OPINION OF ADVOCATE GENERAL
POIARES MADURO
delivered on 14 July 2004 (1)
Case C-109/03
KPN Telecom BV
v
Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA)
(Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands))
(Telecommunications – Open network provision to voice telephony – Supply of directory services – Notion of 'relevant information' in Article 6(3) of Directive 98/10/EC – Determination of price)
1. The present reference for a preliminary ruling by the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) concerns an issue related to the liberalisation of the market for telecommunication services. The referring court raises questions as to the extent of the obligation of voice telephony providers to supply information for universal telephone directories. The Court is asked to interpret Article 6(3) of Directive 98/10/EC. (2) Furthermore, the questions of the referring court and the circumstances in the main proceedings give cause to consider the possible application of Article 82 EC.
I – EC legal framework regarding directory services at the material time for the purposes of the dispute
2. Three directives make specific provision for telephone directory services during the period relevant to the current dispute: Directive 98/10/EC, Directive 97/66/EC (3) and Directive 96/19/EC. (4)
3. Directive 98/10/EC is based on the former Article 100a of the EC Treaty and concerns the harmonisation of conditions for open and efficient access to and use of fixed public telephone networks and fixed public telephone services in an environment of open and competitive markets, in accordance with the principles of open network provision (ONP). (5) Its aim is ‘to define the set of services to which all users, including consumers, should have access in the context of universal service in the light of specific national conditions, at an affordable price.’ (6)
4. Universal service is defined in Article 2(2)(f) as a defined minimum set of services of specified quality which is available to all users independent of their geographical location and, in the light of specific national conditions, at an affordable price.
5. The Directive includes comprehensive directory services in the defined set of services which may be funded in the context of universal service. Recital 7 in the preamble accounts for this inclusion as follows: ‘Whereas provision of directory services is a competitive activity; … whereas users and consumers desire comprehensive directories and directory enquiry service covering all listed telephone subscribers and their numbers (including fixed, mobile and personal telephone numbers); whereas the situation whereby certain telephone directories and directory services are provided in a manner which is perceived to be free of charge to the user is not affected by this Directive.’
6. Article 6 of Directive 98/10/EC provides:
7. ‘1. The provisions of this Article are subject to the requirements of relevant legislation on the protection of personal data and privacy, such as Directive 95/46/EC and Directive 97/66/EC.
8. 2. Member States shall ensure that:
9. (a) subscribers have the right to have an entry in publicly available directories and to verify and, if necessary, correct or request removal of that entry;
10. (b) directories of all subscribers who have not expressed opposition to being listed, including fixed, mobile and personal numbers, are available to users in a form approved by the national regulatory authority, whether printed or electronic, or both, and are updated on a regular basis;
11. (c) at least one telephone directory enquiry service covering all listed subscribers numbers is available to all users, including users of public pay telephones;
12. 3. In order to ensure provision of the services referred to in paragraph 2(b) and 2(c), Member States shall ensure that all organisations which assign telephone numbers to subscribers meet all reasonable requests to make available the relevant information in an agreed format on terms which are fair, cost oriented and non-discriminatory.
13. 4. Member States shall ensure that organisations providing the service referred to in paragraph 2(b) and 2(c) follow the principle of non-discrimination in their treatment and presentation of information provided to them.’
14. Directive 97/66/EC concerns the processing of personal data and the protection of privacy in the electronic communications sector. Article 11 relates to ‘directories of subscribers’. Paragraph 1 states:
15. ‘Personal data contained in printed or electronic directories of subscribers available to the public or obtainable through directory enquiry services should be limited to what is necessary to identify a particular subscriber, unless the subscriber has given his unambiguous consent to the publication of additional personal data. The subscriber shall be entitled, free of charge, to be omitted from a printed or electronic directory at his or her request, to indicate that his or her personal data may not be used for the purpose of direct marketing, to have his or her address omitted in part and not to have a reference revealing his or her sex, where this is applicable linguistically.’
16. Article 1(6) of Commission Directive 96/19/EC (amending Article 4 of Directive 90/388/EEC (7)) provides, inter alia:
17. ‘Member States shall ensure that all exclusive rights with regard to the establishment and provision of directory services, including both the publication of directories and directory enquiry services, on their territory are lifted.’
