Coming up: ECJ to give judgment in C-280/08 P Deutsche Telekom on 14 October

Posted on September 6, 2010 | Filed Under communication technologies

Just a brief note: Margin squeeze issues in telecommunications are keeping the Commission and the courts well occupied (for the Commission, see the recent comments in Article 7 procedures to Greek and Italian notifications [EL/2010/1113, IT/2010/1103]; for the courts see the opinion of advocate general Mazák just last week in the case C-52/09 TeliaSonera (more here), and the cases pending at the General Court T-336/07 Telefónica v. Commission and T-398/07 Spain v. Commission).

But the leading margin squeeze-case at the European Court of Justice -  and No 1 of my “This year’s top three cases”-list - is now nearing an end: the Court today announced that judgment is due on 14 October 2010.

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“This is a strange abuse”*: advocate general Mazák on margin squeeze, once again

Posted on September 2, 2010 | Filed Under communication technologies

Advocate general Jàn Mazák already wrote the opinion in the Deutsche Telekom margin squeeze case, which is still pending at the European Court of Justice (judgment probably due some time this autumn) - and today he delivered his opinion in another telecommunications margin squeeze case: C-52/09 TeliaSonera. And while the Deutsche Telekom Case is at the ECJ on appeal from the General Court (and concerns a decision taken by the Commission as competition authority), the TeliaSonera case came to the ECJ by way of a reference for a preliminary ruling from a Swedish court.

The advocate general has to point out “that the parties to the main proceedings do not agree on a series of important and, in my view, crucial factual elements”; and taking into account also the (rather general) nature of the questions referred he states that “the following considerations will also of necessity be limited to matters of principle.” Which is in fact quite nice, as it keeps the opinion relatively short and free from the often painstaking procedural details of competition cases before the ECJ.

The main issue is whether margin squeeze is in any case to be regarded as an abuse of a dominant position under article 82 EC (now article 102 TFEU), and the answer is rather straightforward: No. If the dominant undertaking is not under any obligation to provide services on a wholesale level (neither because of a regulatory obligation nor under “duty-to-deal” because the services are indispensable to competitors [essential facility]), then there is no reason to find an abuse:

“21. Therefore, I consider that if there was no regulatory obligation compatible with EU law on a dominant undertaking to provide an input which is not indispensable then the dominant undertaking should not in principle be charged with a margin squeeze abuse. If margin squeezes were prohibited purely on the basis of an abstract calculation of the prices and in the absence of any assessment of the indispensability of the input for competition in the market, dominant undertakings’ willingness to invest would be reduced and/or they would be likely to raise end-user prices lest they be charged with a margin squeeze. If a dominant undertaking could lawfully have refused to provide the products in question, then it should not be reproached for providing those products at conditions which its competitors may consider not advantageous.”

For what we know from the facts of the Swedish case, TeliaSonera was under no regulatory obligation to provide the wholesale services in question, andthe advocate general further notes “that according to the order for reference alternative technologies were available” and there was “the possibility that TeliaSonera’s network may have been replicated by its competitors (jointly or severally) and/or third parties”. This of course, as we know from the Bronner case, “indicates that the products in question may not have constituted an indispensable input according to the case-law.”

But even if under these circumstances (in case they are eventually established as facts by the national court) there is no margin squeeze abuse, the dominant operator might not yet be off the hook - there ight still be predatory pricing, foreclosing, or discrimination, as the advocate general points out:

“31.      However, it must be added that the fact remains that the general case-law on abuse of dominant position is applicable and if it is dominant TeliaSonera obviously has a special responsibility under Article 102 TFEU to maintain genuine undistorted competition on the relevant markets ….

32.      It should certainly not be inferred from my analysis in all the foregoing paragraphs that the prices of a vertically integrated dominant undertaking cannot be abusive unless the input in question is indispensable or there is a regulatory obligation to supply that input. The upstream price may be excessive under Article 102(a) TFEU. The downstream price may be predatory. Moreover, the dominant undertaking may be foreclosing its downstream competitors in breach of Article 102(b) TFEU. In addition, the dominant undertaking may be discriminating between competitors and its own downstream operations under Article 102(c) TFEU. None of those abuses is in principle limited to cases where the product or service is indispensable.” 

