# C_2010328EN.01000202.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/2 |
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4.12.2010

EN

Official Journal of the European Union

C 328/2

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Judgment of the Court (Fourth Chamber) of 6 October 2010 (reference for a preliminary ruling from the Grondwettelijk Hof (Belgium)) — Base NV, Euphony Benelux NV, Mobistar SA, Uninet International NV, T2 Belgium NV, KPN Belgium NV v Ministerraad

(Case C-389/08) (1)

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(Electronic communications - Directive 2002/21/EC (‘Framework’ Directive) - Articles 2(g), 3 and 4 - National regulatory authority - National legislature acting as national regulatory authority - Directive 2002/22/EC (‘Universal Service’ Directive) - Networks and services - Article 12 - Costing of universal service obligations - Social component of universal service - Article 13 - Financing of universal service obligations - Determination of whether an ‘unfair burden’ exists)

2010/C 328/03

Language of the case: Dutch

Referring court

Referring court

Grondwettelijk Hof

Parties to the main proceedings

Parties to the main proceedings

Applicants: Base NV, Euphony Benelux NV, Mobistar SA, Uninet International NV, T2 Belgium NV, KPN Belgium NV

Applicants:

Defendant: Ministerraad

Defendant:

Intervener: Belgacom NV

Intervener:

Re:

Re:

Reference for a preliminary ruling — Grondwettelijk Hof — Belgium — Interpretation of Article 12 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) — Calculation of the cost of universal service obligations — No assessment on a case-by-case basis

Operative part of the judgment

Operative part of the judgment

| 1. | 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) does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning 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) provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by those directives and that its decisions in the exercise of that function can be made the object of an effective appeal to a body independent of the parties involved, which it is for the Grondwettelijk Hof to determine. |
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1.

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) does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning 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) provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by those directives and that its decisions in the exercise of that function can be made the object of an effective appeal to a body independent of the parties involved, which it is for the Grondwettelijk Hof to determine.

| 2. | Article 12 of Directive 2002/22 does not preclude a national regulatory authority from determining generally and on the basis of the calculation of the net costs of the universal service provider which was previously the sole provider of that service that the provision of universal service may represent an ‘unfair burden’ for those undertakings designated as universal service providers. |
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2.

Article 12 of Directive 2002/22 does not preclude a national regulatory authority from determining generally and on the basis of the calculation of the net costs of the universal service provider which was previously the sole provider of that service that the provision of universal service may represent an ‘unfair burden’ for those undertakings designated as universal service providers.

| 3. | Article 13 of Directive 2002/22 precludes that authority from deciding in the same way and on the basis of the same calculation that those undertakings are effectively subject to an unfair burden because of that provision, without having undertaken a specific examination of the situation of each of them. |
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3.

Article 13 of Directive 2002/22 precludes that authority from deciding in the same way and on the basis of the same calculation that those undertakings are effectively subject to an unfair burden because of that provision, without having undertaken a specific examination of the situation of each of them.

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(1)  OJ C 285, 8.11.2008.

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