CELEX: 62014CC0001
Language: en
Date: 2015-01-29
Title: Opinion of Advocate General Cruz Villalón delivered on 29 January 2015.#Base Company NV and Mobistar NV v Ministerraad.#Request for a preliminary ruling from the Grondwettelijk Hof.#Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Articles 4, 9, 13 and 32 — Universal service obligations and social obligations — Provision of access at a fixed location and provision of telephone services — Affordability of tariffs — Special tariff options — Financing of the universal service obligations — Additional mandatory services — Mobile communication services and/or internet subscription services.#Case C-1/14.

OPINION OF ADVOCATE GENERAL
      CRUZ VILLALÓN
      delivered on 29 January 2015 (
            1
         )
      
         Case C‑1/14
      
      
         Base Company NV, formerly KPN Group Belgium NV
      
      
         Mobistar NV
      
      
         v
      
      
         Ministerraad
      
      
         (Request for a preliminary ruling from the Grondwettelijk Hof (Belgium))
      
      ‛‘Universal Service’ Directive — Articles 9 and 32 — Electronic communications — Networks and services — Universal service and users’ rights — Social obligations — Additional mandatory services’
      
               1. 
            
            
               Following the judgments of the Court of Justice in Commission v Belgium (
                     2
                  ) and Base, (
                     3
                  ) the Belgian legislature has adopted legislation which may once again be incompatible with the Universal Service Directive. (
                     4
                  ) This time, the Grondwettelijk Hof (Constitutional Court, Belgium) is asking the Court of Justice whether it is permissible for the national legislature to include mobile telephony and electronic communications (Internet) services in the category of ‘universal service’ referred to in that directive. Furthermore, the validity of the Universal Service Directive itself is being challenged on the grounds that it is potentially in breach of Article 20 of the Charter of Fundamental Rights of the European Union. I should say at this point that, in my view, this challenge is manifestly inadmissible.
            
         I – Legislative framework
      
      A – EU law
      
      1. Universal Service Directive
      
               2.
            
            
               Article 3 of the directive, which is entitled ‘Availability of universal service’ and is the opening article under Chapter II, ‘Universal service obligations including social obligations’, provides as follows:
               ‘1.   Member States shall ensure that the services set out in this Chapter are made available at the quality specified to all end-users in their territory, independently of geographical location, and, in the light of specific national conditions, at an affordable price.
               2.   Member States shall determine the most efficient and appropriate approach for ensuring the implementation of universal service, whilst respecting the principles of objectivity, transparency, non-discrimination and proportionality. They shall seek to minimise market distortions, in particular the provision of services at prices or subject to other terms and conditions which depart from normal commercial conditions, whilst safeguarding the public interest.’
            
         
               3.
            
            
               Pursuant to Article 4, which is entitled ‘Provision of access at a fixed location and provision of telephone services’:
               ‘1.   Member States shall ensure that all reasonable requests for connection at a fixed location to a public communications network are met by at least one undertaking.
               2.   The connection provided shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility.
               3.   Member States shall ensure that all reasonable requests for the provision of a publicly available telephone service over the network connection referred to in paragraph 1 that allows for originating and receiving national and international calls are met by at least one undertaking.’
            
         
               4.
            
            
               Article 9, entitled ‘Affordability of tariffs’, provides as follows:
               ‘1.   National regulatory authorities shall monitor the evolution and level of retail tariffs of the services identified in Articles 4 to 7 as falling under the universal service obligations and either provided by designated undertakings or available on the market, if no undertakings are designated in relation to those services, in particular in relation to national consumer prices and income.
               2.   Member States may, in the light of national conditions, require that designated undertakings provide to consumers tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network referred to in Article 4(1) or from using the services identified in Article 4(3) and Articles 5, 6 and 7 as falling under the universal service obligations and provided by designated undertakings.
               3.   Member States may, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes or special social needs.
               …’
            
         
               5.
            
