CELEX: 62003CJ0109
Language: en
Date: 2004-11-25
Title: Judgment of the Court (First Chamber) of 25 November 2004.#KPN Telecom BV v Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA).#Reference for a preliminary ruling: College van Beroep voor het bedrijfsleven - Netherlands.#Telecommunications - Directive 98/10/EC - Application of open network provision to voice telephony - Supply of information on subscribers - Determination of prices.#Case C-109/03.

Case C-109/03
      KPN Telecom BV
      v
      Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA)
      (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)
      (Telecommunications – Directive 98/10/EC – Application of open network provision to voice telephony – Supply of information on subscribers – Determination of prices)
      Summary of the Judgment
      1.        Approximation of laws – Telecommunications sector – Application of open network provision (ONP) to voice telephony and establishment
            of a universal service for telecommunications – Directive 98/10 – Directory services – Obligations of a universal service
            provider – Supply of relevant information on subscribers – Concept of ‘relevant information’
      (European Parliament and Council Directive 98/10, Art. 6(3))
      2.        Approximation of laws – Telecommunications sector – Application of open network provision (ONP) to voice telephony and establishment
            of a universal service for telecommunications – Directive 98/10 – Directory services – Obligations of a universal service
            provider – Supply of relevant information on subscribers – Invoicing of costs – Limits
      (European Parliament and Council Directive 98/10, Art. 6(3))
      1.        Article 6(3) of Directive 98/10 on the application of open network provision (ONP) to voice telephony and on universal service
         for telecommunications in a competitive environment must be interpreted as meaning that the words ‘relevant information’,
         with regard to information on subscribers that the universal service provider must supply, refer only to data relating to
         subscribers who have not expressly objected to being listed in a published directory and which are sufficient to enable users
         of a directory to identify the subscribers they are looking for. Those data include in principle the name and address, including
         postcode, of subscribers, together with any telephone numbers allocated to them by the entity concerned. However, it is open
         to the Member States to provide that other data are to be made available to users where, in light of specific national circumstances,
         they appear to be necessary in order to identify subscribers.
      
      (see para. 36, operative part 1)
      2.        The obligation on universal service providers to provide to third parties on terms which are fair, cost orientated and non-discriminatory
         the relevant information on subscribers laid down by Article 6(3) of Directive 98/10 on the application of open network provision
         (ONP) to voice telephony and on universal service for telecommunications in a competitive environment must be interpreted
         as meaning that, with regard to data such as the name and address of the persons and the telephone number allocated to them,
         only the costs of actually making those data available to third parties may be invoiced by the supplier of the universal service.
         Conversely, with regard to additional data which such a supplier is not bound to make available to third parties, the supplier
         is entitled to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself
         in obtaining the data provided that those third parties are treated in a non-discriminatory manner.
      
      (see para. 42, operative part 2)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)25 November 2004(1)
         
         
            
         
               (Telecommunications  –  Directive 98/10/EC  –  Application of open network provision to voice telephony  –  Supply of information on subscribers  –  Determination of prices)
               
             In Case C-109/03,REFERENCE to the Court under Article 234 EC,by the College van Beroep voor het bedrijfsleven (Netherlands), by a decision of 8 January 2003, received at the Court on 10 March 2003, in the proceedings 
            
            
            KPN Telecom BV
            
            v
            
            Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA), in the presence of:Denda Multimedia BV,Denda Directory Services BV,
            
            
            THE COURT (First Chamber),,
            
             composed of: P. Jann (Rapporteur), President of Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann, Judges,
            
             Advocate General: M. Poiares Maduro,Registrar: H. von Holstein, Deputy Registrar,
             having regard to the written procedure and following the hearing on 19 May 2004,after considering the observations submitted on behalf of:
            
            –
             KPN Telecom BV, by B.L.P. Van Reeken and E. Pijnacker Hordijk, advocaten,
            
            –
             Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA), by A.B. van Rijn et B.J. Drijber, advocaten,
            
            –
             Denda Multimedia BV, by T.F.W. Overdijk, advocaat,
            
            –
             the Italian Government, by I.M. Braguglia, acting as agent, and by P. Gentili, avvocato dello Stato,
            
            –
             the Commission of the European Communities, by M. Shotter et W. Wils, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 14 July 2004,
         gives the following
         
         
         Judgment
         1
            
          This request for a preliminary ruling concerns the interpretation of Article 6(3) of Directive 98/10/EC of the European Parliament
         and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal
         service for telecommunications in a competitive environment (OJ 1998 L 101, p. 24, hereinafter ‘the Directive’).
         
