OPINION OF ADVOCATE GENERAL
BOT
delivered on 15 April 20101(1)
Case C‑99/09
Polska Telefonia Cyfrowa sp. z o.o.
v
Prezes Urzędu Komunikacji Elektronicznej
(Reference for a preliminary ruling from the Sąd Najwyższy (Poland))
(Telecommunications sectors – Universal service and users’ rights – Telephone number portability – Directive 2002/22/EC – Article 30(2) – Whether or not the direct charge to the subscriber acts as a disincentive – Assessment of the national regulatory authorities – Indicator obtained from the costs incurred by operators)
1.At the time when the new Body of European Regulators for Electronic Communications (BEREC) is being established,(2) a new question has been referred to the Court of Justice for a preliminary ruling relating to the implementation of one of the key measures of telecommunications reform, namely, the right of European consumers to port their numbers which is enshrined in Article 30 of Directive 2002/22/EC.(3)
2.This right offers any subscriber the opportunity to keep the same telephone number if he changes operator, subject, sometimes, to payment of a direct charge. Article 30(2) of the Universal Service Directive entrusts the national regulatory authorities (‘the NRAs’) with a supervisory role as regards not only the interconnection costs incurred by the operators in providing number portability, but also the amount of the direct charges for which operators may sometimes invoice subscribers. That provision gives operators the option of passing on to the subscriber the costs they have incurred in providing that facility. Under the provision, where a charge is made it must not act as a disincentive.
3.The judgment in Mobistar(4) enabled the Court to provide clarification regarding the discretion enjoyed by the NRAs when examining the amount of the interconnection costs incurred by operators. The present case now offers the Court the opportunity to explain the way in which, in very concrete terms, the NRAs must examine the pricing of the provision of portability to subscribers.
4.The reference for a preliminary ruling has been made in proceedings between Polska Telefonia Cyfrowa sp. z o.o. and Prezes Urzędu Komunikacji Elektronicznej (the President of the Office for Electronic Communications, ‘the President of the UKE’) concerning the latter’s decision to impose on the applicant a fine of PLN100000 (about EUR 24 350) for infringement of the provisions applicable to number portability. The President of the UKE considered that the applicant’s direct charge of PLN 122 (about EUR 29.70) to subscribers was such as to dissuade them from seeking to port a number. In that connection, the President of the UKE considered that the amount of the charge was to be determined not on the basis of the costs incurred by the operators but in the light of the perception of consumers and, in particular, of the results of an opinion poll.
5.In this case, the matter before the Court is not whether the portability service should be free of charge. Although, at the present time, a number of Member States have legislated to that effect, the provision in question does not require an operator to provide this service free of charge. It may therefore opt, in accordance with that provision and with the applicable national law, to charge the subscriber in that respect. The question arises, therefore, as to how best to control the pricing of that service provided to the subscriber.
6.The Sąd Najwyższy (Supreme Court), Poland, is therefore asking the Court whether the NRAs, in the exercise of their supervisory function under Article 30(2) of the Universal Service Directive, are required to take into account the number portability costs incurred by operators when assessing whether the direct charge to the subscriber acts as a disincentive.
7.In this Opinion, I shall set out the reasons why I think that NRAs cannot disregard the costs incurred by operators when they assess the amount of the price for providing portability to subscribers, given the general scheme of which the portability facility forms part and the objectives pursued by the European Union legislature in this regard.
8.I shall also set out my doubts regarding the method used by the President of the UKE, which consists, when all is said and done, in basing an administrative penalty merely on an opinion poll.
I–Legal framework
A–European Union law
9.The opening-up of the telecommunications sector to competition has three broad components, namely liberalisation, harmonisation and the application of the competition rules to telecommunications undertakings.(5)
10.The process of liberalising the telecommunications sector began in 1988. By the adoption of Directives 88/301/EEC, 90/388/EEC and 96/19/EC,(6) the European Union legislature arranged, according to a strict timetable, for the removal of the special and exclusive rights generally enjoyed by the traditional telecommunications operators over terminal equipment (that is to say, importation, marketing, implementation and maintenance rights) and over the supply of telecommunications services. Since 1 January 1998, that market has been, in principle, fully liberalised.
