Base NV and Others v Ministerraad.
Date: 2010-10-06
23. Neither the Framework Directive nor Directive 2002/22 designates to which of their bodies the Member States must entrust the regulatory tasks assigned to that authority.
24. In that regard, it follows from Article 249 EC that Member States have the obligation, when they transpose a directive, to ensure that it is fully effective, whilst retaining a broad discretion as to the choice of methods (see, in particular, Case C‑216/05 Commission  v Ireland  [2006] ECR I‑10787, paragraph 26).
25. It must also be observed that the freedom to choose the ways and means of ensuring that a directive is implemented does not affect the obligation imposed on all Member States to which the directive is addressed to adopt all the measures necessary to ensure that the directive concerned is fully effective in accordance with the objective which it pursues (see, in particular, Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 40).
26. Although, in those circumstances, the Member States enjoy institutional autonomy as regards the organisation and the structuring of their regulatory authorities within the meaning of Article 2(g) of the Framework Directive, that autonomy may be exercised only in accordance with the objectives and obligations laid down in that directive (Case C‑82/07 Comisión del Mercado de las Telecomunicaciones  [2008] ECR I‑1265, paragraph 24).
27. Thus, a Member State can assign to the national legislature the tasks incumbent on national regulatory authorities under the Framework Directive and Directive 2002/22 only if the legislative body, in the exercise of those tasks, meets the organisational and operational requirements to which those directives subject those authorities.
29. Thus, under Article 3 of the Framework Directive, Member States must, in particular, ensure that each of the tasks assigned to national regulatory authorities be undertaken by a competent body, guarantee the independence of those authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services and ensure that they exercise their powers impartially and transparently. In addition, under Article 4 of the Framework Directive, decisions of those authorities must be made subject to an effective right of appeal to a body independent of the parties involved.
30. Therefore, Directive 2002/22 does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning of the Framework Directive provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by those directives and that its decisions in the exercise of that function can be made the object of an effective appeal to a body independent of the parties involved.
32. It should be recalled that Directive 2002/22 is intended to create a harmonised regulatory framework which secures, in the electronic communications sector, the delivery of universal service, that is to say, of a defined minimum set of services to all end-users at an affordable price. According to Article 1(1) of Directive 2002/22, one of its  objectives is to ensure the availability, throughout the European Community, of good quality, publicly available services through effective competition and choice (Case C-220/07 Commission  v France [2008] ECR I-95, paragraph 28).
33. Under Article 3(2) of Directive 2002/22, Member States are to 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 and they are to seek to minimise market distortions, whilst safeguarding the public interest ( Commission  v France , paragraph 29).
34. As recital 4 in the preamble to Directive 2002/22 states, ensuring universal service may involve the provision of some services to some end-users at prices that depart from those resulting from normal market conditions. The Community legislature therefore provided – as is clear from recital 18 in the preamble to the directive – that Member States should, where necessary, establish mechanisms for financing the net cost of universal service obligations in cases where it is demonstrated that the obligations can be provided only at a loss or at a net cost which falls outside normal commercial standards.
38. In view of those considerations, although, formally, the national court has limited its question to the interpretation of Article 12 of Directive 2002/22, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in its question (see, in particular, Case C‑251/06 ING. AUER  [2007] ECR I‑9689, paragraph 38 and the case-law cited).
42. In that regard, it is apparent from recital 21 in the preamble to Directive 2002/22 that the Community legislature intended to link the mechanisms for the recovery of net costs which an undertaking may incur as a result of the provision of universal service to the existence of an unfair burden on that undertaking. In that context, in concluding that the net cost of universal service does not necessarily represent an unfair burden for all the undertakings concerned, it intended to exclude the possibility that any net costs of universal service provision automatically give rise to a right to compensation. In those circumstances, the unfair burden which must be found to exist by the national regulatory authority before any compensation is paid is a burden which, for each undertaking concerned, is excessive in view of the undertaking’s ability to bear it, account being taken of all the undertaking’s own characteristics, in particular the quality of its equipment, its economic and financial situation and its market share.
43. In the absence of any specific provision in this regard in Directive 2002/22, it falls to the national regulatory authority to lay down general and objective criteria which make it possible to determine the thresholds beyond which – taking account of the characteristics mentioned in the preceding paragraph – a burden may be regarded as unfair. However, the fact remains that the authority cannot find that the burden of providing universal service is unfair, for the purpose of Article 13 of the directive, unless it carries out an individual assessment of the situation of each undertaking concerned in the light of those criteria.