Arcor AG & Co. KG v Bundesrepublik Deutschland.
Date: 2008-04-24
69. It follows from the above findings that the principle that rates for unbundled access to the local loop are to be set on the basis of cost‑orientation, laid down in Article 3(3) of Regulation No 2887/2000, is to be understood as the obligation on notified operators, in the course of the gradual opening of the telecommunications market to competition, to set those rates in accordance with the costs incurred in putting in place the local loop, while deriving a reasonable return from the setting of those rates in order to ensure the long‑term development and upgrade of existing telecommunications infrastructures.
Question 2: costs
94. In response to that line of argument, the Court finds that it is necessary to rely on Recommendation 2000/417 which, as opposed to the other recommendations cited above, concerns specifically unbundled access to the local loop and also refers to Directives 97/33 and 98/10. Even if recommendations are not intended to produce binding effects, the national courts are bound to take the recommendations into consideration in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions (see Case C‑322/88 Grimaldi  [1989] ECR 4407, paragraph 18, and Case C‑207/01 Altair Chimica [2003] ECR I‑8875, paragraph 41). Article 1(6) of Recommendation 2000/417 lays down the principle of a forward-looking approach based on current costs. As is apparent from that provision, that approach will foster fair and sustainable competition and provide alternative investment incentives.
153. It is apparent from those provisions that the NRAs have broad discretion to intervene in the various pricing aspects for the provision of unbundled access to the local loop, including the discretion to change prices, and thus the proposed tariffs.
154. In that regard, in accordance with the principle laid down in Article 3(3) of Regulation No 2887/2000, the level of rates for unbundled access to the local loop must be set on the basis of actual costs, namely the historic and forward-looking costs incurred by the notified operator.
155. In those circumstances, it follows that the broad discretion granted by Regulation No 2887/2000 to the NRAs as regards the assessment of pricing aspects of unbundled access to the local loop also concerns the evaluation of the costs incurred by the notified operator.
156. Therefore, it must be held that the broad discretion enjoyed by the NRAs under Article 4(2) of Regulation No 2887/2000 also relates to the costs taken into account, such as interest on invested capital and depreciation of fixed assets, the calculation basis of those costs and the cost‑accounting models used to prove them.
166. In that regard, according to the case‑law, in the absence of relevant Community rules it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render in practice impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see Case C‑30/02 Recheio – Cash & Carry  [2004] ECR I‑6051, paragraph 17, and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I-4233, paragraph 28 and the case-law cited).
174. That provision is an expression of the principle of effective judicial protection, which is a general principle of Community law stemming from the constitutional traditions common to the Member States and which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, pursuant to which it is for the courts of the Member States to ensure judicial protection of an individual’s rights under Community law (see, by way of analogy, Case C‑426/05 Tele2 Telecommunication  [2008] ECR I‑0000, paragraph 30 and the case‑law cited).
176. As regards the right of appeal of third parties, it must be held that, since a beneficiary is not the addressee of a decision of the NRA, he acquires the status of ‘party affected’ when his rights are potentially affected by such a decision by reason of its content and the activity exercised or envisaged by that party (see, by way of analogy, Tele2 Telecommunication , paragraph 39).
191. It is apparent from the case‑law that the Member States must ensure that evidential rules – and, in particular the rules on the allocation of the burden of proof applicable to actions relating to a breach of Community law – are, firstly, not less favourable than those that apply to similar domestic actions and, secondly, that they do not make it in practice impossible or excessively difficult for individuals to exercise rights conferred by Community law (see Case C‑228/98 Dounias  [2000] ECR I‑577, paragraph 69 and the case‑law cited).