If you want a quick introduction into the margin squeeze debate and the relevant case law, this opinion is quite instructive to read, as it sticks with the general principles. It even gives a textbook answer (Question: “what is marging squeeze?): “There is a margin squeeze if the difference between the retail prices charged by a dominant undertaking and the wholesale prices it charges its competitors for comparable products is negative, or insufficient to cover the product-specific costs to the dominant undertaking of providing its own retail products on the downstream market.”

*) Shakespeare, Measure for Measure, Act V, Scene 1

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“in regard of causes now in hand”*: a midsummer roundup of ECJ cases

Posted on August 10, 2010 | Filed Under communication technologies

In keeping track with the telecommunications and broadcasting case law of the ECJ, here is a brief roundup of cases the Court decided right before summer recess, plus a (highly speculative, as ever) preview of what’s coming up next:

1.  ECJ judgment of 1 July 2010, C-99/09 Polska Telefonia Cyfrowa v. UKE

National regulatory authorities (NRAs) shall ensure that direct charges to subscribers for making use of number portability (changing operator while retaining the telephone number) “do not act as a disincentive for the use of these facilities”, according to Art 30(2) of the Universal Service Directive 2002/22/EC. However, according to the ECJ’s judgment, it is not enough for an NRA to just look at what price would make customers shy away from using number portability - the NRA also has to check the costs incurred by the operator.

“Article 30(2) of Directive 2002/22/EC […] is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.”

2.  ECJ judgment of 8 July 2010, C-171/08 Commission v. Portugal

“By maintaining in Portugal Telecom SGPS SA special rights, such as those provided for in that company’s articles of association for the State and other public sector bodies, allocated in connection with the State’s golden shares in Portugal Telecom SGPS SA, the Portuguese Republic has failed to fulfil its obligations under Article 56 EC.”

3. ECJ judgment of 29 July 2010, C-189/09 Commission v. Austria (data retention)

Austria failed to transpose the Data Retention Directive. In its judgment, the Court rejected Austria’s belated attempt to raise the issue of the directive’s compatibilty with data protection and privacy requirements.

4. General Court judgment of 1 July 2010, T-568/08 and T-573/08 (recapitalization of France Télévisions)

In the state aid cases T-568/08 M6 v. Commission and T-573/08 TF1 v. Commission, M6 and TF1 unsuccessfully aimed for annulment of the Commission decision of 16 June  2008, N 279/2008. The Court found that the injection of capital to the amount of € 150.000.000 into France Télévisions did not exceed the necessary funding for the service of general interest, and it did not serve to undercut advertising rates.

Meanwhile, the Commission has also approved the new annual funding mechanism for France Télévisions (press release; the decision will be published here); I would expect that M6 and TF1 will try their luck again and will bring action at the General Court against this decision (another related case, T-520/09 TF1 a.o. v. Commission, is currently also pending at the General Court). It is important to note that the Commission’s approval for the new funding mechanism for France Télévisions (and also for the Spanish counterpart) only concerns the aid given to the broadcasters - and not the taxes reaised from telecoms operators in order to finance this aid. The Commission still is of the opinion that these taxes are a contravention of Art 12 Authorisation Directive 2002/20/EC!

5. What’s ahead?

Even if the list of pending telecommunications and broadcasting cases at the ECJ seems fairly long, the really interesting cases where judgment might still be expected this year are not so many:

First, I would expect the last case from my “This year’s top three cases”-list, which is the Deutsche Telekom margin squeeze case (C-280/08P; read here about the advocate general’s opinion), to be decided by the end of this year. In my view, anything else than dismissing Deutsche Telekom’s appeal would come as a perfect surprise.

Then there are the Belgian cases on universal service funding C-222/08 Commission v. Belgium and C-389/08 Base and others v. Belgacom which could be decided rather soon, if not necessarily still in 2010. But as the legal issues seem to be rather clear cut and the advocate general’s opinions from 22 June 2010 in both cases (see this post) provide all the guidance that’s needed, maybe the Court will not need too much time to issue its judgments.

Aside from the core focus of this blog, I’d expect the case C-540/08 Mediaprint to be decided still this year. The case is included in my list not for a specific broadcasting or telecommunications law aspect, but because it touches the issue of media pluralism (if only as a - possibly false - pretence for regulating unfair commercial practices).

