Opinion of the Advocate General — ECLI:EU:C:2003:405
Date: 2003-07-10
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

SUMMARY — CASE C-500/01 
Summary of the Judgment 
Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Telecommunications sector — Directives 90/388 and 
96/19 — Tariff rebalancing by traditional telecommunications organisations — Obli­
gation of Member States to remove obstacles to rebalancing — National rules fixing or 
limiting variation in tariffs — Not permissible 
(Commission Directives 90/388, Art. 4c, and 96/19, Art. 1(6)) 
Although Article 4c of Directive 90/388 on 
competition in the markets for telecom­
munications does not lay down a period 
within which the obligation to rebalance 
tariffs must be carried out by the tele­
communications organisations, the fact 
remains that several elements of Directive 
96/19, amending Directive 90/388, state 
that the rebalancing of tariffs must be 
carried out at a sustained rate in order to 
facilitate the opening of the telecommuni­
cations market to competition. Thus, it is 
clear from reading the 20th and 5th recitals 
in the preamble to Directive 96/19 together 
with Article 4c of Directive 90/388 that the 
Member States were bound to phase out 
the restrictions on tariff rebalancing as 
soon as possible after the entry into force 
of Directive 96/19 and at the latest by 
1 January 1998. 
Therefore, a Member State fails to fulfil 
that obligation to remove obstacles to tariff 
rebalancing where the tariff imbalances 
persisting for several years after the expiry 
of that period cannot be attributed exclus­
ively to the traditional telecommunications 
organisation, but also to the national auth­
orities. Such is the case both where that 
organisation has no discretion in fixing 
tariffs and where its power to fix tariffs is 
limited by a regulatory ceiling on price 
variations for telecommunications services 
detrimental to the development of compe­
tition with regard to the traditional oper­
ator and, therefore, contrary to the objec­
tives of Directive 90/388. 
(see paras 32, 36-37, operative part 1) 
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