Opinion of the Advocate General — ECLI:EU:C:2015:45
Date: 2015-01-29
Language of the case: Dutch
Subject matter: Telecommunications;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, (1) whether the social tariff for universal service — and the compensation mechanism associated with it — is applicable to communications by mobile telephony and by Internet subscription; (2) whether Member States can apply the rules on special tariff options to this type of communication; and (3) if not, whether the Universal Service Directive is invalid for breach of Article 20 of the Charter. A – Preliminary observations on the system of the Universal Service Directive 37. The Universal Service Directive requires Member States to ensure that all users have access, at a reasonable price, to the public communications network at a fixed location and to a telephone service (Article 3(1)). To that end, Member States must ensure that all reasonable requests for connection to a public communications network and for provision of telephone services are met by at least one undertaking (Article 4(1)). 38. The directive also contains an obligation on the part of the Member States to guarantee other services, namely: directory enquiry services and directories (Article 5), public pay telephones (Article 6) and measures for disabled users (Article 7). 39. All these services make up what is known as ‘universal service’. The directive provides that the Member States may require undertakings designated to provide ‘universal service’ (Article 8) to offer special tariffs to certain consumers for social reasons (‘social tariff’) (Article 9). 40. Where the provision of ‘universal service’ represents an unfair burden for the undertakings required to provide it, the directive requires Member States either to introduce a compensation mechanism from public funds, or to share the net cost of universal service obligations between providers of electronic communications networks and services (Article 13). 41. In addition to ‘universal service’ in the strict sense, Member States may introduce ‘additional mandatory services’, for which no compensation mechanism involving specific undertakings may be imposed (Article 32). Beyond this, the directive makes no provision for compensation for these additional services; it does, nevertheless, seem clear that compensation may be provided in respect of them, since the directive does not prohibit this but merely rules out one particular method of compensation. 42. The question arising in this case is whether the social tariff (and the compensation mechanism associated with it) is applicable to communications by mobile telephony and using Internet subscription, either because this is required under the directive itself (Question 1), or because it is a matter for the Member States to decide (Question 2). In the event that the answer in both cases is in the negative, the question is whether the directive itself is contrary to Article 20 of the Charter (Question 3). B – Questions 1 and 2 43. The Grondwettelijk Hof asks first of all whether Articles 9 and 32 of Directive 2002/22 must be interpreted as meaning that the social tariff as well as the compensation mechanism provided for in Article 13(1)(b) of the directive are not only applicable to electronic communications by means of a telephone connection at a fixed location to a public communications network but also to electronic communications by means of mobile communication services and/or Internet subscriptions. 44. I think that the issue raised by the referring court can be formulated more simply, since at its heart there is a question of principle: whether or not mobile telephony and Internet subscriptions constitute services that fall within the ‘universal service’ to which the directive refers. This will determine whether they can be subject to the ‘social tariff’ and consequently give rise to compensation pursuant to the mechanism provided for in the directive. 45. In order to ascertain whether mobile telephony and Internet subscriptions fall within the concept of ‘universal service’ it is necessary, given their technical differences, to look at each system of communication individually. 1. Mobile telephony 46. As far as mobile telephony is concerned, it seems clear that this does not fall within the directive’s concept of ‘universal service’. Only ‘connection at a fixed location to a public communications network’ is referred to in the directive as one of the services included in this concept (Article 4(1)), (6) and this clearly and by definition excludes mobile telephony. (7) 47. If the directive does not treat mobile telephony as part of ‘universal service’, then it is questionable whether Member States can include it within that concept. Proponents of inclusion cite the wording of Article 9 of the directive. By virtue of Article 9(2), ‘… Member States may … require that designated undertakings provide to consumers tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network referred to in Article 4(1) or from using the services identified in Article 4(3) and Articles 5, 6 and 7 as falling under the universal service obligations and provided by designated undertakings’. 48. Article 9(3) provides that ‘Member States may, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes, disability or special social needs’. 49. It is apparent from these two provisions that the directive admits the possibility of reduced tariffs only for the purpose of ensuring certain services; precisely those that constitute ‘universal service’, as defined by the directive itself, which does not include mobile telephony, for the reasons already given. 50. In fact, the directive permits Member States to add ‘additional mandatory services’ (Article 32), but not to extend (or reduce) the list of services which the directive lays down as constituting ‘universal service’. 51. This being the case, the Kingdom of Belgium may require mobile telephony service providers to offer ‘additional mandatory services’ but may not include that service within ‘universal service’. Furthermore, as providers of an ‘additional mandatory service’, those providers would, depending on the circumstances, be entitled to compensation, but they will not be entitled to the compensation provided for in Article 13 of the directive (which refers to the possibility of financing by all providers of communications services), but only to compensation which is calculated using mechanisms that do not involve specific undertakings. (8) 2. Internet subscriptions 52. The position regarding Internet subscriptions is, in my view, somewhat different. 53. One of the services forming part of ‘universal service’ to which Article 4 of the directive refers is ‘connection at a fixed location to a public communications network’ (paragraph 1) and it is specified that this connection ‘shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access’ (paragraph 2). 