18. The aforementioned directives – although applicable at the time of the events leading to the dispute in the main proceedings – are currently no longer in force. A roughly corresponding provision to Article 11 of Directive 97/66/EC on directories of subscribers and protection of personal data has been included in Directive 2002/58/EC, while provisions on telephone directory services have been included in the new common regulatory framework for electronic communications networks and services. (8) Pursuant to Article 5(1)(a) of Directive 2002/22/EC (9) Member States must ensure that at least one comprehensive directory is available to end-users in a form approved by the relevant authority, whether printed or electronic, or both, and is updated on a regular basis (at least once a year). Article 25(2) of Directive 2002/22/EC provides:
19. ‘2. Member States shall ensure that all undertakings which assign telephone numbers to subscribers meet all reasonable requests to make available, for the purposes of the provision of publicly available directory enquiry services and directories, the relevant information in an agreed format on terms which are fair, objective, cost oriented and non-discriminatory.’
II – Facts, national law and questions referred for a preliminary ruling
20. KPN Telecom BV (hereinafter: ‘KPN’) is the universal service provider of telecommunication services in the Netherlands. It has a statutory obligation, under the Telecommunications Act (Telecommunicatiewet) to publish a universal telephone guide. KPN outsources the actual publication and distribution of this guide to Telefoongids Media BV.
21. With the purpose of publishing rival telephone directories on CD-ROM and on the internet, Denda Multimedia BV, intervener in the present procedure (hereinafter ‘Denda’), and Topware CD-Service AG (hereinafter ‘Topware’) requested KPN to place at their disposal the basic data of each of KPN’s subscribers (i.e. name, address, town/city, telephone number and postal code and an indication of whether the number is used exclusively as a fax number), as well as all the additional information – other than advertisements – published by KPN in its ‘white pages’ (i.e. mobile phone number, profession, listing under a different name or in other municipalities).
22. KPN refused to provide the additional information. Furthermore, it refused to supply the basic records at a price lower than NLG 0.85 (EUR 0.39) per entry.
23. In 1997, Denda and Topware lodged a complaint against KPN with the Onafhankelijke Post en Telecommunicatie Autoriteit (the Netherlands Independent Post and Telecommunications Authority (hereinafter ‘OPTA’), claiming that KPN’s refusal to provide the additional information, and the price charged for the basic records, contravened the Telecommunications Act and, more particularly, Article 43 of the Order on ONP Leased Lines and Telephony (Besluit ONP huurlijnen en telefonie) (hereinafter ‘BOHT’). (10)
24. Article 43 of the BOHT provides that any person who supplies for use numbers of the fixed public telephone service, numbers of the mobile public telephone service and numbers of the personal number service, ‘shall make those numbers together with associated information available upon request, in an agreed format and on terms which are fair, cost oriented and non-discriminatory’, for the purpose of providing telephone directories and the subscriber enquiry service referred to in the Besluit universele dienstverlening (Order on Universal Service Provision). Article 43 of the BOHT implements in the Netherlands Article 6(3) of Directive 98/10/EC.
25. On 29 September 1999, the OPTA decided that KPN was only obliged to provide the basic data of its subscribers. However, the price charged by KPN should not exceed the marginal costs of the actual provision of the basic data, possibly increased by a reasonable profit surcharge. In concrete terms, KPN was to charge less than NLG 0.005 (EUR 0.0023) per entry. Complaints against this decision were lodged by KPN, Denda and Topware.
26. By decision of 4 December 2000 the OPTA adjusted its decision of September 1999 and held that KPN was under an obligation to provide all the information that it receives ready for use (‘kant en klaar’) from its subscribers. This includes the telephone number of the connection; name and initial letters, possibly company name; full address, including postcode; possible additional entry of the telephone number under a different name; entry as to whether the connection is used (exclusively) as a fax line; additional entry of mobile telephone number(s); additional entry relating to profession and additional entries in other municipalities. It upheld its earlier finding as to the permissible charge per entry.
