62002CC0411_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction, legal background, pre-litigation stage and procedure
1. In this action the Commission is seeking a declaration that the Republic of Austria has failed to fulfil its obligations under Article 14 of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (‘Directive 98/10’). (2)
2. The Commission submits that the Republic of Austria has failed to adopt the necessary measures for the correct transposition of Article 14(2) of Directive 98/10, which provides that in each Member State itemised bills are to show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network.
3. Directive 98/10, which has already given rise to two actions for failure by Member States to fulfil obligations – one against Italy and one against France, (3) which, moreover, did not contest the actions – aims, as expressly stated in the second subparagraph of Article 1(2) thereof, to ensure the availability throughout the Community of good quality fixed public telephone services and to define the set of services to which all users, including consumers, should have access at an affordable price.
4. With that aim in view, Article 14 of Directive 98/10 on itemised billing, tone dialling and selective call barring provides:
‘1. In order to ensure that users have access over fixed public telephone networks as early as possible to the facilities of:
…
– itemised billing and selective call barring as facilities available on request,
Member States may designate one or more operators to provide these facilities to most telephone users before 31 December 1998 and to ensure that they are generally available by 31 December 2001.
…
2. Subject to the requirements of relevant legislation on the protection of personal data and privacy, such as Directive 95/46/EC and Directive 97/66/EC, itemised bills shall show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network and/or fixed public telephone services.
A basic level of itemised billing shall be available at no extra charge to the user. Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or at no extra charge. National regulatory authorities may lay down the basic level of itemised bills.
Calls which are free of charge to the calling subscriber, including calls to helplines, shall not be identified in the calling subscriber’s itemised bill.’
5. It seems relevant to mention in this regard that Directive 98/10, the transposition of which is at issue here, was repealed on 25 July 2003 in accordance with Article 26 of 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). (4) Thus, Directive 98/10 was replaced by a new framework of rules consisting of Directive 2002/21, already mentioned, Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), (5) Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), (6) and 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). (7)
6. The last-mentioned Directive, 2002/22, takes the same line as regards the question of control of expenditure by means of itemised billing as Directive 98/10, which it replaces. (8)
7. It is true that the issue here is the transposition and interpretation not of the new Directive 2002/22 but rather of Directive 98/10, which has in the interim been repealed. It is worth pointing out in any case that the two directives follow an essentially identical line as regards the question of itemised billing. Directive 2002/22 also lays down the requirement for itemised billing to allow verification and control of the charges incurred in using the fixed public telephone network. That directive gives full details of the meaning and scope of itemised billing without diverging in any way from Article 14(2) of Directive 98/10. (9)
8. According to Article 32(1) of Directive 98/10, the Member States were required to take the measures necessary to transpose that directive by 30 June 1998.
9. By letter of 23 September 1998 the Austrian Government informed the Commission that Directive 98/10 had been transposed into Austrian law by virtue of the Telekommunikationsgesetz (Federal Law on Telecommunications – ‘the TKG’) and four regulations, (the Rahmenrichtlinienverordnung (Regulation on the Framework Directive), the Telekomtarifgestaltungsverordnung (Regulation on the fixing of charges within the field of telecommunications), the Numerierungsverordnung (Regulation on the allocation of numbers) and the Zusammenschaltungsverordnung (Regulation on interconnection)).
10. Among the various provisions of the TKG, Paragraph 94(1) is worthy of note, since its stated aim is the transposition of the aforementioned Article 14(2) of Directive 98/10. The provision reads:
‘The charges to the subscriber shall be presented in the form of a bill consisting of a breakdown of the amounts according to the type of charge. If the subscriber so requests, the bill must be itemised or provide other levels of detail, as provided for in the terms and conditions of the contract. In respect of bills showing a higher level of detail than a standard bill, provision may be made in the terms and conditions for the charging of a fee. The amount of that fee shall be determined on the basis of the costs incurred in the provision of the more detailed bill …’
11. By letter of 20 April 2001, the Commission expressed its reservations about the correctness of the transposition by the Austrian Government of Article 14(2) of Directive 98/10 and invited it, in accordance with Article 226 EC, to present its observations within a period of two months.
