OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 28 April 2016 ( *1 )

Case C‑28/15

Koninklijke KPN NV,

KPN BV,

T-Mobile Netherlands BV,

Vodafone Libertel BV,

Tele2 Nederland BV,

Ziggo BV,

Ziggo Services BV, formerly UPC Nederland BV,

Ziggo Zakelijk Services BV, formerly UPC Business BV,

v

Autoriteit Consument en Markt (ACM)(Request for a preliminary ruling

from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands))

‛Reference for a preliminary ruling — Common regulatory framework for electronic communications networks and services — Directive 2002/19/EC — Articles 8 and 13 — Directive 2002/21/EC — Articles 4, 8 and 19 — Recommendation 2009/396/EC — Legal scope — Price control and cost accounting obligations — Fixed and mobile termination service rates — Obligations imposed by a national regulatory authority (NRA) on operators with significant market power — Scope of judicial review of economic assessments made by an NRA)’

I – Introduction

1. When seised of an action against a decision of a national regulatory authority (NRA) fixing price caps for fixed and mobile call termination services provided by operators designated as having significant market power, is a national court entitled, and on the basis of what types of consideration, to depart from a European Commission recommendation applied by that NRA? If so, is that national court entitled inter alia to review the proportionality of the price measure imposed by the NRA in the light of the objectives pursued by the common regulatory framework for electronic communications networks and services and may it require the NRA to demonstrate adequately that the price measure in question makes it possible actually to attain the objectives pursued?

2. That is, in essence, the subject matter of the two questions referred by the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands) concerning the interpretation of Article 4(1) and Article 8 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), ( *2 ) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 ( *3 ) (‘the Framework Directive’), and of Articles 8 and 13 of 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), ( *4 ) as amended by Directive 2009/140 (‘the Access Directive’).

3. Those questions are raised in proceedings brought by several Dutch telecommunications operators, including Koninklijke KPN NV, against the Autoriteit Consument en Markt (ACM) (Authority for Consumers and Markets, Netherlands) regarding the latter’s decision to establish price caps for fixed and mobile call termination services provided by those operators, on the basis of the cost model described and advocated in Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU. ( *5 )

II – Legal framework

A – Union law

1. Framework Directive

4. Article 4 of the Framework Directive, entitled ‘Right of appeal’, states: ‘1. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of [an NRA] has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. …’

5. Article 7 of the Framework Directive provides as follows: ‘… 3. … where [an NRA] intends to take a measure which: (a) falls within the scope of Articles 15 or 16 of this Directive, or Articles 5 or 8 of [the Access Directive]; and (b) would affect trade between Member States; it shall make the draft measure accessible to the Commission, [the Body of European Regulators for Electronic Communications (BEREC)], ( *6 ) and the [NRAs] in other Member States, at the same time, together with the reasoning on which the measure is based … [NRAs], BEREC and the Commission may make comments to the [NRA] concerned only within one month … … 7. The [NRA] concerned shall take the utmost account of comments of other national regulatory authorities, BEREC and the Commission … …’

6. Article 8 of the Framework Directive, entitled ‘Policy objectives and regulatory principles’, provides: ‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the [NRAs] take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives. … 2. The [NRAs] shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia: (a) ensuring that users … derive maximum benefit in terms of choice, price, and quality; (b) ensuring that there is no distortion or restriction of competition in the electronic communications sector …; … 3. The [NRAs] shall contribute to the development of the internal market by inter alia: … (d) cooperating with each other, with the Commission and BEREC so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives. ( *7 ) 4. The [NRAs] shall promote the interests of the citizens of the European Union …’

7. Article 16 of that directive, entitled ‘Market Analysis Procedure’, provides as follows: ‘… 2. Where [an NRA] is required under … Article 8 of [the Access Directive] to determine whether to impose, maintain, amend or withdraw obligations on undertakings, it shall determine on the basis of its market analysis referred to in paragraph 1 of this Article whether a relevant market is effectively competitive. 3. Where [an NRA] concludes that the market is effectively competitive, it shall not impose or maintain any of the specific regulatory obligations referred to in paragraph 2 … 4. Where [an NRA] determines that a relevant market is not effectively competitive, it shall identify undertakings which individually or jointly have a significant market power on that market in accordance with Article 14 and the [NRA] shall on such undertakings impose appropriate specific regulatory obligations referred to in paragraph 2 of this Article or maintain or amend such obligations where they already exist. …’

8. Article 19 of the Framework Directive, entitled ‘Harmonisation procedures’, states: ‘1. … where the Commission finds that divergences in the implementation by the [NRAs] of the regulatory tasks specified in this Directive and the Specific Directives may create a barrier to the internal market, the Commission may, taking the utmost account of the opinion of BEREC, issue a recommendation or a decision on the harmonised application of the provisions in this Directive and the Specific Directives in order to further the achievement of the objectives set out in Article 8. 2. … Member States shall ensure that [NRAs] take the utmost account of those recommendations in carrying out their tasks. Where [an NRA] chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position. …’

2. Access Directive

9. Article 8 of the Access Directive, entitled ‘Imposition, amendment or withdrawal of obligations’, provides as follows: ‘1. Member States shall ensure that [NRAs] are empowered to impose the obligations identified in Articles 9 to 13a. 2. Where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of [the Framework Directive], [NRAs] shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate. … 4. Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the [Framework Directive]. Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of that Directive. …’

10. Article 13 of the Access Directive, entitled ‘Price control and cost accounting obligations’, is worded as follows: ‘1. [An NRA] may, in accordance with the provisions of Article 8, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users. To encourage investments by the operator, including in next generation networks, [NRAs] shall take into account the investment made by the operator, and allow him a reasonable rate of return on adequate capital employed, taking into account any risks specific to a particular new investment network project. 2. [NRAs] shall ensure that any cost recovery mechanism or pricing methodology that is mandated serves to promote efficiency and sustainable competition and maximise consumer benefits. In this regard [NRAs] may also take account of prices available in comparable competitive markets. 3. Where an operator has an obligation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs including a reasonable rate of return on investment shall lie with the operator concerned. For the purpose of calculating the cost of efficient provision of services, [NRAs] may use cost accounting methods independent of those used by the undertaking. [NRAs] may require an operator to provide full justification for its prices, and may, where appropriate, require prices to be adjusted.’