         
         
         2
            
          It arises in the context of a dispute between KPN Telecom BV (hereinafter ‘KPN’) and Onafhankelijke Post en Telecommunicatie
         Autoriteit (hereinafter ‘OPTA’) relating to the proposed communication to private companies of certain information on KPN
         subscribers for the purposes of the compilation by those companies of telephone directories.
         
         
            
               Legal framework
            
         
         3
            
          Article 1(1) of the Directive provides as follows:
         ‘This Directive concerns the harmonisation of conditions for open and efficient access to and use of fixed public telephone
         networks and fixed public telephone services in an environment of open and competitive markets, in accordance with the principles
         of open network provision (ONP).
          The aims are to ensure the availability throughout the Community of good quality fixed public telephone services and to define
         the set of services to which all users, including consumers, should have access in the context of universal service in the
         light of specific national conditions, at an affordable price.’
         
         
         
         4
            
          Article 2(2)(f) of the Directive defines the concept of ‘universal service’ as ‘a defined minimum set of services of specified
         quality which is available to all users independent of their geographical location and, in the light of specific national
         conditions, at an affordable price’.
         
         
         
         5
            
          Article 6 of the Directive states as follows:
         ‘1.     The provisions of this Article are subject to the requirements of relevant legislation on the protection of personal data
         and privacy, such as Directive 95/46/EC and Directive 97/66/EC.
          2.       Member States shall ensure that:
         (a)     subscribers have the right to have an entry in publicly available directories and to verify and, if necessary, correct or
         request removal of that entry; 
         (b)     directories of all subscribers who have not expressed opposition to being listed, including fixed, mobile and personal numbers,
         are available to users in a form approved by the national regulatory authority, whether printed or electronic, or both, and
         are updated on a regular basis; 
         (c)     at least one telephone directory enquiry service covering all listed subscribers’ numbers is available to all users, including
         users of public pay telephones; 
          3.       In order to ensure provision of the services referred to in paragraph 2(b) and 2(c), Member States shall ensure that all organisations
         which assign telephone numbers to subscribers meet all reasonable requests to make available the relevant information in an
         agreed format on terms which are fair, cost oriented and non-discriminatory.
          4.       Member States shall ensure that organisations providing the service referred to in paragraph 2(b) and 2(c) follow the principle
         of non-discrimination in their treatment and presentation of information provided to them.’
         
         
         
         6
            
          In the Netherlands the matters covered by the Directive are governed by the Wet op de telecommunicatievoorzieningen (Law on
         telecommunications) of 26 October 1988 (Staatsblad 1988, p. 520, hereinafter ‘the WTV’) and by the Besluit ONP huurljinen en telefonie (Decree on rental lines and on ONP telephony)
         of 10 November 1998 (Staatsblad 1998, p. 639, hereinafter ‘the BOHT’) issued under that Law, and in particular Articles 7.1 and 7.5 thereof.
         
         
         
         7
            
          Article 43 of the BOHT provides as follows:
         ‘Any person who supplies for use numbers … shall make those numbers together with associated information available upon request,
         in an agreed format and on terms which are fair, cost oriented and non-discriminatory for the purpose of providing a telephone
         enquiry service.’
         
         The main dispute and questions referred
         
         8
            
          KPN is the universal service provider of voice telephony in the Netherlands. At the time when the matter came before the national
         court, Denda International vof, now Denda Multimedia BV (hereinafter ‘Denda’), established in the Netherlands, and Topware
         CD-Service AG (hereinafter ‘Topware’), established in Germany, were companies that produced, inter alia, paper telephone directories
         and electronic directories, which were initially produced on CD-ROM and were subsequently intended to be made available on
         the internet.
         
         
         
         9
            
          According to the order for reference, Denda and Topware requested PTT Telecom BV, KPN’s predecessor in law until 1998, to
         place at their disposal the data relating to KPN’s subscribers to the voice telephony service for the purposes of publishing
         their own directories. Beyond what is strictly basic data such as the subscriber’s name, address, telephone number and possibly
         postal code and an indication of whether the number is used exclusively as a fax number, the two companies were interested
         in particular in transmitting additional information contained in the white pages of the directory published by KPN’s predecessor,
         other than advertisements. That included for example also stating subscribers’ professions, any listings under a different
         name or in other municipalities and additional mobile phone numbers. 
         