11.At the same time as the liberalisation directives were being adopted by the Commission of the European Communities, the Council of the European Union adopted a series of harmonisation measures on the basis of Article 100A of the EC Treaty (which became, after amendment, Article 95 EC). At the heart of that system, Directive 90/387/EEC(7) laid down common principles for the pricing of the provision of an open telecommunications network. The 1990 Framework Directive was supplemented by Directive 97/33/EC,(8) which laid down more specific measures designed inter alia to ensure interconnection of networks and interoperability of services.(9)
12.The matter of interconnection pricing proved crucial to the structure and scale of competition in this sector. The Council therefore established strict rules for this pricing and their implementation, at national level, was entrusted to the NRAs.
13.Under Article 7 of Directive 97/33, the NRAs must ensure that charges for interconnection follow the principles of transparency and cost-orientation.(10)
14.By ensuring full interconnection between the networks at European Community level and by arranging for more effective competition between the service operators, the European Union legislature intended inter alia to enable European consumers to obtain a wider range of services of better quality and for a better price.
15.Among those services is the number portability facility which was established on the adoption of the new regulatory package on 7March 2002(11) in Article 30 of the Universal Service Directive. This facility offers any customer of a telecommunications operator the opportunity to change operator while keeping the same number.
16.Under Article 30(1) of that directive, Member States are required to ensure that all subscribers of publicly available telephone services, including mobile services, who so request can benefit from that facility irrespective of the undertaking providing the service.
17.The pricing for this facility is delimited in Article 30(2) and (3) of the directive, which is worded as follows:
‘2.[NRAs] shall ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities.[(12)]
3.[NRAs] shall not impose retail tariffs for the porting of numbers in a manner that would distort competition, such as by setting specific or common retail tariffs.’
18.Finally, Article 4(1) of the 2002 Framework Directive requires Member States to provide an effective appeals mechanism enabling all users and providers to appeal against NRA decisions which affect them.
B–National law
19.The conditions under which the right to port a number is exercised in Poland are set out inter alia in Articles 41 and 71 of the Law on Telecommunications (Prawo telekomunikacyjne) of 16 July 2004.(13)
20.Article 41(1) of that Law provides that fees for mutual use of interconnected networks which relate to the porting of numbers between the networks are to take account of the costs incurred.
21.Article 71 of that Law provides:
‘1.A subscriber who is party to an agreement with a service provider providing a connection to the public telephone network of an operator may demand, upon a change of operator, that the assigned number be ported to an existing network of another operator in the area of:
(1)a numbering area – in the case of geographic numbers;
(2)the entire country – in the case of non-geographic numbers.
…
3.Where the assigned number is ported upon a change of operator, the previous service provider may charge the subscriber a one-off fee set out in its list of tariffs, the amount of which shall not act as a disincentive to exercise of this right by subscribers.’[(14)]
22.Under Article 74(1) of that Law, an operator providing a connection to the public telephone network (the donor operator) and the operator to whose network a subscriber has been connected (the recipient operator) are required to facilitate the exercise of porting rights. If they do not do so, Article 74(3) of the Law allows the President of the UKE to impose the fine referred to in Article 209(1)(16) of the Law.
23.Under the latter provision, any person who prevents subscribers from exercising their rights to port an assigned number, as referred to in Articles 70 and 71 of the Law on Telecommunications, is to be liable to a fine.
II–The facts and the order for reference
24.In accordance with Articles 74(3) and 209(1)(16) of the Law on Telecommunications, the President of the UKE imposed a fine of PLN100000 (about EUR 24 350) on the applicant following an infringement committed between 28 March and 31 May 2006 of the provisions applicable to number portability. He considered that the fee charged by the applicant, of an amount of PLN 122 (about EUR 29.70), dissuaded subscribers from seeking to port their number.