12. By letter of 20 June 2001 the Austrian authorities informed the Commission that, in their view, Paragraph 94 of the TKG satisfied the requirements of Article 14(2) of Directive 98/10 in so far as the basic level of billing provided for in Paragraph 94 of that law gave a sufficiently detailed level of itemisation to allow the efficient verification and control of the charges incurred in using the telephone service within the meaning of Directive 98/10.
13. On 20 December 2001, the Commission issued a reasoned opinion in which, reiterating the reason for its reservations, it expressed the view that the basic level of itemised billing adopted by the Republic of Austria in no case allowed consumers efficiently to verify their telephone charges in the manner laid down by Directive 98/10 and invited the Republic of Austria to take the measures required to achieve the desired result within a period of two months. The Austrian Government replied by letter of 27 February 2002 reaffirming its view that Article 14(2) of Directive 98/10 had been correctly transposed.
14. The Commission, having concluded that its own view on this point and the view of the Republic of Austria were irreconcilable, and that the latter was failing to fulfil its obligations, brought an action before the Court of Justice under Article 226 EC by application lodged at the Court Registry on 18 November 2002.
15. The Commission claims that the Court of Justice should:
1. Declare that, by opting for a type of itemised billing which indicates the composition of the charges only according to the type of charge but does not provide sufficient detail to ensure efficient control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) of Directive 98/10;
2. Order the Republic of Austria to pay the costs.
16. The hearing before the Court of Justice was held on 12 February 2004, at which time the representatives of the Republic of Austria and the Commission presented oral argument.
II – Arguments of the parties
A – The Commission’s submissions
17. The Commission submits that, by providing in the aforementioned Paragraph 94(1) of the TKG that the companies providing fixed network telephone services must present basic itemised bills indicating the composition of charges categorised merely by type of charge, the Austrian Government is encouraging those companies to adopt the practice of indicating categories of calls on their bills rather than itemising each call separately.
18. Thus, as is apparent from the sample telecommunications bill presented by the Austrian Government to the Commission, the basic itemised bill provided free of charge pursuant to Paragraph 94(1) of the TKG consists merely of a breakdown of the total charge in the bill covering a two-month period into separate amounts for the various categories of calls: regional calls, inter-regional calls, international calls and calls made to each of the mobile telephone companies. In the same way the total number of calls in respect of on-line services and value-added services are shown separately. Within each of these categories the bill mentions only the number of calls made, the total number of tariff units used and the overall cost for each of those categories of calls.
19. In the Commission’s view, one direct consequence of Article 14(2) of Directive 98/10, which is not disputed by the Austrian Government, is that the basic level of itemised billing should be sufficient to allow users to verify and control the charges incurred. The point at issue is whether the level of detail on the basic itemised bill adopted by the Austrian Government allows users to verify and control those charges efficiently.
20. The fact that Article 14(2) of Directive 98/10 draws a distinction between basic-level itemised billing free of charge and billing with additional levels of detail which may be offered to subscribers for an extra charge has no bearing, in the Commission’s view, on the need to make certain of a basic level of detail on the bill to allow efficient verification of the charges which users have incurred. The Commission avers that it is precisely this possibility of verification which the Republic of Austria is failing to ensure.
21. The Commission maintains that the basic-level itemised billing provided for in Austrian law does not give users enough information to enable them to verify the cost of each call made and thus to control efficiently the charges incurred in using the telephone service. Such information includes details which would enable users to identify the nature of the call, for example the country and/or area code of the number called and, similarly, information concerning duration, date and cost incurred.
B – The Republic of Austria’s counter-arguments
22. The Austrian Government states in response that neither the wording of Directive 98/10 nor its general aims require every call to be itemised separately on the bill in order to allow efficient verification of the charges that users have incurred.
