Case C‑1/14

Base Company NV

and

Mobistar NV

v

Ministerraad

(Request for a preliminary ruling from the Grondwettelijk Hof)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Articles 4, 9, 13 and 32 — Universal service obligations and social obligations — Provision of access at a fixed location and provision of telephone services — Affordability of tariffs — Special tariff options — Financing of the universal service obligations — Additional mandatory services — Mobile communication services and/or internet subscription services’

Summary — Judgment of the Court (Third Chamber), 11 June 2015

1. Approximation of laws — Telecommunications sector — Universal service and users’ rights — Directive 2002/22 — Provisions relating to the affordability of tariffs and the financing of the universal service obligations — Scope — Mobile communication services, including internet subscription services provided by means of those mobile communication services — Not included — Provision of those services as additional mandatory services — Financing by a mechanism involving specific undertakings — Not permissible

   (European Parliament and Council Directive 2002/22, Arts 4, 9, 13(1)(b) and 32)

2. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the need for and the relevance of the questions referred

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Admissibility — Reference giving no details of the relevant facts or legislation and not setting out the reasons for making that reference to the Court of Justice — Manifest inadmissibility

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court, Arts 53(2) and 94(a))

1.  Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136, must be interpreted as meaning that the special tariffs and the financing mechanism provided for in Articles 9 and 13(1)(b) of that directive respectively apply to internet subscription services requiring a connection to the internet at a fixed location, but not to mobile communication services, including internet subscription services provided by means of those mobile communication services.

   Both the title and wording of Article 4 of that directive expressly impose an obligation on the Member States to ensure the connection at a fixed location to a public communications network. That obligation is also apparent from recital 8 of that directive which states that a fundamental requirement of universal service is to provide end-users on request with a connection to the public telephone network at a fixed location, at an affordable price.

   However, the term ‘at a fixed location’ means the opposite of the term ‘mobile’.

   Therefore, mobile communication services are, by definition, excluded from the minimum set of universal services defined in Chapter II of Directive 2002/22, as amended by Directive 2009/136, because 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.

   If mobile communication services, including internet subscription services provided by means of those mobile communication services, are made publicly available within the national territory as ‘additional mandatory services’ for the purposes of Article 32 of that directive, they cannot be financed, under national law, by a mechanism involving specific undertakings.

   As recital 25 of that directive states, Member States are not permitted to impose on market players financial contributions which relate to measures which are not part of the universal service obligations. Therefore, while individual Member States remain free to finance special measures in conformity with EU law, they may not do so by means of contributions from market players.

   (see paras 34-37, 42, 43, operative part)

2.  See the text of the decision.

   (see para. 45)

3.  See the text of the decision.

   (see paras 46-51)

Case C‑1/14

Base Company NV

and

Mobistar NV

v

Ministerraad

(Request for a preliminary ruling from the Grondwettelijk Hof)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Articles 4, 9, 13 and 32 — Universal service obligations and social obligations — Provision of access at a fixed location and provision of telephone services — Affordability of tariffs — Special tariff options — Financing of the universal service obligations — Additional mandatory services — Mobile communication services and/or internet subscription services’

Summary — Judgment of the Court (Third Chamber), 11 June 2015

1. Approximation of laws — Telecommunications sector — Universal service and users’ rights — Directive 2002/22 — Provisions relating to the affordability of tariffs and the financing of the universal service obligations — Scope — Mobile communication services, including internet subscription services provided by means of those mobile communication services — Not included — Provision of those services as additional mandatory services — Financing by a mechanism involving specific undertakings — Not permissible

   (European Parliament and Council Directive 2002/22, Arts 4, 9, 13(1)(b) and 32)

2. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the need for and the relevance of the questions referred

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Admissibility — Reference giving no details of the relevant facts or legislation and not setting out the reasons for making that reference to the Court of Justice — Manifest inadmissibility

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court, Arts 53(2) and 94(a))

1.  Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136, must be interpreted as meaning that the special tariffs and the financing mechanism provided for in Articles 9 and 13(1)(b) of that directive respectively apply to internet subscription services requiring a connection to the internet at a fixed location, but not to mobile communication services, including internet subscription services provided by means of those mobile communication services.

   Both the title and wording of Article 4 of that directive expressly impose an obligation on the Member States to ensure the connection at a fixed location to a public communications network. That obligation is also apparent from recital 8 of that directive which states that a fundamental requirement of universal service is to provide end-users on request with a connection to the public telephone network at a fixed location, at an affordable price.

   However, the term ‘at a fixed location’ means the opposite of the term ‘mobile’.

   Therefore, mobile communication services are, by definition, excluded from the minimum set of universal services defined in Chapter II of Directive 2002/22, as amended by Directive 2009/136, because 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.

   If mobile communication services, including internet subscription services provided by means of those mobile communication services, are made publicly available within the national territory as ‘additional mandatory services’ for the purposes of Article 32 of that directive, they cannot be financed, under national law, by a mechanism involving specific undertakings.

   As recital 25 of that directive states, Member States are not permitted to impose on market players financial contributions which relate to measures which are not part of the universal service obligations. Therefore, while individual Member States remain free to finance special measures in conformity with EU law, they may not do so by means of contributions from market players.

   (see paras 34-37, 42, 43, operative part)

2.  See the text of the decision.

   (see para. 45)

3.  See the text of the decision.

   (see paras 46-51)