribution of competences and powers and with the requirements set forth in this Directive.
…
(39) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter] and in particular … the right to an effective remedy. …’
6. Article 1(1) to (3) of that directive provides:
‘1. This Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure …
2. This Directive establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas.
3. Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements established by this Directive with a view to better achieving the aim referred to in paragraph 1.’
7. According to Article 3(2) to (5) of that directive:
‘2. Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator has the obligation to meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks …
3. Member States shall require that every refusal of access be based on objective, transparent, and proportionate criteria …
4. Where access is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the date of receipt of the request for access, Member States shall ensure that either party is entitled to refer the issue to the competent [DSB].
5. Member States shall require the [DSB] referred to in paragraph 4 to issue, taking full account of the principle of proportionality, a binding decision to resolve the dispute initiated pursuant to paragraph 4, including the setting of fair and reasonable terms and conditions, including price where appropriate.
The national [DSB] shall resolve the dispute, within the shortest possible time frame and in any case within four months from the date of the receipt of the complete request except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.’
8. Article 10(6) of the same directive provides that ‘any decisions taken by any of the competent bodies referred to in this Article shall be subject to an appeal before a court in accordance with national law.’
B. Slovenian law
9. The Zakon o elektronskih komunikacijah (Law on electronic communications; ‘the ZEKom-1’) transposed Directive 2014/61 into Slovenian law. Article 93(3) to (5) and (7), Article 217(3), Article 218(6) and Article 220a(5) of that law essentially correspond to Article 3(2) to (5) of that directive. In addition, Article 192(1) of the ZEKom-1 essentially corresponds to Article 10(6) of Directive 2014/61.
10. In addition, pursuant to Article 218(4) of the ZEKom-1, ‘if, during the dispute settlement procedure before the [Agencija za komunikacijska omrežja in storitve Republike Slovenije (Agency for Communication Networks and Services of the Republic of Slovenia; ‘the Agency’)], either party initiates legal proceedings before the court having jurisdiction on the same matter or withdraws the dispute settlement request, the dispute settlement procedure before the Agency shall be discontinued’.
III. Facts, procedure and the questions referred
11. On 19 November 2020, Telekom Slovenije (‘Telekom’) requested access to the physical infrastructure of the telecommunications network owned by T‑2 družba za ustvarjanje, razvoj in trženje elektronskih komunikacij in opreme d. o. o. (‘T‑2’), which T‑2 refused by letter of 21 January 2021.
12. On 29 April 2021, Telekom submitted a dispute settlement request to the Agency, claiming that the latter should order T‑2 to grant access to its infrastructure.
13. On 6 September 2021, T‑2 brought an action for a declaratory judgment before the Okrožno sodišče v Ljubljani (District Court, Ljubljana, Slovenia) seeking a declaration that Telekom had no right to access its physical infrastructure.
14. Telekom claimed that that court lacked jurisdiction, arguing that the matter was administrative in nature and did not fall within the jurisdiction of the civil courts.
15. On 2 November 2021, the Agency closed the proceedings brought before it on the grounds that the case was materially identical to the action brought by T‑2 before the Okrožno sodišče v Ljubljani (District Court, Ljubljana) and that the settlement of disputes by the Agency was without prejudice to the jurisdiction of the courts.
16. Telekom lodged an appeal against that decision before the Upravno sodišče Republike Slovenije (Administrative Court of the Republic of Slovenia).
17. By decision of 12 September 2023, that court dismissed the appeal. It considered that the expression ‘without prejudice to the possibility of any party to refer the case to a court’ (‘the without prejudice clause’), under the second subparagraph of Article 3(5) of Directive 2014/61, precludes a breach of the right to bring proceedings before a court.
18. By order of 25 February 2022, Okrožno sodišče v Ljubljani (District Court, Ljubljana) dismissed the objection of lack of jurisdiction raised by Telekom. (3) That court held that the decision in that dispute would have an impact on the creation of obligations between the parties, thus falling within the jurisdiction of the civil courts.