23. The Austrian Government contends that the information indicated on the basic-level itemised bill in Austria is sufficiently detailed to enable users to detect immediately any anomalies, abnormalities or errors by comparing the amounts shown on the bill – for the various categories of calls – with the corresponding amounts shown on previous bills. The Austrian Government considers that such a comparison allows users to verify and control the amounts charged on the bills by, for example, checking the types of calls which were particularly expensive or identifying increased numbers of calls or calls of longer duration than the average recorded previously.
24. The Austrian Government also states that, if subscribers have any doubts about a bill, they can bring a complaint before an administrative conciliation committee where they will have access to the precise details concerning the calls made. In 2001, 1 418 complaints concerning telephone bills were brought before conciliation committees. The Austrian Government maintains that those complaints could not have been made if the bills had not made it possible, in their present form, to check amounts and irregularities.
25. The Austrian Government further contends that it is unable to set a higher level of detailed itemisation than that fixed by Paragraph 94 of the TKG for the basic level of itemised billing since, if it were to do so, one of two unacceptable consequences would inevitably arise: either the possibility expressly envisaged in Article 14(2) of Directive 98/10 of providing an additional level of detail on the bill would be rendered superfluous and meaningless, or those bills with the additional level of detail would need to include such detailed information on calls made (for example, an indication of the entire number called) that there would inevitably be a conflict with the legislation in force concerning the protection of privacy and personal data, in particular Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 on the processing of personal data and the protection of privacy in the telecommunications sector (‘Directive 97/66’). (10)
III – Assessment
26. The parties clearly have differing views on three essential aspects. First, the determination of what should be understood by the basic level of itemised billing that is sufficient to allow efficient verification of the charges incurred in using the telephone service. Secondly, whether a further level of detail on the basic Austrian itemised bill would render the additional level of detail provided for in Article 14(2) of Directive 98/10 otiose. Finally, whether the Austrian Government is in fact precluded from presenting an extra level of detail on the standard bill for fear of breaching user privacy.
A – The problem of establishing the basic level of detail for itemised billing which is sufficient to allow users to verify charges
27. Directive 98/10 does not precisely define the data which are to be included on basic-level itemised bills made available to the user at no extra charge. That is understandable in the light of the second subparagraph of Article 14(2), which provides that the national regulatory authorities may lay down the basic level of detail for itemised bills. It is clearly for the national law of each Member State to fix the specific level of detail to be included compulsorily and at no extra charge on telephone bills, as well as the additional levels of detail which may be shown – in which case, as expressly provided in the second subparagraph of Article 14(2), some extra charge might then be made.
28. Article 14(2) of Directive 98/10 does in any case indicate the objectives which basic-level item ised billing is intended to serve. To that end it provides: ‘... itemised bills shall show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network and/or fixed public telephone services’. One consequence of this express provision of Article 14(2) of Directive 98/10 is that there is a minimum level of detail which itemised bills should provide. It is this minimum threshold which needs to be established to resolve the discord between the Commission and the Austrian Government.
29. It must be borne in mind that Directive 98/10 was adopted on the basis of Article 100a of the EC Treaty (now Article 95 EC), paragraph 3 of which provides: ‘The Commission, in its proposals envisaged in paragraph 1 concerning ... consumer protection, will take as a base a high level of protection … . Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.’
30. An assessment of the minimum level of detail on an itemised bill which is sufficient to enable telephone service users, as consumers, to verify the amount they will be spending on telephone calls must not, therefore, overlook the fact that the intention was to give telephone service users a high degree of protection by providing, compulsorily and at no extra charge, the opportunity of using the bill to monitor and verify the charges incurred.
31. It is therefore appropriate to define what minimum set of data needs to be shown on the bill in order to allow efficient monitoring of the charges incurred in using the telephone service.
32. In this regard it should be noted that the expenditure incurred for calls made consists of the sum of the costs of each individual call made over the period covered by the bill. Furthermore, individual calls do not always cost the same, since the amount depends upon various factors including duration, country, area, the telephone service operator of the person called (particularly in the case of mobile telephones), the day of the week (there may be special tariffs for calls made on given days, above all at weekends) and the time at which the call is made (tariffs may vary according to the time of day).