            
               By virtue of the opening paragraphs of Article 13 (‘Financing of [universal] service obligations’):
               ‘1.   Where, on the basis of the net cost calculation referred to in Article 12, national regulatory authorities find that an undertaking is subject to an unfair burden, Member States shall, upon request from a designated undertaking, decide:
               
                        (a)
                     
                     
                        to introduce a mechanism to compensate that undertaking for the determined net costs under transparent conditions from public funds; and/or
                     
                  
                        (b)
                     
                     
                        to share the net cost of universal service obligations between providers of electronic communications networks and services.
                     
                  2.   Where the net cost is shared under paragraph 1(b), Member States shall establish a sharing mechanism administered by the national regulatory authority or a body independent from the beneficiaries under the supervision of the national regulatory authority. Only the net cost, as determined in accordance with Article 12, of the obligations laid down in Articles 3 to 10 may be financed.’
            
         
               6.
            
            
               Article 32, entitled ‘Additional mandatory services’, appears at the beginning of Chapter V of the directive (‘General and final provisions’) and provides that ‘Member States may decide to make additional services, apart from services within the universal service obligations as defined in Chapter II, publicly available in its own territory but, in such circumstances, no compensation mechanism involving specific undertakings may be imposed’.
            
         
               7.
            
            
               As its title states, Annex IV to the directive is dedicated to ‘calculating the net cost, if any, of universal service obligations and establishing any recovery or sharing mechanism in accordance with Articles 12 and 13’. Part A (‘Calculation of net cost’) provides that ‘[u]niversal service obligations refer to those obligations placed upon an undertaking by a Member State which concern the provision of a network and service throughout a specified geographical area, including, where required, averaged prices in that geographical area for the provision of that service or provision of specific tariff options for consumers with low incomes or with special social needs …’
            
         2. Directive 2002/21/EC (
            5
         )
      
               8.
            
            
               Article 2 of Directive 2002/21 lays down the following definitions:
               ‘…
               
                        (c)
                     
                     
                        “electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
                     
                  
                        (d)
                     
                     
                        “public communications network” means an electronic communications network used wholly or mainly for the provision of electronic communications services available to the public which support the transfer of information between network termination points;
                     
                  …
               
                        (j)
                     
                     
                        “universal service” means the minimum set of services, defined in Directive 2002/22/EC (Universal Service Directive), of specified quality which is available to all users regardless of their geographical location and, in the light of specific national conditions, at an affordable price;
                     
                  …’
            
         B – National law
      
      
               9.
            
            
               Article 74 of the Wet van 13 juni 2005 betreffende de elektronische communicatie (Law of 13 June 2005 on electronic communications, ‘Law on electronic communications’), as amended by Article 50 of the Law of 10 July 2012, provides:
               ‘1.   The social component of universal service shall consist in the provision, by the operators listed in paragraphs 2 and 3 who offer consumers a publicly available electronic communications service, of special tariff conditions for certain categories of beneficiary.
               …
               2.   All operators offering consumers a publicly available electronic communications service and whose turnover with regard to publicly available electronic communications services exceeds fifty million euros shall provide the social component of universal service referred to in the first paragraph.
               …
               3.   All operators offering consumers a publicly available electronic communications service and whose turnover with regard to publicly available electronic communications services is less than or equal to fifty million euros, and who have declared to the [Belgisch Instituut voor postdiensten en telecommunicatie (the Belgian Institute for Postal Services and Telecommunications) (“the Institute”)] their intention of providing the social component of universal service referred to in paragraph 1 on a fixed or mobile terrestrial network, or both, shall provide that component for a period of five years.
               …’
            
         
               10.
            