19. Telekom appealed against that order before the Višje sodišče v Ljubljani (Court of Appeal, Ljubljana, Slovenia).
20. By order of 9 June 2022, that court upheld Telekom’s appeal, accepting the objection of lack of jurisdiction. The Višje sodišče v Ljubljani (Court of Appeal, Ljubljana) held that a purposive and contextual interpretation of Directive 2014/61 showed an intention to reduce the costs of deploying high-speed electronic communications networks, that the right of network providers to access physical infrastructure was intended to accelerate the deployment of such networks and that, in order to speed up access, a specific national body for the settlement of disputes had been established, together with time limits within which that body had to issue its decision. In that context, a strict literal interpretation favouring the settlement of disputes through the courts and without setting a time limit for the decision would be contrary to the intention of the EU legislature. Moreover, taking the view that the Agency acts as a public authority when it rules on a dispute between operators concerning access to physical infrastructure, that court concluded that the case at hand was an administrative matter, outside the jurisdiction of the civil courts.
21. T‑2 lodged an appeal against that order before the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia), the referring court. On 14 September 2022, that court granted T‑2 leave to appeal.
22. The referring court considers that it is not possible to interpret the without prejudice clause, under the second subparagraph of Article 3(5) of Directive 2014/61, relying solely on its wording. Moreover, given the objectives of that directive, that court believes that several interpretations are possible.
23. In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Directive [2014/61] – and in particular the phrase “without prejudice to the possibility of any party to refer the case to a court”, in the second subparagraph of Article 3(5) of that directive – be interpreted as precluding national legislation under which a network operator has the right to submit a request for the settlement of a dispute concerning access to existing physical infrastructure either before the [DSB] or before an ordinary court?
(2) Must the second subparagraph of Article 3(5) of Directive [2014/61] be interpreted, in the light of the principles of equivalence and effectiveness and Article 47 of the [Charter], as precluding a national procedural rule under which dispute settlement proceedings before the national [DSB] are discontinued in the event that one of the parties, in the course of the dispute settlement proceedings before that body, institutes proceedings with the same subject matter before the [court having jurisdiction]?’
24. Written observations were submitted by Telekom, T‑2, the Italian and Slovenian Governments, and the European Commission. The same parties, with the exception of the Italian Government, attended the hearing held on 29 January 2026.
IV. Assessment
A. The first question referred
1. Preliminary remarks
25. The first question refers in general to Directive 2014/61, and in particular to the without prejudice clause in the second subparagraph of Article 3(5) of that directive. In order to provide the referring court with a useful answer, I consider it necessary also to interpret paragraph 4 of that legal provision. (4)
26. Consequently, by its first question, the referring court is essentially asking whether Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61 should be interpreted as precluding national legislation under which a network operator has the right to submit a request for the settlement of a dispute concerning access to existing physical infrastructure either before a DSB or before a court.
27. All the interested parties, excepting Telekom, propose to answer that question in the negative.
28. By contrast, Telekom in essence argues that the only way to achieve the objectives of Directive 2014/61 is to confer exclusive jurisdiction to settle disputes concerning access to existing physical infrastructure to a DSB, subject to the possibility to lodge an appeal against a DSB decision before the administrative courts.
29. In order to settle this question, I shall resort to the Court’s usual method of interpretation, by considering not only the wording of Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61, but also the context in which that provision occurs and the objectives pursued by the act of which it forms part. (5)
2. The wording of Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61
30. Under Article 3(4) of Directive 2014/61, either party must be entitled to refer a dispute concerning access to existing physical infrastructure to the competent DSB.
31. Article 3(5) of that directive sets out the criteria and principles to be observed by the DSB in carrying out its task, nonetheless adding, in its second subparagraph, that this is ‘without prejudice to the possibility of any party to refer the case to a court’.
32. In my view, it follows from the combined reading of both those paragraphs of Article 3 that the parties can opt to bring a case either before the DSB or before a court.
33. That interpretation is reinforced by comparing the wording of Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61 with that of other EU law provisions, which, as interpreted by the Court, respectively accept a parallel system and require a sequential system.