33. In view of those considerations, it is clear that the Austrian basic-level itemised bills show a marked absence of data for those factors, which are after all decisive for the cost of each call and, consequently, for the amount payable in respect of the aggregate number of calls made over the period covered by the bill.
34. Although the Austrian bills show the various categories of calls separately, the cost of each call within each of those categories specified on the bill might in fact vary as a result of factors which are simply not shown on the bill. Hence, since the bill gives no information about those factors, which are decisive for the cost of each call, subscribers are unable to identify each of the calls billed to them or to reconstruct the calculation made to determine the amount charged on the bill for each of those calls.
35. Thus, in attempting to set a criterion to determine the minimum set of data which should appear on a basic-level itemised bill, it can be assumed that, in order to allow efficient verification and control of charges for telephone calls made within the meaning of Article 14(2) of Directive 98/10, one minimum essential condition would be that a subscriber should be able, by comparing the information shown on the bill with the tariffs agreed in the contract with the operator, to check the cost of each call and confirm that it was in fact made.
36. There is no reason why there should not be a specific definition in Austria of the data to be included on the standard itemised bill in accordance with Article 14(2) of Directive 98/10. What must be borne in mind is that the choice made must, in any event, fall within the range of possible options which, in accordance with the criterion laid down, enable the consumer to verify and control the charges incurred in respect of telephone calls.
37. If that criterion is applied, the basic level of detail on an Austrian itemised bill is seen to be insufficient because the cost of calls within each of the tariff groups specified on those bills might vary from call to call depending on factors which simply cannot be checked from the bill. For the Austrian basic-level itemised bill to allow effective monitoring of the charges incurred for calls made, the standard level of itemisation would need to include information on those factors which are decisive in Austria for determining the cost of each call separately.
38. The basic level of detail on Austrian itemised bills also proves to be insufficient, not only as regards international calls and calls to mobile telephones, but also as regards regional and national calls. The cost of any one of these types of call varies according to factors that are not shown on the bill, such as, for example, the date and time of the call. In the case of international calls, the cost of each call, in addition to varying according to the date and time, might vary depending upon whether the call is made to a fixed network telephone in a foreign country or to a mobile telephone in that country. Austrian basic-level itemised billing does not even enable the subscriber to see which specific countries they called within the group of countries covered by each of the international tariff zones shown on the bill.
39. Furthermore, since users do not have an opportunity efficiently to verify and control the cost of each call, they are similarly unable, by making an analysis of the standard Austrian telephone bill, to compare the cost of each call made with the cost of a call of equal duration made to the same number via another telephone service operator.
40. That possibility of making a comparison between the tariffs available from the various operators and also of comparing the costs of the services of other communications undertakings is instrumental to the effective development of a competitive market in this field. (11) That is also one of the objectives of Directive 98/10. (12)
41. It is relevant finally to mention that, contrary to the Austrian Government’s assertion, the fact that consumers are entitled to challenge their telephone bills and the fact that in 2001 there were 1 418 complaints of this kind brought before the conciliation committees where users had access to precise data on telephone calls made cannot be taken as an indication that the level of detail on the basic-level itemised bill in Austria is sufficient to allow efficient verification and control of the charges incurred in using the telephone service within the meaning of Article 14(2) of Directive 98/10.
42. The mere existence of the possibility of bringing a complaint before a conciliation committee and the fact that a number of complaints have actually been lodged certainly cannot be taken as an indication that there is no need for more detail on the basic-level itemised bill in Austria over and above the level currently required in that Member State. Quite the reverse – it is that additional level of detail which gives consumers the data necessary to enable them to formulate the reasons for their complaints and which, therefore, guarantees greater efficiency of the conciliation procedures.
43. The Austrian Government also claimed at the hearing that some telephone service operators provide their subscribers with a higher level of detail on their telephone bills and that, in comparison with those companies which provide the level of detail which the Commission regards as insufficient, the bills from those companies gave rise to many fewer complaints. At the same time, but to illustrate the converse case, the Austrian Government also gave some examples of other companies which, whilst offering their subscribers a very high level of detail, were the subject of many more complaints submitted to the conciliation bodies.