            
               Article 74/1 of the Law on electronic communications, which was introduced by Article 51 of the Law of 10 July 2012, provides:
               ‘1.   When the Institute is of the view that the delivery of the social component may represent an unfair burden for a provider, it shall ask each provider of social tariffs to supply the information referred to in paragraph 2 and it shall compile a calculation of the net costs.
               2.   Each provider of social tariffs shall notify the Institute, according to the detailed rules established in accordance with Article 137(2), at the latest by 1 August of the calendar year following the year under review, of the indexed amount of the cost assessment for the year under review, calculated according to the calculation method set out in the Annex.
               …
               3.   The Institute shall determine, for each provider concerned, that an unfair burden exists if the provision of the social component of universal service is excessive in relation to its capacity to pay, taking into account all its own characteristics, in particular the quality of its equipment, its economic and financial situation and its share of the market for publicly available electronic communications services.
               4.   A fund shall be created for universal service provision in respect of social tariffs, aimed at compensating each provider of social tariffs for whom the provision of the social component of universal service represents an unfair burden and who has submitted a request to the Institute in that regard. The compensation shall correspond to the net cost borne by the operator for whom the provision of the social component of universal service represents an unfair burden. That fund shall have legal personality and shall be administered by the Institute.
               The fund shall be financed by contributions from the operators who provide the social component of universal service.
               Their contributions shall be determined in proportion to their turnover with regard to publicly available electronic communications services.
               The turnover which is taken into account shall correspond to the turnover achieved before tax with regard to the provision of publicly available electronic communications services within the national territory, in accordance with Article 95(2).
               The administrative costs of the fund shall comprise all the costs connected with the operation of the fund, including the costs inherent in the definition of a cost model based on an efficient theoretical operator according to the type of electronic communications network through which the social component of universal service is provided. The King shall determine the maximum amount of the administrative costs of the fund by decree, after deliberation in the Ministerraad (Council of Ministers).
               The administrative costs of the fund shall be financed by the operators referred to in the second paragraph, in proportion to their turnover referred to in the third paragraph.
               5.   The King shall determine the detailed rules for the operation of that mechanism by decree, after deliberation in the Ministerraad, and following advice from the Institute.’
            
         
               11.
            
            
               Pursuant to Article 146(2) of the Law of 10 July 2012, Article 51 of that law was to ‘take effect as of 30 June 2005’.
            
         II – Facts
      
      
               12.
            
            
               The request for a preliminary ruling derives from an action before the Grondwettelijk Hof brought by KPN Group Belgium NV (‘KPN’) and Mobistar NV (‘Mobistar’) seeking the annulment of Articles 50, 51 and 146 of the Law on electronic communications, as amended following the judgments of the Court of Justice in Commission v Belgium (EU:C:2010:583) and Base (EU:C:2010:584).
            
         
               13.
            
            
               The contested provisions establish a sectoral mechanism for financing the net cost of providing electronic communications through mobile communication (‘mobile telephony’) and/or Internet subscription services, based on contributions from providers of electronic communication networks or services available to consumers, including mobile telephony and/or Internet subscription services.
            
         
               14.
            
            
               The parties to the main proceedings take the view that the contested provisions are unconstitutional and, more importantly for the present purposes, contrary to Articles 9 and 32 of the Universal Service Directive.
            
         III – The question referred for a preliminary ruling
      
      
               15.
            
            
               The question, which was referred for a preliminary ruling on 2 January 2014, is worded as follows:
               
                        ‘(1)
                     
                     
                        Should Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), and in particular Articles 9 and 32 thereof, be interpreted as meaning that the social tariff for universal service as well as the compensation mechanism provided for in Article 13(1)(b) of the Universal Service Directive are not only applicable to electronic communications by means of a telephone connection at a fixed location to a public communications network but also to electronic communications by means of mobile communication services and/or Internet subscriptions?
                     
                  
                        (2)
                     
                     
                        Should Article 9(3) of the Universal Service Directive be interpreted as allowing Member States to add special tariff options to the universal service for services other than those defined in Article 9(2) of the Universal Service Directive?
                     
                  
                        (3)
                     
                     
                        If the answers to the first and second questions are in the negative, are the relevant provisions of the Universal Service Directive compatible with the principle of equality, as set out inter alia in Article 20 of the Charter of Fundamental Rights of the European Union?’
                     
                  
         IV – Procedure before the Court of Justice
      
      
               16.
            
            
               KPN and Mobistar, the Belgian Government, the European Parliament, the Council and the Commission have presented written argument in the proceedings. All of those parties attended the hearing held on 12 November 2014 at which they were invited by the Court to focus their submissions on the first and second questions.
            
