CELEX: 62012CC0556
Language: en
Date: 2014-01-16 00:00:00
Title: Opinion of Mr Advocate General Cruz Villalón delivered on 16 January 2014. # TDC A/S v Teleklagenævnet. # Reference for a preliminary ruling: Østre Landsret - Denmark. # Reference for a preliminary ruling - Electronic communications networks and services - Directive 2002/19/EC - Article 2(a) - Access to and use of specific network elements and associated facilities - Articles 5, 8, 12 and 13 - Competence of the national regulatory authorities - Obligation relating to access to and use of specific network elements and associated facilities - Undertaking with significant market power on a specific market - Drop cable connecting the distribution frame of the access network to the network termination point at the end-user’s premises - Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities - Directive 2002/21/EC - Article 8 - Policy objectives for the carrying out of the tasks of the national regulatory authorities. # Case C-556/12.

OPINION OF ADVOCATE GENERAL
      CRUZ VILLALÓN
      delivered on 16 January 2014 (
            1
         )
      
         Case C‑556/12
      
      
         TDC A/S
      
      
         v
      
      
         Teleklagenævnet
      
      
         (Request for a preliminary ruling from the Østre Landsret (Denmark))
      
      ‛Directive 2002/19/EC — Access to electronic communications networks and associated facilities — Article 2(a) — Definition of ‘access’ — Articles 8 and 12 — Power of the national regulatory authority to impose obligations on telecommunications operators — Obligation of an undertaking that owns a fibre optic network to provide to the end-user, at the request of another telecommunications undertaking, a drop cable of a maximum length of 30 metres — Proportionality — Taking into account factors such as the initial investment or the existence of a pricing methodology’
      
               1. 
            
            
               By the present request for a preliminary ruling the Østre Landsret (Eastern Regional Court, Denmark) asks the Court to interpret Articles 2(a), 8 and 12 of Directive 2002/19/EC on access to electronic communications networks and associated facilities (‘the Directive’). (
                     2
                  ) More specifically, the national court asks whether imposing on the owner-operator of a fibre network an obligation to install drop cables at the request of another competing operator, provided that the installation is over a distance of no more than 30 metres, accords with the said provisions.
            
         
               2. 
            
            
               The case raises several interesting questions, for the provisions of Directive 2002/19 are not clear and, among other things, do not specify whether installing a drop cable, and in practice extending the existing network at the request of a competitor, constitutes ‘access’ within the meaning of the Directive.
            
         
         I – Legal context
      
      
               3.
            
            
               Article 2 of Directive 2002/12, as amended by Directive 2009/140/EC defines ‘access’ as follows:
               
                        ‘(a)
                     
                     
                        “access” means the making available of facilities and/or services to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services. It covers, inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital television services and access to virtual network services.’
                     
                  
         
               4.
            
            
               Likewise, Articles 8 and 12 of the Directive permit national authorities to impose obligations on telecommunications operators. For the purposes of the present proceedings, the following provisions of these articles fall to be considered:
               “Article 8
               Imposition, amendment or withdrawal of obligations
               1.   Member States shall ensure that national regulatory authorities 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 Directive 2002/21/EC (Framework Directive), national regulatory authorities 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 Directive 2002/21/EC (Framework Directive). Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of that Directive.
               5.   In relation to the third indent of the first subparagraph of paragraph 3, national regulatory authorities shall notify decisions to impose, amend or withdraw obligations on market players to the Commission, in accordance with the procedure referred to in Article 7 of Directive 2002/21/EC (Framework Directive).
               Article 12
               Obligations of access to, and use of, specific network facilities
               1.   A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user’s interest.
               Operators may be required inter alia:
               
                        (a)
                     
                     
                        to give third parties access to specified network elements and/or facilities, including access to network elements which are not active and/or unbundled access to the local loop, to, inter alia, allow carrier selection and/or pre-selection and/or subscriber line resale offer;
                     
                  …
               National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness.
               2.   When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors:
               
                        (a)
                     
                     
                        the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts;
                     
                  
                        (b)
                     
                     
                        the feasibility of providing the access proposed, in relation to the capacity available;
                     
                  
                        (c)
                     
                     
                        the initial investment by the facility owner, taking account of any public investment made and the risks involved in making the investment;
                     
                  
                        (d)
                     
                     
                        the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition;
                     
                  
                        (e)
                     
                     
                        where appropriate, any relevant intellectual property rights;
                     
                  
                        (f)
                     
                     
                        the provision of pan-European services.
                     