25.According to the President of the UKE, the amount of that direct charge had to be set not according to the costs incurred by the operators in providing number portability but by reference to a subjective assessment of the amount, established on the basis of the results of a consumer survey. Thus, in Poland, when asked ‘how much are fixed and mobile telephone users prepared to pay to port a telephone number to a different operator?’, users with a pre-paid card answered PLN 46 (about EUR 11.20) and subscribers PLN 48 (about EUR 11.70). The President of the UKE therefore considered that a charge of more than PLN50 (about EUR 12.20) dissuaded users from exercising their right to port their numbers; this was contrary to Article 71(3) of the Law on Telecommunications and, therefore, punishable by a fine.
26.The appeal brought by the applicant against that decision was dismissed on 6 March 2007 by the Sąd Ochrony Konkurencji i Konsumentów (Court for the Protection of Competition and Consumers), Poland. That court held that, in so acting, the President of the UKE interpreted Article 30(2) of the Universal Service Directive correctly and applied Article 71(3) of the Law on Telecommunications correctly.
27.By a judgment of 5 February 2008, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw), Poland, set aside that judgment in its entirety, annulling the decision of the President of the UKE. The latter then brought an appeal in cassation before the Sąd Najwyższy, which, uncertain as to the interpretation to be given to Article 30(2) of the Universal Service Directive, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Is Article 30(2) of the [Universal Service Directive] to be interpreted as meaning that the competent [NRA], when ensuring that direct charges to subscribers do not act as a disincentive for the use of the facility of porting numbers, has an obligation to take account of the costs incurred by mobile telephone network operators in providing that facility?’
28.The applicant, the President of the UKE, the Polish Government and the Commission have made written and oral submissions. The Slovak Government has only lodged written observations.
III–Analysis
29.By the question it has referred, the national court is asking the Court of Justice, in essence, whether Article 30(2) of the Universal Service Directive is to be interpreted as obliging the NRAs to take into account the costs incurred by the telecommunications operators in implementing number portability when they assess whether the direct charge which may be levied in that regard on the subscriber acts as a disincentive.
30.The question is raised for two reasons, namely, first, because the principles for pricing that charge are not established, the aforementioned provision merely stating that the amount of the charge must not act as a disincentive, and secondly, because the NRAs have a discretion when exercising their supervisory function and, in particular, when defining their regulatory practices.
31.In the present case, the President of the UKE, the competent NRA, thus decided that the assessment of whether the fee charged by the applicant acted as a disincentive was to be based solely on the results of a consumer survey and was not to take into account the portability costs incurred by the operators.
A–Preliminary observations
32.Before embarking upon examination of the question submitted for a preliminary ruling, I think it is necessary, first, to provide explanation regarding the aim and pricing of the portability facility and then to recall the Court’s case-law on the discretion enjoyed by the NRAs in this regard.
33.Under Article 30 of the Universal Service Directive, the portability facility is an obligation on all telecommunications operators and a right of all subscribers. This facility must enable the obstacles to consumers’ freedom of choice to be removed and ensure the development of effective competition on the telecommunications market.(15)
34.In order to facilitate the opening-up of this previously monopolistic market and to avoid abuse, the European Union legislature delimited the tariffs which operators need to apply in connection with requests to port numbers. In essence, there are two of these tariffs.
35.The first concerns the pricing for interconnection. When a subscriber actually asks to port his number, the donor operator(16) (it is usually the donor operator) invoices the recipient operator(17) for the interconnection charges incurred in dealing with that request. The request involves a cost since, as the Court has pointed out, the platforms between operators must be compatible, the subscriber’s number must be ported from one operator to another and technical operations must be carried out to allow the routing of telephone calls to the ported number.(18) In pricing this interconnection, the donor operator is required to comply, under the supervision of the NRA, with the principle of cost-orientation.
36.This delimitation of the pricing for interconnection is designed to encourage entry of efficient and viable operators into the market and to avoid the risk of distortions of competition which might be caused by the fixing of unjustified prices. Over-pricing for interconnection would constitute a barrier to entry to the market and consolidate established operators’ dominant market position.(19) As the Court has pointed out, such pricing is also liable to encourage operators to pass on the cost to the new subscriber, and this practice may therefore dissuade consumers from making use of the portability facility.(20) Similarly, prices which are below the threshold of the actual costs involve the risk of inefficient competitors entering the market.