         V – Arguments
      
      A – Question 1
      
      
               17.
            
            
               KPN and Mobistar suggest that this should be answered in the negative, arguing that it is apparent from Articles 4 to 7 that the Universal Service Directive creates an exhaustive list of the services for which social tariffs may be imposed, which does not include mobile telephony services or Internet subscriptions, meaning that, in the opinion of KPN and Mobistar, such services do not fall within universal service obligations and the financing mechanism provided for in Article 13(1)(b) of the directive.
            
         
               18.
            
            
               The Belgian Government argues that the question should be answered in the affirmative, since, in its view, Article 9(3) of the Universal Service Directive is more general in nature than Article 9(2) and authorises Member States to provide assistance to certain consumers, which may therefore relate to services other than those listed in the directive itself. The Belgian Government also believes that Article 32 of the Universal Service Directive permits the costs arising from services that are imposed on the basis of Article 9(3) of the directive to be defrayed using mechanisms that entail a contribution from operators.
            
         B – Question 2
      
      
               19.
            
            
               The Commission suggests that questions 1 and 2 be answered together and to the effect that the Universal Service Directive, and Articles 3, 4, 9 and 13 in particular, should be interpreted as meaning that the rules on tariffs and on the financing of universal service obligations contained in Articles 9 and 13 do not apply to mobile telephony services but do apply to Internet subscription services which enable functional Internet access at a fixed location.
            
         
               20.
            
            
               The Commission further maintains that Article 32 of the directive should be interpreted as meaning that mobile telephony services may, in principle, be regarded as additional services within the meaning of that article, although it notes that the article prohibits the application of the rules on tariffs and on the financing of universal service obligations contained in Articles 9 and 13, as well as the introduction of a compensation mechanism involving specific undertakings. In this regard, the Commission points out that, although Article 4 of the Universal Service Directive indicates that the concept of ‘public communications network’ covers telephone services, that article refers only to access and connection at a fixed location, meaning that mobile telephony services are excluded.
            
         
               21.
            
            
               With regard to the tariff rules set out in Article 9 of the directive, the Commission points out, first, that this article refers only to tariffs for services defined in Articles 4 to 7 of the directive and, second, that Articles 5, 6 and 7 of the directive do not appear to be relevant to the analysis of this case. Consequently, in the view of the Commission, the Article 9 rules do not apply to mobile telephony services.
            
         
               22.
            
            
               The Commission takes the view that Article 9(3) of the Universal Service Directive does not extend the scope of universal service as defined in Articles 4 to 7. Furthermore, it is of the view that none of the directive’s provisions can be interpreted as meaning that the rules on tariffs and financing in Chapter II apply to mobile telephony services. Internet services, on the other hand, can, pursuant to Article 4 of the directive, be regarded as falling under universal service as defined in Chapter II in so far as they relate to connections which permit functional access to the Internet, which means that the other provisions of Chapter II of the directive and Articles 9 and 13 thereof also apply to Internet services.
            
         
               23.
            
            
               Having established that mobile telephony services cannot be regarded as falling into the category of ‘universal service’, within the meaning of Chapter II of the directive, the Commission goes on to look at whether they can be considered additional services within the meaning of Article 32 of the Universal Service Directive. In its opinion, Member States are free to treat them as additional services, given that the directive is silent on the matter.
            
         
               24.
            
            
               KPN and Mobistar argue that Article 9(3) of the Universal Service Directive does not allow Member States to add special tariff options for services other than those described in Article 9(2) of the directive.
            
         
               25.
            
            
               The Belgian Government takes the view that Article 9(3) of the Universal Service Directive must be interpreted as meaning that it does allow Member States to add special tariff options to the universal service for services other than those defined in Article 9(2).
            
         C – Question 3
      
      
               26.
            
