Opinion of Mr Advocate General Jacobs delivered on 14 March 2002. - Commission of the European Communities v Kingdom of Belgium. - Directive 97/33/EC - Telecommunications - Interconnection of networks - Interoperability of services. - Case C-221/01.



European Court reports 2002 Page I-07835



Opinion of the Advocate-General

1. In this action brought under Article 226 EC, the Commission seeks a declaration that, by not adopting the laws, regulations and administrative provisions needed to implement Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), in particular Articles 7(5), 9(3) and 14(1) and (2), the Kingdom of Belgium has failed to fulfil its obligations under that directive.

Directive 97/33

2. Directive 97/33 establishes a regulatory framework for securing in the Community the interconnection of telecommunications networks and in particular the interoperability of services, and [the] provision of universal service in an environment of open and competitive markets [and] concerns the harmonisation of conditions for open and efficient interconnection of and access to public telecommunications networks and publicly available telecommunications services.

3. For the purposes of the present action, the essential elements of Directive 97/33 are as follows. The specific provisions at issue are explained further in connection with the individual heads of complaint.

4. Article 3(1) of the Directive requires Member States to remove any restrictions which prevent authorised telecommunications organisations from negotiating interconnection agreements between themselves. Commercial interconnection agreements are to be a matter for agreement between the parties involved, subject to the Directive and to the Treaty competition rules.

5. Article 4 provides that authorised telecommunications organisations are to have a right and, when requested by organisations in that category, an obligation to negotiate interconnection with each other.

6. Article 5 makes provision for telecommunications organisations in some circumstances to share the cost of universal service obligations.

7. Article 7 lays down a series of principles for interconnection charges and cost accounting systems which must be applied to telecommunications organisations with significant market power, defined in Article 4(3).

8. Article 9 defines the general responsibilities of the national regulatory authorities.

9. Article 10 lays down a series of essential requirements for interconnection relating to security of network operations, maintenance of network integrity, interoperability of services and protection of data.

10. Article 12 requires Member States to ensure the provision of adequate numbers and numbering ranges for all publicly available telecommunications services.

11. Article 14 requires the information specified in certain articles to be published or made available on request to interested parties.

12. Article 23 required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 31 December 1997 and immediately to inform the Commission thereof.

Background to the proceedings

13. By letter of 13 January 1998 the Belgian authorities notified the Commission of a Law of 19 December 1997 which was intended to implement Directive 97/33.

14. On 6 August 1998 the Commission sent a letter of formal notice pursuant to Article 169 of the EC Treaty (now Article 226 EC) informing the Belgian authorities that the legislation so notified did not adequately implement all the provisions of Directive 97/33.

15. By letter of 8 September 1998 the Belgian authorities informed the Commission of the adoption of further legislation implementing the Directive. By letter of 12 October 1998 those authorities responded to the letter of formal notice.

16. The Commission remained of the view that the Directive had not been adequately implemented by Belgium and accordingly on 15 April 1999 sent the Kingdom of Belgium a reasoned opinion pursuant to Article 226 EC stating that in its view the Belgian legislation did not reflect certain specified provisions of the Directive.

17. The Belgian authorities informed the Commission of the adoption of further legislation by letters of 26 April 1999, 21 June 1999 (responding to the reasoned opinion), 18 October 1999 and 10 December 1999.

18. Although that legislation answered the Commission's concerns in part, the Commission none the less remained of the view that Belgium's implementation of Directive 97/33, in particular Articles 7(5), 9(3) and 14(1) and (2), was inadequate. It has accordingly brought the present proceedings.

The complaint concerning Article 7(5)

19. Article 7 is entitled Principles for interconnection charges and cost accounting systems. It applies to organisations which have been notified by national regulatory authorities as having significant market power.

20. Article 7(5) requires the Commission to draw up recommendations on cost accounting systems and accounting separation in regard to interconnection. The last two sentences of the second subparagraph provide in so far as relevant:

Compliance with the cost accounting system shall be verified by the national regulatory authority or another competent body .... A statement concerning compliance shall be published annually.

21. The Commission submits that the relevant Belgian legislation contains no method for verifying compliance with the cost accounting system or for publishing a statement of such compliance.

22. In its defence Belgium refers to l'arsenal législatif belge and cites numerous provisions conferring various general powers on the Institute (the Institut belge des services postaux et des télécommunications, the Belgian regulatory authority). In its rejoinder however Belgium accepts that its legislation contains no system of verifying compliance as required by Article 7(5) and informs the Court that it is proposing to fill that lacuna with forthcoming legislation.