37.The second tariff concerns the fee which may be charged to the subscriber for implementation of this service. This is usually charged by the recipient operator and enables it to recover all or part of the costs it has incurred.
38.This fee is also a decisive factor for competition in the market, especially for operators entering it. Indeed, for them, portability is a commercial necessity for gaining new customers who have previously belonged to the traditional operators. When the porting charge is made by the recipient operator, that operator is subject to the pressure of competition and may naturally be prompted not to discourage the arrival of new customers and to charge reasonable prices. On the other hand, when the charge for this service is made by the donor operator, that operator may charge excessive prices in order to discourage its customers from seeking to port their number to a competitor. Accordingly, the European Union legislature has also delimited the pricing of the direct charge by entrusting the NRAs, under Article 30(2) of the Universal Service Directive, with the task of ensuring that the charge does not act as a disincentive.
39.The NRAs have a discretion in implementing the rules laid down by the European Union legislature.(21) Since these rules are essentially defined in directives, the problem arises of consistency between the different national implementing measures and the various regulatory policies adopted by each of the authorities. Accordingly, with regard to the fee charged to the user, I have noted that the Institut luxembourgeois de régulation (Luxembourg Regulatory Agency) provides that ‘portability costs which may be chargeable to the user must observe the principles of non-discrimination and effectiveness’ and that the fee which the recipient operator alone may claim from the user must be reasonable.(22) Similarly, the French and United Kingdom regulations provide that operators are required to make reasonably-priced offers to their subscribers to enable them to keep their numbers.(23) On the other hand, we have seen that, in Poland, Article 71 of the Law on Telecommunications originally provided that the amount of the fee could not act as a disincentive. That provision now simply prohibits payment of a fee by the subscriber.
40.Clearly, these regulations differ. In addition to the diversity of the tools chosen for assessing and calculating the tariffs, there are different ways of using those tools and I therefore wonder whether it is not necessary to achieve greater consistency between the regulatory practices of the NRAs. Differences in regulations may cause serious distortions of competition, detrimental to the creation of an integrated European telecommunications market.
41.NRAs have a discretion when performing their supervisory duty to monitor, as I have stated. In that regard, the Court explained a few points in the judgment in Mobistar.
42.In that case, the Court was asked whether Article 30(2) of the Universal Service Directive precluded the Belgian regulatory authority from fixing in advance and on the basis of an abstract model of the costs maximum prices which could be charged by the donor operator to the recipient operator. The Court replied in the negative, while qualifying its comments. It held, in essence, that, once the NRAs fulfil their supervisory duty, by checking that prices are fixed on the basis of the costs, in a manner which ensures that consumers are not dissuaded from making use of the portability facility, Article 30(2) of the Universal Service Directive confers ‘a certain discretion’ on the NRAs to assess the situation and define the method which appears to them to be the most suitable. However, the method chosen must not only ensure the full effectiveness of portability but must also be subject to effective appeal before the competent judicial authorities.(24)
43.The Court is now asked to establish the degree of discretion enjoyed by the NRAs in assessing whether the direct charge acts as a disincentive and must, in particular, answer the question whether, when making that assessment, they are required, under the Universal Service Directive, to take into account the number portability costs incurred by the operators.
44.This question is important because there is a similar provision in Article 19(3) of the Universal Service Directive, concerning carrier selection and carrier pre-selection services.(25)
B–Interpretation of Article 30(2) of the Universal Service Directive
45.Unlike the Commission and the Member States which have taken part in these proceedings, I take the view that the NRAs cannot disregard the costs incurred by operators when they assess whether the direct charge to subscribers acts as a disincentive.
46.Although that is not apparent from the wording of Article30(2) of the Universal Service Directive, it is, on the other hand, the correct view in the light of the broad logic of the system of which the portability facility forms part and of the aims pursued by the European Union legislature.
47.As regards, first, the wording of that provision, no methodology is specified for the NRAs when assessing whether the direct charge to subscribers acts as a disincentive.