27. KPN lodged an appeal against the OPTA’s decision before the Arrondissementsrechtbank (District Court) of Rotterdam. This appeal was rejected by judgment of 21 June 2001. KPN subsequently appealed to the College van Beroep voor het bedrijfsleven. Considering that Article 43 of the BOHT implements Article 6(3) of Directive 98/10/EC the College decided to refer the following questions to the Court for a preliminary ruling:
28. 1. Is ‘relevant information’ in Article 6(3) of Directive 98/10/EC (OJ 1998 L 101, p. 24) to be interpreted as meaning only the numbers together with the name, address, town/city and postcode of the person to whom the number has been issued and any entry as to whether the number is used (exclusively) as a fax line published by the organisations concerned or does ‘relevant information’ also cover other data at the disposal of the organisations such as an additional entry relating to a profession, another name, another municipality or mobile telephone numbers?
29. 2. Is ‘meet ... reasonable requests ... on terms which are fair, cost oriented and non-discriminatory’ in the provision referred in Question 1 to be interpreted as meaning that:
30. a. numbers together with the name, address, town/city and postcode of the person to whom the number has been issued must be made available for a remuneration of only the marginal costs involved in actually making them available, and
31. b. data other than those referred to in paragraph (a) must be made available for a remuneration intended to cover the costs of what the provider of these data shows he has incurred in obtaining or providing these data?
III – Assessment
A – Which information is ‘relevant’ within the meaning of Article 6(3) of Directive 98/10/EC?
32. By its first question, the referring court asks which information is ‘relevant’ within the meaning of Article 6(3) of the Directive at issue.
33. The literal wording of Directive 98/10/EC does not offer much concrete guidance as to the meaning of ‘relevant information’ in Article 6(3). In order to provide an answer to the first question referred by the national court, the context of this provision and the purpose of the Directive have to be considered. (11)
34. As has been observed, the aim of the Directive is to ensure the availability throughout the Community of good-quality fixed public telephone services and to define the set of services to which all users, including consumers, should have access at an affordable price. Clearly, the aspiration to define and harmonise universal telephony services, in particular directory services, is a corollary of the liberalisation of the markets for voice telephony. It would be unpractical for consumers if, as a result of having several providers of voice telephony, directory information were to become scattered over several telephone directories. Likewise, changing provider would be less attractive if this were to involve unsolicited exclusion from telephone directories. These disadvantages for end-users could even have a detrimental effect on competition in the market of voice telephony services. Article 6 of the Directive therefore safeguards the existence of universal directory services, lest the market were not to provide for them. It facilitates the production of universal telephone directories by requiring Member States to ensure that all telephone providers make directory information available. As part of this provision, the notion ‘relevant information’ should be considered against the background of the mainly user-oriented objective of the Directive.
35. Essentially three approaches to interpreting the term ‘relevant information’ were presented to the Court. KPN’s interpretation relates ‘relevant’ to what is necessary for setting up and maintaining a voice telephone connection. KPN submits that ‘relevant information’ comprises only information which is provided by subscribers with a view to publication in a telephone directory and is at the same time inextricably linked to the provision of fixed telephone services.
36. The second interpretation, supported by the OPTA and Denda, relates the term ‘relevant’ to what is required to achieve competition in the market for directory services. According to the OPTA and Denda, ‘relevant information’ includes all information published by KPN itself in its own telephone directory. This interpretation is underpinned by the desire to counterbalance the advantage acquired by KPN in the market for telephone directory services, as a result of its history of being the main – and, until recently, exclusive – voice telephony provider and publisher of universal telephone guides in the Netherlands. In order to be able to publish a telephone directory that can adequately compete with the KPN guide, competitors must necessarily have at their disposal all the information mentioned in that guide.
37. The third alternative, advocated by the Commission, relates ‘relevant’ to what is needed for the provision of universal directory services.
38. Only the third approach does justice to the aim of Directive 98/10/EC. As the Commission correctly submitted, ‘relevant’ for the purpose of the Directive does not mean relevant in order to be able to compete in a market for universal directory services, but relevant for ensuring the provision of those services. The Directive – in line with Article 6 of Commission Directive 96/19/EC – recognises that the provision of directory services is a competitive activity and it therefore facilitates the creation of multiple comprehensive telephone guides, requiring the existence of at least one, but this does not mean that its objective is to promote competition in the market for directory services, instead of the preservation of a universal service of a determined quality.