34. First, Regulation (EU) 2016/679 (6) offers different remedies to persons claiming that that regulation has been infringed. In that regard, Article 77(1) of that regulation states that it is ‘without prejudice to any other administrative or judicial remedy’ that every data subject is to have the right to lodge a complaint with a supervisory authority. Next, under Article 78(1) of that regulation, each natural or legal person is to have the right to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them ‘without prejudice to any other administrative or non-judicial remedy’. Lastly, Article 79(1) of that regulation guarantees each data subject the right to an effective judicial remedy ‘without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77’. (7)
35. The Court has emphasised that each of those remedies must be capable of being exercised ‘without prejudice’ to the others. Bearing in mind also the context and the objectives pursued by Regulation 2016/679, the Court thus found that the above provisions do not provide for any priority or exclusive competence or jurisdiction or for any rule of precedence in respect of the assessment, carried out by the authority or by the courts referred to therein, as to whether there is an infringement of the rights conferred by that regulation. (8)
36. Secondly, under Directive 2001/14/EC, (9) the charging scheme for the use of railway infrastructure must respect, inter alia, the principle of equal treatment between railway undertakings. (10) In that context, according to Article 30(2) of that directive, ‘an applicant shall have a right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking …’. Next, pursuant to paragraph 6 of that provision, ‘Member States shall take the measures necessary to ensure that decisions taken by the regulatory body are subject to judicial review’.
37. Bearing in mind also the context and the objectives pursued by Directive 2001/14, the Court has found that Article 30 of that directive confers on the regulatory body exclusive jurisdiction to settle disputes concerning the charging scheme for the use of railway infrastructure. (11)
38. In my view, the wording used – and thus the system envisaged –by Directive 2014/61 resembles that of Regulation 2016/679, and differs from that of Directive 2001/14. It is therefore possible to infer that Directive 2014/61 does not oppose a parallel system.
39. However, I also acknowledge that the second subparagraph of Article 3(5) of Directive 2014/61 may be open to different interpretations. In particular, the without prejudice clause is preceded by a reference to the deadline within which the DSB is to resolve the dispute. Moreover, the first subparagraph of that provision determines the scope of the decision to be adopted by the DSB. Thus, the without prejudice clause could admittedly be interpreted as referring to the right to appeal against that decision before an administrative court.
40. Some of the interested parties have nonetheless argued that Article 10(6) of Directive 2014/61 precludes such an interpretation, precisely because the right to appeal is set out in that provision. That brings me to consider the context in which Article 3(4) and (5) of Directive 2014/61 occurs.
3. The context
(a) Article 10(6) of Directive 2014/61
41. Article 10(6) of Directive 2014/61 establishes that any decision of the DSB ‘shall be subject to an appeal before a court in accordance with national law’. Its wording thus differs from that of the second subparagraph of Article 3(5) of that directive, which sets out the ‘possibility to refer the case to a court’.
42. This indicates that the latter provision grants the possibility to bring a dispute before the (civil) courts, while the former safeguards a right to appeal against a DSB decision adopted on the basis of Article 3(4) and (5) of Directive 2014/61.
43. It is true that Article 10(6) of Directive 2014/61 guarantees the right to appeal against any DSB decision, thus encompassing decisions other than that concerning access to existing physical infrastructure. Indeed, the possibility to refer a dispute concerning other matters within the scope of that directive to the DSB is set out in Article 4(6), Article 5(4), Article 6(4) and the second subparagraph of Article 9(3) of that directive.
44. Thus, the second subparagraph of Article 3(5) and Article 10(6) of Directive 2014/61 could still be interpreted as having different scopes, albeit partially overlapping: on the one hand, the former would only pertain to appeals against a DSB decision on access to existing physical infrastructure. On the other hand, the latter would concern any appeal against any DSB decision.