48.Although the French version of Article 30(2) uses the term ‘redevance’, which could refer, if interpreted semantically, to a sum charged to a user the amount of which depends on the cost of the service rendered, the other language versions of that provision use terms which may refer equally to the concepts of costs, charges, tariffs, subscriptions, contributions or even shares. This is so of the version in Polish, the language of the case, which uses the term ‘obciążenia’, meaning ‘charges’, and the English version (‘direct charges’), the Italian version (‘oneri diretti’), the Spanish version (‘cuotas directas’) and the German version (‘direkte Gebühren’).
49.According to established case-law, the need for uniform application and interpretation of European Union law makes it impossible for the text of a provision to be considered in isolation in one of its versions; on the contrary, it requires that the text of the provision be interpreted in the light of the versions existing in all the official languages and by reference to the general scheme and the purpose pursued by the author of the measure in question. (26)
50.As regards examination of the general scheme of which the portability facility forms part and of the aims of the European Union legislature, this involves taking into account not only the specific provisions of the Universal Service Directive but also the more general provisions laid down in the 1990 and 2002 Framework Directives and in the Access Directive.
51.An examination of these measures enables us to identify the pricing principles that form a basis for the telecommunications legislation and, in particular, pricing for interconnection.
52.These principles are the following:
–pricing must be based on objective criteria and must be founded on the principle of cost-orientation;(27)
–as the Court acknowledged in Arcor and Others,(28) that principle requires operators to derive interconnection pricing from actual costs.(29) The principle therefore enables an estimate of the cost which would be set in a fully competitive market to be obtained, and is necessary in a sector such as the interconnection sector in which there is not yet effective competition capable of ensuring reasonable prices. The principle of cost-orientation also applies to certain prices charged to end-users, such as the tariffs for use of the fixed public telephone network and the voice telephony service(30) and also those for leased lines;(31)
–pricing must be transparent and be subject to appropriate publication;(32)
–pricing must ensure equality of access and must not be discriminatory;
–pricing must ensure the effectiveness of the services throughout the Community; and
–pricing must be subject to effective appeal before the competent judicial authorities.(33)
53.Compliance with these criteria, although required principally of operators, also places as many restrictions on the exercise of the discretion conferred on the NRAs. Thus, I would point out that in Mobistar, paragraphs 34 and 41, the Court expressly stated that, although the NRAs have a certain discretion to define the method which appears to them to be the most suitable for fixing the maximum amount of the price for interconnection, that method must nevertheless ensure that portability is fully effective and that users and operators are afforded effective legal protection.
54.Therefore, the discretion conferred on the NRAs must not be confused with the exercise of unfettered discretion.
55.The method which NRAs must now define for assessing whether the direct charge acts as a disincentive has to be consistent with the pricing principles which I have just set out. It must serve to ensure not only the well-being of the consumer but also the development of healthy competition in the market.
56.In particular, this method must be based on factors which are sufficiently clear and objective to enable the competent judicial authorities to carry out an effective review of the assessment made by the NRA, in accordance with Article 4(1) of the 2002 Framework Directive. This argument has all the more force because the Polish regulatory authority, in carrying out its supervisory function, has the power to impose administrative penalties which, in the present case, has led to the imposition of a fine of more than EUR 24 000 on the applicant.
57.In the light of these considerations, it is clear to me that the NRAs cannot wholly disregard a factor as objective as that of the cost of the service rendered when they assess the amount of the direct charge to the subscriber. This seems all the more clear because the European Union legislature expressly states, in recital 26 in the preamble to the Universal Service Directive, that, when a service is provided to an end-user, end-user tariffs should reflect demand conditions as well as cost conditions,(34) for reasons of efficiency and social reasons.