                  …’
            
         
         II – Facts and main proceedings
      
      
               5.
            
            
               TDC A/S (‘TDC’) is the long-established Danish telecommunications operator, for which reason it is now an operator with significant market power, specifically in the market for broadband connections on copper, cable TV and fibre networks.
            
         
               6.
            
            
               In 2009, TDC purchased DONG Energy’s fibre network for 425 million Danish krone (DKK). That acquisition made TDC an operator with significant power in the market for fibre network connections.
            
         
               7.
            
            
               Having regard to TDC’s position in that market, the IT- og Telestyrelsen (National IT and Telecom Agency) imposed on TDC various obligations under Articles 8 and 12 of Directive 2002/19, including that contested in the present proceedings. IT- og Telestyrelsen required TDC, if requested to do so by a competing operator, to lay drop cables from its fibre infrastructure to the end-user provided that this did not involve excavation work over a distance of more than 30 metres.
            
         
               8.
            
            
               TDC appealed against the decision of the IT- og Telestyrelsen to the Teleklagenævnet (Telecommunications Complaints Board), which refused the appeal and upheld the contested decision in its entirety. TDC appealed again, this time to a court of law, thus giving rise to this reference for a preliminary ruling.
            
         
         III – The questions referred and the procedure before the Court
      
      
               9.
            
            
               On 3 December 2012, the questions referred by the Østre Landsret for preliminary ruling were lodged at the Registry of the Court in the following terms:
               
                        ‘(1)
                     
                     
                        Does the definition of “access” in Article 2(a) of the Access Directive cover access in the form of the installation of drop cables between the distribution point in an access network and the terminating segment at the end-user’s premises? Does it make a difference in answering the question that the maximum length of such drop cables is 30 metres?
                     
                  
                        (2)
                     
                     
                        Is the installation of a drop cable over a distance of up to 30 metres between the distribution point in an access network and the terminating segment at the end user’s premises covered by the phrase “access to, and use of, specific network elements and associated facilities” in Article 12 of the Access Directive, read in conjunction with Articles 2 and 8?
                     
                  
                        (3)
                     
                     
                        Is it relevant for the answer to question 1 and question 2, where the access obligation takes the form of a requirement, for example, to install drop cables between the distribution point in an access network and the terminating segment at an end-user’s premises, that the owner of an electronic communications network must undertake investment which considerably exceeds the acquisition cost of the electronic communications network to which access must be provided?
                     
                  
                        (4)
                     
                     
                        Is it relevant for the answer to question 3 that the owner is able to recover the costs of installing the drop cables through an imposed price control obligation?’
                     
                  
         
               10.
            
            
               TDC, the Danish, Belgian and French Governments, and the Commission submitted written observations.
            
         
         IV – Analysis
      
      
               11.
            
            
               In essence, the four questions posed by the Østre Landsret are complementary. First, the two first questions raise the basic question of principle as to whether an obligation to install a ‘drop cable’ can be considered an obligation to permit ‘access’ within the meaning of the Directive. Second, the question arises as to what circumstances must be taken into account in determining whether the obligation imposed is proportionate. Among those circumstances, the national court has included the limit on the maximum length of such cable into the first point, as it is a condition which makes it possible to answer the question of principle, as appears below.
            
         
               12.
            
            
               I shall first discuss the answer to the two first questions as a whole. Once the question of principle has been answered, and through the answer to the third and fourth questions, I shall discuss the circumstances which, once they have been properly established by the national court, can possibly justify the obligation imposed in terms of the principle of proportionality.
            
         A – The first and second questions referred
      
      1. Observations submitted to the Court
      
               13.
            
            
               In its first and second questions, the Østre Landsret asks whether the obligation to install a drop cable on request from a competing operator can be considered a form of ‘access’ within the meaning of Article 2(a), and Articles 8 and 12(1), of Directive 2002/19, both provisions guaranteeing the right of every operator to use telecommunications infrastructures, the operators having a right of access to them for this purpose.
            
         
               14.
            
            
               In its written observations, TDC put forward the argument that the installation of a drop cable could not on any view constitute a form of ‘access’ to a network infrastructure within the meaning of Directive 2002/19. According to TDC, the ‘access’ referred to in Article 2(a) of the Directive (which defines the term) focuses on the accessibility of existing infrastructure and not on the building of new infrastructures. This interpretation is consistent not only with Article 2(a), but also with Article 12(1) of the Directive, which refers to access to ’specified ... facilities, including access to network elements which are not active and/or unbundled access to the local loop, to, inter alia, allow carrier selection and/or pre-selection and/or subscriber line resale offer’ as a specific example of access. According to TDC, given that the Directive lists specific cases of access, it would also have referred to the specific case of extending the network, namely, the drop cable installation.
            