45. However, each provision listed in point 43 of the present Opinion contains a without prejudice clause similar to that of the second subparagraph of Article 3(5) of Directive 2014/61. (12)
46. Assuming that the legislature did not adopt redundant provisions, I thus reiterate that the second subparagraph of Article 3(5) of Directive 2014/61 grants the possibility to bring a dispute before the (civil) courts, whereas Article 10(6) of that directive safeguards a right to appeal against a DSB decision adopted on the basis of Article 3(4) and (5) of that directive.
(b) Other laws in the telecommunications sector
47. That finding is borne out, first, by Regulation 2024/1309, which repealed Directive 2014/61. (13) Indeed, as underlined by the referring court, Article 13(1)(a) and (5) of that regulation appears to make it clear that a parallel system is in line with EU law.
48. Article 13(1)(a) of Regulation 2024/1309 states that, ‘without prejudice to the possibility to refer a case to a court, any party shall be entitled to refer to the [DSB] a dispute that may arise … where access to existing infrastructure is refused or agreement on specific terms and conditions, including price, has not been reached’.
49. Accordingly, the possibility to refer a case to a court is no longer enshrined in the same provision establishing the requirements applicable to DSB decisions. (14) Any doubts as to whether such access to the courts should be interpreted as a right to appeal against that decision thus seem to be dispelled.
50. Moreover, Article 13(5) of Regulation 2024/1309 states that ‘this Article complements and is without prejudice to the judicial remedies and procedures in compliance with Article 47 of the [Charter]’.
51. In addition, pursuant to the first subparagraph of Article 14(10) of that regulation, ‘any decision taken by a competent body shall be subject to an appeal, in accordance with national law, before a fully independent appeal body, including a body of judicial character’. Under the second subparagraph of that provision, ‘the right to appeal in accordance with the first subparagraph shall be without prejudice to the right of the parties to bring the dispute before the national competent court’.
52. Consequently, in my view, Regulation 2024/1309 does not oppose a parallel system such as the one at issue in the present case.
53. It is certainly true that Regulation 2024/1309 is not applicable ratione temporis to the present case. However, there is no indication in the drafting history that a change of approach was envisaged. It is thus reasonable to infer that the legislature merely intended to clarify the regime to settle disputes concerning access to existing physical infrastructure stemming from Directive 2014/61.
54. Secondly, pursuant to Article 26(5) of Directive (EU) 2018/1972, (15) out-of-court dispute settlement between undertakings ‘shall not preclude either party from bringing an action before the courts’.
55. Thirdly, under Article 34(1) of Directive 2002/22/EC, (16) ‘Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes, involving consumers, relating to issues covered by [that directive]’. Pursuant to paragraph 4 of that provision, ‘this Article is without prejudice to national court procedures’.
56. The Court has interpreted Article 34 of that directive as meaning that it does not oppose – but also does not impose – a sequential system. (17)
57. Thus, in a similar area to that covered by Directive 2014/61, EU law does not preclude a parallel system such as the one at issue in the main proceedings.
4. The objectives of Directive 2014/61
58. It remains to be assessed whether the objectives leading to the adoption of Directive 2014/61 confirm that interpretation.
59. In that regard, as is apparent, in particular, from Article 1(1) of Directive 2014/61, read in the light of recitals 2, 9, 13 and 14 thereof, that directive seeks to facilitate and incentivise the fast roll-out of high-speed electronic communications networks, in particular by promoting the joint use of existing physical infrastructure.
60. Admittedly, as emphasised by Telekom and the referring court, that objective would be better achieved had Directive 2014/61 required the Member States to establish a sequential system. Indeed, the aim of out-of-court proceedings is to settle disputes more quickly and to reduce costs, thus facilitating access to physical infrastructure and consequently the fast roll-out envisaged by that directive. (18)
61. However, for the following reasons, I do not think that a parallel system contradicts the objectives of Directive 2014/61.
62. First, pursuant to Article 1(2) and (3) of Directive 2014/61, read in the light of recital 11 thereof, that directive establishes minimum requirements concerning access to physical infrastructure. As a result, the harmonisation carried out by that directive does not appear to go as far as requiring the establishment of a sequential system, to the detriment of court proceedings. Whereas it is true that Member States may put in place such a system, they are not required to do so. In essence, in my view, in order to fulfil the objectives of that directive, it is sufficient to make out-of-court proceedings available, without the need to render them mandatory.