39. It also follows from the aim of Directive 98/10/EC that, contrary to what is argued by KPN, ‘relevant information’ cannot simply be limited to information that is inextricably linked with the provision of voice telephony services. The duty of voice telephony providers to supply ‘relevant information’ for the provision of a universal directory also entails a duty to gather this information, even if it is not strictly necessary for the provision of voice telephony. (12) Evidently, the duty of providers to gather relevant directory information is without prejudice to any rights of subscribers not to share personal information or to have it barred from publication in universal telephone directories.
40. Given that Directive 98/10/EC does not offer a plain definition and that the concept of universal service is influenced by the evolution of the market and national differences in user demand, it is left to each Member State to define the exact scope of the term ‘relevant information’ in the light of specific national conditions. (13) However, any interpretation should take the following aspects into account.
41. First of all, ‘relevant information’ should at least be held to include the listing of fixed, mobile and personal numbers with the name, address and town/city connected to these numbers. These are the minimum records that users of telephone directories need to identify the subscribers of the numbers they are looking for. This information must consequently be considered ‘relevant’ in the meaning of Article 6(3) of Directive 98/10/EC.
42. Secondly, as was ascertained above, ‘relevant’ for the purposes of Article 6(3) means relevant for the provision of a universal service. When determining relevant information in addition to the minimum set of records, Member States should take into account what a typical user requires from a telephone directory which may vary among Member States. In this regard they can take into consideration what users traditionally expect to find in a telephone guide – for example, profession, title, etc. – and, doubtless, a long-standing exclusive provider of telephone guides may have shaped user expectations and desires to a large extent, as the OPTA pointed out in its written submissions. Yet, it cannot automatically be assumed that whatever this provider has published or will publish in its directories must therefore be labelled relevant within the meaning of the Directive. In the Dutch context, this would render the standard for universal directory services and the obligation for every voice telephony provider to collect and supply relevant information entirely dependent on what KPN decides to publish in its telephone guide. Neither the text nor the aim of Article 6 supports such a contingent interpretation. (14)
43. The OPTA has submitted that Article 43 of the BOHT imposes an obligation on KPN to supply all directory information at its disposal, even if KPN was not under a duty to collect that information. However, the Directive itself does not support this interpretation. Article 6(3) introduces an equal obligation to collect and supply directory information for every provider of voice telephony, without distinguishing on grounds of market structure or the existence of a statutory obligation to publish a comprehensive telephone directory. KPN can be expected neither to collect nor to supply more information than other providers of voice telephony with mere reference to Article 6(3) of the Directive.
44. Besides, as the recital 7 to the Directive underlines, the provision of directory services is a competitive activity. Competition between providers of directory services may also require competition as to the contents of directories. Voice telephony providers may very well obtain more information than what is relevant for the purposes of Article 6(3) of the Directive, as long as this does not contravene the requirements of privacy and data protection. They are equally free to publish – or have published for them – a directory with more than the ‘relevant’ information. The possibility that some telephone directories may offer more information than others does not impair the availability of universal directory services, as long as users are able to find the information they typically consider relevant.
45. Arguably, competition as to the contents of directories may be checked if KPN is in a position to deny access to information essential to be able to compete. In that regard it must be noted that the general competition rules can be applied alongside the sector-specific rules in Directives 98/10/EC and 96/19/EC. If KPN is under an obligation to supply more information than that which is deemed relevant for the provision of a universal directory service, this would not follow from Article 6(3) of Directive 98/10/EC, but, possibly, from the application of Article 82 EC.