23. In those circumstances, the Commission is entitled to the declaration which it seeks.

Article 9(3)

24. Article 9 is headed General responsibilities of the national regulatory authorities.

25. Under Article 9(1) national regulatory authorities must encourage and secure adequate interconnection in the interests of all users, exercising their responsibility in a way that provides maximum economic efficiency and gives the maximum benefit to end-users. In particular they must take into account a number of specified factors, such as the need to stimulate a competitive market, the need to ensure the fair and proper development of a harmonised European telecommunication market and the principles of non-discrimination (including equal access) and proportionality.

26. The first subparagraph of Article 9(3) provides:

In pursuit of the aims stated in paragraph 1, national regulatory authorities may intervene on their own initiative at any time, and shall do so if requested by either party, in order to specify issues which must be covered in an interconnection agreement, or to lay down specific conditions to be observed by one or more parties to such an agreement. National regulatory authorities may, in exceptional cases, require changes to be made to interconnection agreements already concluded, where justified to ensure effective competition and/or interoperability of services for users.

27. The Commission submits that the Belgian implementing legislation does not provide for intervention by the regulatory authorities in negotiations on their own initiative and at any time as required by that provision.

28. Belgium refers by way of defence first to two general provisions in the Law of 21 March 1991 on the reform of certain public economic undertakings. Article 75(3) gives the Institute the general task of supervision and monitoring certain provisions of that Law. Article 79a(1) states that, in accomplishing the tasks assigned to it, the Institute may collect all necessary information from undertakings and associations of undertakings. Belgium submits that those provisions give the regulatory authority the general right to intervene at any moment if there appears to be non-compliance with a legal obligation or with the general objectives set out in the implementing legislation.

29. Belgium refers second to further provisions which it had described in its response to the reasoned opinion as implementing Article 9(3). Those provisions are (i) Article 109b(4) and (5) of the Law of 21 March 1991 as amended and (ii) Articles 8 and 12 of the Royal Decree of 20 April 1999 laying down the time-limits and general principles applicable to commercial negotiations carried on in order to conclude interconnection agreements, the manner of publication of the reference interconnection offer and the conditions to be included in the interconnection agreement.

30. The first subparagraph of Article 109b(4) of the Law of 21 March 1991 as amended requires every organisation with significant market power to publish an interconnection offer.

31. The fifth and sixth subparagraphs provide:

The Institute may impose modifications which it considers to be indispensable to the interconnection offer.

If the providers of public telecommunications networks or telecommunications services offered to the public have not interconnected their networks or services and the Institute considers that such interconnection is indispensable in the interests of users, the Institute may require that interconnection is effected. In that case, the Institute shall fix the conditions of interconnection, subject to the parties' right to enter into an agreement in accordance with paragraph 5 of this article.

32. The second subparagraph of Article 109b(5) provides:

If it is indispensable to ensure equal conditions of competition or interoperability, the Institute may request the modification of agreements already concluded.

33. The Royal Decree of 20 April 1999 concerns commercial interconnection negotiations. Article 8 provides that if, at the end of the period specified in the preceding article, the parties have not reached agreement, they may jointly or individually request the Chamber for interconnection, special access and shared use to intervene. Article 12 states that if the parties fail to conclude an interconnection agreement, the party to whom the request for interconnection was addressed is to draw up an interconnection offer; the Institute may decide to modify that offer with a view to reaching agreement between the parties.

34. The Commission remains of the view that the above provisions do not provide for intervention by the regulatory authorities in negotiations on their own initiative and at any time as required by Article 9(3) of the Directive.

35. I accept the Commission's submissions on this point. It is apparent from its terms that Article 9(3) requires the national regulatory authorities to be empowered to intervene during the course of negotiations leading up to an interconnection agreement. The Community legislature clearly envisaged that that was to be distinct from the power to require changes to interconnection agreements already concluded. The national legislation invoked by Belgium however appears to confer either very general supervisory powers, which cannot in my view be regarded as adequate implementation of a specific power to intervene in commercial negotiations, or specific powers to intervene in contexts which do not fully reflect those envisaged by Article 9(3).

36. In particular, as the Commission submits, the second subparagraph of Article 109b(5) solely concerns agreements already entered into and does not permit the authorities to intervene in the negotiations leading up an interconnection agreement. Article 109b(4) solely concerns the requirement in Belgian law for organisations with significant market power to publish a so-called reference offer - as required by Article 7(3) of the Directive - to serve as a basis for subsequent negotiations. It is that reference offer which may be modified by the Institute. That right however is distinct from a right by the Institute to intervene in any negotiations for an interconnection agreement. Article 8 of the Royal Decree applies only if the parties request intervention and Article 12 only if the parties have failed to conclude an interconnection agreement.