58.The indicator obtained from the costs incurred by operators is an objective indicator since it inherent in the actual cost of the service provided to users. It therefore enables the NRAs to have an objective measure of the direct charge to the user. Although, as the Commission points out, establishing those costs is complex owing to the nature of the service, the NRAs have nowadays adopted evaluation methods, sometimes recommended by the Commission, which make it possible to estimate them.(35)
59.Furthermore, that indicator is consistent with the pricing principles laid down by the European Union legislature in respect of the portability service. By choosing to apply the principle of cost-orientation to pricing for interconnection, the legislature is ultimately trying to delimit the final amount charged to the user. In my view, pricing for interconnection represents the principal cost which the operator may, directly or indirectly, pass on to the subscriber. The amount of that pricing may have a direct and decisive effect on the amount of the direct charges since the higher the costs the more the operator will be prompted to pass on part of them to the subscriber. This link between the pricing for interconnection and the charge to users was first made apparent in the second subparagraph of Article 12(5) of Directive 97/33.(36) Although the link has disappeared from the existing wording of Article 30(2) of the Universal Service Directive, the Court reintroduced it in paragraphs 29 and 37 of Mobistar. The Court expressly stated that the maximum interconnection prices must be fixed ‘on the basis of the costs in such a way that consumers are not dissuaded from making use of the facility of portability’.(37)
60.Finally, that indicator is a reliable one since, in accordance with their supervisory duty under Article 30(2) of the Universal Service Directive, NRAs ensure that pricing for interconnection is not the subject of distortions of competition and that it is oriented to the cost of providing the service. On that premiss, the fears expressed by the President of the UKE and the Polish Government that taking into account the pricing for interconnection does not adequately protect the rights of consumers as those prices may be fixed at an unjustified level are, in my view, not well-founded. On the contrary, if NRAs carry out their supervisory function properly and ensure that those prices are cost-oriented, that is the best guarantee against an arbitrary and random fixing of the amount of the direct charge.
61.This argument does not prevent the NRA from taking into account, in the manner it considers most appropriate, demand-related matters in addition to the cost factors in the strict sense. The results of a consumer survey can therefore be a criterion which may inform the NRAs of user expectations.
62.However, I think it evident that such results cannot, on their own, constitute a decisive criterion for determining whether the direct charge acts as a disincentive.
63.Results of this kind must be interpreted and used with great caution because they have a fortuitous and subjective nature which in itself does not facilitate the task of the court entrusted with review of the legality of the NRA’s decisions.
64.First, the results of a consumer survey depend on variables as diverse as a State’s economic, social and cultural circumstances, the selection of the sample (age, activities, geographic or socio-economic origins), the methodology used, the sincerity of replies, the identity of interviewers and the structure and content of the questions asked.(38)
65.Secondly, in my view such results are not at all reliable. A normally informed consumer will not have a precise idea of the cost of the portability service. It may, therefore, be that the price that he says he is prepared to pay will be far higher than the actual cost incurred by the operators and, in that case, taking only that result into account will not best serve the interests of the consumer. This methodology therefore does not make it possible to reflect the actual cost of the service or even developments in the cost in the light of technical advances or of changes in demand.
66.Furthermore, this methodology does not ensure any predictability and introduces, to the detriment of operators, a degree of uncertainty as regards the amount of the direct charge fixed by the NRA.
67.Finally and above all, I wonder to what extent it is possible, without infringing the general principles of European Union law, to regard the elements of an infringement which puts the operator at risk of financial penalties as being present on the basis merely of an opinion poll. Such a fortuitous and subjective methodology appears to be a particularly tenuous legal basis on which to exercise such a power to impose penalties, if not even incompatible with the general principles in question. It is not apparent how an operator can, in those circumstances, objectively assess the conditions for its liability being put in issue.
68.Therefore, in the light of all these considerations, I consider that the methodology advocated by the Polish authorities, which is based solely on the results of a consumer survey, does not give sufficient guarantees to ensure both that portability is fully effective and that the participants in that market are afforded effective legal protection.
69.So subjective a methodology is liable to give rise to excesses which the NRAs must, in my view, counterbalance by taking into account the costs incurred by operators in providing the facility.
70.In the light of all these factors, I propose that the Court reply to the national court that Article 30(2) of the Universal Service Directive is to be interpreted as obliging the NRAs to take account, in the manner they consider most appropriate, of the indicator obtained from the costs incurred by telecommunications operators in implementing number portability when they assess whether the direct charge which may be levied in that regard on the subscriber acts as a disincentive.
