The ECJ has issued its ruling on a request by the Supreme Court regarding the compatibility of the SCA creation back in 2013, when Spain integrated its sector regulators (NRAs) and the Competition Authority under a single agency roof, with Directive 2002/21/CE, of the European Parliament and the European Council, of 7 March 2002, on a common regulatory framework for electronic communications networks and services (Framework Directive).
The proceedings were initiated following a claim filed by the former Chairman and one member of the board of the former Telecommunications NRA, for unjustified and early dismissal caused by the creation of the SCA in 2013 (their employment contracts only expired in 2017).
The request for a preliminary ruling questioned the ECJ on: (i) whether or not the creation of the SCA was in conformity with the Framework Directive and, (ii) the lawfulness of the early unjustified dismissal caused by the institutional reorganization.
Regarding (i), according to the ECJ, the Framework Directive does not preclude the creation of a multi-sector NRA, provided that, in the performance of its tasks, the new NRA guarantees the requirements of competence, independence, impartiality and transparency laid down in the Framework Directive; and provided that an effective right of appeal is available against its decisions to a body independent of the parties involved. According to the ECJ, the SCA seems to meet those requirements; however, this should be determined by the referring court.
Regarding (ii), the ECJ has considered, pursuant to Article 3 (3a) of the Framework Directive, that the dismissal of the chairman and one member of the board before the expiry of their terms of office -on the sole ground that an institutional reform has taken place- should be precluded, in the absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of such members.