The European Court of Justice has today concluded a major case relating to the interpretation of EU Directive 98/10/EC (the ONP Voice Telephony Directive) with regard to the data to be provided by telecommunications operators for the compilation of telephone directories, and the fees that can be charged by telecommunications operators to directory publishers and to directory enquiry services for the data in question.
The Court ruled that Article 6(3) of the Directive must be interpreted as meaning that telecommunications operators are not entitled to charge any fee for making available basic subscriber data (i.e. only the name and address – including postal code – of natural and legal persons and the telephone number allocated to them) to third parties, and may only invoice the costs corresponding to specific work needed to actually make this data available to third parties.
Although Directive 98/10/EC is now (in most Member States) superseded by the new EU regulatory framework for electronic communications, this case is important because Article 25(2) of Directive 2002/22/EC (the Universal Service Directive) contains, on this particular issue, essentially the same wording as the old ONP Voice Telephony Directive, and the new directive (as in fact the old directive did as well) unequivocally imposes the same requirements on ALL undertakings which assign telephone numbers to subscribers.
Case C-109/03, in which a Judgement was reached today, concerns a request by a court in The Netherlands (the “College van Beroep voor het bedrijfsleven”) for a preliminary ruling from the European Court of Justice, in order to settle a domestic case which opposes KPN Telecom and the Dutch regulatory authority OPTA, which dates back to an OPTA decision from 1999, in a proceeding that was originally triggered by a complaint of the companies Denda and Topware.
Denda and Topware sought to obtain information from KPN, including information going beyond the basic KPN subscriber information (extending to fax numbers, mobile numbers, profession, etc.) with a view to providing rival directory services (on CD-ROM, online, etc.).
The companies also had a dispute with KPN on the fees that KPN could charge for providing data for the compilation of directories. KPN initially asked NLG 0,85 for the basic directory information, and refused to provide additional information.
By a decision of 29 Sep 1999, OPTA decided, first, that KPN was under no obligation to provide Denda and Topware with the additional information sought by them and, secondly, that the price demanded by KPN for transmission of the basic information had to be less than NLG 0,005 per item.
In subsequent OPTA decisions (following appeals) of 4 Dec 2000, OPTA revised its initial position and held that KPN ought also to provide the additional information relating to one or more mobile telephone numbers, the subscriber’s occupation and any listings in other municipalities relating to that person.
These OPTA decisions were again appealed (multi-stage appeal proceedings), and finally, the highest Court in this matter, the “College van Beroep voor het bedrijfsleven”, decided to stay the proceedings, and to put a request for a preliminary ruling to the European Court of Justice.
The European Court of Justice today issued a Judgement as follows:
On those grounds, the Court (First Chamber) rules as follows:
1. Article 6(3) of 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 must be interpreted as meaning that the words ‘relevant information’ refer only to data relating to subscribers who have not expressly objected to being listed in a published directory and which are sufficient to enable users of a directory to identify the subscribers they are looking for. Those data include in principle the name and address, including postcode, of subscribers, together with any telephone numbers allocated to them by the entity concerned. However, it is open to the Member States to provide that other data are to be made available to users where, in light of specific national circumstances, they appear to be necessary in order to identify subscribers.
2. Article 6(3) of Directive 98/10, in so far as it provides that the relevant information must be provided to third parties on terms which are fair, cost oriented and non-discriminatory, must be interpreted as meaning that:
– with regard to data such as the name and address of the persons and the telephone number allocated to them, only the costs of actually making those data available to third parties may be invoiced by the supplier of the universal service;
– with regard to additional data which such a supplier is not bound to make available to third parties, the supplier is entitled to invoice, apart from the costs of making that provision, the additional costs which he has had to bear himself in obtaining the data provided that those third parties are treated in a non-discriminatory manner.