44. This information simply serves to highlight the fact that, contrary to what the Republic of Austria has maintained since the pre-litigation stage, the fact that users are able to bring complaints before conciliation committees and the number of complaints lodged provide no basis for the claim that the basic level of detail for itemised telephone bills laid down in Austria is adequate in the light of Article 14(2) of Directive 98/10. The contradictory examples provided by the Republic of Austria show plainly that there is no direct correlation between the level of detail on the itemised bills and the number of complaints brought before the conciliation committees.
45. First, contrary to the view maintained by the Republic of Austria, the larger number of complaints made against bills with a lower level of detail may well arise specifically because it is difficult for subscribers to check bills of that kind efficiently. In other words the greater number of complaints might not necessarily be due to the fact that users are able to check costs efficiently, but might, in contrast, be the result of doubt and uncertainty because the level of detail is not sufficient to enable consumers to check those costs efficiently.
46. Second, in so far as the number of errors on telephone bills naturally varies depending on the telephone service company concerned and, since such errors will naturally be easier to detect on a more detailed bill, more complaints may be made against certain companies that provide a higher level of detail on their bills.
B – The claim that a higher level of detail on the standard bill is unacceptable because of the provision that allows an additional level of detail
47. The second subparagraph of Article 14(2) of Directive 98/10 provides that additional levels of detail may be offered to subscribers at reasonable tariffs or at no charge.
48. It should, however, be pointed out that, contrary to the Austrian Government’s contention, the adoption of an additional level of detail above that currently appearing on the basic-level itemised bills in Austria would not render that provision meaningless. There would still be room for the inclusion of other items of information on the bills which could be offered to subscribers at reasonable tariffs or at no extra charge within the meaning of the second subparagraph of Article 14(2) of Directive 98/10.
49. It would in fact be possible to provide subscribers with an additional level of detail on their bills for the purpose, depending on market conditions, of making it even easier for consumers to check the charges incurred or to provide subscribers with additional information on the use of the telephone service.
50. It is not unrealistic to assume that some subscribers might be interested in receiving bills showing for each call the details of the calculations entailed in determining the cost or particularising the various components of the cost of each call, drawing a distinction for example between the net and gross costs.
51. It is also conceivable that a subscriber might like to have information on the number and total duration of calls received over the period covered by the bill in order to be able to compare the duration and cost of calls made with those of calls received.
52. That is the kind of information that could possibly be shown on a bill providing a level of detail over and above the basic level of itemisation, provided that there were subscribers interested in receiving that type of additional information against payment and provided, of course, that the Austrian authorities found it appropriate to make that information available to subscribers, having regard to the specific conditions obtaining on each national market.
53. From the foregoing it is clear that, contrary to what the Austrian Government seeks to demonstrate, the inclusion on a standard itemised Austrian telephone bill of an additional level of detail over and above that currently prescribed by Paragraph 94(1) of the TKG, in order to comply with Article 14(2) of Directive 98/10, would not render it pointless to provide additional levels of detail, as expressly allowed by the last-mentioned provision.
C – The alleged conflict with the legal provisions on protection of privacy
54. With regard to itemised billing, Article 7(1) of Directive 97/66 provides that ‘[s]ubscribers shall have the right to receive non-itemised bills’. This provision is perfectly consistent with the second indent of Article 14(1) of Directive 98/10, which provides that the Member States are to ensure that users have access to ‘itemised billing and selective call barring as facilities available on request’. Article 7(2) of Directive 97/66 states in turn that ‘Member States shall apply national provisions in order to reconcile the rights of subscribers receiving itemised bills with the right to privacy of calling users and called subscribers ...’.
55. The latitude granted to the Member States to take measures to guarantee protection of the right to privacy of callers and subscribers receiving calls is not, however, incompatible with granting the users to whom bills are addressed an opportunity to verify and monitor the costs of the telephone calls for which they will have to pay.
