Opinion of the Advocate General — ECLI:EU:C:2010:359
Date: 2010-06-22
Language of the case: Dutch
Subject matter: Telecommunications
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Belgium

Summary 77. As I explained in points 48 to 59 of this Opinion, the calculation of net costs must, as a general rule, and for the purposes of sharing compensation funds in line with the responsibilities of each operator, be made according to criteria of individuality, specificity and periodicity, whose absence in this case is a reason for accepting the Commission’s first ground of infringement. 78. Likewise, the requirement that that calculation precede any actual declaration as to the existence of an unfair burden must be observed in situations where, under a cost-sharing scheme such as that provided for in Article 13(1)(b) of Directive 2002/22, not all operators discharge a specific universal service obligation even though they all contribute towards the costs of such obligations. That is, however, not the case here. In fact, the reverse is true: all undertakings are subject to the obligation to provide universal service and they all contribute funds to the scheme. In this case, the calculation of the net cost is obtained by an arithmetical operation which is applied in the same way to all the operators concerned. For all the foregoing reasons, the Commission has not demonstrated that the net cost of social tariffs must be obtained by means of a method different from that proposed by Belgium. If account is also taken of the fact that all operators contribute towards providing the service, since they are all under the same obligation to do so, and that they participate jointly in its financing, I conclude that the first part of the second ground of infringement should be rejected. 79. None the less, for the reasons set out in points 72 to 74 of this Opinion, the second part of the second ground raised by the Commission must be upheld in so far as the Kingdom of Belgium fails to take into consideration the intangible benefits accruing from the provision of social tariffs when calculating the net cost of such tariffs. VI – Costs 80. Under Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court of Justice may order that the costs be shared or that the parties bear their own costs. 81. In the event that the Court gives a ruling consistent with my proposal, the fact that the Commission has been unsuccessful on one part of the two grounds relied on by it as against the Kingdom of Belgium would indicate that, for reasons of equity, each party should bear the costs of its participation in the proceedings. VII – Conclusion 82. In the light of the foregoing, I propose that the Court should: (1) declare that, by failing at the required time and in the circumstances described to make a declaration of ‘unfair burden’, the Kingdom of Belgium has failed to fulfil its obligations under Article 12(1) 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; (2) declare that the Kingdom of Belgium: has not failed to fulfil its obligations under Articles 12(1), 13(1) and Annex IV, part A, of Directive 2002/22 by establishing a system of calculating the net cost of social tariffs as being equal to the difference between the revenue which a service provider would obtain under normal market conditions and that which it actually receives from the beneficiary of the tariff; has failed to fulfil its obligations under Articles 12(1), 13(1) and Annex IV, part A, of Directive 2002/22 by establishing a system of net cost calculation which does not take into consideration the intangible benefits accruing from the provision of universal service; (3) order each party to bear its own costs. 1 – Original language: Spanish. 2 – See inter alia Case C-55/06 Arcor [2008] ECR I-2931; Joined Cases C-152/07 to C-154/07 Arcor and Others [2008] ECR I-5959; and Case C-438/04 Mobistar [2006] ECR I-6675. 3 – Directive of the European Parliament and of the Council of 7 March 2002 (OJ 2002 L 108, p. 51). 4 – Recital 8 and Article 4(1). 5 – Recital 12 and Article 6(1) and (3). 6 – Recital 11 and Article 5. 7 – Recital 7. 8 – Article 7. 9 – Article 9. 10 – Recital 4. 11 – Recital 18. 12 – Recital 21. 13 – Moniteur belge of 20 June 2005. 14 – Moniteur belge of 8 May 2007. 15 – Article 74, first paragraph. 16 – Article 74, third paragraph. 17 – Article 74, fourth paragraph. 18 – Article 74, eighth paragraph. 19 – Specifically provided for in Article 45a of the Annex to the Law of 13 June 2005 inserted by Article 200 of the Law of 25 April 2007. 20 – Article 74, tenth paragraph. 21 – Moniteur belge of 8 August 2006. 22 – Subject to compliance with the additional requirements laid down in this regard by Article 22, the persons eligible are inter alia persons aged 65 years or older, persons aged 18 years or over who are at least 66% handicapped, persons in receipt of a minimum guaranteed income, persons who are the subject of a decision adopted by the King and blind war veterans. 23 – Articles 96 to 102. 24 – Case C-146/00 Commission v France [2001] ECR I-9767, paragraph 60. 25 – Emphasis added. 26 – Advocate General Geelhoed is more forthright in point 15 of his Opinion in Commission v France, when he explains that ‘… the rules generally involve supervision of the former monopoly-holders which not only have a dominant position on the market but often also, on account of that position, are the only ones with any insight into the economic soundness of the costs to be calculated. It goes without saying that they have an interest in ensuring that the costs calculated are not too low …’. 27 – Article 32 of Directive 2002/22, anticipated by recital 25 which states: ‘… Member States are not permitted to impose on market players financial contributions which relate to measures which are not part of universal service obligations. Individual Member States remain free to impose special measures (outside the scope of universal service obligations) and finance them in conformity with Community law but not by means of contributions from market players’. 28 – In accordance with Article 45a of the Belgian Telecommunications Law. 29 – Article 15 and recital 25 of Directive 2002/22. 30 – Recital 25 of Directive 2002/22. 31 – In paragraph 76, the Court points up the obligation to take those intangible benefits into account.