         
               15.
            
            
               The Danish, Belgian and French Governments and the Commission supported a contrary interpretation. Generally, the observations of these parties supported a purposive interpretation of Directive 2002/19, which would mean that the creation of a partly new infrastructure would be covered by the term ‘access’, whenever this was necessary to ensure effective access to the network. These parties are of the opinion that when an operator has significant market power, as is the case with TDC, competing operators are not on an equal footing if their services can be provided only if TDC decides to install a drop cable. Since a drop cable is often installed at the time that the consumer requests the service, TDC could make such installation conditional on a consumer’s requesting a service from TDC and not from a competing operator. This risk warrants a broad interpretation of the term ‘access’ to the extent that it would serve to ensure real competition among telecommunications operators, in accordance with the objectives of the Directive.
            
         2. The wording of Articles 2(a), 8 and 12(1) of Directive 2002/19
      
               16.
            
            
               Article 2(a) of Directive 2002/19 defines ‘access’ generally for all the provisions of the Directive. This definition is intended to be exhaustive and it encompasses all possible forms of network access to which telecommunications operators are entitled. This is confirmed by the preamble to the Directive, according to which ‘The term “access” has a wide range of meanings, and it is therefore necessary to define precisely how that term is used in this Directive …’. (
                     3
                  )
            
         
               17.
            
            
               The first point worth mentioning appears in the first indent of the Article, which states that in general ‘access’ means ‘the making available of facilities and/or services, to another undertaking, under defined conditions ... for the purpose of providing electronic communications services.’ (
                     4
                  ) From the same paragraph it may be inferred, as a general point and for the purpose of giving context to the Article, that the making available of the network contains what could be regarded as ‘passive’ and ‘active’ aspects, both of which obviously attach to the network operator. Indeed, given its strategic position as owner of the network over which the data comprised in the communication must travel, the network operator has a ‘passive’ obligation to allow access to the network, that is to say, an obligation to refrain from acting, an obligation not to prevent other operators accessing its network, and also an ‘active’ obligation, to take action, that is to say, to offer services aimed exclusively at providing access.
            
         
               18.
            
            
               Both the ‘active’ and ‘passive’ aspects of ‘access’ are again reflected in the second part of the article, which identifies several examples of ‘access’. In particular, the article refers to access ‘to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop)’. (
                     5
                  ) As can be seen, the network operator makes its network available, and is also obliged to provide certain necessary services, namely: those services essential if access is to be real and effective.
            
         
               19.
            
            
               The ‘active’ dimension of ‘access’ is to be found in the other provisions of Directive 2002/19 relevant to the outcome of the present proceedings. Article 8, which sets out in general terms the obligations that may be imposed by national regulatory authorities, does not specify the type of obligation, to act or not to act, but merely adds that when an operator has significant market power on a specific market, national regulatory authorities ‘shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate’. Thereafter, Article 8 refers to the ‘obligations’, without specifying the type of conduct required of the network operator.
            
         
               20.
            
            
               Articles 9 to 13 and, most particularly, Article 12, specify what the ‘obligation’ to allow ‘access’ which national regulatory authorities may decide to impose may consist of. Article 12 is particularly relevant to the present proceedings, as it concerns obligations relating to access to specific facilities of networks and their use. As explained above, the installation of drop cables, as required by the national authority in the present case, would, in principle, form part of such ‘specific facilities’.
            
         
               21.
            
            
               Article 12(1) grants power to the national regulatory authorities to ensure that network operators ‘meet reasonable requests for access to, and use of, specific network elements and associated facilities’. The article then lists a series of obligations that may be imposed by the national regulatory authorities. This list, which is illustrative (as is indicated in the article by the words ‘inter alia’ before the list), includes obligations both to act and not to act. Thus, the former include the obligation to grant access to network elements which are not active or unbundled access to the local loop. (
                     6
                  ) The latter include the obligation to negotiate in good faith with undertakings requesting access, (
                     7
                  ) to provide specified services on a wholesale basis for resale by third parties, (
                     8
                  ) and to provide specified services needed to ensure interoperability of end-to-end services to users. (
                     9
                  )
            
         
               22.
            
