# C_2008142EN.01000301.xml

| 7.6.2008 | EN | Official Journal of the European Union | C 142/3 |
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7.6.2008

EN

Official Journal of the European Union

C 142/3

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Judgment of the Court (Fourth Chamber) of 24 April 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne — Germany) — Arcor AG & Co. KG v Bundesrepublik Deutschland

(Case C-55/06) (1)

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(Telecommunications - Regulation (EC) No 2887/2000 - Access to the local loop - Principle of cost-orientation - Costs - Interest on the capital invested - Depreciation of fixed assets - Valuation of local telecommunications infrastructures - Current costs and historic costs - Calculation basis - Actual costs - Costs already paid and forward looking costs - Proof of costs - ‘Bottom-up’ and ‘top-down’ analytical models - Detailed national legislation - Margin of discretion of the national regulatory authorities - Judicial review - Procedural autonomy of the Member States - Principles of equivalence and effectiveness - Challenge by the beneficiaries before the courts of decisions authorising the rates of the notified operator - Burden of proof - Supervisory and judicial procedures)

(2008/C 142/03)

Language of the case: German

Referring court

Verwaltungsgericht Köln (Administrative Court, Cologne)

Parties to the main proceedings

Applicant: Arcor AG & Co. KG,

Applicant:

Defendant: Bundesrepublik Deutschland

Defendant:

Intervener: Deutsche Telekom AG

Intervener:

Re:

Reference for a preliminary ruling — Verwaltungsgericht Köln — Interpretation of Article 1(4), Article 3(3) and Article 4 of Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop (OJ 2000 L 336, p. 4)

Operative part of the judgment

| 1. | The interest on the capital invested and the depreciation of the fixed assets deployed for the initial implementation of the local loop are among the costs to be taken into account in accordance with the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop. |
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1.

The interest on the capital invested and the depreciation of the fixed assets deployed for the initial implementation of the local loop are among the costs to be taken into account in accordance with the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop.

| 2. | When applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation No 2887/2000, in order to determine the calculation basis of the costs of the notified operator, the national regulatory authorities have to take account of actual costs, namely costs already paid by the notified operator and forward looking costs, the latter being based, where relevant, on an estimation of the costs of replacing the network or certain parts thereof. |
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2.

When applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, laid down in Article 3(3) of Regulation No 2887/2000, in order to determine the calculation basis of the costs of the notified operator, the national regulatory authorities have to take account of actual costs, namely costs already paid by the notified operator and forward looking costs, the latter being based, where relevant, on an estimation of the costs of replacing the network or certain parts thereof.

| 3. | Pursuant to Article 4(2)(b) of Regulation No 2887/2000, the national regulatory authority may request notified operators to supply relevant information on the documents justifying the costs taken into account when applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation. Since Community law does not contain any provision concerning the accounting documents to be checked, it is the task of the national regulatory authorities alone, in accordance with the law applicable, to examine whether, for the purposes of cost accounting, the documents produced are the most appropriate ones. |
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3.

Pursuant to Article 4(2)(b) of Regulation No 2887/2000, the national regulatory authority may request notified operators to supply relevant information on the documents justifying the costs taken into account when applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation. Since Community law does not contain any provision concerning the accounting documents to be checked, it is the task of the national regulatory authorities alone, in accordance with the law applicable, to examine whether, for the purposes of cost accounting, the documents produced are the most appropriate ones.

| 4. | When national regulatory authorities are applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, Community law does not preclude them, in the absence of complete and comprehensible accounting documents, from determining the costs on the basis of an analytical bottom-up or top-down cost model. |
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4.

When national regulatory authorities are applying the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation, Community law does not preclude them, in the absence of complete and comprehensible accounting documents, from determining the costs on the basis of an analytical bottom-up or top-down cost model.

| 5. | The possibility granted to the Member States, in Article 1(4) of Regulation No 2887/2000, to adopt detailed national measures cannot render inapplicable the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation as laid down in Article 3(3) of that regulation. |
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5.

The possibility granted to the Member States, in Article 1(4) of Regulation No 2887/2000, to adopt detailed national measures cannot render inapplicable the principle that rates for unbundled access to the local loop are to be set on the basis of cost-orientation as laid down in Article 3(3) of that regulation.

| 6. | It is apparent from Article 4(1) and (2) of Regulation No 2887/2000 that, when examining the rates of notified operators for the provision of unbundled access to their local loop in light of the pricing principle laid down in Article 3(3) of that regulation, the national regulatory authorities have a broad discretion concerning the assessment of the various aspects of those tariffs, including the discretion to change prices, and thus the proposed tariffs. That broad discretion also relates to the costs incurred by the notified operators, such as interest on invested capital and depreciation of fixed assets, the calculation basis of those costs and the cost accounting models used to prove them. |
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6.