*) Shakespeare, King Henry V, Act I Scene 1

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“high respect and rich validity”* - ECJ: Roaming Regulation valid

Posted on June 8, 2010 | Filed Under communication technologies

The European Court of Justice today gave judgment in the case C-58/08 Vodafone and others and confirmed the validity of the roaming regulation. Just as the advocate general in his opinion of 1 October 2009, the Court came to the conclusion that the legal basis (article 95 EC [now article114 TFEU]) was correct, the measures were proportionate and the principle of subsidiarity had not been infringed.

As to the legal basis, the Court notes that there was a high level of retail charges, that this was a persistent problem that could not be solved by NRAs, and that there was pressure for Member States to take measures. Such national measures in turn would have been likely to lead to a divergent development of national laws.

“As regards the functioning of the roaming market […]  and taking into consideration the considerable interdependence of retail and wholesale charges for roaming services, it is clear that a divergent development of national laws seeking to lower retail charges only, without affecting the level of costs for the wholesale provision of Community-wide roaming services, would have been liable to cause significant distortions of competition and to disrupt the orderly functioning of the Community-wide roaming market, as is clear from recital 14 in the preamble to Regulation No 717/2007. Such a situation justified the Community legislature’s seeking to protect the proper functioning of the internal market”. 

As regards the principle of proportionality, the ECJ points out that the Community legislature must be allowed broad discretion, yet must base its choice on objective criteria. The Court then examines the history of the roaming regulation and comes to the conclusion, that the introduction of ceilings for retail charges “must be considered to be appropriate for the purpose of protecting consumers against high levels of charges” and “that regulation of wholesale charges alone would not have had a direct and immediate effect for consumers. By contrast, only the regulation of retail charges could improve the situation of consumers directly.” The Community legislature therefore “could legitimately take the view that regulation of the wholesale market alone would not achieve the same result as regulation such as that at issue, which covers at the same time the wholesale market and the retail market, and that the latter was therefore necessary.”

In Nr 69 of the judgment, the Court states:

“Finally, in the light of the importance of the objective of consumer protection within the context of Article 95(3) EC, intervention that is limited in time in a market that is subject to competition, which makes it possible, in the immediate future, to protect consumers against excessive prices, such as that at issue, even if it might have negative economic consequences for certain operators, is proportionate to the aim pursued.” [emphasis added]

To me it is rather striking that the Court in its legal reasoning only in this paragraph makes mention of the limited duration of the measure. The advocate general, in contrast, had dwelled on that issue more explicitely (in Nr 42 of his opinion):

“Moreover, the existence of a sunset clause reduces its impact on the rights of the economic operators. Such clauses ensure that the Community legislature will periodically reassess its interventions in areas, such as roaming, that are undergoing rapid social and economic change. [footnote omitted] If the Community legislature were to extend the price controls or make them permanent, that decision would also need to be proportionate and additional reasons would need to be presented to justify it.” 

This of ocurse is not just an academic issue: the roaming regulation meanwhile has been amended and the original “sunset” (30 June 2010) has been extended by two years to 30 June 2012. So according to the advocate general, in a possible future case it would be necessary to examine whether there were sufficient “additional reasons” for the prolongation. The Court - limiting itself strictly to the issue to be decided in the present case, the  original version of the regulation - remains silent on that matter. Still, considering that the Court in its legal reasoning only makes one almost fleeting reference to the “intervention limited in time”, I would expect that the extension until 2012 should not make the regulation invalid (after all, it is still “limited in time”).

Finally, subsidiarity does not pose a problem either:

“As is clear from recital 14 in the preamble to the regulation, the interdependence of retail and wholesale charges for roaming services is considerable, so that any measure seeking to reduce retail charges alone without affecting the level of costs for the wholesale supply of Community-wide roaming services would have been liable to disrupt the smooth functioning of the Community-wide roaming market. […] the Community legislature could legitimately take the view that it had to intervene at the level of retail charges as well. Thus, by reason of the effects of the common approach laid down in Regulation No 717/2007, the objective pursued by that regulation could best be achieved at Community level.”

*) Shakespeare, All’s Well That Ends Well, Act V, Scene 3

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“ever precise in promise-keeping”*?: open and vague ministerial promises do not constitute state aid

Posted on May 24, 2010 | Filed Under communication technologies

The General Court delivered judgment on 21 May 2010 in the joined cases T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission, annulling Commission Decision C(2004)3060.