            
               The limit imposed by Directive 2002/19 on national regulatory authorities in the case of obligations related to access to specific facilities is laid down in the third paragraph of Article 12 (1), and Article 12(2) and (3). When imposing an obligation, national regulatory authorities must attach conditions covering fairness, reasonableness and timeliness, (
                     10
                  ) and take into account a number of factors, including the technical and economic viability of the obligation, (
                     11
                  ) the initial investment by the owner, (
                     12
                  ) and the need to safeguard competition. (
                     13
                  )
            
         
               23.
            
            
               As TDC pointed out in the present proceedings, it is true that the list of obligations in Article 12 does not include the installing of drop cables, that is to say, extending the network to the point of destination to the end-user, at the request of a competing operator. None the less, as outlined above, the fact that the obligation is not listed in Article 12 in no way implies that it is an obligation inconsistent with the powers granted by Directive 2002/19 to national regulatory authorities. On the contrary, in so far as the purpose of the obligation to provide access, whether it is an obligation to act or not to act, is ‘providing electronic communications services’ (as required by Article 2(a)), then it must be held that it falls within the scope of Article 8 and, in particular, of Article 12.
            
         
               24.
            
            
               Regardless of the arguments of competition law considered below when I shall explore the objectives of Directive 2002/19, suffice it to add at this point that, having regard to the wording of Articles 2(a), 8 and 12 of the Directive, the obligation to provide the service of installing a drop cable is one of the obligations to provide access which a national regulatory authority may impose.
            
         
               25.
            
            
               Finally, it must be taken into account that the network extension referred to here in no way implies extending the existing network length, but merely enables connection to the end-user where a network already exists. Thus, it is extension in a very narrow sense. Moreover, the fact that the obligation in dispute concerns only drop cables shorter than 30 metres confirms that the purpose of the measure is not to require TDC to extend its network, but merely to provide a connection to the end-user where that network already exists.
            
         
               26.
            
            
               Thus, in view of the wording of the Articles 2(a), 8 and 12, it is my opinion that the object of the obligation in dispute in the present proceedings is a means of ‘access’ to the network.
            
         3. Objectives pursued by Directive 2002/19
      
               27.
            
            
               The foregoing conclusion is borne out if we consider the objectives of the Directive too, for they are not restricted to ensuring interconnection and interoperability, but also include maintaining conditions of competition between all operators in the market. The preamble emphasises the importance of a telecommunications market free of restrictions which prevent companies from openly and fairly competing with one another. As outlined in the preamble, the operators in the sector, which, logically, include the network operator, must act so that nothing prevents concluding agreements aimed at ‘achieving a more efficient, truly pan-European market, with effective competition, more choice and competitive services to consumers.’ (
                     14
                  )
            
         
               28.
            
            
               To be precise, the obligations set out in Article 8 of Directive 2002/19 in general terms, although determined by the national regulatory authorities, are addressed, once approved, to what the Article designates as ‘operators with significant market power on a specific market.’ That is, these obligations are intended to impose burdens on a dominant operator so that its position does not alter the conditions necessary for the development of the market.
            
         
               29.
            
            
               This concern is clearly reflected in Article 12 of Directive 2002/19, which is of particular relevance to the present proceedings, for it concerns the obligations relating to access to specific facilities, these being the obligations in dispute in the present case. After granting national regulatory authorities the power to impose obligations on network operators, Article 12 states that such obligations shall be imposed ‘in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user’s interest.’ Therefore, the obligations to act and not to act referred to in Article 12 of Directive 2002/19 are ultimately aimed at ensuring that competition exists between all operators. The ‘access’ the guaranteeing of which the Directive regulates is not an end in itself but rather a means to achieve a competitive telecommunications market.
            
         
               30.
            
            
               In the present case, the obligation challenged by TDC is the requirement that the latter should, at the request of a competing operator, install a drop cable connecting the distribution point and the terminating segment at the end-user’s premises. Installation is costly, at least according to the file. According to TDC, laying drop cables costs on average approximately DKK 12000 per potential end-user. The reason why the Danish authority has imposed this obligation is that in Denmark, as the Danish Government states in its written submissions, there are thousands of households for which no drop cables have been laid from the fibre network to the premises. Drop cables are usually installed only when the end-user formally applies for a broadband product over the fibre network. According to national regulatory authorities, the fact that TDC can freely decide when and which households can connect to the fibre network provides TDC with a competitive advantage over other operators. Therefore, there is an obligation to install drop cables only when requested by a competing operator. Given the high cost of fulfilling this obligation, the Danish authorities have limited the obligation to cases where the distance between the distribution point and the terminating segment is no more than 30 metres.
            
