C-384/99
ECLI:EU:C:2000:332
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- Súdny dvor Európskej únie
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- 61999CC0384
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COMMISSION V BELGIUM
OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 June 2000 *
1. In this action brought under Arti- mission the Law of 19 December 1997 cle 226 EC, the Commission seeks a which had amended the provisions of the declaration that the Kingdom of Belgium Law of 21 March 1991 in the light of the has failed to fulfil its obligations under the Directive. The Commission found, after EC Treaty by failing to implement Arti- examining the provisions of these laws, that cle 5, read in conjunction with Annex I and the Kingdom of Belgium had not correctly Annex III, of Directive 97/33/EC of the transposed Article 5 of the Directive, and European Parliament and of the Council, of on 24 August 1998 it put the Belgian 30 June 1997, on interconnection in Tele- Government on formal notice to submit communications with regard to ensuring to it its observations within two months. In universal service and interoperability its reply of 23 November 1998 the Belgian through application of the principles of Government explained that it would Open Network Provision (ONP) (herein- shortly adopt a number of regulations in after 'the Directive'). 1 order to complete the transposition of the Directive into Belgian law. Having found that reply unsatisfactory, the Commission addressed a reasoned opinion to the Belgian Government on 9 March 1999 calling on it to take the necessary measures to comply with the opinion within two months. In view of the Belgian Government's failure to 2. Under Article 23(1) of the Directive, the take such measures within that period, the 'Member States shall bring into force the Commission brought the present action on laws, regulations, and administrative pro- 8 October 1999. visions necessary to comply with this Directive by 31 December 1997. They shall immediately inform the Commission thereof.'
4. In its application the Commission con- tends that Belgian law was contrary to the Directive in three respects:
3. By letter dated 13 January 1998 the Belgian Government notified to the Com-
* Original language: English. (i) Certain newspapers and magazines, as 1 — OJ 1997 L 199, p. 32. well as the news agency Belga, were
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OPINION OF MR JACOBS — CASE C-384/99
subject to preferential interconnection offers universal service. Moreover, it charges, which were financed through did not take into account all of the the payments of other users to the principles for calculation set out in provider of universal telecommunica- Annex III of the Directive. tions services in Belgium (Belgacom). That was contrary to Article 5 and Annex I of the Directive under which 'provision of service under special terms' may be granted only to 'custo- mers with disabilities or with special social needs'. 5. The Belgian Government does not deny that it did not transpose the Directive within the time-limit laid down in Arti- cle 23(1).
(ii) The method for calculation of the contribution of the organisations oper- ating telecommunications networks towards the net cost of the universal 6. However, it explains with regard to the service obligation (that cost being Commission's first complaint that it pro- borne by Belgacom) did not satisfy posed, on 3 December 1999, a Bill [projet the requirement of transparency laid de loi] which provides, essentially, that the down in Article 5(1) of the Directive. preferential tariffs granted to certain news- More specifically, the Belgian Govern- papers, magazines and to Belga may no ment did not adopt, publish or com- longer be financed through the payments of municate to the Commission a regula- other organisations. The preferential tariffs tion specifying the method for calcula- will acquire the status of public service tion of the net cost of the universal obligations [missions d'intérêt general] service obligation and the basis of the which are laid upon the universal service contributions by the organisations. provider (Belgacom) and financed through contributions from the Belgian State.
(iii) The method for calculation of the net cost of the universal service obligation 7. With regard to the second and third as it was described, in very general complaints, the Belgian Government terms, by Belgian law was incorrect. It explains that it adopted, on 23 December failed in particular to take into 1999, a regulation amending Articles 1 and account, as required by Article 5(4) of 4 of Annex 2 of the Law of 21 March the Directive, the market benefit which 1991. The amended provisions lay down may accrue to an organisation that detailed rules for the calculation of the net
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COMMISSION V BELGIUM
cost of the universal service obligation, its obligations must be determined by taking account of the advantage which may reference to the situation prevailing in the accrue to a universal service provider and Member State at the end of the period laid the criteria set out in Annex III of the down in the reasoned opinion and that the Directive. It has also adopted an adminis- Court cannot take account of any subse- trative circular of 31 January 2000 which quent changes'. 2 clarifies the concept of turnover which is used to calculate the contributions of organisations to the net cost of the uni- versal service.
11. The fact that Belgium adopted regula- tions aimed at securing compliance with the Directive after the expiry of the period laid down in the reasoned opinion is there- fore irrelevant for this action. 8. In a letter to the Court of Justice of 3 April 2000 the Commission expressed the view that the Belgian legislation does now comply with the Directive as regards the second and third complaint. However, as regards the first complaint the Commis- sion explained that it was still investigating 12. It follows that the Commission's com- the compatibility of the preferential tariffs, plaints must be upheld. granted to the Belgian news sector under the new legislation, with the state aid rules of the EC Treaty.
13. Under Article 69 of the Rules of Pro- cedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's plead- 9. The Commission's letter cannot, in my ings. The Commission has applied for view, be interpreted as a formal withdrawal costs. I therefore consider that Belgium of any of the complaints made in this should be ordered to pay the Commission's action. The Court of Justice must therefore costs. rule on the three complaints mentioned above.
10. It is settled case-law that 'the question 2 — Case C-316/96 Commission v Italy [1997] ECR I-7231, whether a Member State has failed to fulfil paragraph 14 of the judgment.
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Conclusion
14. In the light of the foregoing observations, I am of the opinion that the Court should:
(1) declare that by failing to transpose correctly Article 5, read in conjunction with Annex I, and by failing to adopt the measures required to transpose fully Article 5, read in conjunction with Annex I and III, of Directive 97/33/EC 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), the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty and under that directive;
(2) order the Kingdom of Belgium to bear the costs.
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