3. Recommendation 2009/396

11. Recital 1 of Recommendation 2009/396 states as follows: ‘… during the assessment of more than 850 draft measures notified under Article 7 of [the Framework Directive] it appeared that inconsistencies in the regulation of voice call termination rates still exist.’

12. Recital 3 of Recommendation 2009/396 states: ‘Significant divergences in the regulatory treatment of fixed and mobile termination rates create fundamental competitive distortions …’

13. Recital 4 of that recommendation states as follows: ‘The lack of harmonisation in the application of cost-accounting principles to termination markets to date demonstrates a need for a common approach which will provide greater legal certainty and the right incentives for potential investors, and reduce the regulatory burden on existing operators that are currently active in several Member States …’

14. Recital 7 of Recommendation 2009/396 states: ‘… The charging system in the EU is based on Calling Party Network Pays, which means that the termination charge is set by the called network and paid by the calling network. The called party is not billed for this service and generally has no incentive to respond to the termination price set by its network provider. In this context, excessive pricing is the main competition concern of [NRAs]. High termination prices are ultimately recovered through higher call charges for end-users. Taking into account the two-way access nature of termination markets, further potential competition problems include cross-subsidisation between operators. These potential competition problems are common to both fixed and mobile termination markets. Therefore, in the light of the ability and incentives of terminating operators to raise prices substantially above cost, cost orientation is considered the most appropriate intervention to address this concern over the medium term. … In view of the specific characteristics of call termination markets and the associated competitive and distributional concerns, the Commission has for a long time recognised that setting a common approach based on an efficient cost standard and the application of symmetrical termination rates would promote efficiency, sustainable competition and maximise consumer benefits in terms of price and service offerings.’

15. Recital 13 of Recommendation 2009/396 states as follows: ‘Taking account of the particular characteristics of call termination markets, the costs of termination services should be calculated on the basis of forward-looking long-run incremental costs (LRIC). … LRIC models include only those costs which are caused by the provision of a defined increment. An incremental cost approach which allocates only efficiently incurred costs that would not be sustained if the service included in the increment was no longer produced (i.e. avoidable costs) promotes efficient production and consumption and minimises potential competitive distortions. The further termination rates move away from incremental cost, the greater the competitive distortions between fixed and mobile markets and/or between operators with asymmetric market shares and traffic flows. Therefore, it is justified to apply a pure LRIC approach whereby the relevant increment is the wholesale call termination service and which includes only avoidable costs. …’

16. Points 1 and 2 of Recommendation 2009/396 are worded as follows: ‘1. When imposing price control and cost-accounting obligations in accordance with Article 13 of [the Access Directive] on the operators designated by [NRAs] as having significant market power on the markets for wholesale voice call termination on individual public telephone networks (hereinafter referred to as “fixed and mobile termination markets”) as a result of a market analysis carried out in accordance with Article 16 of [the Framework Directive], NRAs should set termination rates based on the costs incurred by an efficient operator. This implies that they would also be symmetric. In doing so, NRAs should proceed in the way set out below. 2. It is recommended that the evaluation of efficient costs is based on current cost and the use of a bottom-up modelling approach using long-run incremental costs (LRIC) as the relevant cost methodology.’

17. It is common ground that the method advocated by the Commission in Recommendation 2009/396 is the ‘pure Bulric (bottom-up long-run incremental costs)’, which consists, in essence, in taking into account only the incremental costs of the service concerned, since the termination service on the wholesale market is considered to be a relevant increment containing only avoidable costs, namely costs which may be avoided where an increment is no longer provided. Unavoidable costs, such as common costs (costs which are not directly attributable to a specific service) and associated costs (which may be directly associated to more than one service) are not therefore taken into consideration in that cost method.

B – Netherlands law

18. Article 1.3(1) of the Telecommunicatiewet (Telecommunications Law) in the version applicable to the facts in the main proceedings (‘the Telecommunications Law’) provides as follows: ‘1. [ACM] shall ensure that its decisions contribute to achieving the objectives set out in Article 8(2) to (5) of [the Framework Directive], in any case by: a. promoting competition in the provision of electronic communications networks, electronic communications services or associated facilities, including by encouraging efficient investment in the field of infrastructure and supporting innovation; b. the development of the internal market; c. promoting the interests of end-users as regards choice, price and quality.’

19. Article 1.3(2) of the Telecommunications Law provides that, in carrying out its tasks and exercising its powers, ACM must take account as far as possible of the Commission’s recommendations referred to in Article 19(1) of the Framework Directive. If ACM does not apply a recommendation, it must inform the Commission of this giving the reasons for its decision.

20. That law states, in Article 6a.1, that ACM, as an NRA, must determine the relevant markets within the electronic communications sector. For that, ACM must, under Article 6a.1(5) of that law, determine whether or not the market concerned is effectively competitive. If it is not, ACM must, pursuant to Article 6a.2 of that law, determine whether one or more undertakings have significant market power and must decide the appropriate obligations to be imposed on them.

21. Article 6a.2(3) of the Telecommunications Law adds that an obligation within the meaning of paragraph 1 shall be appropriate if it is based on the nature of the problem identified on the market concerned and is proportionate and justified in the light of the objectives of Article 1.3.

22. Article 6a.7 of that law provides as follows: ‘1. In accordance with Article 6a.2(1), [ACM] may impose an obligation in respect of types of access, as determined by [ACM], regarding control of the charges or cost allocation for these if the market analysis indicates that, due to the absence of effective competition, the operator concerned can maintain prices at an excessively high level or can erode the margins, in both cases to the detriment of end-users. [ACM] may make said obligation subject to rules that are necessary for proper implementation of the obligation. 2. An obligation within the meaning of paragraph 1 may require that a costs-oriented rate must be charged for access or that a cost allocation system determined or approved by ACM must be applied. 3. If [ACM] has required an undertaking to charge a costs-oriented rate for access, the undertaking shall demonstrate that its rates are in fact costs-oriented. 4. Without prejudice to the provision of the second sentence of paragraph 1, [ACM] may make an obligation to set up a cost allocation system subject to rules regarding the submission of the results of applying the system by the undertaking that is subject to said obligation …’

III – Facts in the main proceedings and questions referred for a preliminary ruling