         
               31.
            
            
               I agree with the Commission and the Danish, Belgian and French Governments, and in my view the obligation imposed by Teleklagenævnet is consistent with the maintaining of suitable conditions of competition in the telecommunications market, specifically, the market for services provided over fibre networks. The obligation is consistent with this because it allows competing operators access to a network so that, from that moment on, they are on an equal footing as regards providing services over that network. Despite the high cost involved in complying with the obligation, an issue which I shall discuss as part of the analysis of the third and fourth questions, the construction of the installations necessary for the fibre network to reach a larger number of households, especially in the case of a network currently under construction as in the present case, is an appropriate means of giving effect to the right to infrastructure access. It is not a question of TDC building a new infrastructure, as it submitted in its written observations. On the contrary, it is a question of TDC performing installation work, always at specified points, that enables access for the purpose of creating effective conditions of competition between all operators.
            
         4. Summary
      
               32.
            
            
               On the basis of the foregoing considerations, I consider that the obligation to install a drop cable, at the request of a competing operator, with a maximum length of 30 metres, can be regarded as one of the obligations to act that Articles 8 and 12 of Directive 2002/19 permit national regulatory authorities to impose on an operator with significant market power. This obligation is consistent not only with the objective of providing ‘access’ to the fibre network in question, but also with that of ensuring adequate conditions of competition between all operators in the market.
            
         
               33.
            
            
               My first, intermediate conclusion is that on a proper construction of Article 2(a), and in particular of Articles 8 and 12, of Directive 2002/19, an obligation to ensure ‘access’ to telecommunications networks may include, in principle and subject to the principle of proportionality, an obligation to install a drop cable, on request of a competing operator, with a maximum length of 30 metres. I shall discuss the circumstances to be taken into account in determining the issue of proportionality in the course of considering how the third and fourth questions are to be answered.
            
         B – The third and fourth questions referred
      
      
               34.
            
            
               By the third and fourth questions in the order for reference, the Østre Landsret expresses its doubts as regards the effect that, firstly, the fact that the cost of the obligation is higher than the investment made and, secondly, the existence of a price control system that allows TDC to recover the installation costs, may have on the legality of the obligation imposed on TDC.
            
         
               35.
            
            
               Although the referring court divides the two circumstances referred to into two separate questions, they have a common effect on the legality of the measure. That is to say, both circumstances are relevant to whether the obligation imposed on TDC is proportionate.
            
         
               36.
            
            
               Indeed, when referring to the obligations national regulatory authorities may impose, Article 8(4) of Directive 2002/19 states that such measures ‘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 Directive 2002/21/EC’. The objectives of this provision include, among others, consumer protection, the provision of a universal service and ensuring network integrity. (
                     15
                  )
            
         
               37.
            
            
               Looking at the questions of the national court from that angle, it may be observed that Article 12 requires national regulatory authorities to impose on operators only such obligation as are ‘reasonable’, and at all events to take into account various factors, including the initial investment by the owner of the facilities. Article 13 of the Directive then focuses on the price control obligations that national regulatory authorities may impose on operators. Article 13(1) states that ‘to encourage investments by the operator, including in next generation networks, national regulatory authorities shall take into account the investment made by the operator, and allow him a reasonable rate of return on adequate capital employed’. However, Article 13(2) adds that any cost recovery mechanism or pricing methodology that is mandated serves, ‘to promote efficiency and sustainable competition and maximise consumer benefits.’
            
         
               38.
            
            
               It follows that the proportionality of the obligation imposed on the operator depends on the initial investment made by the owner of the facilities and on the existence of pricing methodology, among other things. However, this does not by any means imply that such circumstances automatically determine the appraisal of proportionality. What the Directive does require of the national regulatory authorities is that they should make an assessment in which these and other factors come into play. Therefore, the initial investment and pricing methodology are important factors in assessing the proportionality of the measure, but the lack of them can be compensated by the existence of other factors that in the end make the obligation a proportionate measure.
            
         
               39.
            
            
               In any case, this is to be assessed by the national court and not the Court. It is obviously an appraisal that involves analysis of facts that do not fall within the scope of preliminary ruling proceedings such as these. At the very most, the Court must provide the interpretative guidance necessary to enable the national court to make that appraisal of proportionality.
            
         
               40.
            