The origins of the case go back to 2002,when France Télécom (FT) was in a rather difficult economic situation and French authorities - representing the majority stockholder - issued a series of public declarations. Most notably, the Minister of the Ecomony declared that “the shareholder State will act as a prudent investor and were FT to encounter difficulties, we would take the appropriate measures … I repeat that were FT to face funding problems, which is not the case today, the State would take the necessary decisions in order to overcome them”. The Commission had viewed these declarations, together with an offer by the French State of a shareholder loan for FT (a 9 billion Euro credit line), as state aid and incompatible with teh Treaty.

The General Court agreed that the statements of the French authorities did confer a financial advantage on FT, as they had had a decisive influence on the reaction of the ratings agencies. However, the Court came to the conclusion that there had not been a transfer of State resources. “On account of their open, imprecise and conditional nature, in particular as regards the nature, scope and conditions of possible State intervention in favour of FT, the statements made from July 2002 onwards cannot be construed as a State guarantee or be interpreted as containing an irrevocable commitment to provide specific financial assistance to FT.” (quote taken from the press release; the judgment is available only in French; the relevant paragraphs are 268 to 289).

*) Shakespeare, Measure for Measure, Act I, Scene 2

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“Brief, then; and what’s the news?”*: update on ECJ cases

Posted on May 9, 2010 | Filed Under communication technologies

1. ECJ-Judgment of 6 May 2010 in the case C-545/08 Commission v. Poland: no specific regulatory obligations without prior market analysis:

The result of this case, decided by the Court without prior opinion of the advocate general, does not come as a surprise: specific regulatory ex ante-obligations on providers of electronic communications networks and services must not be imposed without having conducted the market analysis procedure, as laid down in article 16 of the framework directive: 

“Il convient de rappeler, à titre liminaire, que, conformément à l’article 16 de la directive «cadre» ainsi qu’aux articles 16 et 17 de la directive «service universel», les ARN ne peuvent imposer des obligations réglementaires ex ante aux entreprises déterminées comme étant puissantes sur un marché pertinent donné qu’après avoir effectué une analyse dudit marché. ” (paragraph 47 of the judgement; an English version is not yet available).

The Polish regulator had - in 2006 - imposed the obligation for cost oriented end user tariffs for broadband internet access on the incumbent operator, without following the market analysis procedure beforehand. The Commission started an infringement procedure and obviously Poland had very little chance to defend this action of the regulator. Nevertheless, it tried to do its best by maintaining that this newly imposed obligation was still covered by the transitional rules in article 27 of the framework directive, as it more or less extended the obligations for cost orientation of end user tariffs from voice telephony to broadband access. And as both services after all use the same “last mile”, for instance line maintenance costs could not be attributed to either voice telephony or broadband access.  The ECJ did not buy into this, as the regulatory framework had entered into force in Poland on 1 May 2004, and the obligations existing under the old regulatory framework did not cover broadband.

2. New cases for the ECJ:

Just to make you aware of new telecoms and broadcasting cases already at the Court or on their way to the Court:

In C-52/10 Eleftheri Tileorasi A.E. ‘Alter Channel’ and Konstantinos Giannikos  the question is put to the ECJ whether, under the TV without Frontiers-directive, the provision of payment or of consideration of another kind is a necessary defining element of the intention to advertise (in the context of ’surreptitious advertising’).

C-71/10 Ofcom addresses environmental information under the directive 2003/4/EC, related to the precise location of mobile phone base stations in the UK.

And the data retention directive is coming back to the ECJ from Ireland, this time not by the Member State, but from the High Court (see here and here for the decision); the exact wording of the request for a preliminary ruling still has to be decided.

And at the General Court COLT France challenges a state aid decision by the Commission concerning a broadband network in Hauts-de-Seine department (T-79/10 COLT Télécommunications France v. Commission (Annulment of Commission Decision  C(2009) 7426 final of 30 September 2009 [state aid N 331/2008 — France]).

3. Judgments  coming up:

From my “This year’s top three cases”-list, two will be decided soon:

My “number 3″, T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission, a state aid case concerning recapitalisation of France Télécom, will be decided on 21 May 2010. [update 13 May 2010: sorry - but the case disappeared from the ECJ’s calendar again, so we will have to wait a little longer, but I still expect it to be decided before summer - and another update: even though it didn’t show up on the Court’s public calendar just a week ago, it wa decided nonetheless - see this post].