63. In that context, it must be emphasised that the functioning and efficiency of administrative bodies and courts may vary across Member States. It thus appears reasonable to afford them a certain margin of discretion in that regard. While some Member States may consider it appropriate to establish a sequential system in order to lighten the burden on the court system, others may not. (19)
64. Secondly, as argued by Telekom, disputes on access to existing physical infrastructure in the field of telecommunications may require a certain level of expertise. However, I do not think that a national court of first instance is unable to perform such a task, which essentially requires the setting of fair and reasonable terms and conditions for access (first and third subparagraphs of Article 3(5) of Directive 2014/61). In any event, the determination of charges for access to physical infrastructure in the field of telecommunications does not seem to require centralised monitoring carried out by the regulatory body, unlike the charges for use of railway infrastructure discussed in the case that gave rise to the judgment in CTL Logistics. (20)
65. I therefore conclude that a parallel system such as the one at issue in the present case is in line with the objectives of Directive 2014/61.
66. Accordingly, my proposed reply to the first question is that Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61 must be interpreted as not precluding national legislation under which a network operator has the right to submit a request for the settlement of a dispute concerning access to existing physical infrastructure either before the DSB or before an ordinary court.
B. The second question referred
1. Preliminary remarks
67. The second question deals with the second subparagraph of Article 3(5) of Directive 2014/61, read in the light of the principles of equivalence and effectiveness, and of Article 47 of the Charter. Two remarks in this regard appear necessary.
68. First, since the referring court did not provide any element allowing the Court to assess compliance with the principle of equivalence, only the principle of effectiveness is at issue in the present case.
69. Secondly, the referring court puts the principle of effectiveness and Article 47 of the Charter on an equal footing. This raises the question whether the analysis of both is necessary, or whether the present case should be assessed through the lens of only one of them. (21)
70. However, given the reasons set out in the order for reference, it seems to me that, on the one hand, the referring court seeks guidance on whether the principle of effectiveness precludes a national procedural rule under which out-of-court proceedings are to be discontinued if one of the parties subsequently brings the same matter before a court. On the other hand, the referring court appears to harbour doubts as to whether such a procedural rule might nonetheless be necessary in the light of the right to an effective remedy, in particular in order to avoid contradictory decisions and ensure legal certainty.
71. In essence, at least from the referring court’s perspective, there may be an apparent conflict between ensuring the effectiveness of the rights derived from Directive 2014/61 and guaranteeing the right to an effective remedy. (22) It is therefore necessary to analyse the national procedural rule at issue from the perspective of both the principle of effectiveness and the right to an effective remedy in order to find a balanced solution that prevents the apparent conflict signalled by the referring court.
72. Accordingly, by its second question, the referring court is asking, in essence, whether the second subparagraph of Article 3(5) of Directive 2014/61 and the principle of effectiveness must be interpreted as precluding a national procedural rule under which dispute settlement proceedings before the competent national DSB are to be discontinued if one of the parties, in the course of those proceedings before that body, institutes proceedings with the same subject matter before the court having jurisdiction. If the answer is in the affirmative, that court asks whether that national procedural rule is nonetheless required by Article 47 of the Charter.
2. The principle of effectiveness
73. Since the judgment in Rewe-Zentralfinanz and Rewe-Zentral, (23) the Court has consistently held that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. However, those rules must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness).
74. Thus, for the principle of effectiveness to apply, there must be no EU procedural rules governing actions for safeguarding rights that individuals derive from EU law.
75. In that respect, as regards Directive 2014/61, it follows from my analysis of the first question that (i) Member States must set up an out-of-court procedure to settle disputes concerning access to physical infrastructure (Article 3(4)); (ii) either party should have the right to appeal against a decision of the DSB before a court (Article 10(6)); and (iii) either party should have the possibility of bringing a dispute before a court (second subparagraph of Article 3(5)).