23. In a procedure prior to that at issue in the main proceedings, the Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA) (Independent Post and Telecommunications Authority, Netherlands, now ACM, which acts as the NRA in the telecommunications sector in the Netherlands), by a decision of 7 July 2010, after conducting an analysis of the relevant market, imposed on operators providing fixed and mobile call termination services in the Netherlands rates in accordance with the ‘pure Bulric’ cost model. On 31 August 2011, the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry) annulled that decision on the grounds inter alia that another cost model should have been applied, namely the ‘Bulric plus’ method, which, in essence, allows for the taking into account and even reimbursement of associated costs (costs which may be directly attributed to more than one service) and common costs (costs which are not directly attributable to a specific service). ( *8 )

24. Subsequently, ACM, having found that there was a risk on the wholesale termination service market that excessively high prices would be applied, adopted a decision (the decision contested in the main proceedings) on 5 August 2013 by which it fixed price caps for the provision of those services. The rates were fixed according to the ‘pure Bulric’ model, in accordance with the provisions of the Telecommunications Law, which transpose Articles 8 and 13 of the Access Directive, and with Recommendation 2009/396. ACM considered that that model was appropriate for determining the cost-oriented termination rates and that it was, under that recommendation, the only cost-oriented model in accordance with EU law. It considered that a price measure based on that model ruled out the risk of excessively high rates and a price squeeze, while promoting competition, the development of the internal market and the interests of end-users.

25. Koninklijke KPN, KPN BV, T-Mobile Netherlands BV and Vodafone Libertel BV, which are operators providing, inter alia, mobile termination services, brought an action for annulment before the national court against ACM’s decision of 5 August 2013, which was suspended, in proceedings for interim relief, by order of 27 August 2013.

26. In the action for annulment brought before the national court, Koninklijke KPN, KPN, T-Mobile Netherlands and Vodafone Libertel maintain that a price obligation determined according to the ‘pure Bulric’ model infringes Article 6a.2(3) and Article 6a.7(2) of the Telecommunications Law, which provide respectively that a rate must be cost-oriented and that an obligation imposed by ACM must be appropriate.

27. They add that all the statements made by ACM concerning the anticipated positive effects of application of the ‘pure Bulric’ model to the pricing structure cannot justify the imposition of rate obligations such as those at issue in the main proceedings. According to those operators, the effect of prices determined according to that model is that call termination rates are lower than those which would be obtained in a competitive market. Consequently, Recommendation 2009/396 is, in their view, not compatible with Article 13 of the Access Directive.

28. The national court points out that the wording of Article 6a.7(2) of the Telecommunications Law does not support the argument that a form of price regulation may be imposed which goes further than a price regulation measure which can already be regarded as cost-oriented.

29. It considers, however, that a stricter price obligation may be permitted if it is proportionate and justified having regard to the nature of the problem identified on the market in question and if it pursues the objectives laid down in Article 8(2) to (4) of the Framework Directive. In that case, ACM is required, according to the national court, to determine whether the price measure concerned is appropriate for attaining the objective sought and whether it does not go beyond what is necessary for that purpose. It is also required to explain the reasons for its decision and to weigh up all the interests concerned.

30. However, the national court raises the question, first, of what interests may or must be weighed up and what weight may or must be assigned to each of those interests in the analysis which must be made before price obligations are imposed. Second, it is uncertain what importance should be attached to the fact that the Commission has recommended ‘pure Bulric’ in Recommendation 2009/396 for adopting an appropriate price measure on the wholesale fixed and mobile termination service market.

31. It was in those circumstances that the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 4(1) of the Framework Directive, read in conjunction with Articles 8 and 13 of the Access Directive, be interpreted as meaning that, in principle, in a dispute concerning the lawfulness of a cost-oriented scale of charges imposed by the [NRA] in the wholesale call termination market, a national court is permitted to make a ruling which does not accord with [Recommendation 2009/396] in which [the “pure Bulric” method] is recommended as the appropriate price regulation measure for call termination markets, if, in that national court’s view, this is required on the basis of the facts in the case brought before it and/or on the basis of considerations of national or supranational law? (2) If the answer to Question 1 is affirmative: to what extent is the national court permitted, in assessing a cost-oriented price regulation measure: (a) in the light of Article 8(3) of the Framework Directive, to evaluate the NRA’s argument that the development of the internal market is promoted by reference to the degree to which the functioning of the internal market is in fact influenced? (b) to determine, in the light of the policy objectives and regulatory principles laid down in Article 8 of the Framework Directive and Article 13 of the Access Directive, whether the price regulation measure: (i) is proportionate; (ii) is appropriate; (iii) has been applied proportionately and is justified? (c) to require the NRA to demonstrate adequately that: (i) the policy objective, referred to in Article 8(2) of the Framework Directive, that the NRAs should promote competition in the provision of electronic communications networks and electronic communications services is genuinely being attained and that users are genuinely deriving maximum benefit in terms of choice, price and quality; (ii) the policy objective, referred to in Article 8(3) of the Framework Directive, that NRAs should contribute to the development of the internal market is genuinely being attained; and (iii) the policy objective, referred to in Article 8(4) of the Framework Directive, that the interests of the citizens [of the Union] should be promoted is genuinely being attained? (d) in the light of Article 16(3) of the Framework Directive, and of Article 8(2) and (4) of the Access Directive, when assessing whether the price regulation measure is appropriate, to take into account the fact that the measure has been imposed on the market on which the regulated undertakings possess significant market power but, in the form chosen (“pure Bulric”), has the effect of promoting one of the objectives of the Framework Directive, namely the interests of end-users, on another market which has not been earmarked for regulation?’

IV – Procedure before the Court

32. Written observations on those questions have been submitted by the applicants in the main proceedings, on the part of Tele2 Nederland BV, Ziggo BV, Ziggo Services BV and Ziggo Zakelijk Services BV, interveners in the main proceedings, ( *9 ) by the Netherlands, Italian, Polish and Finnish Governments, and by the Commission. At the hearing held on 16 March 2016, those interested parties and the German Government presented their oral arguments, with the exception of Tele2 Nederland and the Italian and Polish Governments, which were not represented.