         
         
         10
            
          KPN’s predecessor refused to provide that additional information to Denda and Topware. It also refused to give them the basic
         data for less than NLG 0.85 per item, which according to the companies was considerably overpriced. The companies therefore
         brought a complaint before OPTA for a declaration that KPN’s predecessor had infringed the provisions of the WTV and of the
         BOHT.
         
         
         
         11
            
          By a decision of 29 September 1999 OPTA decided, first, that KPN was under no obligation to provide Denda and Topware with
         the additional information sought by them and, secondly, that the price demanded by KPN for transmission of the basic information
         had to be less than NLG 0.005 per item
         
         
         
         12
            
          KPN and Denda and Topware all brought complaints against that decision of OPTA. By two decisions of 4 December 2000 OPTA revised
         its initial position and held that KPN ought also to provide the additional information relating to one or more mobile telephone
         numbers, the subscriber’s occupation and any listings in other municipalities relating to that person.
         
         
         
         13
            
          KPN and Denda in turn brought an action against those decisions before the Arrondissementsrechtbank te Rotterdam (Netherlands)
         but those actions were dismissed as unfounded. On appeal the College van Beroep voor het bedrifsleven entertains doubts as
         to the interpretation of the relevant provisions of the WTV and the BOHT in light of the Directive.
         
         
         
         14
            
          Taking the view that the interpretation of Article 6(3) of the Directive is essential to the resolution of the dispute before
         it, the College van Beroep voor het bedrijfsleven has therefore decided to stay proceedings and refer the following questions
         to the Court of Justice for a preliminary ruling:
         ‘1)     Is “relevant information” in Article 6(3) of Directive 98/10/EC … to be interpreted as meaning only the numbers together with
         the name, address and postcode of the person to whom the number has been issued and any entry as to whether the number is
         used (exclusively) as a fax line published by the organisations concerned or does “relevant information” also cover other
         data at the disposal of the organisations such as an additional entry relating to a profession, another name, another municipality
         or mobile telephone numbers? 
          2)       Is “meet ... reasonable requests ... on terms which are fair, cost oriented and non-discriminatory” in the provision referred
         in Question 1 to be interpreted as meaning that: 
                    a)	numbers together with the name, address and postcode of the person to whom the number has been issued must be made available
         for a remuneration of only the marginal costs involved in actually making them available, and 
                    b)	data other than those referred to in paragraph (a) must be made available for a remuneration intended to cover the costs
         of what the provider of these data shows he has incurred in obtaining or providing these data?’
         
         First question
         
         15
            
          By its first question the national court is essentially asking what are the data referred to in the words ‘relevant information’
         in Article 6(3) of the Directive.
         
         
         
         16
            
          It must first of all be noted that Article 6(3) of the Directive does not define the concept of ‘relevant information’ in
         regard to subscribers which entities allocating telephone numbers are expected to provide to third parties. That concept must
         therefore be interpreted in light of its context and of the purpose of the Directive.
         
         
         
         17
            
          Thus, under the second paragraph of Article 1(1) of the Directive, the aims of the Directive are to ensure the availability
         throughout the Community of good quality fixed public telephone services and to define the set of services to which all users,
         including consumers, should have access in the context of universal service in the light of specific national conditions,
         at an affordable price and, pursuant to the title of the Directive, ‘in a competitive environment’.
         
         
         
         18
            
          The Directive thus aims to ensure a balance between the specific interests of the supplier of the universal service and those
         of undertakings within the competitive sector, as well as those of users, including consumers.
         
         
         
         19
            
          With regard first of all to the universal service, it is important to recall that that service is defined in Article 2(2)(f)
         of the Directive as a defined minimum set of services of specified quality available to all users irrespective of their geographical
         location and, in the light of specific national conditions, at an affordable price.
         
         
         
         20
            
          As the Commission correctly submits, it is clear from the words ‘[i]n order to ensure provision of the services referred to
         in paragraph 2(b) and 2(c)’, at the beginning of Article 6(3) of the Directive, that the Member States’ obligation to ensure
         that entities allocating telephone numbers to subscribers respond to all reasonable enquiries about the provision of relevant
         information comes within the context of the supply of a universal service.
         
         
         
         21
            
          It is therefore necessary to consider the data necessary for securing the supply of such a service.
         
         
         
         22
            
          In that connection Article 6(2)(b) of the Directive provides only that directories must contain, in order to be available
         to users, all subscribers who have not expressed opposition to being listed, including fixed, mobile and personal numbers.
         As KPN has rightly pointed out, it follows that data other than those mentioned in that provision are not necessary in order
         to produce a telephone directory in the context of a universal service.
         