            
               Although the Court, in interpreting Directive 2002/19, has previously had occasion to stress the importance of the obligations imposed on operators being proportionate, (
                     16
                  ) it has also emphasised the ‘wide powers of intervention’ of the national regulatory authorities. (
                     17
                  ) Therefore, the interpretation of Articles 8 and 12 of Directive 2002/19, and specifically the review of proportionality they require, must take as its starting-point the premise that national regulatory authorities have considerable leeway when imposing the obligations they consider necessary on operators in the market and, in particular, on the most important operators.
            
         
               41.
            
            
               Then, the referring court must consider whether the objectives pursued by the measure of the national regulatory authorities are consistent with the objectives set out both in Article 8 of Directive 2002/21 and in Directive 2002/19, which include ensuring access of operators to telecommunications networks, maintaining effective competition between operators, and quality of service to end-users.
            
         
               42.
            
            
               If the objectives of the measure accord with those set out in European law, the next step is to assess whether the measure is suitable, necessary, and proportionate in the strict sense of the measure. The first check assesses whether the measure adopted is objectively suitable to achieve the objectives pursued. The second assesses whether those objectives could be achieved by less restrictive means. Finally, proportionality in the narrow sense calls for weighing up the rights and interests involved.
            
         
               43.
            
            
               It is precisely at the last stage, the third step of the assessment of proportionality, that the national court must determine whether the national regulatory authorities have properly weighed the burden imposed by the measure against the benefits obtained from it. At that stage, of particular importance are, on the one hand, the assessment of the cost of the investment made by TDC and, on the other, the existence of a pricing methodology that allows the operator to recover his investment despite the obligation imposed.
            
         
               44.
            
            
               Obviously, it is for the national court to make this assessment, having regard, however, to the interpretative criteria set out above.
            
         
               45.
            
            
               My second, intermediate conclusion is that, when imposing an obligation pursuant to Articles 8 and 12 of Directive 2002/19, the national regulatory authorities must take into account both the initial investment made by the party on which the obligation is imposed and the existence of a pricing methodology allowing the operator to recover his investment. However, it is important to recall that these factors must be assessed as part of an assessment of proportionality which, taking into account other factors, allows the national regulatory authorities to make a proportionate decision.
            
         
         V – Conclusion
      
      
               46.
            
            
               For the foregoing reasons, I propose that the Court answer the questions referred by the Østre Landsret as follows:
               Articles 2(a), 8 and 12, in conjunction with 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, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, are to be interpreted as including, among the obligations concerning access to specific network facilities, the obligation that the operator of a fibre network who has significant market power should, at the request of a competing operator, install a drop cable with a maximum length of 30 metres.
               To that end, national regulatory authorities must take into account both the initial investment made by the party on which the obligation is imposed and the existence of a pricing methodology allowing the operator to recover his investment. The national court must determine, as part of a proportionality assessment, whether the national regulatory authorities has complied with these requirements.
            
         (
            1
         )	Original language: Spanish.
      (
            2
         )	Directive of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (OJ 2002 L 108, p. 7), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services (OJ 2009 L 337, p. 37).
      (
            3
         )	Recital 3 in the preamble to the Directive.
      (
            4
         )	Emphasis added.
      (
            5
         )	Emphasis added.
      (
            6
         )	Article 12(1)(a).
      (
            7
         )	Article 12(1)(b).
      (
            8
         )	Article 12(1)(d).
      (
            9
         )	Article 12(1)(g).
      (
            10
         )	Article 12(1) subparagraph 3.
      (
            11
         )	Article 12(2)(a).
      (
            12
         )	Article 12(2)(c).
      (
            13
         )	Article 12(2)(d).
      (
            14
         )	Recital 5.
      (
            15
         )	Among other objectives, this provision also desiderates supporting people with disabilities and senior citizens (paragraph 2(a)); preventing distortion and restriction of competition in the electronic communications sector (paragraph 2(b)); encouraging the efficient use and ensuring the effective management of radio frequencies and numbering resources (paragraph 2(d)); removing obstacles to the provision of electronic communications networks, associated facilities and services, and electronic communications services at European level (paragraph 3(a)); and encouraging the establishment and development of trans-European networks and the interoperability of pan-European services and end-to-end connectivity (paragraph 3(b)).
      (
            16
         )	See Case C-227/07 Commission v Poland [2008] ECR I-8403, paragraph 63, referring to Case C-380/05 Centro Europa 7 [2008] ECR I-349, paragraph 81.
      (
            17
         )	Commission v Poland (cited above, note 16), paragraph 66.