V – Analysis

A – Preliminary observations

33. The Framework Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services. It lays down the tasks of NRAs and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the European Union. ( *10 )

34. The Framework Directive confers on the NRAs specific tasks for regulating the electronic communications markets.

35. In the exercise of the tasks the NRAs must take the utmost account of the objectives of Article 8 of the Framework Directive. Under Article 8(1) of that directive, the Member States are to ensure that the NRAs take all reasonable measures which are aimed at achieving the objectives of that article. That provision also states that the measures taken by the NRAs must be proportionate to those objectives.

36. Under the provisions of the Framework Directive, NRAs are required, in close collaboration with the Commission, to define relevant markets in the electronic communications sector and to determine whether those markets are effectively competitive. ( *11 ) If a market is not effectively competitive, the NRA concerned is authorised to impose ex ante regulatory obligations on undertakings with significant power on that market.

37. Where an NRA imposes such obligations, it must take into account the objectives laid down in Article 8 of the Framework Directive, and those ex ante regulatory obligations must be proportionate and justified in the light of those objectives. ( *12 )

38. Under Article 13(1) of the Access Directive, those ex ante regulatory obligations may include inter alia, obligations relating to cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator or operators concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users. Article 13(2) of the Access Directive requires the cost recovery mechanisms or pricing methodologies that are mandated to promote economic efficiency and sustainable competition and to maximise consumer benefits.

39. It is not disputed, in the main proceedings, that ACM imposed ex ante price obligations, within the meaning inter alia of Article 13(1) of the Access Directive, ( *13 ) on operators which that authority identified as having significant power on the wholesale call termination market in the Netherlands, in the form of cost-oriented price caps, based on the cost model advocated by the Commission in Recommendation 2009/396, namely the ‘pure Bulric’ model. Moreover, it should be pointed out that the national court does not ask the Court about the validity of that recommendation, contrary to what the applicants in the main proceedings seem to have suggested to it. ( *14 )

40. Nor is it disputed in the main proceedings that the imposition of ex ante price obligations, on the basis of cost-orientation of prices, is justified in the light of the non-competitive nature and specific features of the wholesale fixed and mobile call termination market, as was highlighted inter alia in recital 7 of Recommendation 2009/396 referred to in point 14 of this Opinion.

41. However, the national court asks, in essence, whether the price regulation measures adopted by ACM on the basis of the ‘pure Bulric’ cost model, advocated by Recommendation 2009/396, are not excessive and whether, as the applicants in the main proceedings claim, a price cap based on a somewhat different model, namely the ‘Bulric plus’ model, permitting the operators concerned to recover unavoidable costs, such as common and associated costs, ( *15 ) on the market concerned would be adequate because a price regulation measure based on that model already meets the requirements of cost-oriented pricing.

42. Specifically, as is apparent from the documents in the case, application of the ‘pure Bulric’ model leads to the establishment of a price cap for mobile call termination of 1.019 euro cents per minute, whereas it would be 1.861 euro cents per minute with the ‘Bulric plus’ model. As regards fixed call termination, the price cap is 0.108 euro cents per minute with the ‘pure Bulric’ model, as against 0.302 euro cents per minute with the ‘Bulric plus’ model.

43. In both situations, it is clear that application of the ‘Bulric plus’ model therefore enables the operators concerned to fix their call termination rates at a higher level than that which is the result of applying the ‘pure Bulric’ model used by ACM in accordance with Recommendation 2009/396.

44. The economic issue of the main proceedings having been clarified, the questions referred by the national court may be divided into two parts, as follows: first, is a national court authorised, and on the basis of what types of consideration, to depart from a Commission recommendation applied by an NRA? Second, and if so, is that national court inter alia authorised to review the proportionality of the price regulation measure imposed by the NRA in the light of the objectives pursued by the Framework Directive and the Access Directive, and may it require the NRA to demonstrate adequately that the price regulation measure in question makes it possible actually to attain the objectives pursued?

B – The scope of judicial review, the force of Recommendation 2009/396 and the considerations permitting the national court to depart from it

45. In the context in which the national court uses the expression ‘a ruling which does not accord with’ in its first question, it is quite clear that it envisages the possibility of replacing the ‘pure Bulric’ model, advocated by the Commission in its Recommendation 2009/396 and implemented by ACM in the decision contested before that court, with the ‘Bulric plus’ model, as that court has already done in the past ( *16 ) and as requested by the applicants in the main proceedings. It seems that the national court is prepared to consider that rates fixed according to the ‘Bulric plus’ model already meet the requirements that those rates be cost-oriented, within the meaning inter alia of Article 13(1) of the Access Directive.

46. Although it may appear to be controversial, ( *17 ) that power of the referring court to substitute its own assessment of the economic and accounting data for that made of the same data by ACM on the basis of Recommendation 2009/396, going, it appears, as far as imposing one method of calculating operators’ costs over another, is neither expressly envisaged nor prohibited by Article 4(1) of the Framework Directive, the interpretation of which is requested by the referring court in its first question.

47. Indeed, that article, in general, merely provides that, in actions brought against decisions of the NRAs, Member States must ensure that ‘the merits of the case are duly taken into account and that there is an effective appeal mechanism’. ( *18 )

48. It follows that Article 4(1) of the Framework Directive does not harmonise national rules and practices relating to the applicable judicial procedures or the scope of the review conducted by the national court of the decisions of NRAs. At most it may be inferred from the wording of Article 4(1) of the Framework Directive that that provision sets a limit beyond which Member States would be regarded as not ensuring the effectiveness of appeal mechanisms; that is to say, the review conducted by the appeal body cannot be a mere formality. Moreover, as I shall examine in more detail in connection with the reply to be given to the second question referred, ( *19 ) the provisions of the Framework Directive and of the Access Directive require the content of the review of NRA decisions which impose ex ante regulatory obligations to include an examination of the proportionality of those obligations with regard to the objectives pursued by the Framework Directive.

49. By contrast, contrary to what the Italian Government stated, in essence, in its written observations, neither Article 4(1) of the Framework Directive nor, more generally, EU law requires a national court, in a situation such as that of the present case, simply to conduct a limited review of the complex economic assessments made by an NRA, such as a review of manifest error of assessment.