And “number 2″, C-58/08 Vodafone, on the validity of thearticle 4 of the roaming regulation is coming up for judgment on 8 June 2010. My “number 1″-case, just to remind you, is C-280/08 P Deutsche Telekom AG, where on 22 April 2010 the advocate general delivered his opinion; see here).

Opinions of the advocate general are coming up on 1 June 2010 in C-222/08 Commission v. Belgium and C-389/08 Base and others v. Belgacom, both dealing with universal service in Belgium. [update 13 May 2010: again, these two cases were dropped from the ECJ’s calendar]

*) Shakespeare, King John, Act V, Scene 6

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“One fire drives out one fire”*: explaining the blogs’ downtime

Posted on May 9, 2010 | Filed Under communication technologies

This blog was down - the server could not be reached - for a few days some two weeks ago, and for another three days just this week. The reason in both instances was, quite simply, if unlikely: fire. The blog is hosted on the servers of the Vienna University of Economics and Business, and by some very unfortunate coincidence, a fire ravaged through the transformer room already two weeks ago; then when the all systems had come back, there was another fire, reportedly due to faulty repair work after the first fire. Now electricity is restored and even the non-essential servers are all running again. The university is coming back to business as usual, on campus as well as in the virtual world, such as here in this blog.

*) Shakespeare, Coriolanus, Act IV, Scene 7

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“Our expectation hath this day an end”* - advocate general on Deutsche Telekom margin squeeze

Posted on April 22, 2010 | Filed Under communication technologies

Can there be a legitimate expectation that the European Commission would follow a national telecommunications regulatory authority (NRA) in its assessment of a margin squeeze situation? No, says advocate general Mazák in his opinion, delivered today in the Deutsche Telekom magenta margin squeeze case (C-280/08 P Deutsche Telekom AG) - because even though the NRA is “obliged like all organs of the State to respect the provisions of the EC Treaty”, it is not the competition authority, but responsible for regulating the telecommunications sector. The NRA decides whether an operator “satisfies the provisions of regulation” “the first barrier).

“Article 82 EC [now Article 102 TFEU] represents a second barrier and – independently of the obligation to respect the provisions of the EC Treaty imposed on [the NRA] – it falls within the competence of the relevant competition authority, in this case the Commission, to decide where necessary whether that second barrier was respected or not.”

The advocate general, after carefully exmanining the finer intricacies of margin squeeze, including the burden of proof, then comes to the conclusion that the ECJ should dismiss Deutsche Telekom’s appeal.

*) Shaekspeare, King Henry V, Act III, Scene 3

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When “I used to work in telecommunications” is not enough: US Supreme Court debates texting

Posted on April 21, 2010 | Filed Under communication technologies

Slightly off topic, but nice: Justice Scalia of the US Supreme Court used to take pride in his past experience in telecommunications (he served briefly as General Counsel in the Office of Telecommunications Policy, Executive Office of the President, in 1971-1972). In the oral argument in Bell v Twombly he tried to impress Counsel with the explicite statement: “I used to work in the field of telecommunications” (p 49 of the transcript). And of course. Scalia wrote the Court’s opinions in MCI v AT&T and Verizon v Trinko.

But today, in the argument on a privacy case, Ontario v. Quon, it showed that his telecommunications experience might not have equipped him with an understanding of how texting works. Neither Chief Justice Roberts nor Justice Scalia obviously knew that when a text message from a mobile device is sent to another mobile device, it does not go directly (without being routed over a network and processed there) to this device. Here’s an excerpt from the transcript, starting at page 48:

“CHIEF JUSTICE ROBERTS: Again, it depends upon their reasonable expectation. Do any of these other people know about Arch Wireless? Don’t they just assume that once they send something to Quon, it’s going to Quon?
MR. DAMMEIER: That’s — that is true. I mean, they expect –
CHIEF JUSTICE ROBERTS: Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.
MR. DAMMEIER: Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message. And –
CHIEF JUSTICE ROBERTS: Well, I didn’t — I wouldn’t think that. I thought, you know, you push a button; it goes right to the other thing.
MR. DAMMEIER: Well -
JUSTICE SCALIA: You mean it doesn’t go right to the other thing?
(Laughter.)
MR. DAMMEIER: It’s — I mean, it’s like with e-mails. When we send an e-mail, that goes through some e-mail provider, whether it be AOL or Yahoo, it it’s going through some service provider, just like when we send a letter or package, it’s going through — some provider is going to move that for us, until it gets to the recipient.
…
CHIEF JUSTICE ROBERTS: So we have to assume for your argument to succeed that they know this goes somewhere else and then it is processed and then it goes to Quon.
MR. DAMMEIER: Yes, but I think in today’s — I think in today’s society that’s — that’s a
reasonable assumption to make. One -
JUSTICE CALIA: Yeah, I didn’t know. ” (emphasis added)

