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“a joint burden laid upon us all”*: advocate general on universal service financing

Posted on June 22, 2010 | Filed Under public services 

In Belgium, all telephone service providers have to offer special “social” tariff options as part of a universal service obligations (other universal service obligations are placed only on specific providers). The costs for these special tariffs are distributed amongst all operators in relation to their share of “social tariff”-customers. This has sparked national litigation in Belgium, leading the Belgian Constitutional Court to ask the ECJ for a preliminary ruling; concurrently the Commission started an infringement procedure. In both cases, the advocate general today delivered his opinion (the cases - in part - touch similar, but not excactly the same issues and therefore were not joined).

In the case C-389/08 Base and others v. Belgacom the advocate general made clear that the legislator is no regulator: article 13 of the universal service directive 2002/22 provides that it is the task of national regulatory authorities (NRAs) to decide whether or not an undertaking is subject to an unfair burden (due to universal service obligations). The legislature of a Member States must not take that decision for the regulator. And most certainly it must not do so in retrospective, declaring - as was the case in Belgium - in 2007 that the law passed in 2005 had been preceded by an evaluation of the “unfair burden” (not for the simple reason that no one believes that anyway, but because NRAs have to be notified to the Commission in advance). Of course, the cases C-424/07 Commission v. Germany and C-82/07 CMT come to mind (and are cited by the advocate general).

In C-222/08 Commission v. Belgium, the advocate general also points out that there was no individual and concrete assessment of the “unfair burden” and he also joins the Commission’s view that intangible benefits have to part of equation to determine the net cost of universal service obligations.

*) Shakespeare, King Henry IV, Part 2, Act V Scene 2

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