Application of Article 82 EC
46. The OPTA and Denda have argued that the subscriber information published in the KPN guide is indispensable input for those who want to produce a telephone directory that can compete effectively with that guide. It follows from the Court’s case-law on Article 82 EC that a refusal to supply may amount to an abuse of a dominant position where it prevents a product from coming on to a secondary market in competition with the dominant undertaking’s own product on that market. (15) In addition to my analysis of the Directive, I will discuss the potential application of this case-law (often referred to as the ‘essential facilities doctrine’) (16) to the case pending before the national court. I will not discuss all conditions for the application of Article 82 EC, but I will focus on whether the refusal by a provider of voice telephony to supply the requested subscriber information can amount to an abuse. (17)
47. In Magill (18) the Court held that the exercise of an exclusive right by the owner may involve abusive conduct. In that case three broadcasting companies relied on exclusive rights to refuse to supply information about their television programmes to a publisher who wanted to produce a weekly television guide. By denying access to the basic information which is the raw material indispensable for the compilation of such a guide, these companies reserved to themselves the secondary market in weekly television magazines by excluding all competition on that market. The refusal, under the circumstances in that case, amounted to an abuse of a dominant position in breach of Article 86 of the EC Treaty (now Article 82 EC). (19)
48. The reasoning in Magill was confirmed by the Court’s judgment in Bronner, although in the latter case the Court found that the refusal to grant access to a scheme for the distribution of daily newspapers did not constitute abuse of a dominant position within the meaning of Article 86 of the EC Treaty. (20)
49. In its preliminary ruling of 29 April 2004 in IMS Health (21) the Court, drawing from Magill and Bronner, recapitulated the cumulative conditions that render the refusal by an undertaking which owns a copyright to give access to a product or service indispensable for carrying on a particular business abusive, namely: a) the refusal is such as to exclude any competition on a secondary market, b) it prevents the emergence of a new product for which there is a potential consumer demand and c) the refusal is not justified by objective considerations. (22)
50. At the outset, in order for a refusal to supply to be caught by Article 82 EC, the existence of a dominant position that enables the dominant undertaking to prevent competition on a secondary market must be established. This requires identification of a primary market in inputs and a secondary market for which those inputs are essential. (23)
51. In Magill it was found that the weekly programme information under consideration represented a specific market which could not be identified with the market for information on television programmes in general. (24) This narrow definition of the product market resulted from the fact that the information held by the broadcasters was not interchangeable with other information on television programmes. By force of circumstances the broadcasters were the only source of information relating to their television programmes and consequently the broadcasters held a de facto monopoly over this information. (25) Likewise, providers of voice telephony could be considered to hold a de facto monopoly over their subscriber information if that information is non-substitutable and essential for operating on a secondary market.
52. In the circumstances at issue, it would have to be assessed whether KPN is in a position where it can prevent effective competition with its own telephone directory by withholding subscriber information that falls outside the scope of Article 6(3) of Directive 98/10/EC. As part of this assessment it would have to be established that a competitor is practically or reasonably unable to collect and update the requested subscriber information itself – i.e. that publishing a directory without the requested information or collecting this information through other means would not be economically viable. (26)
53. Yet, a duty under Article 82 EC for a dominant undertaking to aid its competitors should not be assumed too lightly and refusal to supply a competitor is not automatically considered abusive just because the inputs in question are necessary to compete on a secondary market. A balance should be kept between the interest in preserving or creating free competition in a particular market and the interest in not deterring investment and innovation by demanding that the fruits of commercial success be shared with competitors.
54. For example, in the absence of an objective justification, refusal to supply products or services that are necessary for competing on a secondary market with the dominant undertaking’s own product on that market can be considered abusive where it involves cutting off supplies to an existing customer, (27) product tying, (28) where an undertaking that holds a statutory monopoly discriminates against foreign competitors, (29) or, in the context of an intellectual property right, where a refusal prevents the emergence of a new product for which there is a potential consumer demand. (30)
55. A refusal to supply by a dominant undertaking may amount to an abuse of a dominant position in the situation of a recently deregulated industry in which the necessary inputs for a derivative market were obtained by an undertaking as a direct result of its prior position as a statutory monopolist and where access to those inputs is not regulated by sector-specific legislation. Under those conditions, where the supplier has an advantage in the secondary market which it was able to acquire because it was previously shielded from competition, the potentially deterrent effect on investment and innovation resulting from the imposition of a duty to supply is minimal and is likely to be outweighed by the interest in promoting competition. As one commentator noted, measures to deregulate or liberalise sectors of industry ‘would be of little value if the companies concerned, most of which are dominant in their own areas, were free to integrate forward and discriminate in favour of their own downstream operations’. (31)
56. In this respect it should be noted that an adequate reward for investment and innovation may be achieved by demanding fair compensation from the purchaser of the necessary input. Even when a refusal to supply this input must be considered abusive, the determination of the terms of supply must take place with the abovementioned balance in mind, which means that those conditions should be fair and non-discriminatory, taking into consideration, on the one hand, a reasonable return that is necessary to reward investments and innovation in light of the circumstances of the specific case, and, on the other, the interest in promoting competition in the secondary market at issue.
