Background
In Case C-1/14 Base Company NV and Mobistar NV v Ministerraad, the CJEU (Third Chamber) had to consider a reference on the extent to which the Universal Service Directive (Directive 2002/22/EC), which defines the minimum set of services which must be available to all end-users, applies to mobile communication services and/or internet subscriptions.
As well as defining minimum services, the Universal Service Directive enables Member States to require that designated undertakings provide special tariff options or packages to consumers, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the services referred to. A Member State may produce a scheme to share the net cost of universal service obligations between providers of electronic communications networks and services.
In 2013, Base Company and Mobistar, two operators providing electronic communications services in Belgium, brought an action before the Grondwettelijk Hof (Belgian Constitutional Court) for the annulment of the financing mechanism laid down in the Belgian Law transposing the Universal Service Directive. That mechanism requires payment of a contribution by operators whose turnover reaches or exceeds certain thresholds, in such a way as to finance the net costs arising from the provision of specific tariff conditions to certain categories of beneficiary. Base Company and Mobistar submit that the obligation to contribute to the financing of the net costs arising from the provision of mobile communication services and/or internet subscriptions is contrary to EU law.
Referred Questions
The Belgian Constitutional Court decided to refer questions to the Court of Justice for a preliminary ruling. The referred questions were as follows:
‘(1) Should the Universal Service Directive, and in particular Articles 9 and 32 thereof, be interpreted as meaning that the social tariff for universal service as well as the compensation mechanism provided for in Article 13(1)(b) of the Universal Service Directive are not only applicable to electronic communications by means of a telephone connection at a fixed location to a public communications network but also to … mobile communication services and/or internet subscriptions?
(2) Should Article 9(3) of the Universal Service Directive be interpreted as allowing Member States to add special tariff options to the universal service for services other than those defined in Article 9(2) of [that directive]?
(3) If the answers to the first and second questions are in the negative, are the relevant provisions of the Universal Service Directive compatible with the principle of equality, as set out inter alia in Article 20 of the [Charter]?’
Judgment
The Court held that the Universal Service Directive expressly imposes an obligation on the Member States to ensure the connection at a fixed location to a public communications network. However, the term ‘at a fixed location’ means the opposite of the term ‘mobile’.
The Court therefore found that mobile communication services are, by definition, excluded from the minimum set of universal services defined by the Universal Service Directive, given that their provision does not presuppose access and a connection at a fixed location to a public communications network. Similarly, internet subscription services provided by means of mobile communication services do not come within that minimum set. On the other hand, internet subscription services are included in that set if, in order for them to be provided, there must be a connection to the internet at a fixed location.
The Court points out that Member States are free to consider mobile communication services, including internet subscription services provided by means of mobile communication services, as additional mandatory services, for the purposes of the Universal Service Directive. In that case, a financing mechanism for those services involving specific undertakings cannot be imposed.
The Court ruled that the intriguing third question concerning the incompatibility of the limitation with the principle of equality was inadmissible as the Court did ‘not have before it the factual and legal material necessary to give a useful answer to the question referred to it’.
For the full judgment, click here.
