WRITTEN QUESTION E-3132/01

by W.G. van Velzen (PPE-DE) to the Commission

(14 November 2001)

Subject: Further question concerning discrimination in mobile telephone services

The following further questions arise from the reply which Commissioner Bolkestein, on behalf of the Commission, gave on 28 September 2001 to my priority written question P-4158/00(1) (tabled on 20 December 2000). Moreover, in response to publicity concerning this reply, I have received complaints about similar practices in the United Kingdom and Luxembourg.

1. In view of the particulars for checking the identity of a customer before the latter takes out a subscription to a mobile telephone service, as referred to in the reply to question P-4158/00, can the Commission confirm that it is unreasonable to demand security of, for example, GBP 100 or 160 or to demand that the customer produce a tenancy agreement?

2. Article 10(2) of Directive 98/10(2) lays down that national regulatory authorities or other competent bodies according to national legislation may require the alteration of the conditions of contracts between telephone companies and subscribers in order to protect the rights of users and/or subscribers. I consider that Belgium, Luxembourg and the United Kingdom

have implemented this provision incorrectly. Pursuant to Article 10(2), these Member States or the relevant competent bodies within them must take steps to alter the contracts in question in order to protect users and/or subscribers against the imposition of unreasonable requirements which violate the EC Treaty, such as demanding security or the submission of a tenancy agreement. What practical measures will the Commission take to put an end to these undesirable practices, and when will it do so?

3. I also consider that Article 11(1) of Directive 98/10 has been incorrectly implemented in Belgium, Luxembourg and the United Kingdom. This article lays down that Member States shall ensure that all organisations providing fixed and mobile public telephone networks publish adequate and up-to-date information for consumers on their standard terms and conditions. Moreover, I do not consider that providers of mobile telephone networks are presenting this information clearly and accurately, as required by Article 11(1). What will the Commission do to solve this problem, and when will it do it?

4. I consider that Belgium, Luxembourg and the United Kingdom have failed to comply with their obligations to avoid discrimination on grounds of nationality and to promote freedom of services, or with provisions of Directive 98/10, and believe that, having regard to Article 226 of the Treaty, the Commission ought accordingly to take action. When will the Commission deliver an opinion, stating reasons, in order to denounce these three Member States' failures of compliance and possibly initiate infringement proceedings?

5. In view of the fact that it took nine months to reply to my previous priority question, when the deadline for doing so was three weeks, I expect the Commission to assign this question top priority. Can the Commission comply with the time limit for answering parliamentary questions this time?

(1) OJ C 40 E, 14.2.2002, p. 3.

(2) OJ L 101, 1.4.1998, p. 24.

Answer given by Mr Liikanen on behalf of the Commission

(15 January 2002)

In replying to the further questions raised by the Honourable Member, it is important to differentiate between the actions of the telecommunications operators concerned and those of the national authorities in fulfilling their obligations under Community law.

The Commission stated in its reply to the Honourable Member's earlier written question on this subject, P-4158/2000(1) that it considers that there is no infringement of the free movement principles of the EC Treaty in Belgian law. This appears to be the case in Luxembourg and the United Kingdom also. The conditions cited by the Honourable Member that are required by telecommunications operators to conclude a commercial contract do not appear to be unreasonable, as long as, bearing in mind the jurisprudence cited in the above-mentioned reply, they are not found to be a restriction to the free movement of services under article 49 (ex Article 59) of the EC Treaty, in which case they would be considered to be nul and void.

Article 10(2) of Directive 98/10/EC of the Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environement(2), requires Member States to ensure that national regulatory authorities are empowered to require the alteration of conditions of contracts. According to the information available to the Commission, this has been correctly transposed in two of the three Member States involved. Infringement proceedings were opened against Luxembourg on this issue and the national authorities have communicated amended legislation, which is being examined by the Commission. The separate issue of whether this power is exercised in any specific case is the responsibility of the national regulatory authority involved, in accordance with the principles of Community law.

As regards the implementation of Article 11(1) of the same Directive, and following infringement proceedings by the Commission against Belgium and Luxembourg, the Commission is informed that the requirement has been correctly transposed by the Member States concerned, insofar as it exists in national law and national authorities are empowered to implement it. It notes the view of the Honourable Member that three Member States have incorrectly implemented the requirements of this Article. Since it is not clear whether the conditions complained of constitute part of the standard terms and conditions to which Article 11(1) applies, the Commission will raise this matter with the Member States concerned. The Commission would point out that complaints regarding the failure of telecommunications operators to fulfil their obligations under Community law, such as the obligation to present certain information clearly and accurately, should be brought to the attention of the relevant authorities in the Member States concerned.

For the above reasons, the Commission can find no grounds for taking further action under Article 226 (ex Article 169) of the EC Treaty at this time, bearing in mind that the Commission has already taken the proceedings necessary to ensure transposition of the provisions of Directive 98/10/EC.

(1) JO C 40 E, 14.2.2002, p. 3.

(2) OJ L 101, 1.4.1998.