It is apparent from Article 4(1) and (2) of Regulation No 2887/2000 that, when examining the rates of notified operators for the provision of unbundled access to their local loop in light of the pricing principle laid down in Article 3(3) of that regulation, the national regulatory authorities have a broad discretion concerning the assessment of the various aspects of those tariffs, including the discretion to change prices, and thus the proposed tariffs. That broad discretion also relates to the costs incurred by the notified operators, such as interest on invested capital and depreciation of fixed assets, the calculation basis of those costs and the cost accounting models used to prove them.

| 7. | It is a matter solely for the Member States, within the context of their procedural autonomy, to determine, in accordance with the principles of equivalence and effectiveness of judicial protection, the competent court, the nature of the dispute and, consequently, the detailed rules of judicial review with respect to decisions of the national regulatory authorities concerning the authorisation of rates of notified operators for unbundled access to their local loop. In those circumstances, the national courts must ensure that the obligations resulting from Regulation No 2887/2000 regarding unbundled access to the local loop by means of procedures consistent with the pricing principle laid down in Article 3(3) of that regulation are in fact complied with in transparent, fair and non-discriminatory conditions. |
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7.

It is a matter solely for the Member States, within the context of their procedural autonomy, to determine, in accordance with the principles of equivalence and effectiveness of judicial protection, the competent court, the nature of the dispute and, consequently, the detailed rules of judicial review with respect to decisions of the national regulatory authorities concerning the authorisation of rates of notified operators for unbundled access to their local loop. In those circumstances, the national courts must ensure that the obligations resulting from Regulation No 2887/2000 regarding unbundled access to the local loop by means of procedures consistent with the pricing principle laid down in Article 3(3) of that regulation are in fact complied with in transparent, fair and non-discriminatory conditions.

| 8. | Article 4(1) of Regulation No 2887/2000, read in conjunction with Article 5a(3) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997, requires that the national courts interpret and apply the domestic rules of procedure governing the bringing of appeals in such a way that a decision of the national regulatory authority concerning the authorisation of rates for unbundled access to the local loop may be challenged before the courts, not only by the undertaking to which such a decision is addressed but also by beneficiaries within the meaning of that regulation whose rights are potentially affected by it. |
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8.

Article 4(1) of Regulation No 2887/2000, read in conjunction with Article 5a(3) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision, as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997, requires that the national courts interpret and apply the domestic rules of procedure governing the bringing of appeals in such a way that a decision of the national regulatory authority concerning the authorisation of rates for unbundled access to the local loop may be challenged before the courts, not only by the undertaking to which such a decision is addressed but also by beneficiaries within the meaning of that regulation whose rights are potentially affected by it.

| 9. | Regulation No 2887/2000 must be interpreted as meaning that, during the procedure supervising the pricing for unbundled access to the local loop conducted by a national regulatory authority pursuant to Article 4 of that regulation, it is for the notified operator to provide the evidence that its rates respect the principle that rates are to be set on the basis of cost-orientation. On the other hand, it is for the Member States to allocate the burden of proof between the national regulatory authority which made the decision to authorise the rates of the notified operator and the beneficiary challenging that decision. It is also for the Member States to establish, in accordance with their rules of procedure and the Community principles of effectiveness and equivalence of judicial protection, the rules on the allocation of that burden of proof when a decision of the national regulatory authority authorising the rates of a notified operator for unbundled access to its local loop is challenged before the courts. |
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9.

Regulation No 2887/2000 must be interpreted as meaning that, during the procedure supervising the pricing for unbundled access to the local loop conducted by a national regulatory authority pursuant to Article 4 of that regulation, it is for the notified operator to provide the evidence that its rates respect the principle that rates are to be set on the basis of cost-orientation. On the other hand, it is for the Member States to allocate the burden of proof between the national regulatory authority which made the decision to authorise the rates of the notified operator and the beneficiary challenging that decision. It is also for the Member States to establish, in accordance with their rules of procedure and the Community principles of effectiveness and equivalence of judicial protection, the rules on the allocation of that burden of proof when a decision of the national regulatory authority authorising the rates of a notified operator for unbundled access to its local loop is challenged before the courts.

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(1)  OJ C 96, 22.4.2006.

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