Case C-55/06: Judgment of the Court (Fourth Chamber) of 24 April 2008 (reference for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne — Germany) — Arcor AG & Co. KG v Bundesrepublik Deutschland (Telecommunications — Regulation (EC) No 2887/2000 — Access to the local loop — Principle of cost-orientation — Costs — Interest on the capital invested — Depreciation of fixed assets — Valuation of local telecommunications infrastructures — Current costs and historic costs — Calculation basis — Actual costs — Costs already paid and forward looking costs — Proof of costs — Bottom-up and top-down analytical models — Detailed national legislation — Margin of discretion of the national regulatory authorities — Judicial review — Procedural autonomy of the Member States — Principles of equivalence and effectiveness — Challenge by the beneficiaries before the courts of decisions authorising the rates of the notified operator — Burden of proof — Supervisory and judicial procedures)
Date: 2008-04-24
Institutions: Court of Justice
Subjects: competition, interpretation of the law, telecommunications, telephone, telephone charges, transmission network

7.6.2008

EN

Official Journal of the European Union

C 142/3

the Court (Fourth Chamber) of 24 April
Judgment of
2008 (reference
a preliminary ruling from the
Verwaltungsgericht Köln (Administrative Court, Cologne
— Germany) — Arcor AG & Co. KG v Bundesrepublik
Deutschland

for

(Case C-55/06) (1)

(Telecommunications — Regulation (EC) No 2887/2000 —
Access to the local loop — Principle of cost-orientation —
Costs — Interest on the capital invested — Depreciation of
fixed assets — Valuation of local telecommunications infra-
structures — Current costs and historic costs — Calculation
basis — Actual costs — Costs already paid and forward
looking costs — Proof of costs — ‘Bottom-up’ and ‘top-down’
analytical models — Detailed national legislation — Margin
of discretion of the national regulatory authorities — Judicial
review — Procedural autonomy of the Member States — Prin-
ciples of equivalence and effectiveness — Challenge by the
beneficiaries before the courts of decisions authorising the
rates of the notified operator — Burden of proof — Supervi-
sory and judicial procedures)

(2008/C 142/03)

Language of the case: German

Referring court

Verwaltungsgericht Köln (Administrative Court, Cologne)

Parties to the main proceedings

Applicant: Arcor AG & Co. KG,

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Re:

Reference for a preliminary ruling — Verwaltungsgericht Köln
— Interpretation of Article 1(4), Article 3(3) and Article 4 of
Regulation (EC) No 2887/2000 of the European Parliament and
of the Council of 18 December 2000 on unbundled access to
the local loop (OJ 2000 L 336, p. 4)

in Article 3(3) of Regulation No 2887/2000, in order to deter-
mine the calculation basis of the costs of the notified operator, the
national regulatory authorities have to take account of actual costs,
namely costs already paid by the notified operator and forward
looking costs, the latter being based, where relevant, on an estima-
tion of the costs of replacing the network or certain parts thereof.

3. Pursuant to Article 4(2)(b) of Regulation No 2887/2000, the
national
regulatory authority may request notified operators to
supply relevant information on the documents justifying the costs
rates for
taken into account when applying the principle that
unbundled access to the local loop are to be set on the basis of
cost-orientation. Since Community law does not contain any provi-
sion concerning the accounting documents to be checked, it is the
task of the national regulatory authorities alone, in accordance with
the law applicable, to examine whether, for the purposes of cost
accounting, the documents produced are the most appropriate ones.

4. When national regulatory authorities are applying the principle
that rates for unbundled access to the local loop are to be set on
the basis of cost-orientation, Community law does not preclude
them, in the absence of complete and comprehensible accounting
documents, from determining the costs on the basis of an analytical
bottom-up or top-down cost model.

5. The possibility granted to the Member States, in Article 1(4) of
Regulation No 2887/2000, to adopt detailed national measures
cannot render inapplicable the principle that rates for unbundled
access to the local loop are to be set on the basis of cost-orientation
as laid down in Article 3(3) of that regulation.

6. It

is apparent

from Article 4(1) and (2) of Regulation
No 2887/2000 that, when examining the rates of notified opera-
tors for the provision of unbundled access to their local
loop in
light of the pricing principle laid down in Article 3(3) of that regu-
lation, the national regulatory authorities have a broad discretion
concerning the assessment of the various aspects of those tariffs,
including the discretion to change prices, and thus the proposed
tariffs. That broad discretion also relates to the costs incurred by
the notified operators, such as interest on invested capital and
depreciation of fixed assets, the calculation basis of those costs and
the cost accounting models used to prove them.

Operative part of the judgment

1. The interest on the capital invested and the depreciation of the fixed
assets deployed for the initial implementation of the local loop are
among the costs to be taken into account in accordance with the
principle that rates for unbundled access to the local loop are to be
set on the basis of cost-orientation, laid down in Article 3(3) of
Regulation (EC) No 2887/2000 of the European Parliament and
of the Council of 18 December 2000 on unbundled access to the
local loop.