50. I should point out, furthermore, that a similar argument has already been rejected by the Court in the judgment of 24 April 2008, Arcor (C‑55/06, EU:C:2008:244, paragraphs 163 to 169). In that case — which arose against the background of the regulatory framework for telecommunications immediately prior to the adoption of the Framework Directive and the Access Directive but which is still quite relevant to this point — the Court held, with regard to the scope of judicial review of decisions of an NRA concerning rates for access to the local loop of telecommunications operators with market power, including the assessments of that NRA concerning the costs to be taken into account, their method of calculation and the accounting evidence of those costs, that EU law does not lay down any rule requiring the Member States to put in place a specific means of review with respect to those decisions, expressly rejecting the argument put forward by one of the parties concerned that that review should have been marginal, if not limited.

51. In the light of those considerations, it follows that, in the absence of relevant rules established by EU law, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which persons derive from EU law, in compliance with the principles of equivalence and effectiveness. ( *20 )

52. The fact that the national court considers that it is authorised to conduct a particularly far-reaching review of ACM decisions, including, if appropriate, to substitute its own assessments for those carried out by that authority on the basis of Recommendation 2009/396, is by no means prohibited by EU law provided that the two aforementioned principles are respected. I shall also return to this aspect of the present case, from the point of view more particularly of compliance with the principle of effectiveness, in connection with the reply to be given to the second question. ( *21 )

53. The fact remains that, in the exercise of that power, a national court must act with extreme care if it intends to depart from the economic and accounting assessments subject to review, based on a Commission recommendation, such as Recommendation 2009/396.

54. There is certainly little doubt that a national court, seised of an appeal against a decision of an NRA applying Recommendation 2009/396, is not bound by the assessments contained in that recommendation.

55. Indeed, as all the parties concerned acknowledge, under Article 288 TFEU, such a recommendation has no binding legal effect, a fact confirmed by Article 19(2) of the Framework Directive although, admittedly, NRAs are required thereunder to take the utmost account of Commission recommendations adopted on the basis of Article 19(1) of the Framework Directive, but are expressly authorised not to follow a recommendation provided that they inform the Commission giving the reasons for their position. ( *22 )

56. In the present case, the fact that ACM, by adopting the decision contested before the national court, implemented Recommendation 2009/396 in the context of the main proceedings, does not alter the legal nature of that recommendation in itself. Consequently, a national court, seised of an action against a decision of an NRA applying such a recommendation, is not bound by the assessments contained in it.

57. Nevertheless, as the Court has recognised on several occasions, in spite of the fact that recommendations are not intended to produce binding affects, they are not wholly without legal effect. Accordingly, the national courts are also bound to take recommendations into consideration for the purpose of deciding disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding EU provisions. ( *23 )

58. That case-law is fully applicable to Recommendation 2009/396.

59. In particular, contrary to what Koninklijke KPN and KPN have argued in their observations, that recommendation, in my view, is indeed designed to supplement the provisions of the regulatory framework applicable to electronic communications services. The aim of Recommendation 2009/396, which was adopted on the basis of Article 19(1) of the Framework Directive, following the Commission’s finding that there were divergences and inconsistencies in the exercise of the regulatory tasks of the NRAs concerning the fixing of fixed and mobile call termination rates in the European Union, is to ensure a harmonised application of the provisions of the Framework Directive and the Access Directive. More specifically, by advocating the ‘pure Bulric’ model, Recommendation 2009/396 identifies the cost model which NRAs are invited to take as a basis for fixing the wholesale call termination rates of operators designated as having power on that market when imposing on them price control obligations and in particular cost-oriented pricing obligations, in accordance with Article 13 of the Access Directive. ( *24 )

60. In the case brought before it, which concerns the appropriateness of the fixing of price caps imposed by ACM on the applicants in the main proceedings on the wholesale fixed and mobile call termination market, based on the ‘pure Bulric’ model advocated by Recommendation 2009/396, the national court must therefore take due account of that recommendation.

61. I consider that it cannot in that respect ignore the fact that Recommendation 2009/396 was specifically adopted following the finding of significant divergences and inconsistencies between the NRAs at EU level with regard to the fixing of fixed and mobile call termination rates which, according to recital 7 of that recommendation, have caused fundamental competitive distortions.

62. The ‘pure Bulric’ model, advocated by the Commission in that recommendation, was therefore established with the aim of putting an end to those divergences and distortions within the European Union which, according to that recommendation, are detrimental to effective competition and end-consumers.

63. In Recommendation 2009/396, NRAs are therefore invited to align the price obligations which they impose on the basis of the ‘pure Bulric’ model in order to ensure effective competition in the internal market, of equal benefit to end-users and consumers. ( *25 )

64. In that context, a national court, when conducting a judicial review of an NRA decision implementing Recommendation 2009/396 on the relevant market of the Member State concerned, must act circumspectly and with caution if it intends to depart from the cost model advocated by that recommendation and the way that model has been applied by the NRA concerned.

65. On the one hand, since the validity of that recommendation is by no means disputed, the cost model recommended by the Commission therein must be presumed to constitute an appropriate measure for avoiding distortions of competition, including cross-subsidisation, and to give maximum benefit to end-consumers. Moreover, that does seem to be the premiss of the referring court’s reasoning, as indicated by the wording of the first question referred for a preliminary ruling.

66. On the other hand, it is necessary to ensure that the distortions of competition at EU level, highlighted in Recommendation 2009/396, which that recommendation seeks to level off or reduce through the application of the ‘pure Bulric’ cost model, are not reintroduced by national courts or, at least, that those courts may have only serious grounds for departing from the model recommended at EU level and applied by an NRA.

67. It is precisely the matter of the specific considerations which might authorise it to depart from Recommendation 2009/396, as implemented by ACM, that the national court also raises in its first question. Accordingly it refers, in respect of those grounds, in general, to ‘the facts in the case brought before it and/or … considerations of national or supranational law’.

68. No explanation has been given by the national court of considerations of ‘supranational law’ and I must admit that I do not know to which rules or measures it is referring. It is therefore impossible to take a view on that ground.

69. The considerations relating to national law are considerably easier to identify. However, to take those considerations, as the national court seems to be minded to do, as the sole basis for precluding the ‘pure Bulric’ cost model, applied by ACM in this case, leaves me confused regarding the legal context of the case.

