## Facts

- The European Court of Justice (ECJ) in Case C-58/08, Vodafone [2010] ECR I-4999, examined the EU’s authority to regulate retail roaming charges within the internal market.
- Regulation (EC) No 717/2007 set limits on charges for roaming on public mobile telephone networks within the EU.
- The legal basis for the regulation was Article 95 EC (now Article 114 TFEU), which permits the EU to harmonize national laws impacting the internal market.
- Vodafone and other parties challenged the Regulation, arguing it exceeded the EU’s powers by interfering with Member States’ competences, particularly in areas such as taxation.

## Issues

1. Whether Article 114 TFEU (formerly Article 95 EC) provides a valid legal basis for EU regulation of retail roaming charges within the internal market.
2. Whether the Regulation exceeded the EU’s harmonization powers by affecting Member States’ authority, especially regarding indirect taxation.
3. Whether differences among Member States’ rules on roaming charges created appreciable barriers to the functioning of the internal market and justified EU intervention.

## Decision

- The ECJ held that Article 114 TFEU did provide a valid legal basis for the Regulation setting limits on roaming charges.
- The Court determined that the purpose of the Regulation was to ensure the proper functioning of the internal market, not to harmonize indirect taxation.
- It found that differences in national rules on roaming charges created real obstacles to cross-border trade and distorted competition, meeting the “appreciable effect” test.
- The ECJ rejected Vodafone’s arguments and upheld the Regulation, affirming the Commission’s role in demonstrating the necessity of harmonization under Article 114 TFEU.

## Legal Principles

- Article 114 TFEU permits the EU to harmonize laws where national differences have or are likely to have an appreciable effect on the internal market.
- The “appreciable effect” test assesses whether regulatory divergences hinder cross-border trade or competition within the EU.
- Measures impacting consumer prices, such as regulating retail roaming charges, may fall within the scope of Article 114 if their primary objective is improving internal market conditions.
- EU harmonization powers are not precluded if the primary aim is creating a single market, even if measures have indirect effects on Member States’ revenue.

## Conclusion

The ECJ clarified the breadth of the EU’s internal market competence under Article 114 TFEU, confirming the legality of the Roaming Regulation and strengthening the Union's ability to harmonize rules that address trade barriers and encourage competition, thereby ensuring the effective functioning of the internal market.

Vodafone v Secretary of State for Business, Enterprise and Regulatory Reform (Case C-58/08) [2010] ECR I-4999