37. Belgium appears to accept in its rejoinder that its legislation does not adequately implement Article 9(3) of the Directive and annexes a draft royal decree amending the Royal Decree of 20 April 1999 by inserting therein a new Article 7a which it states repeats verbatim the wording of the Directive.

38. In those circumstances, the Commission is entitled to the declaration which it seeks.

Article 14(1) and (2)

39. Article 14, headed Publication of and access to information, provides in so far as relevant:

1. With regard to the information identified in Article 7(3), Article 9(2), Article 10 and Article 12(4), national regulatory authorities shall ensure that up-to-date information is published in an appropriate manner in order to provide easy access to that information for interested parties. Reference shall be made in the national Official Gazette of the Member State concerned to the manner in which this information is published.

2. With regard to the information identified in Article 4(1), Article 5(3), Article 5(5), Article 6(c) and Article 9(3), national regulatory authorities shall ensure that up-to-date specific information referred to in those Articles is made available on request to interested parties, free of charge, during normal working hours. Reference shall be made in the national Official Gazette of the Member State concerned to the times and location(s) at which the information is available.

40. The Commission submits in its application that Belgium has infringed its obligations under (i) Article 14(1) in conjunction with Articles 7(3), 9(2), 10 and 12(4) and (ii) Article 14(2) in conjunction with Article 9(3).

41. In its reply the Commission accepts that, in the light of the explanations provided by Belgium in its defence, the situation with regard to Articles 7(3) and 9(3) may be regarded as satisfactory. It maintains its complaint however with regard to Articles 9(2), 10 and 12(4), which were not mentioned in the defence.

Article 9(2)

42. Article 9(2) of the Directive provides:

General conditions set down in advance by the national regulatory authority shall be published in accordance with Article 14(1).

In particular, in relation to interconnection between organisations set out in Annex II, national regulatory authorities:

- may set ex ante conditions in the areas listed in Part 1 of Annex VII;

- shall encourage coverage in interconnection agreements of the issues listed in Part 2 of Annex VII.

43. In its rejoinder Belgium states that Article 14(1) in conjunction with Article 9(2) of the Directive is implemented by the Royal Decree of 20 April 1999, and in particular by Articles 17 to 21 thereof.

44. Articles 17 to 20 of the Royal Decree of 20 April 1999 constitute Section 2 of Chapter II of the Decree. Chapter II is headed Publication of the reference interconnection offer and Section 2 Publication of the reference offer. Article 17 requires organisations with significant market power to publish a notice of the Institute's approval of a reference interconnection offer; Article 18 provides that such publication must be effected before 30 December of each year; Article 19 states that the reference interconnection offer is to be public and free of charge and Article 20 provides that the reference interconnection offer is in principle to be valid for the calendar year following the year of publication.

45. Article 21 of the Royal Decree is in Chapter III, Technical and financial conditions. It sets out the minimum technical and financial conditions to be fixed in interconnection agreements in accordance with Article 109b(5) of the Law of 21 March 1991.

46. The first paragraph of Article 109b(5) provides in so far as relevant:

Interconnection is to be governed by an agreement between the parties concerned. That agreement shall stipulate the technical and financial conditions of interconnection. The King shall lay down by decree, on the advice of the Institute, the minimum conditions to be contained in an interconnection agreement. ...

47. The conditions are described in the Rapport au Roi prefacing the Royal Decree of 20 April 1999 as falling into three broad categories: first, technical conditions concerning the network infrastructure and the type of services to be provided; second, legal or contractual conditions and third, financial and commercial conditions. The conditions almost wholly repeat the Other issues the coverage of which in interconnection agreements is to be encouraged set out in Part 2 of Annex VII to the Directive pursuant to the second subparagraph of Article 9(3) thereof.

48. The Commission contends that Articles 17 to 21 of the Royal Decree provide for publication of the Institute's approval of the reference interconnection offer but not for any form of publication or notification of the general conditions set down in advance by the regulatory authority as required by Article 9(2) of the Directive.

49. It seems to me that the Commission's argument is correct in so far as concerns Articles 17 to 20 of the Royal Decree. Article 21, however, read in the light of Article 109b(5) of the Law of 21 March 1991 does appear to list the general conditions set down in advance by the national regulatory authority for the purpose of Article 9(2).

50. Article 14(1) of the Directive requires the national regulatory authorities to ensure that information identified in Article 9(2) is published in an appropriate manner in order to provide easy access to that information for interested parties and requires reference to be made in the national Official Gazette of the Member State concerned to the manner in which this information is published.

51. Belgium contends that, since Belgian legislation is itself published in the Moniteur belge, the publication requirement in Article 14(1) is satisfied.

