C-221/01

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between the parties involved, subject to the 9. Article 10 lays down a series of essential Directive and to the Treaty competition requirements for interconnection relating rules. to security of network operations, main- tenance of network integrity, interoperabil- ity of services and protection of data.

5. Article 4 provides that authorised tele- communications organisations are to have a right and, when requested by organi- sations in that category, an obligation to negotiate interconnection with each other. 10. Article 12 requires Member States to ensure the provision of adequate numbers and numbering ranges for all publicly available telecommunications services.

6. Article 5 makes provision for telecom- munications organisations in some circum- stances to share the cost of universal service obligations.

11. Article 14 requires the information specified in certain articles to be published or made available on request to interested parties. 7. Article 7 lays down a series of principles for interconnection charges and cost accounting systems which must be applied to telecommunications organisations with significant market power, defined in Article 4(3).

13. By letter of 13 January 1998 the Bel- gian authorities notified the Commission of a Law of 19 December 1997 4which was intended to implement Directive 97/33. 17. The Belgian authorities informed the Commission of the adoption of further legislation by letters of 26 April 1999, 21 June 1999 (responding to the reasoned o p i n i o n ) , 18 O c t o b e r 1999 and 10 December 1999. 14. On 6 August 1998 the Commission sent a letter of formal notice pursuant to Article 169 of the EC Treaty (now Article 226 EC) informing the Belgian authorities that the legislation so notified did not adequately implement all the provisions of Directive 97/33. 18. Although that legislation answered the Commission's concerns in part, the Com- mission none the less remained of the view that Belgium's implementation of Directive 97/33, in particular Articles 7(5), 9(3) and 14(1) and (2), was inadequate. It has accordingly brought the present proceed- 15. By letter of 8 September 1998 the ings. Belgian authorities informed the Commis- sion of the adoption of further legislation implementing the Directive. By letter of 12 October 1998 those authorities responded to the letter of formal notice.

The complaint concerning Article 7(5)

16. The Commission remained of the view that the Directive had not been adequately implemented by Belgium and accordingly 19. Article 7 is entitled 'Principles for inter- on 15 April 1999 sent the Kingdom of connection charges and cost accounting systems'. It applies to organisations which have been notified by national regulatory 4 — Law amending the Law of 21 March 1991 on the reform of authorities as having significant market certain public economic undertakings, Moniteur belge 30 December 1997. power.

25. Under Article 9(1) national regulatory 22. In its defence Belgium refers to 'l'arse- authorities must 'encourage and secure nal législatif belge' and cites numerous adequate interconnection in the interests provisions conferring various general of all users, exercising their responsibility powers on the Institute (the Institut belge in a way that provides maximum economic des services postaux et des télécommuni- efficiency and gives the maximum benefit cations, the Belgian regulatory authority). to end-users'. In particular they must take In its rejoinder however Belgium accepts into account a number of specified factors, such as the need to stimulate a competitive market, the need to ensure the fair and 5 — Royal decree of 4 October 1999 concerning certain proper development of a harmonised Euro- accounting principles applicable to organisations having significant market power in the télécommunications market pean telecommunication market and the implementing Article 109 of the Law of 21 March 1991 on principles of non-discrimination (including the reform of certain public economic undertakings, Moti- iteurbeige, 8 October 1999. equal access) and proportionality.

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29. Belgium refers second to further provi- sions which it had described in its response to the reasoned opinion as implementing 27. The Commission submits that the Bel- Article 9(3). Those provisions are (i) gian implementing legislation does not Article 109b(4) and (5) of the Law of provide for intervention by the regulatory 21 March 1991 as amended 7 and (ii) authorities in negotiations 'on their own Articles 8 and 12 of the Royal Decree of initiative and at any time' as required by 20 April 1999 laying down the time-limits that provision. and general principles applicable to com- mercial negotiations carried on in order to conclude interconnection agreements, the manner of publication of the reference interconnection offer and the conditions to be included in the interconnection agree- ment. 8 28. Belgium refers by way of defence first to two general provisions in the Law of 21 March 1991 on the reform of certain 7 — Article 109b was inserted by the Law of 20 December 1995, Moniteur belge 23 December 1995. Article 109b(4) public economic undertakings. 6 was further amended by the Royal Decree of 4 March 1999 adapting to European Union directives certain provisions of Article 75(3) gives the Institute the 'general the Law of 21 March 1991 on the reform of certain public economic undertakings and amending certain provisions of that Law relating to the universal service, Moniteur belge 14 April 1999. 6 — Moniteur belge 27 March 1991. 8 — Moniteur belge 21 July 1999.

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3 0 . T h e first s u b p a r a g r a p h of the Institute may request the modification Article 109b(4) of the Law of 21 March of agreements already concluded.' 1991 as amended requires every organi- sation with significant market power to publish an interconnection offer.

'If it is indispensable to ensure equal con- ditions of competition or interoperability, 9 — An authority set up within the Institute.

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latory authorities to be empowered to for an interconnection agreement. Article 8 intervene during the course of negotiations of the Royal Decree applies only if the leading up to an interconnection agree- parties request intervention and Article 12 ment. 10 The Community legislature clearly only if the parties have failed to conclude envisaged that that was to be distinct from an interconnection agreement. the power to require changes to intercon- nection agreements already concluded. The national legislation invoked by Belgium however appears to confer either very general supervisory powers, which cannot in my view be regarded as adequate imple- 37. Belgium appears to accept in its mentation of a specific power to intervene rejoinder that its legislation does not in commercial negotiations, or specific adequately implement Article 9(3) of the powers to intervene in contexts which do Directive and annexes a draft royal decree not fully reflect those envisaged by amending the Royal Decree of 20 April Article 9(3). 1999 by inserting therein a new Article 7a which it states repeats verbatim the word- ing of the Directive.

