TILEC Work in Progress: Zlatina Georgieva
The OPTA debacle: recent developments and questions raised
In august 2011, a
decision of OPTA (the former Dutch Telecom Regulator, now ACM) whereby it chose
to adopt an approach for setting call termination rates suggested by the Commission recommendation on call
termination rates (soft law), was quashed on appeal by the Dutch Trade and
Industry Appeals Tribunal (CBb). The Tribunal reasoned that although there was
an obligation of ‘taking utmost account of’ the Commission recommendation, this
fact did not prevent the national regulator from opting for a different
approach. It added that this conclusion was also confirmed by the
recommendation’s non-binding nature.
Since the Tribunal is a last appellate instance in the Netherlands, its
pronouncement against the OPTA decision
was final, and OPTA had no choice but to abide by it through adopting – in
January 2012 – a new decision based on the methodology suggested by the
Tribunal (BULRIC plus instead of pure BULRIC that was suggested by the
Commission’s recommendation). The judgment did raise scholarly criticism, in
particular it was held that it might be in stride with the principle of loyal
cooperation between Member States and the Union enshrined in Article 4.3
TEU. The European Commission, pursuant
to its powers under the Electronic Communications Directive, also issued a
recommendation to OPTA expressing doubts as to the contents of its January 2012
decision and urging the authority to comply with the EU-suggested framework in
direct opposition to what the Tribunal’s judgment held. OPTA was thus put in an uncomfortable
position between a binding national judicial decision and a non-binding but
imperative document issued by the European Commission. Since OPTA did not
respond to the Commission’s doubts within the envisioned deadlines, the issue
was silently put to rest.
The OPTA saga resurfaced in mid-2013 when the successor of OPTA – the ACM – published a new decision tackling call termination rates within the Netherlands that, among others, argued that the regulatory situation with regard to call terminations had drastically changed from 2012 to 2013, whereby many EU Member States had chosen for a pure BULRIC methodology, in line with the Commission recommendation. Importantly, the ACM also argued that in the current state of affairs, the different approach taken by the Netherlands (BULRIC plus-based) would create disparities leading to hindrance of the internal market objective – a primary concern under the Electronic Communications Directive. It is largely because of this latter argument by the ACM that the subsequent appeal to the ACM decision made it to the CJEU in the form of a preliminary reference. By its question, inter alia, the Dutch Tribunal wants clarification on the issue of the extent to which the national judge can pronounce himself contrary to the provisions of the Commission recommendation on call termination rates.
In its judgment of 15 September 2016, the CJEU pronounced itself on the matter, holding that the space for deviation from the recommendation is quite narrow. In particular, the national court can deviate ‘only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question.’ This rather stringent requirement considerably impacts national procedural autonomy and raises questions about the (changing) nature of judicial dialogue between highest national courts and the supranational level. Against the backdrop of the OPTA saga described above, the latter two questions are the ones this paper aims at exploring.