         
         
         23
            
          The question none the less arises whether such a limitation on the data in the context of the supply of information to the
         competitors of the supplier of the universal service meets the requirements of liberalisation of the telecommunications market
         which forms the backdrop to the Directive. OPTA and Denda express serious doubts as to that and argue that only a broad interpretation
         of the concept of the data to be provided is such as to ensure fair competition.
         
         
         
         24
            
          According to KPN, the Directive is not however intended to enable third parties to benefit from the endeavours of the supplier
         of the universal service, such as the costly compilation of the additional data, as those endeavours do not form part of its
         obligations in regard to the supply of the service in the strict sense. Any other interpretation of the Directive would lead
         to a distortion of competition between companies producing directories since one of them would be obliged to help its competitors
         yet they would not be under any obligation to reciprocate.
         
         
         
         25
            
          In that regard it is common ground that the Directive repeatedly mentions its purpose, which is to encourage the opening up
         of a competitive market in the telecommunications field. With regard more particularly to directories, the seventh recital
         to the Directive states that the ‘provision of directory services is a competitive activity’. In addition, in so far as it
         provides for the making available to competing companies of certain subscriber-related information, Article 6(3) of the Directive
         corroborates that purpose.
         
         
         
         26
            
          In the Member State concerned the fact that there are companies compiling directories other than the supplier of the universal
         service, such as Denda and Topware, demonstrates that a competitive market in directories has in fact developed.
         
         
         
         27
            
          However it is not impossible that the refusal to provide the information in question in the main proceedings may influence
         the circumstances in which such a competitive market involving companies offering directories can develop. As to those circumstances,
         Article 6(3) of the Directive provides that they must be ‘fair, cost oriented and non-discriminatory’. Therefore, if the supplier
         of the universal service complies with the requirements of that provision he is not bound also to provide all the additional
         information sought by competitors.
         
         
         
         28
            
          It follows that the refusal to make available to third parties data other than that listed in Article 6(2)(b) of the Directive
         is compatible with the liberalisation of the telecommunications market, which is one of the objectives of the Directive.
         
         
         
         29
            
          Finally, with regard to the specific interests of users, including those of consumers, it is primarily those persons who are
         supposed under the second paragraph of Article 1(1) of the Directive to benefit from the competitive conditions on the market
         in question. The seventh recital of the Directive states that users and consumers ‘desire comprehensive directories and a
         directory enquiry service covering all listed telephone subscribers and their numbers (including fixed, mobile and personal
         telephone numbers)’, and Article 6(2)(b) of the Directive is worded analogously.
         
         
         
         30
            
          The counterpart of that need for information on the part of users is the right under Article 6(2)(a) of the Directive not
         only to appear in a directory but also to request the total or partial withholding of certain information appearing therein.
         Similarly as the Commission rightly pointed out, Article 6(1) of the Directive expressly refers to certain Community provisions
         on the protection of personal data and privacy.
         
         
         
         31
            
          Moreover, as the Court has held, albeit in another context, but which relates none the less to the application of Article
         6(2) of the Directive, that provision embraces the principle that every service provider must maintain a list of its own customers
         who do not wish to be listed in the general directory and not disclose the names of those customers to the publisher of the
         general telephone directory (Case C-146/00 Commission  v France [2001] ECR I-9767 paragraph 68). 
         
         
         
         32
            
          Plainly, therefore, the protection of personal data and privacy is a factor of the first importance to be taken into account
         in determining the data that an operator is required to make available to a third-party competitor. In fact a broad approach
         requiring the indiscriminate provision of all the data at an operator’s disposal, with the exception, however, of those concerning
         subscribers who in no way wish to appear on a published list, is not reconcilable either with the protection of those data
         or with the privacy of the persons concerned.
         
         
         
         33
            
          Nor, consequently, does the account taken of the specific interests of the users of the services at issue, including consumers,
         militate in favour of a broad construction of the concept of ‘relevant information’.
         
         
         
         34
            
          In light of all the foregoing considerations concerning the various interests at stake the words ‘relevant information’ in
         Article 6(3) of the Directive must be strictly interpreted. The entities allocating telephone numbers must therefore communicate
         to third parties only data relating to subscribers who have not expressly objected to being listed in a published directory
         and which are sufficient to enable users of a directory to identify the subscribers they are looking for. Those data include
         in principle the name and address, including post code, of subscribers, together with any telephone numbers allocated to them
         by the entity concerned.
         