            
               KPN and Mobistar propose that the answer to the question should be that the Universal Service Directive, and Articles 9, 13 and 32 in particular, are compatible with Article 20 of the Charter, arguing that the difference in the treatment of fixed and mobile telephony services lies in the fact that compensation for any unfair burden that may arise as a result of the mandatory provision of telephone services may either be provided from general taxation or by means of a sectoral financing mechanism, whereas in the case of mobile telephony services and/or Internet subscription services, compensation for the burden can be provided only from public funds. Given that this difference is very limited in nature, KPN and Mobistar question whether there is in fact any difference in treatment within the meaning of Article 20 of the Charter and conclude that, unlike the case of fixed telephone services, there is no social exclusion at issue in relation to access to mobile telephony services and consequently there is no need for a universal service obligation. Furthermore, they argue that the sectoral mechanism for financing social tariffs for the provision of Internet subscription services is a heavy burden on operators and has a negative effect on the functioning of the internal market and on consumers.
            
         
               27.
            
            
               The Belgian Government is of the view that, in the event that the two previous questions are answered in the negative (which would, it believes, amount to a threat to the system of financing the costs associated with social tariffs and would mean that the consumers in whose interests the social component of the universal service was extended to include mobile telephony and/or Internet subscription services would be deprived of the benefit of social tariffs), the answer to Question 3 should be that the Universal Service Directive infringes Article 20 of the Charter. In this regard, it argues that by virtue of Article 3 and Recital 25 in its preamble, the directive is to be interpreted as meaning that Member States are authorised to determine, in the light of national conditions and while maintaining neutrality vis-à-vis the various technologies, which services must be provided on a social tariff, with the net costs being financed through a mechanism such as that provided for in Article 13(1)(b) of the directive.
            
         
               28.
            
            
               The Commission questions the admissibility of Question 3, taking the view that the referring court has failed to specify which provisions of the Universal Service Directive are allegedly incompatible with the principle of equality or the reasons for that incompatibility, while also failing to indicate in the order for reference how any breach of that principle could affect the parties to the main proceedings.
            
         
               29.
            
            
               The European Parliament has restricted its submissions to the analysis of Question 3 and has argued that it is inadmissible for the reasons given by the Commission. As far as the substance is concerned, it maintains that the position of operators who are obliged to offer a social tariff for mobile telephony and/or Internet subscription services is no worse than that of those who are obliged to offer such a tariff for telephone services at a fixed location. In the estimation of the European Parliament, the sole difference in the treatment of these services relates to the manner in which compensation may be provided for the net cost to which they give rise.
            
         
               30.
            
            
               Furthermore, the European Parliament takes the view that the net costs associated with additional mandatory services within the meaning of Article 32 of the directive can be financed only from public funds and not through compensation paid by specific operators.
            
         
               31.
            
            
               The European Parliament submits, in the alternative, that operators of fixed telephone services and operators of mobile telephony services are not in a comparable situation, since only the service provided by the former meets the criteria laid down for universal service. Even if there were a difference, it would be objectively justified, since the decision not to include mobile telephony and Internet subscription services within universal service is based on objective criteria which flow directly from the need to balance two objectives, namely, protecting consumers against social exclusion and avoiding the distortion of competition between operators.
            
         
               32.
            
            
               The Council, like the Commission and the European Parliament, and for the same reasons, argues that Question 3 is inadmissible, also restricting its written observations to this point.
            
         
               33.
            
            
               In the opinion of the Council, the Universal Service Directive specifically prohibits the financing of the additional mandatory services referred to in Article 32 by stating that no financing involving operators may be imposed. It is the Council’s view that Member States may decide that they should use social tariffs to try to ensure that additional mandatory services are available, provided that the specific requirements of the directive and the principle of equality are respected. The Council does not see the treatment of undertakings bound by universal service obligations which are financed through the mechanism provided for in Article 3(1)(b), on the one hand, as comparable to that of undertakings whose obligations relate to additional mandatory services, in respect of which such a mechanism is prohibited, on the other.
            
         
               34.
            