38. In those circumstances, the Commis- sion is entitled to the declaration which it seeks.

40. The Commission submits in its appli- cation that Belgium has infringed its obli- gations under (i) Article 14(1) in conjunc- tion with Articles 7(3), 9(2), 10 and 12(4) and (ii) Article 14(2) in conjunction with In particular, in relation to interconnection Article 9(3). between organisations set out in Annex II, national regulatory authorities:

41. In its reply the Commission accepts that, in the light of the explanations pro- vided by Belgium in its defence, the situ- — may set ex ante conditions in the areas ation with regard to Articles 7(3) and 9(3) listed in Part 1 of Annex VII;

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— shall encourage coverage in intercon- and financial conditions to be fixed in nection agreements of the issues listed interconnection agreements in accordance in Part 2 of Annex VII.' with Article 109b(5) of the Law of 21 March 1991.

43. In its rejoinder Belgium states that Article 14(1) in conjunction with Article 9(2) of the Directive is implemented by the Royal Decree of 20 April 1999, 11 46. The first paragraph of Article 109b(5) and in particular by Articles 17 to 21 provides in so far as relevant: thereof.

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48. The Commission contends that 51. Belgium contends that, since Belgian Articles 17 to 21 of the Royal Decree legislation is itself published in the Mon- provide for publication of the Institute's iteur belge, the publication requirement in approval of the reference interconnection Article 14(1) is satisfied. offer but not for any form of publication or notification of the general conditions set down in advance by the regulatory auth- ority as required by Article 9(2) of the Directive.

52. If — as in the present case — the information in question, namely with 49. It seems to me that the Commission's regard to this head of claim the general argument is correct in so far as concerns conditions set down in advance by the Articles 17 to 20 of the Royal Decree. national regulatory authority, is itself pub- Article 21, however, read in the light of lished in the national Official Gazette of the Article 109b(5) of the Law of 21 March Member State concerned, I agree with 1991 does appear to list the general con- Belgium that that constitutes publication ditions set down in advance by the national for the purpose of Article 14(1). It would regulatory authority for the purpose of be absurd — as Belgium points out — to Article 9(2). require reference to be made in the Mon- iteur belge where the information is pub- lished to the fact that it is there published.

50. Article 14(1) of the Directive requires the national regulatory authorities to ensure that information identified in Article 9(2) is 'published in an appropriate manner in order to provide easy access to that information for interested parties' and 53. I accordingly consider that the Com- requires reference to be made 'in the mission is not entitled to the declaration national Official Gazette of the Member which it seeks with regard to Belgium's State concerned to the manner in which this alleged failure to implement Article 14(1) information is published'. in so far as it concerns Article 9(2).

'Where the national regulatory authority imposes conditions based on essential requirements in interconnection agree- ments, those conditions shall be published in the manner laid down in Article 14(1)'. 57. The two Royal Decrees of 22 June 1998, which thus appear at least in part to have been based on the advice of the Institute, impose conditions based on essen- tial requirements in interconnection agree- ments and therefore fall within the scope of Article 10 of the Directive. Article 14(1) of the Directive requires the national regula- 55. In its rejoinder Belgium refers to earlier tory authorities to ensure that information correspondence with the Commission identified in Article 10 is 'published in an apparently stating that Article 14(1) of the appropriate manner in order to provide Directive had been implemented in so far as easy access to that information for inter- it concerns Article 10 by two Royal ested parties' and requires reference to be Decrees of 22 June 1998 (i) concerning made 'in the national Official Gazette of the conditions of establishing and operating the Member State concerned to the manner public telecommunications networks 12 and in which this information is published'. (ii) laying down the specifications for the voice telephony service and the procedure for the grant of individual authori- 14 — Defined as those holding an individual authorisation to establish and operate a public telecommunications net- sations. 13 work or to provide a voice telephony service as the case may be: Article 1(4) of each Royal Decree. 15 — Article 6(1) of the Decree concerning the conditions of establishing and operating public telecommunications networks and Article 5(1) of the Decree laying down the 12 — Moniteur belge 24 July 1998. specifications for the voice telephony service and the 13 — Moniteur belge 15 July 1998. procedure for the grant of individual authorisations.

The main elements referred to in the 'National regulatory authorities shall preceding subparagraph are to be public ensure that the main elements of the and available from the Institute on request. national numbering plans, and all sub- The Institute shall refer to those main sequent additions or amendments to them, elements in the Moniteur belge....'

16 — See paragraph 52. 17 — Moniteur belge 30 December 1997.

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62. Belgium explains that the 'reference' 65. While I am prepared to accept that in published in the Moniteur Belge mentions the modern telecommunications sector publication of the main elements on the publication via the internet is 'appropriate' Institute's website. In its view that con- within the meaning of Article 14(1), it is stitutes reference 'to the manner in which unfortunately not clear from Belgium's this information is published' within the statements in the rejoinder what precisely meaning of Article 14(1) of the Directive. is meant by the 'reference' published in the Moniteur belge or indeed whether a refer- ence to publication on the website has yet been published; nor has any evidence to that effect been provided to the Court.

63. Belgium concludes its rejoinder how- ever by referring to a draft royal decree amending the second subparagraph of Article 2(2) of the Royal Decree of 10 De- cember 1997 so as to incorporate verbatim 66. In those circumstances the Commission the wording of Article 14(1) of the Direc- is entitled to the declaration which it seeks tive. The second sentence of the second with regard to Belgium's alleged failure to subparagraph would read after amendment implement Article 14(1) in so far as it 'The Institute shall publish in the Moniteur concerns Article 12(4). belge the manner in which those elements are to be published'.

(2) order the Kingdom of Belgium to bear the costs.

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