76. However, Directive 2014/61 does not establish any priority rules between remedies (i) and (iii). It thus follows that any national procedural rule determining such priority falls under the principle of procedural autonomy, subject to compliance with the principles of equivalence and effectiveness.
77. In that regard, as the Court has consistently held, each case which raises the question whether a national procedural provision renders the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate, be taken into consideration. (24)
78. In the circumstances of the present case, it must be recalled that, pursuant to recital 9 of Directive 2014/61, measures aiming at increasing efficiency in the use of existing infrastructure should provide a substantial contribution to ensuring a fast and extensive deployment of high-speed electronic communications networks, which is the objective of that directive.
79. Accordingly, any network operator is to have the right to access the physical infrastructure of another operator, provided that the conditions set out in Article 3(2) of Directive 2014/61 are fulfilled and that, according to paragraph 3 of that provision, no objective, transparent and proportionate reasons for refusing access are put forward by the infrastructure operator.
80. The establishment of a procedure for settling disputes concerning access to physical infrastructure, pursuant to which the DSB must, in principle, decide within the shortest possible time frame, and in any case within four months, (25) clearly facilitates access to existing physical infrastructure, thus furthering the purpose of Directive 2014/61.
81. In the present case, Telekom resorted to that procedure to seek access to the physical infrastructure of T‑2. T‑2 then brought the matter before a court seeking a declaration that Telekom did not have the right to access its physical infrastructure. Under national law, in those circumstances, the procedure before the DSB is to be automatically discontinued.
82. In my opinion, this renders the exercise of Telekom’s right to access the physical infrastructure of T‑2 in good time, guaranteed by Article 3(2) of Directive 2014/61, read in the light of recital 9, excessively difficult or practically impossible. Moreover, it undermines the full effectiveness (effet utile) of the out-of-court dispute settlement procedure envisaged by Article 3(4) of Directive 2014/61. (26)
83. Indeed, the possibility to resort to a DSB and, consequently, to achieve a speedy settlement of a dispute concerning access to a physical infrastructure or the terms and conditions for such access is intended to make the right of access effective. In a situation where an operator has de facto opted for bringing a case before a DSB, and not before a civil court, the automatic discontinuance of the former procedure once the counterparty has brought the same matter before a court is contrary to the principle of effectiveness and to the full effectiveness of Article 3(4) of Directive 2014/61.
84. In the present case, it is apparent from the Court file that the proceedings before the DSB and those before the civil court concern the same subject matter. Moreover, none of the interested parties has disputed that premiss. In reality, an action seeking a declaration that the network operator is not to have access to the physical infrastructure may even be regarded simply as a defence against the first action pending before the DSB, brought in the form of independent proceedings before a court. (27) In any event, it is for the referring court to ensure that the two pending cases concern the exact same subject matter and that there are no additional pleas justifying a case subsequently being brought before a court. (28)
3. The right to an effective remedy
85. I have established in point 76 of the present Opinion that Directive 2014/61 does not establish any priority rules between dispute settlement proceedings and court proceedings concerning the same subject matter.
86. Thus, it is in principle for the Member States, opting to implement Article 3 of Directive 2014/61 by establishing a parallel system, to enact rules determining the practical arrangements for the exercise of the remedies provided for in that provision.
87. In the present case, the national legislature did indeed adopt such rules. However, as follows from my analysis in the preceding section, those rules may render the exercise of the rights conferred on network operators seeking access to existing physical infrastructure under Directive 2014/61 excessively difficult or practically impossible. In those circumstances, it is in principle for the national authorities, including the courts and the competent dispute settlement bodies, to ensure that the rights flowing from Directive 2014/61 are effectively protected by disapplying the rule of national law requiring the proceedings before the DSB to be discontinued.