70. If I understand correctly the reasoning developed by the national court, it infers from Article 6a.2(3) and Article 6a.7(2) of the Telecommunications Law — which, in essence, authorise ACM to impose a price obligation in the form of cost orientation of prices, where such an obligation is based on the problem identified and is proportionate and justified in the light of the objectives of Article 1.3 of that law — that a form of price regulation (namely that based on the ‘pure Bulric’ model), which goes further than a price regulation measure which can already be regarded as cost oriented (meaning the one based on the ‘Bulric plus’ model), cannot be imposed.

71. Leaving aside the value assessments relating to the two cost models, it should be pointed out, as the Netherlands Government also noted at the hearing, that the provisions of national law to which the referring court is alluding transpose, often in identical terms, the provisions of the Framework Directive and the Access Directive. Thus, in the very words of the national court, Article 1.3 of the Telecommunications Law transposes Article 8 of the Framework Directive, establishing the general objectives of the regulatory framework for electronic communications services to which the NRAs must contribute. Moreover, Article 6a.2(3) of that law reproduces Article 8(4) of the Access Directive, particularly with regard to the need for NRAs to impose ex ante regulatory obligations which are proportionate, while Article 6a.7(2) of the Telecommunications Law transposes Article 13(1) of the Access Directive, in particular as regards the requirement for cost-oriented rates.

72. In those circumstances, and even if I concede that it is for the referring court to interpret its national law, it is very difficult for me to imagine that the national law, as presented by that court, namely as it results from EU law, calls, by its wording and in itself, for divergence from the calculation model recommended by the Commission with the aim inter alia of supplementing and clarifying the provisions of Article 13 of the Access Directive, with regard to what is meant by the imposition of cost-oriented price obligations.

73. Admittedly, that does not mean, as the German, Finnish and Polish Governments have rightly pointed out, that there is only one theoretical model for calculating costs, capable of specifying the requirements for cost orientation of prices, provided for in Article 13(1) of the Access Directive.

74. It simply means that, in the context of this case, purely legal grounds of national law do not seem to me to be able, in themselves, to require divergence from the cost model advocated by Recommendation 2009/396 and implemented by ACM in the decision contested before the national court.

75. By contrast, as has been maintained, in essence, by Tele2 Nederland, Ziggo, the Italian Government and the Commission, and as T-Mobile Netherlands has acknowledged, it is considerations related to the factual circumstances of the main proceedings, in particular the specific characteristics of the Netherlands market which, in my view, may lead the referring court to depart from the calculation model applied by ACM on the basis of Recommendation 2009/396.

76. That ought to be, in my view, the substance of the reply to be given to the first question.

77. However, it is not possible to examine that aspect of the main proceedings in greater detail. The referring court has given no explanation of the factual and/or specific circumstances of the main proceedings which might lead it to diverge from the assessments in Recommendation 2009/396 implemented by ACM in the decision whose legality has been challenged before that court.

78. I therefore propose that the first question referred should be answered as follows: Article 4(1) of the Framework Directive is to be interpreted as meaning that a national court, in a dispute concerning the legality of an ex ante regulatory obligation which takes the form of a cost-oriented price cap imposed by an NRA in the non-competitive wholesale market for fixed and mobile call termination services, in accordance with Recommendation 2009/396 advocating the ‘pure Bulric’ cost model as the appropriate measure for regulating prices on that market, is permitted to depart from such a recommendation adopted in accordance with Article 19(1) of the Framework Directive, if that national court considers that this is required on grounds related to the facts in the main proceedings, in particular the specific characteristics of the market of the Member State in question.

C – Content of the judicial review and the standard of proof required from the NRA as regards the attainment of the objectives pursued by the Framework Directive and the Access Directive

79. By its second question, subdivided into several subquestions, the national court asks, in essence, first, whether the content of the review of the ACM decision may include an assessment of the proportionality of the price obligation imposed by that authority in the light of the objectives and regulatory principles established by the Framework Directive and by the Access Directive, including examination of the fact that the price measure is imposed on a non-competitive market but seeks to promote the objective of benefiting end-consumers in a competitive market (second question, points (b) and (d)). It is also uncertain whether, in the first place, the review which it is prompted to conduct of the ACM decision may take into account the actual influence on the functioning of the internal market of the price measure imposed by that authority and, in the second place, whether it may require ACM to demonstrate adequately that that measure actually attains three of the objectives listed in Article 8 of the Framework Directive (second question, points (a) and (c)).

80. As regards the first part of the second question, I agree with all the interested parties that it is for the national courts to review the proportionality of a price measure, such as that applied by ACM in the main proceedings.

81. As most of those parties have pointed out, it is clear from Article 8(4) of the Access Directive that the obligations imposed by the NRAs, including those provided for in Article 13 of that directive concerning cost orientation of prices, must be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. ( *26 ) That power of the NRAs cannot fall outside the scope of a judicial review of the ‘merits of the case’, as provided for in Article 4(1) of the Framework Directive. As stated inter alia by the Netherlands Government and the Commission, and as is apparent, in particular, from the recent judgment of 17 September 2015, KPN (C‑85/14, EU:C:2015:610, paragraphs 43, 47 and 49), national courts must therefore ensure that NRAs meet all the requirements under Articles 8 and 13 of the Access Directive, which include ascertaining whether the price obligation imposed by an NRA is proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. ( *27 )

82. The fact that such a price regulation measure is founded on a Commission recommendation, such as Recommendation 2009/396, does not alter that analysis. In other words, the mere existence of such a recommendation does not deprive the national court of its power to review the proportionality of a price regulation measure adopted by an NRA with the objectives laid down in Article 8 of the Framework Directive.

83. The fact remains that, as I have already indicated, such a recommendation must be duly taken into account by the national court. The ‘pure Bulric’ model, which that recommendations advocates, the validity of which has not been questioned and on which ACM based its analysis and its decision, in my view enjoys a presumption of proportionality with regard to the objectives laid down in Article 8 of the Framework Directive.

84. In that regard, I consider that the examination of the proportionality of the price regulation measure to the objectives laid down in Article 8 of the Framework Directive should lead the referring court, in accordance with the national procedural rules for judicial proceedings, including those relating to the burden of proof, to ascertain, on the one hand, whether the applicants in the main proceedings presented evidence capable of rebutting the aforementioned presumption in the circumstances of the main proceedings, having regard, if appropriate, to the specific characteristics of the Netherlands market and, on the other hand, whether the explanations provided by ACM for not applying the ‘Bulric plus’ model, as requested by the applicants in the main proceedings, are duly substantiated.