The WSJ Law Blog already made fun of this (“Our Tech-Savvy Supreme Court”), as did Adam Liptak in the New York Times.

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“Be not afeard”*: costs and disincentives for number portability

Posted on April 16, 2010 | Filed Under communication technologies

Article 30 (2) of the Universal Service Directive 2002/22/EC states that “National regulatory authorities shall ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities.” (the recently adopted reform package did not change that in substance, the wording now - as amended by directive 2009/136/EC - is “that direct charges to subscribers, if any, do not act as a disincentive for subscribers against changing service provider”).

But how do you define the limit for direct charges, so that they will not act as disincentive - that subscribers will not be afeard** to change subscribers while keeping their number? Could you, for instance, just ask consumers which price they were willing to pay for the service? This is what the Polish Regulator did. And as the price charged by the mobile operator Polska Telefonia Cyfrowa sp. zoo was higher than what consumers where willing to pay, the regulator imposed a fine on the operator. In the judicial proceedings that ensued, the Polish Supreme Court asked the European Court of Justice for a preliminary ruling: “Is Article 30(2) of Directive 2002/22/EC … to be interpreted as meaning that the competent regulatory authority of a Member State, when ensuring that direct charges to subscribers do not act as a disincentive for the use of the additional facility of porting numbers, has an obligation to take account of the costs incurred by mobile telephone network operators in providing that facility?”

In this Case C-99/09 Polska Telefonia Cyfrowa v. UKE, advocate general Bot delivered his opinion (not yet available in English) on 15 April 2010. His conclusion is that when national regulatory authorities have to decide whether direct charges act as a disincentive to subscribers, they have to take into account - in a manner they see fit [”de la manière qu’elles jugent la plus appropriée”] - the costs that are incurred in connection with number portability.

The conclusion may not be surprising, even if in some member states operators currently are not allowed to charge anything to the subscriber wishing to change operator (advocate general Bot thinks - cf paragraph 72 of his opinion - that such a requirement is not compatible with the directive). What is more surprising, at least to me, is how the advocate general gets to his conclusion: by seeking and finding “principles” for price regulation in telecommunications directives starting with the ONP-framework directive 90/387/EEC (!), which is of course not in force any more and did not set any principles for enduser tariffs. But this does not matter to the advocate general, who also refers to several other historic directives as well, and also to the judgment of the ECJ in the case C-152/07 - 154/07, Arcor ao (which dealt with issues concerning the old ONP-interconnection directive and the ONP-competition directive).

I am less than convinced that just because at different times in telecommunication regulatory history there were (different) approaches to cost oriented tariffs, the “direct charges” for number portability also have to take costs into account, even though in the wording of Article 30 this is not explicitely expressed. It may well be so, but I’d like to see a reasoning more to the point [and by the way: the death of advocate general Colomer and the end of term for advocate general Poiares Maduro mean that the ECJ lost two AGs that were well versed in telecommunications law].

On the other hand, of course, defining the threshold of a “disincentive” just by taking a consumer survey hardly seems to satisfy a rule of law-concept, especially if fines are imposed on operators whose charges are above the average “disincentive-threshold”. The advocate general spells that out very clearly in paragraphs 61 to 69 of his opinion.

What I find interesting is the repeatedely emphasized “margin of appreciation” of the regulatory authority (”marge d’appréciation”, paragraphs 30, 39, 41, 53), which should not be confused with its discretionary power (”pouvoir discrétionnaire”), as the advocate general points out in paragraph 54. I am quite sure we will see more of these margin of appreciation/discretion-issues in the future.

*) Shakespeare, The Tempest, Act III, Scene 2.

**) As I do not know any Shakespeare text using the word “disincentive”, I had to stick with “afeard” for my title-quote.

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