2. When applying the principle that rates for unbundled access to the
local loop are to be set on the basis of cost-orientation, laid down

7. It is a matter solely for the Member States, within the context of
their procedural autonomy, to determine,
in accordance with the
principles of equivalence and effectiveness of judicial protection, the
competent court, the nature of the dispute and, consequently, the
judicial review with respect to decisions of the
detailed rules of
national regulatory authorities concerning the authorisation of rates
of notified operators for unbundled access to their local
loop. In
those circumstances, the national courts must ensure that the obli-
gations
resulting from Regulation No 2887/2000 regarding
unbundled access to the local loop by means of procedures consis-
tent with the pricing principle laid down in Article 3(3) of that
regulation are in fact complied with in transparent, fair and non-
discriminatory conditions.

C 142/4

EN

Official Journal of the European Union

7.6.2008

8. Article 4(1) of Regulation No 2887/2000, read in conjunction
with Article 5a(3) of Council Directive 90/387/EEC of 28 June
1990 on the establishment of the internal market for telecommu-
nications services through the implementation of open network
provision, as amended by Directive 97/51/EC of
the European
Parliament and of the Council of 6 October 1997, requires that
the national courts interpret and apply the domestic rules of proce-
dure governing the bringing of appeals in such a way that a deci-
sion of the national regulatory authority concerning the authorisa-
tion of rates for unbundled access to the local loop may be chal-
lenged before the courts, not only by the undertaking to which such
a decision is addressed but also by beneficiaries within the meaning
of that regulation whose rights are potentially affected by it.

local

loop conducted by a national
that regulation,

9. Regulation No 2887/2000 must be interpreted as meaning that,
during the procedure supervising the pricing for unbundled access to
regulatory authority
the
it is for the notified
pursuant to Article 4 of
operator to provide the evidence that its rates respect the principle
that rates are to be set on the basis of cost-orientation. On the
other hand, it is for the Member States to allocate the burden of
proof between the national regulatory authority which made the
decision to authorise the rates of the notified operator and the bene-
ficiary challenging that decision. It is also for the Member States to
establish, in accordance with their rules of procedure and the Com-
munity principles of effectiveness and equivalence of judicial protec-
tion, the rules on the allocation of that burden of proof when a
decision of the national regulatory authority authorising the rates
of a notified operator for unbundled access to its local loop is chal-
lenged before the courts.

Re:

Request for a preliminary ruling — Rechtbank van koophandel,
Hasselt — Interpretation of Articles 3 and 4 of Council Direc-
tive 89/48/EEC of 21 December 1988 on a general system for
the recognition of higher-education diplomas awarded on
completion of professional education and training of at least
three years' duration (OJ 1989 L 19, p. 16) — Obligation on an
estate agent established in one Member State and engaged in
agency activities in another Member State to satisfy the condi-
tions governing the exercise of
that profession which are
imposed by the legislation of that latter State in pursuance of
the directive — Requirement imposed even in the case where
there is a contract of collaboration between that estate agent
and an estate agent who is authorised by that latter State

Operative part of the judgment

Articles 3 and 4 of Council Directive 89/48/EEC of 21 December
1988 on a general system for the recognition of higher-education
diplomas awarded on completion of professional education and training
of at least three years' duration, as amended by Directive 2001/19/EC
of the European Parliament and of the Council of 14 May 2001,
preclude legislation of a Member State which makes the performance,
on its territory, of activities such as those at issue in the main proceed-
ings by a service provider established in another Member State, and in
a situation such as that of the defendant in the main proceedings,
subject to obtaining an authorisation the grant of which is conditional
upon success in an aptitude test in law.

(1) OJ C 96, 22.4.2006.

(1) OJ C 165, 15.7.2006.

Judgment of the Court (Second Chamber) of 17 April 2008
(reference for a preliminary ruling from the Rechtbank van
koophandel, Hasselt
(Belgium)) — Confederatie van
Immobiliën-Beroepen België and Beroepsinstituut van
Vastgoedmakelaars v Willem Van Leuken

(Case C-197/06) (1)

(Recognition of diplomas — Directive 89/48/EEC — Estate
agent)

(2008/C 142/04)

Language of the case: Dutch

Referring court

Rechtbank van koophandel, Hasselt

Parties to the main proceedings

Judgment of the Court (Grand Chamber) of 15 April 2008
(reference for a preliminary ruling from the Labour Court
(Ireland)) — Impact v Minister for Agriculture and Food,
Minister for Arts, Sport and Tourism, Minister for Commu-
nications, Marine and Natural Resources, Minister for
Foreign Affairs, Minister for Justice, Equality and Law
Reform, Minister for Transport

(Case C-268/06) (1)

(Directive 1999/70/EC — Clauses 4 and 5 of the framework
agreement on fixed-term work — Fixed-term employment in
the public sector — Employment conditions — Pay and
pensions — Renewal of fixed-term contracts for a period of
up to eight years — Procedural autonomy — Direct effect)

(2008/C 142/05)

Language of the case: English

Applicants: Confederatie van Immobiliën-Beroepen van België
and Beroepsinstituut van Vastgoedmakelaars

Defendant: Willem Van Leuken

Referring court

Labour Court