88. Nevertheless, a potential problem may arise from that disapplication, and thus from the need to ensure the full effectiveness of Directive 2014/61: in the absence of priority rules, the conduct of two sets of proceedings on the exact same subject matter in parallel creates the risk of contradictory decisions, which would give rise to a situation of legal uncertainty. That may be seen as a restriction of the right to an effective remedy safeguarded by Article 47 of the Charter. (29)
89. However, it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted. Pursuant to Article 52(1) of the Charter, a restriction on the right to an effective remedy before a court within the meaning of Article 47 of the Charter may be justified if it is provided for by law, if it respects the essence of that right and, subject to the principle of proportionality, if it is necessary and genuinely meets objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (30)
90. In the present case, first, ensuring the effectiveness of the right of access to existing physical infrastructure guaranteed under Article 3(2) of Directive 2014/61, in particular by enabling an operator to obtain a fast settlement of the dispute concerning such access, as guaranteed by Article 3(4) of that directive, necessarily constitutes an objective of general interest recognised by the European Union.
91. Secondly, the conduct of the two sets of proceedings in parallel appears to be necessary to achieve that objective. Arguably, establishing the principle of the priority of the first body to have the matter brought before it, which in the present case was the DSB, would both safeguard the effectiveness of the right of access to physical infrastructure and reduce the risk of contradictory decisions. (31) However, that would also restrict the right of the other party to an effective remedy, because it would imply suspending or discontinuing the court proceedings. Moreover, since Directive 2014/61 does not establish priority rules, I do not think that the principle of the priority of the body to have the matter brought before it first should necessarily be imposed on the Member States.
92. Thirdly, in my view, the following aspects reduce the risk of contradictory decisions.
93. To begin with, if the DSB decision is issued before a court judgment is handed down, that decision will be binding and thus enforceable by the operator seeking access to a physical infrastructure. (32) This fulfils the objective of Directive 2014/61.
94. Likewise, as argued by the Commission at the hearing, that decision will certainly be useful for the court deciding the same matter. (33) Indeed, given the expertise of the DSB, its decision may exempt the national court from requesting an expert opinion, thus speeding up the court proceedings. Moreover, without prejudice to more detailed national rules determining the effect of administrative decisions in civil court proceedings, the national court may refer to the DSB decision when stating the reasons for its own decision. (34)
95. Additionally, any other national procedural rules liable to reduce the risk of inconsistent decisions, namely in the event of an appeal against a DSB decision before an administrative court, may apply, subject to compliance with the principles of equivalence and effectiveness. (35)
96. In the light of the foregoing, my conclusion is that the second subparagraph of Article 3(5) of Directive 2014/61, read in the light of the principle of effectiveness, must be interpreted as precluding a national procedural rule under which dispute settlement proceedings before the competent national DSB are to be discontinued if one of the parties, in the course of those proceedings before that body, institutes proceedings with the same subject matter before the court having jurisdiction. Moreover, such a national procedural rule is not a requirement of the right to an effective remedy, enshrined in Article 47 of the Charter.
97. If, contrary to my suggestion, the Court considers that the principle of effectiveness does not preclude such a national procedural rule or that such a rule is required by Article 47 of the Charter, the referring court should nonetheless ensure that court proceedings initiated while out-of-court proceedings concerning the same subject matter are pending do not have the sole purpose of depriving the party requesting access to a physical infrastructure of the swift settlement of the dispute. In that regard, it should take into account, in particular, the matters referred to in point 84 of the present Opinion.
98. If the referring court reaches the opposite conclusion, it must apply any national procedural rule at its disposal in order to prohibit the abuse of procedure. (36)
V. Conclusion
99. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) as follows:
(1) Article 3(4) and the second subparagraph of Article 3(5) of Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks
must be interpreted as not precluding national legislation under which a network operator has the right to submit a request for the settlement of a dispute concerning access to existing physical infrastructure either before the competent national dispute settlement body or before an ordinary court.
(2) The second subparagraph of Article 3(5) of Directive 2014/61, read in the light of the principle of effectiveness
must be interpreted as precluding a national procedural rule under which dispute settlement proceedings before the competent national dispute settlement body are to be discontinued if one of the parties, in the course of those proceedings before that body, institutes proceedings with the same subject matter before the court having jurisdiction. Such a national procedural rule is not a requirement of the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.