            
               Furthermore, the Council notes that that the operators are required to contribute to the fund created under the Belgian legislation for the payment of compensation in respect of the unfair burden associated with providing mobile telephony and/or Internet subscription services even if, under that legislation, such services fall into the category of additional mandatory services within the meaning of the Universal Service Directive. The Council points out, however, that this sharing of costs is applicable only to universal service, in other words, to the core services defined under Chapter II of the directive, which do not include either mobile telephony services or Internet subscription services, except those that relate to functional Internet access at a fixed location.
            
         VI – Assessment
      
      
               35.
            
            
               In essence, the referring court is asking whether the Belgian legislation adopted following the judgments of the Court of Justice in Base (EU:C:2010:584) and Commission v Belgium (EU:C:2010:583) is compatible with the Universal Service Directive in that it includes mobile telephony and electronic communications (Internet) within the category of ‘universal service’.
            
         
               36.
            
            
               The questions raised by the Belgian Constitutional Court are, in summary, (1) whether the social tariff for universal service — and the compensation mechanism associated with it — is applicable to communications by mobile telephony and by Internet subscription; (2) whether Member States can apply the rules on special tariff options to this type of communication; and (3) if not, whether the Universal Service Directive is invalid for breach of Article 20 of the Charter.
            
         A – Preliminary observations on the system of the Universal Service Directive
      
      
               37.
            
            
               The Universal Service Directive requires Member States to ensure that all users have access, at a reasonable price, to the public communications network at a fixed location and to a telephone service (Article 3(1)). To that end, Member States must ensure that all reasonable requests for connection to a public communications network and for provision of telephone services are met by at least one undertaking (Article 4(1)).
            
         
               38.
            
            
               The directive also contains an obligation on the part of the Member States to guarantee other services, namely: directory enquiry services and directories (Article 5), public pay telephones (Article 6) and measures for disabled users (Article 7).
            
         
               39.
            
            
               All these services make up what is known as ‘universal service’. The directive provides that the Member States may require undertakings designated to provide ‘universal service’ (Article 8) to offer special tariffs to certain consumers for social reasons (‘social tariff’) (Article 9).
            
         
               40.
            
            
               Where the provision of ‘universal service’ represents an unfair burden for the undertakings required to provide it, the directive requires Member States either to introduce a compensation mechanism from public funds, or to share the net cost of universal service obligations between providers of electronic communications networks and services (Article 13).
            
         
               41.
            
            
               In addition to ‘universal service’ in the strict sense, Member States may introduce ‘additional mandatory services’, for which no compensation mechanism involving specific undertakings may be imposed (Article 32). Beyond this, the directive makes no provision for compensation for these additional services; it does, nevertheless, seem clear that compensation may be provided in respect of them, since the directive does not prohibit this but merely rules out one particular method of compensation.
            
         
               42.
            
            
               The question arising in this case is whether the social tariff (and the compensation mechanism associated with it) is applicable to communications by mobile telephony and using Internet subscription, either because this is required under the directive itself (Question 1), or because it is a matter for the Member States to decide (Question 2). In the event that the answer in both cases is in the negative, the question is whether the directive itself is contrary to Article 20 of the Charter (Question 3).
            
         B – Questions 1 and 2
      
      
               43.
            
            
               The Grondwettelijk Hof asks first of all whether Articles 9 and 32 of Directive 2002/22 must be interpreted as meaning that the social tariff as well as the compensation mechanism provided for in Article 13(1)(b) of the directive are not only applicable to electronic communications by means of a telephone connection at a fixed location to a public communications network but also to electronic communications by means of mobile communication services and/or Internet subscriptions.
            
         
               44.
            
            
               I think that the issue raised by the referring court can be formulated more simply, since at its heart there is a question of principle: whether or not mobile telephony and Internet subscriptions constitute services that fall within the ‘universal service’ to which the directive refers. This will determine whether they can be subject to the ‘social tariff’ and consequently give rise to compensation pursuant to the mechanism provided for in the directive.
            
         
               45.
            
            
               In order to ascertain whether mobile telephony and Internet subscriptions fall within the concept of ‘universal service’ it is necessary, given their technical differences, to look at each system of communication individually.
            
