Opinion of the Advocate General — ECLI:EU:C:2010:360
Date: 2010-06-22
Language of the case: Dutch
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Approximation of laws – Electronic communications networks and services – Regulatory framework – Universal service and users’ rights – Directives 2002/21 and 2002/22 – National regulatory authority (European Parliament and Council Directives 2002/21, Arts 2(g), 3 and 4, and 2002/22, Art. 2, first para.) 2. Approximation of laws – Telecommunications sector – Universal service and users’ rights – Directive 2002/22 – Universal service obligations, including social obligations – Costing – Unfair burden (European Parliament and Council Directive 2002/22, recital 21) 3. Approximation of laws – Telecommunications sector – Universal service and users’ rights – Directive 2002/22 – Universal service obligations, including social obligations – Costing – Unfair burden (European Parliament and Council Directive 2002/22, Art. 12(1) and Annex IV) 4. Approximation of laws – Telecommunications sector – Universal service and users’ rights – Directive 2002/22 – Universal service obligations, including social obligations – Costing – Unfair burden (European Parliament and Council Directive 2002/22, Art. 13(1)) 1. Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning of Directive 2002/21 on a common regulatory framework for electronic communications networks and services 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 national court to determine. (see paras 30-31, 53, operative part 1) 2. It is apparent from recital 21 in the preamble to Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services that the Community legislature intended to link the mechanisms for the recovery of net costs which an undertaking may incur as a result of the provision of universal service to the existence of an unfair burden on that undertaking. In that context, in concluding that the net cost of universal service does not necessarily represent an unfair burden for all the undertakings concerned, it intended to exclude the possibility that any net costs of universal service provision automatically give rise to a right to compensation. In those circumstances, the unfair burden which must be found to exist by the national regulatory authority before any compensation is paid is a burden which, for each undertaking concerned, is excessive in view of the undertaking’s ability to bear it, account being taken of all the undertaking’s own characteristics, in particular the quality of its equipment, its economic and financial situation and its market share. (see para. 42) 3. Article 12 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services 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. It is not apparent either from Article 12(1) or from Annex IV to Directive 2002/22 or from any other provision of that directive that the Community legislature itself intended to prescribe the conditions in which those authorities are to consider, as a preliminary matter, whether the provision of universal service may represent an unfair burden. (see paras 36, 53, operative part 2) 4. Article 13 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services precludes the 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 undertakings now designated as universal service providers are effectively subject to an unfair burden because of that provision, without having undertaken a specific examination of the situation of each of them. If the national regulatory authority finds that one or more undertakings designated as providers of universal service are subject to an unfair burden or if one or more of them requests compensation, it then falls to the Member State to establish the necessary mechanisms to that end, in accordance with Article 13(1)(a) of Directive 2002/22, from which it is also clear that that compensation must coincide with the net costs, as calculated under Article 12 of the directive. (see paras 44, 53, operative part 3)