Opinion of the Advocate-General
1. In this action brought under Article 226 EC, the Commission seeks a declaration that the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty by failing to implement Article 5, read in conjunction with Annex I and Annex 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) (hereinafter the Directive).
2. Under Article 23(1) of the Directive, the Member States shall bring into force the laws, regulations, and administrative provisions necessary to comply with this Directive by 31 December 1997. They shall immediately inform the Commission thereof.
3. By letter dated 13 January 1998 the Belgian Government notified to the Commission the Law of 19 December 1997 which had amended the provisions of the Law of 21 March 1991 in the light of the Directive. The Commission found, after examining the provisions of these laws, that the Kingdom of Belgium had not correctly transposed Article 5 of the Directive, and on 24 August 1998 it put the Belgian Government on formal notice to submit to it its observations within two months. In its reply of 23 November 1998 the Belgian Government explained that it would shortly adopt a number of regulations in 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 take such measures within that period, the Commission brought the present action on 8 October 1999.
4. In its application the Commission contends that Belgian law was contrary to the Directive in three respects:
(i) Certain newspapers and magazines, as well as the news agency Belga, were subject to preferential interconnection charges, which were financed through the payments of other users to the provider of universal telecommunications 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 customers with disabilities or with special social needs.
(ii) The method for calculation of the contribution of the organisations operating telecommunications networks towards the net cost of the universal service obligation (that cost being borne by Belgacom) did not satisfy the requirement of transparency laid down in Article 5(1) of the Directive. More specifically, the Belgian Government did not adopt, publish or communicate to the Commission a regulation specifying the method for calculation of the net cost of the universal service obligation and the basis of the contributions by the organisations.
(iii) The method for calculation of the net cost of the universal service obligation as it was described, in very general terms, by Belgian law was incorrect. It failed in particular to take into account, as required by Article 5(4) of the Directive, the market benefit which may accrue to an organisation that offers universal service. Moreover, it did not take into account all of the principles for calculation set out in Annex III of the Directive.
5. The Belgian Government does not deny that it did not transpose the Directive within the time-limit laid down in Article 23(1).
6. However, it explains with regard to the Commission's first complaint that it proposed, on 3 December 1999, a Bill [projet de loi] which provides, essentially, that the preferential tariffs granted to certain newspapers, magazines and to Belga may no longer be financed through the payments of other organisations. The preferential tariffs will acquire the status of public service obligations [missions d'intérêt général] which are laid upon the universal service provider (Belgacom) and financed through contributions from the Belgian State.
7. With regard to the second and third complaints, the Belgian Government explains that it adopted, on 23 December 1999, a regulation amending Articles 1 and 4 of Annex 2 of the Law of 21 March 1991. The amended provisions lay down detailed rules for the calculation of the net cost of the universal service obligation, taking account of the advantage which may accrue to a universal service provider and the criteria set out in Annex III of the Directive. It has also adopted an administrative circular of 31 January 2000 which clarifies the concept of turnover which is used to calculate the contributions of organisations to the net cost of the universal service.
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 Commission explained that it was still investigating the compatibility of the preferential tariffs, granted to the Belgian news sector under the new legislation, with the state aid rules of the EC Treaty.
9. The Commission's letter cannot, in my view, be interpreted as a formal withdrawal of any of the complaints made in this action. The Court of Justice must therefore rule on the three complaints mentioned above.
10. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes.
11. The fact that Belgium adopted regulations aimed at securing compliance with the Directive after the expiry of the period laid down in the reasoned opinion is therefore irrelevant for this action.
12. It follows that the Commission's complaints must be upheld.
13. Under Article 69 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. The Commission has applied for costs. I therefore consider that Belgium should be ordered to pay the Commission's costs.
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.
Full & Egal Universal Law Academy