57. It is in the light of the foregoing that it would have to be assessed if the situation regarding KPN fulfils the criteria that would make a refusal to supply subscriber information that does not fall under Article 6(3) of Directive 98/10/EC an abuse within the meaning of Article 82 EC.
58. In sum, beyond the minimum set of records that fall within the term ‘relevant information’, Member States should define, in the light of national circumstances, which information is relevant for the provision of universal directory services. Every provider of voice telephony is under an obligation – limited only by the rights of their subscribers – to collect this information from their subscribers and to meet all reasonable requests to make it available to those who intend to publish a universal telephone directory. In so far as KPN is under an obligation to supply more information than that which must be considered relevant for the provision of a universal directory service, this does not follow from Article 6(3) of Directive 98/10/EC, but, possibly, from the application of Article 82 EC. It would have to be assessed whether KPN is in a position where it can prevent effective competition with its own telephone directory by withholding subscriber information that falls outside the scope of Article 6(3) of Directive 98/10/EC.
B – The calculation of the tariff for telephone subscriber information
59. By its second question, relating to the same provision of Directive 98/10, the referring court seeks an interpretation of the words ‘meet ... reasonable requests ... on terms which are fair, cost oriented and non-discriminatory’, in order to determine how to calculate the tariff KPN is allowed to charge for the abovementioned data. More specifically, the referring court wishes to know which of the costs incurred in connection with the activities of gathering, maintaining and supplying relevant directory information, may be incorporated in the tariff.
60. It goes without saying that providers of voice telephony incur costs in connection with collecting, maintaining and supplying subscriber information. The same is true in respect of ex-directory information, i.e. the information that someone does not want to be mentioned in a telephone directory. Even though that information is not strictly needed for the provision of voice telephony, it follows from Article 6(2) and (3) of Directive 98/10/EC that every provider is under an obligation to maintain a list of their own customers who do not wish to be listed.
61. The allocation of costs related to maintaining ex-directory lists was one of the issues addressed by the Court in its judgment of 6 December 2001 in the case Commission vFrance. (32) The case concerned, inter alia, a national scheme for sharing the net costs of the obligation to provide universal fixed voice telephony services. The scheme included the maintenance of an ex-directory list as a cost component for provision of the universal service of creating a comprehensive telephone directory. However, the Court decided that maintaining an ex-directory list falls within the scope of the management of the providers’ own customer accounts, rather than within the scope of the universal service of creating a comprehensive telephone directory. (33) In my opinion, the same must be assumed regarding relevant directory information.
62. For the purpose of cost allocation, maintaining a database with relevant directory and ex-directory information must first and foremost be seen as an activity attached to the provision of voice telephony services and not as a separate activity for which extra costs have to be incurred in order to enable the publication of universal telephone directories. After all, it is of the utmost importance for providers of voice telephony that its subscribers are mentioned in telephone directories, because this will stimulate the use of their services.
63. When Article 6(3) refers to the provision of ‘relevant information’ on terms that are cost-oriented, it implies that compensation of the costs of gathering and maintaining a database with that information cannot be part of those terms. These costs have to be incurred by every provider of voice telephony and are already included in the costs and revenue of a normal voice telephony service. Passing these costs on to persons requesting directory information, be it by retroactive distribution or otherwise, would result in an overcompensation that cannot be reconciled with the requirements and the objective of Article 6(3).
64. The proposal by KPN to relate the tariff for ‘relevant information’ to the number of end-users of the telephone directories cannot be considered cost-oriented within the meaning of Article 6(3) of the Directive. The cost of collecting and maintaining that information is related to the number of voice telephony subscribers, not to the number of universal telephone directories or users of those directories.
65. The situation would only be different if a telephone provider can demonstrate that it had to incur specific extra costs in order to be able to fulfil its obligation to collect and supply relevant directory information to publishers of comprehensive telephone directories and that it would not have incurred those costs in the context of the management of its own customer accounts. An obvious example is the cost of transferring directory information to a third-party publisher. The notion of fair and cost-oriented terms in Article 6(3) requires those costs to be borne by the publishers of telephone directories.
