# C_2006224EN.01000701.xml

| 16.9.2006 | EN | Official Journal of the European Union | C 224/7 |
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16.9.2006

EN

Official Journal of the European Union

C 224/7

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Judgment of the Court (Second Chamber) of 13 July 2006 (reference for a preliminary ruling from the Cour d'appel de Bruxelles — Belgium) — Mobistar SA v Institut belge des services postaux et des télécommunications (IBPT)

(Case C-438/04) (1)

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(Telecommunications sector - Universal service and users' rights - Telephone number portability - Set-up costs for the provision of number portability for mobile phones - Article 30(2) of Directive 2002/22/EC (Universal Service Directive) - Pricing for interconnection related to the provision of number portability - Price orientation by reference to costs - Regulatory power of national regulatory authorities - Article 4(1) of Directive 2002/21/EC (Framework Directive) - Effective legal protection - Protection of confidential information)

(2006/C 224/12)

Language of the case: French

Referring court

Cour d'appel de Bruxelles

Parties to the main proceedings

Applicant: Mobistar SA

Applicant:

Defendant: Institut belge des services postaux et des télécommunications (IBPT)

Defendant:

Intervening parties: Belgacom Mobile SA, Base SA,

Intervening parties:

Re:

Request for a preliminary ruling — Cour d'appel de Bruxelles (Court of Appeal, Brussels) — Interpretation of Article 30 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51) — Portability of telephone numbers — Cost-oriented pricing for interconnection related to the provision of number portability and the allocation of the costs between operators — Interpretation of Article 4 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Right of appeal against a decision of the national regulatory authority — Inclusion of confidential information in the information to be at the disposal of the body hearing the appeal

Operative part of the judgment

| 1. | Pricing for interconnection related to the provision of number portability, as referred to in Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), concerns the traffic costs of numbers ported and the set-up costs incurred by mobile telephone operators to implement requests for number porting. |
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1.

Pricing for interconnection related to the provision of number portability, as referred to in Article 30(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), concerns the traffic costs of numbers ported and the set-up costs incurred by mobile telephone operators to implement requests for number porting.

| 2. | Article 30(2) of Directive 2002/22 does not preclude the adoption of a national measure laying down the specific method to be used in calculating costs and which fixes in advance and on the basis of an abstract model of the costs maximum prices which may be charged by the donor operator to the recipient operator as set-up costs, provided that the prices are fixed on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability. |
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2.

Article 30(2) of Directive 2002/22 does not preclude the adoption of a national measure laying down the specific method to be used in calculating costs and which fixes in advance and on the basis of an abstract model of the costs maximum prices which may be charged by the donor operator to the recipient operator as set-up costs, provided that the prices are fixed on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability.

| 3. | Article 4 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that the body responsible for hearing an appeal against a decision of the national regulatory authority must have at its disposal all the information necessary in order to decide on the merits of the appeal, including, if necessary, confidential information which that authority has taken into account in reaching the decision which is the subject of the appeal. However, that body must guarantee the confidentiality of the information in question whilst complying with the requirements of effective legal protection and ensuring protection of the rights of defence of the parties to the dispute. |
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3.

Article 4 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that the body responsible for hearing an appeal against a decision of the national regulatory authority must have at its disposal all the information necessary in order to decide on the merits of the appeal, including, if necessary, confidential information which that authority has taken into account in reaching the decision which is the subject of the appeal. However, that body must guarantee the confidentiality of the information in question whilst complying with the requirements of effective legal protection and ensuring protection of the rights of defence of the parties to the dispute.

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(1)  OJ C 6, 8.1.2005.

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