56. In that connection it is not evident, as the Commission points out in its rejoinder, how the mere indication of the country or area code of the subscriber called or an indication of the date and time when each call was made could constitute personal data within the meaning of Directive 97/66, so as to authorise the Austrian Government to prevent such data from being included on itemised telephone bills. First, such a decision would go far beyond the need to protect the right to privacy of telephone service users. Second, it would irreparably eliminate the right of subscribers to verify and monitor, through their bills, the cost of each call made by denying them access to data which are decisive for determining the cost of each call.
57. Neither would the inclusion of additional data, as referred to in points 49 to 52 of this Opinion, which might possibly be included on bills with an additional level of detail, constitute a breach of the legal provisions cited by the Austrian Government.
58. The Austrian Government may well consider that indicating on itemised bills the number of the subscriber called with a number of digits deleted (13) (so that it is impossible, for example, to identify the last four digits) constitutes a necessary measure for reconciling the subscriber’s right to an itemised bill with the caller’s right to privacy. However, that is no reason for saying that the basic-level itemised bill cannot show each call separately, with the relevant data for verification and monitoring of the cost of the call, including time and duration, the country and area codes or the mobile telephone codes.
IV – Conclusion
59. For the reasons set out above, I propose that the Court of Justice should:
(1) Declare that, by adopting a basic level of itemised billing which indicates the composition of the charges only according to type of charge, without sufficient detail to enable the consumer efficiently to verify and control the charges incurred in using the telephone services, the Republic of Austria has failed to fulfil its obligations under Article 14(2) of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment;
(2) Order the Republic of Austria to pay the costs.
(1) .
(2)
–	OJ 1998 L 101, p. 24.
(3)
–	Case C-423/99 Commission
v Italy
[2000] ECR I-11167 and Case C-286/01 Commission
v France
[2002] ECR I-5463.
(4)
–	OJ 2002 L 108, p. 33.
(5)
–	OJ 2002 L 108, p. 21.
(6)
–	OJ 2002 L 108, p. 7.
(7)
–	OJ 2002 L 108, p. 51.
(8)
–	This continuity is quite evident, since the 15th recital in the preamble to Directive 2002/22 states that: ‘The affordability of telephone service is related to the information which users receive regarding the telephone usage expenses as well as the relative cost of telephone usage compared to other services, and is also related to their ability to control expenditure. Affordability therefore means giving power to consumers through obligations on undertakings designated as having universal service obligations.
These obligations include a specified level of itemised billing …’.
(9)
–	In fact, Annex I to Directive 2002/22 states that the Member States are to ensure that the national regulatory authorities: ‘may lay down the basic level of itemised bills … to be provided by designated undertakings … to consumers free of charge in order that they can:
(i)	allow verification and control of the charges incurred using the public telephone network at a fixed location and/or related publicly available telephone services, and
(ii)	adequately monitor their usage and expenditure and thereby exercise a reasonable degree of control over their bills.
Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or at no charge.’
(10)
–	OJ 1997 L 24, p. 1.
(11)
–	To that effect, the preamble to Directive 98/10 (fourth recital) states that: ‘... the affordability of telephone service is related to the information which users receive regarding telephone usage expenses as well as the relative cost of telephone usage compared to other services’.
(12)
–	As is apparent from the third, fifth, eleventh, fourteenth and seventeenth recitals to Directive 98/10.
(13)
–	As expressly stated in the preamble (18th recital) to Directive 97/66: ‘Whereas the introduction of itemised bills has improved the possibilities for the subscriber to verify the correctness of the fees charged by the service provider; whereas, at the same time, it may jeopardise the privacy of the users of publicly available telecommunications services; whereas, therefore, in order to preserve the privacy of the user, Member States must encourage the development of telecommunications service options such as alternative payment facilities which allow anonymous or strictly private access to publicly available telecommunications services, for example calling cards and facilities for payment by credit card; whereas, alternatively, Member States may, for the same purpose, require the deletion of a certain number of digits from the called numbers mentioned on itemised bills’.