66. The classic consequence of Article 6(3) would be that the end-users of voice telephony bear the costs connected with gathering and maintaining directory information, (34) while the end-users of a telephone directory bear the costs connected with supplying that information to the publisher of ‘their’ directory. (35)
67. It must be concluded that the notion ‘cost-oriented’ requires that providers of voice telephony may recoup from the publisher of a universal telephone directory the actual costs of transferring the relevant directory information to that particular publisher. Remaining costs can only be taken into account if a telephone provider can demonstrate that it had to incur those costs in order to be able to fulfil its obligation to collect and supply relevant directory information and that it would not have incurred those costs in the framework of the management of its own customer accounts.
68. By contrast, the terms governing provision of subscriber information that falls outside the scope of Article 6(3) of the Directive but would have to be supplied by virtue of Article 82 of the Treaty may allow for a reasonable return on investments made in order to collect and maintain that information.
69. Nevertheless, both Article 6(3) of the Directive and Article 82 EC require terms of supply to be non-discriminatory. Those terms of supply cannot therefore, without objective justification, place competing publishers of telephone directories at a disadvantage vis-à-vis a competitor associated with the provider of voice telephony services from which the subscriber information is solicited.
IV – Conclusion
70. In light of the foregoing considerations I therefore propose that the Court should reply to the College van Beroep voor het Bedrijfsleven in the following terms:
1) Relevant information for the purposes of Article 6(3) of Directive 98/10/ECof the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment is the information that is required to be included in a telephone directory in the context of the provision of universal directory services in the light of specific national conditions. This necessarily includes the minimum records that users of telephone directories normally need in order to identify the subscribers of the numbers they are looking for.
2) Regarding the provision of ‘relevant information’ on terms that are ‘fair, cost oriented and non-discriminatory’ within the meaning of Article 6(3) of Directive 98/10/EC, only the costs of actually supplying that information should be taken into account and other costs in respect of which a provider of voice telephony can demonstrate that it had to incur them in order to be able to fulfil its obligation to collect and supply relevant directory information and which it would not have incurred in the framework of the management of its own customer accounts.
1 – Original language: Portuguese.
2 – Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (OJ 1998 L 101, p. 24). The directive replaced Directive 95/62/EC of the European Parliament and of the Council of 13 December 1995 on the application of open network provision (ONP) to voice telephony (OJ 1995 L 321, p. 6).
3 – Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ 1998 L 24, p. 1).
4 – Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets (OJ 1996 L 74, p. 13).
5 – See also the 1995 Voice Telephony Directive, applying the principles of ONP to voice telephony.
6 – Article 1(1).
7 – Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10).
8 – Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) and Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).
9 – Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).
10 – Staatsblad 1998, p. 639.
11 – See, for instance, judgment of the Court of 6 February 2003 in Case C-245/00 Stichting ter Exploitatie van Naburige Rechten (SENA) v Nederlandse Omroep Stichting (NOS) [2003] ECR I-1251, paragraph 23; judgment of the Court of 19 September 2000, in Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; judgment of the Court of 18 January 1984 in Case 327/82 Ekro BV Vee- en Vleeshandel v Produktschap voor Vee en Vlees [1984] ECR 107, paragraph 11.
12 – A similar situation exists in respect of ex-directory information, i.e. the information that someone does not want to be mentioned in a telephone directory. Even though that information is not strictly needed for the provision of voice telephony, telephony providers are under an obligation to maintain a list of their own customers who do not wish to be listed.
13 – See Article 1(1) of Directive 98/10/EC.
14 – Another matter is whether the Directive precludes Member States from imposing obligations on providers of voice telephony to supply other subscriber data than those which are necessary to guarantee universal directory service. Although such measures should of course be compatible with the rules of Community law, I conclude that there is nothing in the Directive itself that prevents Member States from imposing such further obligations.
15 – See to this effect judgment of the Court of 6 March 1974 in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223; judgment of the Court of 3 October 1985 in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261; judgment of the Court of 6 April 1995 in Joined Cases C-241/91 P and C-242/91 P RTE and ITP v Commission (‘Magill’) [1995] ECR I-743 and paragraph 43 of the Opinion of Advocate General Jacobs in Case C-7/97 Bronner v Mediaprint [1998] ECR I-7791. ‘Secondary market’ is sometimes referred to as a ‘neighbouring market’ or a ‘derivative market’.