         1. Mobile telephony
      
               46.
            
            
               As far as mobile telephony is concerned, it seems clear that this does not fall within the directive’s concept of ‘universal service’. Only ‘connection at a fixed location to a public communications network’ is referred to in the directive as one of the services included in this concept (Article 4(1)), (
                     6
                  ) and this clearly and by definition excludes mobile telephony. (
                     7
                  )
            
         
               47.
            
            
               If the directive does not treat mobile telephony as part of ‘universal service’, then it is questionable whether Member States can include it within that concept. Proponents of inclusion cite the wording of Article 9 of the directive. By virtue of Article 9(2), ‘… Member States may … require that designated undertakings provide to consumers tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network referred to in Article 4(1) or from using the services identified in Article 4(3) and Articles 5, 6 and 7 as falling under the universal service obligations and provided by designated undertakings’.
            
         
               48.
            
            
               Article 9(3) provides that ‘Member States may, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes, disability or special social needs’.
            
         
               49.
            
            
               It is apparent from these two provisions that the directive admits the possibility of reduced tariffs only for the purpose of ensuring certain services; precisely those that constitute ‘universal service’, as defined by the directive itself, which does not include mobile telephony, for the reasons already given.
            
         
               50.
            
            
               In fact, the directive permits Member States to add ‘additional mandatory services’ (Article 32), but not to extend (or reduce) the list of services which the directive lays down as constituting ‘universal service’.
            
         
               51.
            
            
               This being the case, the Kingdom of Belgium may require mobile telephony service providers to offer ‘additional mandatory services’ but may not include that service within ‘universal service’. Furthermore, as providers of an ‘additional mandatory service’, those providers would, depending on the circumstances, be entitled to compensation, but they will not be entitled to the compensation provided for in Article 13 of the directive (which refers to the possibility of financing by all providers of communications services), but only to compensation which is calculated using mechanisms that do not involve specific undertakings. (
                     8
                  )
            
         2. Internet subscriptions
      
               52.
            
            
               The position regarding Internet subscriptions is, in my view, somewhat different.
            
         
               53.
            
            
               One of the services forming part of ‘universal service’ to which Article 4 of the directive refers is ‘connection at a fixed location to a public communications network’ (paragraph 1) and it is specified that this connection ‘shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access’ (paragraph 2).
            
         
               54.
            
            
               Consequently, Internet subscriptions would be included within the concept of ‘universal service’ given in the directive and the ‘social tariff’ (Article 9) would therefore be applicable, with compensation under the mechanism provided for in Article 13 of the directive being available. However, this would clearly only be the case in respect of Internet subscriptions at a fixed location and subscriptions for connection using mobile telephony would be excluded. Member States may provide that such subscriptions, and mobile telephony in general, constitute ‘additional mandatory services’ but they cannot be included in the category of ‘universal service’. In short, compensation for them cannot be determined using the mechanism provided for in the directive for services that make up ‘universal service’.
            
         
               55.
            
            
               My first interim conclusion is therefore to propose that the answer to Questions 1 and 2 should be that the Universal Service Directive must be interpreted as meaning that mobile telephony services do not form part of ‘universal service’ and that, consequently, neither the social tariff for universal service nor the compensation mechanism provided for in Article 13(1)(b) of the directive is applicable to them. With regard to Internet subscriptions, only those at a fixed location form part of ‘universal service’ within the meaning of the Universal Service Directive and Internet subscriptions using mobile telephony are excluded. That being so, Member States cannot add further services to the list of services that form part of ‘universal service’ within the meaning of the Universal Service Directive, although they are permitted to decide that mobile telephony services and Internet subscriptions using mobile telephony are to be imposed as ‘additional mandatory services’. In that event, compensation for such services must be through a mechanism other than that which the directive lays down for services included in ‘universal service’ and which, in particular, must not involve specific undertakings.
            
         C – Question 3
      
      
               56.
            
            
               In my view, Question 3 is inadmissible for the reasons given by the European Parliament, the Council and the Commission.
            
         
               57.
            