54. Consequently, Internet subscriptions would be included within the concept of ‘universal service’ given in the directive and the ‘social tariff’ (Article 9) would therefore be applicable, with compensation under the mechanism provided for in Article 13 of the directive being available. However, this would clearly only be the case in respect of Internet subscriptions at a fixed location and subscriptions for connection using mobile telephony would be excluded. Member States may provide that such subscriptions, and mobile telephony in general, constitute ‘additional mandatory services’ but they cannot be included in the category of ‘universal service’. In short, compensation for them cannot be determined using the mechanism provided for in the directive for services that make up ‘universal service’. 55. My first interim conclusion is therefore to propose that the answer to Questions 1 and 2 should be that the Universal Service Directive must be interpreted as meaning that mobile telephony services do not form part of ‘universal service’ and that, consequently, neither the social tariff for universal service nor the compensation mechanism provided for in Article 13(1)(b) of the directive is applicable to them. With regard to Internet subscriptions, only those at a fixed location form part of ‘universal service’ within the meaning of the Universal Service Directive and Internet subscriptions using mobile telephony are excluded. That being so, Member States cannot add further services to the list of services that form part of ‘universal service’ within the meaning of the Universal Service Directive, although they are permitted to decide that mobile telephony services and Internet subscriptions using mobile telephony are to be imposed as ‘additional mandatory services’. In that event, compensation for such services must be through a mechanism other than that which the directive lays down for services included in ‘universal service’ and which, in particular, must not involve specific undertakings. C – Question 3 56. In my view, Question 3 is inadmissible for the reasons given by the European Parliament, the Council and the Commission. 57. Specifically, the referring court is asking whether ‘the relevant provisions of the Universal Service Directive [are] compatible with the principle of equality, as set out inter alia in Article 20 of the Charter of Fundamental Rights of the European Union’. 58. In the absence of any reasoning on the part of the referring court, it would be very dangerous to embark upon an examination of the question from the perspective of the principle of equality. The Commission has attempted to do so on the basis that the applicants in the main proceedings regard themselves as victims of discrimination in that the national legislation places them under a burden that is contrary to the Universal Service Directive. If that were the case, the reference would be absurd, as the Commission points out, since the problem would not lie with the directive but with the national legislation. 59. Both the European Parliament and the Council have responded to the question by assessing whether there is equality of treatment under the directive on the basis of an analysis of the differences between the services that are included in the concept of ‘universal service’, on the one hand, and those that are excluded from that category, on the other. They therefore assess the directive in the only manner possible in the absence of specific arguments, namely in the abstract. 60. In my view, it cannot be permissible to question the validity of a measure of EU law — which is what Question 3 implies — unless there are some minimal grounds for doing so and in this case it would not therefore be correct even to reply to the question in the alternative. The reason for this is quite simply that, as I have said, any opinion given would be based on mere conjecture or abstract analysis and would be unconnected with the specific circumstances of the matter at issue in the main proceedings. 61. If, despite this, a basis were sought on which to provide an answer in the alternative, one might, as a last resort, approach the question from the point of view of the case-law of the Court of Justice in Commission v Belgium (EU:C:2010:583) and Base (EU:C:2010:584), since the judgments in these cases gave rise to the national legislation being contested in the main proceedings and those cases did concern an issue of equality. 62. However, the discrimination perceived by the Court of Justice in those cases related to the indiscriminate way in which the Belgian legislation treated undertakings seeking compensation for the provision of universal service. The Court held that the assessment of whether an undertaking was subject to an unfair burden was one to be carried out on a case by case basis and that to treat different situations in a generic and undifferentiated way would amount to discrimination. That problem is clearly quite unrelated to the one at issue in the present proceedings. 63. Ultimately, there appears to be no basis for providing the Court of Justice with a suggested response to Question 3. VII – Conclusion 64. In the light of the foregoing observations, I suggest to the Court that it should answer the question referred as follows: (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) should be interpreted as meaning that mobile telephony services do not form part of “universal service” within the meaning of that directive and that, consequently, neither the social tariff for universal service nor the compensation mechanism provided for in Article 13(1)(b) of the directive is applicable to them. With regard to Internet subscriptions, only those at a fixed location form part of “universal service” within the meaning of the Universal Service Directive and Internet subscriptions using mobile telephony are excluded. (2) Member States cannot add further services to the list of services that form part of “universal service” within the meaning of the Universal Service Directive. Member States are permitted to decide that mobile telephony services and Internet subscriptions using mobile telephony are to be imposed as “additional mandatory services”. In that event, compensation for such services must be through a mechanism other than that which the directive lays down for services included in “universal service” and which, in particular, must not involve specific undertakings. 1 – Original language: Spanish. 2 – C‑222/08, EU:C:2010:583. 3 – C‑389/08, EU:C:2010:584. 4 – 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 (OJ 2002 L 108, p. 51) as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11). 5 – 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) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37). 6 – Emphasis added. 7 – Recital 8 in the preamble to the directive is equally clear when it states that ‘[a] fundamental requirement of universal service is to provide users on request with a connection to the public telephone network at a fixed location, at an affordable price’. 8 – In this regard, see Commission v Belgium (C‑222/08, EU:C:2010:583, paragraph 46).