85. Moreover, the provisions of the Framework Directive and of the Access Directive do not preclude the national court examining, in the review of the proportionality of the price regulation measure adopted by ACM, the fact that that measure has been imposed on the (non-competitive) wholesale market for fixed and mobile call termination services, but that it is intended to further the objective of benefiting end-users and consumers in the downstream market or markets, which are open to competition.

86. In that regard, it is important to point out that, under Article 8(2)(a) and Article 4 of the Framework Directive, NRAs must, in promoting competition, ensure that users derive maximum benefit in terms inter alia of price and uphold the interests of citizens of the European Union, while, under Article 13(2) of the Access Directive, those same NRAs, when imposing cost recovery mechanisms, must also ensure that consumer benefits are maximised. It follows, as the Netherlands Government and the Commission have rightly pointed out in their written observations, that NRAs must take into consideration the interests of all end-users, irrespective of the market in which the ex ante obligations are imposed. Such an assessment of the interests of end-users and consumers on the part of NRAs does not fall outside the scope of a judicial review.

87. Furthermore, since, by definition, end-users and consumers are not present in the wholesale market for fixed and mobile call termination services, it is essential that their interests may be taken into consideration and evaluated in the examination of the effect which the price regulation measure imposed by the NRA on the wholesale market is intended to produce on the retail market.

88. Considering the question posed from a different angle, the applicants in the main proceedings claimed, in essence, in their written observations, that an NRA, such as ACM, does not have competence to establish ex ante obligations in a competitive market, such as the retail market for fixed and mobile call termination, which would, however, be the consequence of applying the ‘pure Bulric’ model.

89. It is true that Article 16(3) of the Framework Directive prohibits NRAs from imposing or maintaining any of the price obligations referred to in Article 8 of the Access Directive where they conclude that a market is effectively competitive. An NRA cannot therefore impose an ex ante price obligation on a market open to competition, which is downstream from the wholesale fixed and mobile call termination market.

90. As the Commission in particular accepts in its written observations, the imposition of a cost-oriented price-calculation method, based on the ‘pure Bulric’ model, precludes the operators concerned recovering unavoidable costs on the (non-competitive) wholesale fixed and mobile call termination market. It also points out that application of such a method based on that model does not, however, prevent the operators concerned from recovering those costs on other markets open to competition, which, in the Commission’s view, is more beneficial from the point of view both of competition and of end-consumers.

91. In other words, the aim of a price-calculation method based on the ‘pure Bulric’ model is not to impose ex ante price obligations on competitive markets. As the Commission confirmed at the hearing, the operators concerned are still free to recover all or part of their unavoidable costs on some or several of those markets, depending, inter alia, on their commercial strategy and/or a more accurate economic assessment of those costs on those markets.

92. With regard to the second part of the second question referred for a preliminary ruling, that is to say, whether the national court is authorised to take into account, in the review of ACM’s decision, the actual influence on the functioning of the internal market of the price regulation measure imposed by that authority and may require ACM to demonstrate adequately that that measure actually attains three of the objectives listed in Article 8 of the Framework Directive, I consider that the reply should be in the negative.

93. It should be pointed out that Article 8 of the Framework Directive provides that, in carrying out their regulatory tasks specified in that directive and, in particular, in the Access Directive, NRAs are to take all reasonable (and proportionate) measures which are aimed at achieving the objectives set out in that article, which are to promote competition in the provision of electronic communications networks and services, to contribute to the development of the internal market and to promote the interests of the citizens of the European Union. ( *28 )

94. In order to achieve the objectives set out in Article 8 of the Framework Directive, Article 5(1) of the Access Directive states that NRAs must, inter alia, carry out their tasks in a way that promotes efficiency, sustainable competition, efficient investment and innovation and gives the maximum benefit to end-users. ( *29 )

95. The ex ante obligations which NRAs may impose, including price obligations like those in the main proceedings, must therefore aim to attain the objectives laid down in Article 8 of the Framework Directive.

96. However, in my view, an NRA cannot be required to demonstrate that those obligations actually attain those objectives and a national court cannot be required to determine the legality of those obligations according to the actual influence which they have on the functioning of the internal market. ( *30 )

97. As Ziggo and the Netherlands Government have in particular pointed out, to place such a burden of proof on an NRA would be to disregard the fact that the adoption of ex ante regulatory obligations is based on a prospective analysis of the development of the market, which takes as a reference, to remedy the competition problems identified, the conduct and/or costs of an efficient operator. These are therefore measures focused on the future for which, by definition, evidence that they actually attain the objectives laid down in Article 8 of the Framework Directive cannot be required. If an NRA were obliged to provide such evidence, I would then agree with the Commission that the effectiveness of the provisions of the Framework Directive and of the Access Directive would be affected. Indeed, that situation would result in an NRA being required to adduce evidence which would be impossible or extremely difficult to produce.

VI – Conclusion

98. In the light of the foregoing considerations I therefore propose that the Court should reply to the College van Beroep voor het Bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands) in the following terms: (1) Article 4(1) 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, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, is to be interpreted as meaning that a national court –– in a dispute concerning the legality of an ex ante regulatory obligation, which takes the form of a cost-oriented price cap imposed by a national regulatory authority in the non-competitive wholesale market for fixed and mobile call termination services in accordance with Commission Recommendation 2009/396/EC of 7 May 2009 advocating a ‘bottom-up long-run incremental costs (pure Bulric)’ cost model as the appropriate measure for regulating prices on that market –– is permitted to depart from such a recommendation, adopted in accordance with Article 19(1) of Directive 2002/21, as amended, if that national court considers that this is required on grounds related to the facts in the main proceedings, in particular the specific characteristics of the market of the Member State in question. (2) In a judicial review of an ex ante cost-oriented regulatory pricing obligation, such as that imposed by the national regulatory authority in the case in the main proceedings, a national court is authorised to examine the proportionality of that obligation in the light of the policy objectives and regulatory principles set out in Article 8 of Directive 2002/21, as amended by Directive 2009/140, and in Article 13 of 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), as amended by Directive 2009/140. The assessment of the proportionality of the ex ante regulatory obligation in question may take into account the objectives of promoting the interests of end-users and consumers on the retail markets, open to competition, which are downstream from the wholesale fixed and mobile call termination services market on which that obligation was imposed. (3) In the assessment of the proportionality of an ex ante cost-oriented regulatory pricing obligation, such as that imposed by the national regulatory authority in the main proceedings, that authority cannot be required to demonstrate the extent to which such an ex ante regulatory obligation actually attains the objectives laid down in Article 8 of Directive 2002/21, as amended by Directive 2009/140, and/or actually influences the functioning of the internal market.