71.Before concluding, I should like to make a final observation concerning pricing, within the European Union, of the portability service.
72.As the Commission pointed out at the hearing, a number of Member States have decided that the portability service is now to be offered to subscribers free of charge. Such a solution, which I support, would have several advantages and would serve in particular to give consumers the opportunity to reap the greatest benefit from the advantages offered by that service. Furthermore, this solution, if adopted at European Union level, would make it possible to harmonise legislation of the Member States which sometimes conflicts, adversely affecting the strengthening of the single market in telecommunications. However, whilst the European Union legislature must identify this solution, it did not adopt it in the new regulatory package which came into force on 18 December 2009, since the wording Article 30(2) of the Universal Service Directive has not, in essence, been amended.
IV–Conclusion
73.In the light of the foregoing considerations, I propose that the Court give the following reply to the question referred for a preliminary ruling by the Sąd Najwyższy:
Article 30(2) of 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) is to be interpreted as obliging the national regulatory authorities to take account, in the manner they consider most appropriate, of the indicator obtained from the costs incurred by telecommunications operators in implementing number portability when they assess whether the direct charge which may be levied in that regard on the subscriber acts as a disincentive.
1– Original language: French.
2– On 25 November 2009, the European Union legislature adopted a new regulatory framework for electronic communications networks and services. It was within that framework that the BEREC was established on 28 January 2010, in accordance with Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ 2009 L337, p.1).
3– Directive 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) (OJ 2002 L108, p.51).
4– Case C-434/08 [2006] ECR I‑6675.
5– For an overall view, see Bazex, M., ‘Le droit communautaire et l’accès des entreprises du secteur concurrentiel aux réseaux publics’, Revue des affaires européennes, 1994/2 p.103; Encaoua, D., and Flochel, L., ‘Droit des télécommunications: entre déréglementation et régulation – La tarification: du monopole à la concurrence régulée’, L’actualité juridique – Droit administratif, AJDA, 1997, p.254; Ravaioli, P., ‘Le cadre législatif européen des télécommunications et son application’, Revue du Marché Unique Européen, No3, 1997, p.175; and Geradin, D., ‘L’ouverture à la concurrence des entreprises de réseau – Analyse des principaux enjeux du processus de libéralisation’, Cahiers de Droit européen, 1999, Nos1 and 2, p.13.
6– See Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (OJ 1988 L131, p.73); Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L192, p.10); and Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets (OJ 1996 L74, p.13).
7– Council Directive of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (OJ 1990 L192, p.1, ‘the 1990 Framework Directive’).
8– Directive of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L199, p.32), as amended by Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 (OJ 1998 L268, p.37) (‘Directive 97/33’). See also the Commission Communication on interconnection pricing in a liberalised telecommunications market (OJ 1998 C84, p.3).
9– Under Article 2(1)(a) of Directive 97/33, ‘interconnection’ means ‘the physical and logical linking of telecommunications networks used by the same or a different organisation in order to allow the users of one organisation to communicate with users of the same or another organisation, or to access services provided by another organisation’.
10– The NRAs are responsible, inter alia, for ensuring the publication of a ‘reference interconnection offer’ setting out the terms and conditions for interconnection.
11– In addition to the Universal Service Directive, the following were adopted: Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L108, p.7) and 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 L108, p.33, ‘the 2002 Framework Directive’).
12–Article 30(2) of the Universal Service Directive has been amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L337, p.11). That provision now states as follows:
‘[NRAs] shall ensure that pricing between operators and/or service providers related to the provision of number portability is cost-oriented, and that direct charges to subscribers, if any, do not act as a disincentive for subscribers against changing service provider.’
13– Dz. U. of 2004, No171, heading 1800.
14– Following an amendment to the Law on Telecommunications on 24 April 2009, Article 71(3) of the Law now prohibits payment of a charge by the subscriber. However, that provision, which has been in force since 6 July 2009, is not applicable in the present case.
15– Mobistar, paragraph 25.