16 – The idea being that elimination of competition in a secondary market will be achieved by a refusal to supply essential input or access to an essential facility. The doctrine has also been labelled ‘less a doctrine than an epithet indicating some exception to the right to keep one’s creations to oneself, but not telling us what those exceptions are.’ (Areeda, P., ‘Essential Facilities: An Epithet in Need of Limiting Principles’, Antitrust Law Journal, Volume 58, 1990, p. 841.) A detailed analysis of the Court’s recent case-law on this topic can be found in the Opinion of Advocate General Tizzano delivered on 2 October 2003 in Case C-418/01 IMS Health GmbH & Co. OHG vNDC Health GmbH & Co. KG. Advocate General Jacobs gave an overview of relevant case-law and practice in the EU and the United States in paragraphs 35-53 of his Opinion of 28 May 1998 in Bronner v Mediaprint, cited above. For the present state of affairs concerning the essential facilities doctrine under United States law, see the recent decision of the Supreme Court of the United States in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, 13 January 2004, 540 U.S. ___ (2004). The US Supreme Court neither recognises nor rejects the essential facilities doctrine ‘crafted by some lower courts’.
17 – The information submitted to the Court is not sufficient to engage in a more elaborate analysis under Article 82 EC, which would normally include taking into account the effect on inter-state trade and the condition of dominance in a substantial part of the common market.
18 – Joined cases C-241/91 P and C-242/91 P RTE and ITP v Commission [1995] ECR I-743.
19 – Paragraphs 46 to 57 of that judgment.
20 – Judgment of the Court of 26 November 1998 in Case C-7/97 Bronner v Mediaprint [1998] ECR I-7791, paragraphs 41 to 47.
21 – Judgment of the Court of 29 April 2004 in Case C-418/01 IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG [2004] ECR I-0000.
22 – IMS Health, cited above, paragraph 38.
23 – Even where these markets only exist potentially. Cf. points 57 and 59 of the Opinion of Advocate General Tizzano in IMS Health, cited in footnote 16.
24 – Judgment of the Court of First Instance of 10 July 1991 in Case T-69/89 RTE v Commission [1991] ECR II-485, paragraph 61.
25 – Paragraph 47 of the judgment in Magill,cited in footnote 18. See also paragraphs 33-35 of the judgment in Bronner, cited in footnote 20.
26 – To define what is economically viable one cannot simply assume that the potential competitors in the secondary market have or will be able to acquire the economic power to support the long-term investment costs inherent in acquiring a position similar to that of the economic operator with a dominant position in the primary market.
27 – Judgment of the Court in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 25.
28 – Judgment of the Court of 3 October 1985 in Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, paragraph 26; judgment of the Court of 13 December 1991 in Case C-18/88 GB-Inno-BM [1991] ECR I-5941, paragraphs 18-19.
29 – Judgment of the Court of 18 June 1991 in Case C-260/89 ERT [1991] ECR I-2925, paragraph 37.
30 – Magill, cited in footnote 18, paragraph 54 and IMS Health, cited in footnote 21, paragraph 38.
31 – Temple Lang, J., ‘Defining legitimate competition: companies’ duties to supply competitors and access to essential facilities’, Fordham International Law Journal, Vol. 18 (1994), pp. 437 to 524, at 483.
32 – Case C-146/00 Commission v France [2001] ECR I-9767.
33 – At paragraph 68.
34 – Similarly, the end-users of voice telephony bear the costs of gathering and maintaining information for the ex-directory list. Article 11(1) of Directive 97/66/EC states that subscribers shall be entitled, free of charge, to be omitted from a directory. This means that it is not allowed to allocate the costs of gathering and maintaining ex-directory information to the particular subscriber to which the omission relates. Nevertheless, it can be assumed that the costs for maintaining the (ex-)directory information are passed on to the end-users of voice telephony, not to the end-users of the telephone directory.
35 – Admittedly, the definite allocation of costs may in reality be more complex, for instance because other sources of revenue are employed to cover these costs (e.g. advertising revenue), or because an enterprise is the provider of voice telephony as well as the publisher of a universal telephone directory. In the latter circumstances the provider could – provided that the competition rules would allow this – decide to allocate the costs differently among the two categories of end-users. However, the possibility of an enterprise cross-financing its own activities does not affect the appreciation of what fair and cost-oriented conditions are for providing relevant directory information to another enterprise.
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