( *1 ) Original language: French.

( *2 ) OJ 2002 L 108, p. 33.

( *3 ) OJ 2009 L 337, p. 37.

( *4 ) OJ 2002 L 108, p. 7.

( *5 ) OJ 2009 L 124, p. 67.

( *6 ) That body was established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 1).

( *7 ) The expression ‘specific directives’ refers inter alia to the Access Directive.

( *8 ) The question of whether or not those two categories of costs may be recovered by the operators concerned under the application of the ‘pure Bulric’ model is the subject of dispute between the interested parties and is, in part, examined in points 88 to 91 of this Opinion.

( *9 ) Those four parties have brought actions against the decision of ACM in respect of matters which have not given rise either to the main proceedings or to the questions referred for a preliminary ruling. At the hearing, the representative of Ziggo, Ziggo Services and Ziggo Zakelijk Services stated that those companies were the main operators paying call termination prices in the Netherlands.

( *10 ) See, to that effect, judgment of 3 December 2009, Commission v Germany (C‑424/07, EU:C:2009:749, paragraph 53).

( *11 ) Articles 15 and 16 of the Framework Directive.

( *12 ) See Article 8(4) of the Access Directive and judgment of 3 December 2009, Commission v Germany (C‑424/07, EU:C:2009:749, paragraph 60).

( *13 ) So far as this point is relevant, I note that the Court has already held that the issue by an NRA of a mobile call termination fees authorisation is one of the ‘obligations relating to … price controls … [concerning] the provision of specific types of interconnection and/or access’ within the meaning of Article 13(1) of the Access Directive; see judgment of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraphs 42 and 43).

( *14 ) See point 27 of this Opinion.

( *15 ) See, regarding those costs, points 17 and 23 of this Opinion.

( *16 ) See point 23 of this Opinion. It should be noted that, at the time of the first case, the period for implementing a rate schedule based on the ‘pure Bulric’ model, advocated by Recommendation 2009/396, had not expired.

( *17 ) Whereas, in its written observations, the Netherlands Government stated that, in a situation such as that in the main proceedings, it is not for a Netherlands court to impose on ACM a price regulation measure which it considers appropriate, that same government stated, at the hearing before the Court, that the review of the Netherlands court was far-reaching or very strict, bordering on unlimited jurisdiction. Some of the parties in the main proceedings have also supported this latter interpretation of the scope of the judicial review of ACM decisions.

( *18 ) So far as this point is relevant, I would observe that the Court has already held that Article 4(1) of the Framework Directive follows from the principle of effective judicial protection, pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under EU law: see, inter alia, judgment of 22 January 2015, T-Mobile Austria (C‑282/13, EU:C:2015:24, paragraph 33).

( *19 ) See points 80 and 81 of this Opinion.

( *20 ) See, to that effect, inter alia judgment of 24 April 2008, Arcor (C‑55/06, EU:C:2008:244, paragraph 166 and the case-law cited).

( *21 ) See points 92 to 97 of this Opinion.

( *22 ) See also, to that effect, judgment of 11 September 2008, Commission v Lithuania (C‑274/07, EU:C:2008:497, paragraph 50).

( *23 ) See, inter alia, to that effect, judgments of 11 September 2003, Altair Chimica (C‑207/01, EU:C:2003:451, paragraph 41); of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 40); and of 24 April 2008, Arcor (C‑55/06, EU:C:2008:244, paragraph 94).

( *24 ) See, in particular, recital 21 and point 1 of Recommendation 2009/396. In any event, even if that recommendation was not intended to supplement the provisions of EU law, it cannot be disregarded by the national courts. According to the Court’s case-law, their obligation to take recommendations into account is a general obligation, ‘in particular’ where the recommendations are designed to supplement binding EU provisions.

( *25 ) That objective seems today to have been partly attained in so far as, at the hearing, the Commission stated that the ‘pure Bulric’ model is applied in 24 of the 28 Member States. Apart from the situation of the Kingdom of the Netherlands, only the Federal Republic of Germany, the Republic of Cyprus and the Republic of Finland do not apply the cost method based on that model. Again at the hearing, the Commission added that the situation of the Republic of Cyprus was justified on the basis of point 12 of Recommendation 2009/396 which permits NRAs with limited resources to apply, in certain circumstances, an alternative method.

( *26 ) See also, to that effect, judgment of 19 June 2014, TDC (C‑556/12, EU:C:2014:2009, paragraph 44).

( *27 ) See, also, regarding the Court’s request that a national court assess the proportionality of the obligation imposed by an NRA on an operator having significant power in a market to install a drop cable connecting the distribution frame of an access network to the network termination point at the end-user’s premises, judgment of 19 June 2014, TDC (C‑556/12, EU:C:2014:2009, paragraph 47).

( *28 ) See, to that effect, judgment of 19 June 2014, TDC (C‑556/12, EU:C:2014:2009, paragraph 39) (italicisation added).

( *29 ) Idem, paragraph 40 (italicisation added).

( *30 ) So far as this point is relevant, I would observe that, when interpreting the expression ‘affect trade between Member States’ in Article 7(3)(b) of the Framework Directive, the Court has held that a measure adopted by an NRA is covered by that expression if it may have an influence, direct or indirect, actual or potential, on that trade: see, to that effect, judgments of 16 April 2005, Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog (C‑3/14, EU:C:2015:232, paragraph 59), and of 14 January 2016, Vodafone (C‑395/14, EU:C:2016:9, paragraph 55) (italicisation added). In paragraph 56 of the latter judgment, the Court stated that it was apparent from the assessments and observations presented before it that the mobile call termination fees affect the prices which the users in other Member States must pay when they call clients of the operator concerned in a given Member State, those fees being passed on in the end-user’s call charges.