            
               Specifically, the referring court is asking whether ‘the relevant provisions of the Universal Service Directive [are] compatible with the principle of equality, as set out inter alia in Article 20 of the Charter of Fundamental Rights of the European Union’.
            
         
               58.
            
            
               In the absence of any reasoning on the part of the referring court, it would be very dangerous to embark upon an examination of the question from the perspective of the principle of equality. The Commission has attempted to do so on the basis that the applicants in the main proceedings regard themselves as victims of discrimination in that the national legislation places them under a burden that is contrary to the Universal Service Directive. If that were the case, the reference would be absurd, as the Commission points out, since the problem would not lie with the directive but with the national legislation.
            
         
               59.
            
            
               Both the European Parliament and the Council have responded to the question by assessing whether there is equality of treatment under the directive on the basis of an analysis of the differences between the services that are included in the concept of ‘universal service’, on the one hand, and those that are excluded from that category, on the other. They therefore assess the directive in the only manner possible in the absence of specific arguments, namely in the abstract.
            
         
               60.
            
            
               In my view, it cannot be permissible to question the validity of a measure of EU law — which is what Question 3 implies — unless there are some minimal grounds for doing so and in this case it would not therefore be correct even to reply to the question in the alternative. The reason for this is quite simply that, as I have said, any opinion given would be based on mere conjecture or abstract analysis and would be unconnected with the specific circumstances of the matter at issue in the main proceedings.
            
         
               61.
            
            
               If, despite this, a basis were sought on which to provide an answer in the alternative, one might, as a last resort, approach the question from the point of view of the case-law of the Court of Justice in Commission v Belgium (EU:C:2010:583) and Base (EU:C:2010:584), since the judgments in these cases gave rise to the national legislation being contested in the main proceedings and those cases did concern an issue of equality.
            
         
               62.
            
            
               However, the discrimination perceived by the Court of Justice in those cases related to the indiscriminate way in which the Belgian legislation treated undertakings seeking compensation for the provision of universal service. The Court held that the assessment of whether an undertaking was subject to an unfair burden was one to be carried out on a case by case basis and that to treat different situations in a generic and undifferentiated way would amount to discrimination. That problem is clearly quite unrelated to the one at issue in the present proceedings.
            
         
               63.
            
            
               Ultimately, there appears to be no basis for providing the Court of Justice with a suggested response to Question 3.
            
         VII – Conclusion
      
      
               64.
            
            
               In the light of the foregoing observations, I suggest to the Court that it should answer the question referred as follows:
               
                        (1)
                     
                     
                        Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) should be interpreted as meaning that mobile telephony services do not form part of “universal service” within the meaning of that directive and that, consequently, neither the social tariff for universal service nor the compensation mechanism provided for in Article 13(1)(b) of the directive is applicable to them. With regard to Internet subscriptions, only those at a fixed location form part of “universal service” within the meaning of the Universal Service Directive and Internet subscriptions using mobile telephony are excluded.
                     
                  
                        (2)
                     
                     
                        Member States cannot add further services to the list of services that form part of “universal service” within the meaning of the Universal Service Directive. Member States are permitted to decide that mobile telephony services and Internet subscriptions using mobile telephony are to be imposed as “additional mandatory services”. In that event, compensation for such services must be through a mechanism other than that which the directive lays down for services included in “universal service” and which, in particular, must not involve specific undertakings.
                     
                  
         (
            1
         )	Original language: Spanish.
      (
            2
         )	C‑222/08, EU:C:2010:583.
      (
            3
         )	C‑389/08, EU:C:2010:584.
      (
            4
         )	Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (OJ 2002 L 108, p. 51) as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11).
      (
            5
         )	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) (OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37).
      (
            6
         )	Emphasis added.
      (
            7
         )	Recital 8 in the preamble to the directive is equally clear when it states that ‘[a] fundamental requirement of universal service is to provide users on request with a connection to the public telephone network at a fixed location, at an affordable price’.
      (
            8
         )	In this regard, see Commission v Belgium (C‑222/08, EU:C:2010:583, paragraph 46).