16– The operator from which the number is ported and with which the subscription is cancelled.
17– The operator with which the subscriber signs a new contract and to which the number is ported.
18– Mobistar, paragraph 24.
19– In particular, in the case of networks of different sizes, the dominant operator usually enjoys a demand for access which is much higher than its demand for access to its competitors. In negotiations, it therefore has the means of imposing a high price for access to its network.
20– Mobistar, paragraphs 28 and 29.
21– This decentralised control was considered necessary in order to take account of significant national variation in the field of telecommunications, owing, inter alia, to differences in the concept of public interest, in the degree of liberalisation and in technological development.
22– See Décision 04/77/ILR du 6 juillet 2004 concernant les règles relatives aux modalités pour l’introduction de la portabilité des numéros mobiles (Decision 04/77/ILR of 6 July 2004 concerning the rules relating to the procedures for introducing mobile number portability) and Décision 04/78/ILR du 6 juillet 2004 concermant les règles relatives à la solution technique pour l’introduction de la portabilité des numéros mobiles (Decision 04/78/ILR of 6 July 2004 concerning the rules relating to the technical solution for introducing mobile number portability). These decisions are available on the website of the Institut luxembourgeois de régulation (www.ilr.public.lu).
23– See Article L44 of the Code des postes et des communications électroniques (French Postal Services and Electronic Communications Code), in its consolidated version of 13 January 2010, and paragraph 18.1 of the general conditions laid down by the United Kingdom regulatory authority pursuant to section 48(1) of the Communications Act 2003.
24– Paragraphs 34, 40 and 41. Emphasis added.
25– That provision states that ‘[NRAs] shall ensure that pricing for access and interconnection related to the provision of the facilities [of carrier selection and carrier pre-selection] is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities’.
26– See, inter alia, Case C-347/08 Vorarlberger Gebietskrankenkasse [2009] ECR I-0000, paragraph 26 and the case-law cited therein, and Case C‑473/08 Eulitz [2010] ECR I-0000, paragraph 22 and the case-law cited therein.
27– See, by way of illustration, Article 3(1) of the 1990 Framework Directive and paragraph 4 of Annex II thereto; recital 10 and Article 7(2) of Directive 97/33; recital 20 and Article13(1) of the Access Directive; and recitals 26, 40 and 42 and Article30(2) of the Universal Service Directive. See also Commission Recommendation 98/195/EC of 8 January 1998 on interconnection in a liberalised telecommunications market (Part 1 – Interconnection pricing) (OJ 1998 L73, p.42) and the Commission communication referred to in footnote 8 (point 3.2).
28– Joined Cases C-152/07 to C-154/07 [2008] ECR I‑5959.
29– Paragraphs 22 and 23.
30– See recitals 28 to 30 and Article 12 of Directive 95/62/EC of the European Parliament and of the Council of 13 December 1995 on the application of open network provision (ONP) to voice telephony (OJ 1995 L321, p.6).
31– See recitals 17 to 19 and Article 10(1) and (2) of Council Directive 92/44/EEC of 5June 1992 on the application of open network provision to leased lines (OJ 1992 L165, p.27).
32– See Article 7(2) and (3) of Directive 97/33 and recital 41 of the Universal Service Directive. See also Article 9(2) of the Access Directive, pursuant to which NRAs may require an operator to publish a reference offer, which is to be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings together, inter alia, with prices.
33– See Article 4(1) of the 2002 Framework Directive.
34– Emphasis added.
35– See, by way of illustration, Mobistar, paragraphs 10 and 11, which sets out the method adopted by the Belgian regulatory authority (cost of an efficient operator). See also the Commission communication mentioned in footnote8.
36– That provision states as follows:
‘In order to ensure that charges to consumers are reasonable, [NRAs] shall ensure that pricing for interconnection related to the provision of this facility is reasonable.’
37– Paragraph 37 and the operative part of the judgment (emphasis added).
38– See to this effect Dussaix, A.-M., ‘La qualité dans les enquêtes’, Revue MODULAD, No39, 2009, p.137, especially pp.142 to 168.