52. If - as in the present case - the information in question, namely with regard to this head of claim the general conditions set down in advance by the national regulatory authority, is itself published in the national Official Gazette of the Member State concerned, I agree with Belgium that that constitutes publication for the purpose of Article 14(1). It would be absurd - as Belgium points out - to require reference to be made in the Moniteur belge where the information is published to the fact that it is there published.

53. I accordingly consider that the Commission is not entitled to the declaration which it seeks with regard to Belgium's alleged failure to implement Article 14(1) in so far as it concerns Article 9(2).

Article 10

54. The second paragraph of Article 10 of the Directive provides:

Where the national regulatory authority imposes conditions based on essential requirements in interconnection agreements, those conditions shall be published in the manner laid down in Article 14(1).

55. In its rejoinder Belgium refers to earlier correspondence with the Commission apparently stating that Article 14(1) of the Directive had been implemented in so far as it concerns Article 10 by two Royal Decrees of 22 June 1998 (i) concerning the conditions of establishing and operating public telecommunications networks and (ii) laying down the specifications for the voice telephony service and the procedure for the grant of individual authorisations.

56. Those two Royal Decrees both contain provisions requiring operators to take measures to be specified in their interconnection agreements to ensure compliance with the essential requirements and in particular (in both Decrees) the interoperability of services and the protection of data and (in the case of public telecommunications networks) security of network operations and maintenance of network integrity. Both Decrees mention the Directive and the advice of the Institute in the recitals in the preamble.

57. The two Royal Decrees of 22 June 1998, which thus appear at least in part to have been based on the advice of the Institute, impose conditions based on essential requirements in interconnection agreements and therefore fall within the scope of Article 10 of the Directive. Article 14(1) of the Directive requires the national regulatory authorities to ensure that information identified in Article 10 is published in an appropriate manner in order to provide easy access to that information for interested parties and requires reference to be made in the national Official Gazette of the Member State concerned to the manner in which this information is published.

58. Belgium submits that the information identified in Article 10 of the Directive is set out in the Belgian legislation; since that legislation was itself published in the Moniteur belge, the requirement of Article 14(1) is met.

59. For the reasons given above, I consider that that submission is correct and that the Commission is accordingly not entitled to the declaration which it seeks with regard to Belgium's alleged failure to implement Article 14(1) in so far as it concerns Article 10.

Article 12(4)

60. Article 12(4) of the Directive provides:

National regulatory authorities shall ensure that the main elements of the national numbering plans, and all subsequent additions or amendments to them, are published in accordance with Article 14(1), subject only to limitations imposed on the grounds of national security.

61. Belgium contends that that provision is correctly implemented by Article 2(2) of the Royal Decree of 10 December 1997 concerning the management of the numbering plan, which provides:

The Institute is responsible for recording, adding to and, if necessary, amending numbering plans in the context of the provisions of chapters three to nine.

The main elements referred to in the preceding subparagraph are to be public and available from the Institute on request. The Institute shall refer to those main elements in the Moniteur belge. ...

62. Belgium explains that the reference published in the Moniteur Belge mentions publication of the main elements on the Institute's website. In its view that constitutes reference to the manner in which this information is published within the meaning of Article 14(1) of the Directive.

63. Belgium concludes its rejoinder however by referring to a draft royal decree amending the second subparagraph of Article 2(2) of the Royal Decree of 10 December 1997 so as to incorporate verbatim the wording of Article 14(1) of the Directive. The second sentence of the second subparagraph would read after amendment The Institute shall publish in the Moniteur belge the manner in which those elements are to be published.

64. It will be recalled that Article 14(1) requires national regulatory authorities to ensure that up-to-date information is published in an appropriate manner in order to provide easy access to that information for interested parties. No further guidance is given as to the mode of publication envisaged, although the provision requires reference to be made in the national Official Gazette of the Member State concerned to the manner in which the information is published.

65. While I am prepared to accept that in the modern telecommunications sector publication via the internet is appropriate within the meaning of Article 14(1), it is unfortunately not clear from Belgium's statements in the rejoinder what precisely is meant by the reference published in the Moniteur belge or indeed whether a reference to publication on the website has yet been published; nor has any evidence to that effect been provided to the Court.

66. In those circumstances the Commission is entitled to the declaration which it seeks with regard to Belgium's alleged failure to implement Article 14(1) in so far as it concerns Article 12(4).

Costs

67. Since the Commission has succeeded in the greater part of its application, Belgium must bear the costs.

Conclusion

68. In the light of the foregoing observations I am of the opinion that the Court should:

(1) declare that by failing to implement correctly Articles 7(5), 9(3) and 14(1) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), the Kingdom of Belgium has failed to fulfil its obligations under that directive;

(2) order the Kingdom of Belgium to bear the costs.