         
         
         35
            
          In light of that, and as the Commission argues and the Advocate General notes at point 28 of his Opinion, there may be differences
         at national level in the demand among users of voice telephony services. Inasmuch as, by using the words ‘relevant information’,
         the directive does not seek complete harmonisation of all the criteria which may appear necessary to identify subscribers,
         the Member States retain competence for determining whether in a specific national context certain additional data ought to
         be made available to third parties.
         
         
         
         36
            
          The reply to the first question must therefore be that Article 6(3) of the Directive must be interpreted as meaning that
         the words ‘relevant information’ refer only to data relating to subscribers who have not expressly objected to being listed
         in a published directory and which are sufficient to enable users of a directory to identify the subscribers they are looking
         for. Those data include in principle the name and address, including postcode, of subscribers, together with any telephone
         numbers allocated to them by the entity concerned. However, it is open to the Member States to provide that other data are
         to be made available to users where, in light of specific national circumstances, they appear to be necessary in order to
         identify subscribers.
         
         Second question
         
         37
            
          By its second question the national court is essentially asking which elements of the costs of compiling, updating and providing
         relevant information on subscribers may be included in the price of the supply of the data in the context of Article 6(3)
         of the Directive.
         
         
         
         38
            
          In that regard it is sufficient to state, as OPTA and Denda rightly point out, that the compilation of the basic data relating
         to subscribers, that is to say their names, addresses and telephone numbers, is inextricably linked to the telephony service
         and does not demand any particular effort on the part of the provider of the universal service.
         
         
         
         39
            
          As the Advocate General stated at point 49 of his Opinion, the costs relating to the compilation, or allocation, of those
         data, unlike the costs incurred in making them available to third parties, must in any event be borne by the supplier of a
         voice telephony service and are already included in the costs and revenue of such a service. In those circumstances, passing
         the costs associated with compiling or allocating data on to persons requesting access to them would result in an excessive
         and unwarranted offset of the costs in question.
         
         
         
         40
            
          It follows that, when communicating those data to competing companies on the market for the provision of directories, only
         the additional costs associated with that communication may be invoiced by the supplier of the universal service but not the
         costs relating to the compilation of those data.
         
         
         
         41
            
          However, it would be otherwise in the case of additional data in respect of which the supplier of the universal service has
         himself had to bear the additional costs of compilation. In such a case, if the supplier of the universal service decides
         to make such data available to third parties, even though not bound by the directive to do so, there is no provision in the
         Directive to prevent those additional costs from being invoiced to the third parties, provided that those third parties are
         treated in a non-discriminatory manner.
         
         
         
         42
            
          The reply to the second question must therefore be that Article 6(3) of the Directive, in so far as it provides that the relevant
         information must be provided to third parties on terms which are fair, cost oriented and non-discriminatory, must be interpreted
         as meaning that: 
         –         with regard to data such as the name and address of the persons and the telephone number allocated to them, only the costs
         of actually making those data available to third parties may be invoiced by the supplier of the universal service; 
         –         with regard to additional data which such a supplier is not bound to make available to third parties, the supplier is entitled
         to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself in obtaining
         the data, provided that those third parties are treated in a non-discriminatory manner.
         
         
         Costs
         43
            
          Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national
         court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than
         the costs of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (First Chamber) rules as follows:
         
            
            
             
               1.
                  Article 6(3) of Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of
                     open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment
                     must be interpreted as meaning that the words ‘relevant information’ refer only to data relating to subscribers who have not
                     expressly objected to being listed in a published directory and which are sufficient to enable users of a directory to identify
                     the subscribers they are looking for. Those data include in principle the name and address, including postcode, of subscribers,
                     together with any telephone numbers allocated to them by the entity concerned. However, it is open to the Member States to
                     provide that other data are to be made available to users where, in light of specific national circumstances, they appear
                     to be necessary in order to identify subscribers.
                  
               
            
            
            
             
               2.
                  Article 6(3) of Directive 98/10, in so far as it provides that the relevant information must be provided to third parties on terms which
                     are fair, cost oriented and non-discriminatory, must be interpreted as meaning that: 
                  
               
            
            
            
             
               
                  
                     –
                        with regard to data such as the name and address of the persons and the telephone number allocated to them, only the costs
                           of actually making those data available to third parties may be invoiced by the supplier of the universal service; 
                        
                     
               
            
            
            
             
               
                  
                     –
                        with regard to additional data which such a supplier is not bound to make available to third parties, the supplier is entitled
                           to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself in obtaining
                           the data provided that those third parties are treated in a non-discriminatory manner.
                        
                     
               
            
            
             Signatures.
      
      
          1 –
            
            Language of the case: Dutch.