KPN Telecom BV v Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA) (C-109/03)

Contents

Judgment of the Court (First Chamber)25 November 2004^noteIn Case C-109/03,REFERENCE to the Court under Article 234 EC,by the College van Beroep voor het bedrijfsleven (Netherlands), by a decision of 8 January 2003, received at the Court on 10 March 2003, in the proceedingsKPN Telecom BVvOnafhankelijke Post en Telecommunicatie Autoriteit (OPTA),Denda Multimedia BV,Denda Directory Services BV,THE COURT (First Chamber),composed of: P. Jann (Rapporteur), President of Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann, Judges,Advocate General: M. Poiares Maduro,Registrar: H. von Holstein, Deputy Registrar,having regard to the written procedure and following the hearing on 19 May 2004,after considering the observations submitted on behalf of:— KPN Telecom BV, by B.L.P. Van Reeken and E. Pijnacker Hordijk, advocaten,— Onafhankelijke Post en Telecommunicatie Autoriteit (OPTA), by A.B. van Rijn et B.J. Drijber, advocaten,— Denda Multimedia BV, by T.F.W. Overdijk, advocaat,— the Italian Government, by LM. Braguglia, acting as agent, and by P. Gentili, avvocato dello Stato,— the Commission of the European Communities, by M. Shotter and W. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 14 July 2004,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of 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 (OJ 1998 L 101, p. 24, hereinafter ‘the Directive’).

2It arises in the context of a dispute between KPN Telecom BV (hereinafter ‘KPN’) and Onafhankelijke Post en Telecommunicatie Autoriteit (hereinafter ‘OPTA’) relating to the proposed communication to private companies of certain information on KPN subscribers for the purposes of the compilation by those companies of telephone directories.

Legal framework

3Article 1(1) of the Directive provides as follows:‘This Directive 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).The aims are 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 in the context of universal service in the light of specific national conditions, at an affordable price.’

4Article 2(2) (f) of the Directive defines the concept of ‘universal service’ 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’.

5Article 6 of the Directive states as follows: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.2. Member States shall ensure that:(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;(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;(c) at least one telephone directory enquiry service covering all listed subscribers' numbers is available to all users, including users of public pay telephones;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 nondiscriminatory.4. Member States shall ensure that organisations providing the service referred to in paragraph 2(b) and 2(c) follow the principle of nondiscrimination in their treatment and presentation of information provided to them.’

6In the Netherlands the matters covered by the Directive are governed by the Wet op de telecommunicatievoorzieningen (Law on telecommunications) of 26 October 1988 (Staatsblad 1988, p. 520, hereinafter ‘the WTV') and by the Besluit ONP huurljinen en telefonie (Decree on rental lines and on ONP telephony) of 10 November 1998 (Staatsblad 1998, p. 639, hereinafter ’the BOHT') issued under that Law, and in particular Articles 7.1 and 7.5 thereof.

7Article 43 of the BOHT provides as follows:‘Any person who supplies for use numbers ... shall make those numbers together with associated information available upon request, in an agreed format and on terms which are fair, cost oriented and nondiscriminatory for the purpose of providing a telephone enquiry service.’

The main dispute and questions referred

8KPN is the universal service provider of voice telephony in the Netherlands. At the time when the matter came before the national court, Denda International vof, now Denda Multimedia BV (hereinafter ‘Denda’), established in the Netherlands, and Topware CD-Service AG (hereinafter ‘Topware’), established in Germany, were companies that produced, inter alia, paper telephone directories and electronic directories, which were initially produced on CDROM and were subsequently intended to be made available on the internet.

9According to the order for reference, Denda and Topware requested PTT Telecom BV, KPN's predecessor in law until 1998, to place at their disposal the data relating to KPN's subscribers to the voice telephony service for the purposes of publishing their own directories. Beyond what is strictly basic data such as the subscriber's name, address, telephone number and possibly postal code and an indication of whether the number is used exclusively as a fax number, the two companies were interested in particular in transmitting additional information contained in the white pages of the directory published by KPN's predecessor, other than advertisements. That included for example also stating subscribers' professions, any listings under a different name or in other municipalities and additional mobile phone numbers.

10KPN's predecessor refused to provide that additional information to Denda and Topware. It also refused to give them the basic data for less than NLG 0.85 per item, which according to the companies was considerably overpriced. The companies therefore brought a complaint before OPTA for a declaration that KPN's predecessor had infringed the provisions of the WTV and of the BOHT.

11By a decision of 29 September 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

12KPN and Denda and Topware all brought complaints against that decision of OPTA. By two decisions of 4 December 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.

13KPN and Denda in turn brought an action against those decisions before the Arrondissementsrechtbank te Rotterdam (Netherlands) but those actions were dismissed as unfounded. On appeal the College van Beroep voor het bedrifsleven entertains doubts as to the interpretation of the relevant provisions of the WTV and the BOHT in light of the Directive.

14Taking the view that the interpretation of Article 6(3) of the Directive is essential to the resolution of the dispute before it, the College van Beroep voor het bedrijfsleven has therefore decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:(1) Is “relevant information” in Article 6(3) of Directive 98/10/EC ... to be interpreted as meaning only the numbers together with the name, address 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?(2) Is “meet... reasonable requests ... on terms which are fair, cost oriented and nondiscriminatory” in the provision referred in Question 1 to be interpreted as meaning that:(a) numbers together with the name, address 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(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?’

First question

15By its first question the national court is essentially asking what are the data referred to in the words ‘relevant information’ in Article 6(3) of the Directive.

16It must first of all be noted that Article 6(3) of the Directive does not define the concept of ‘relevant information’ in regard to subscribers which entities allocating telephone numbers are expected to provide to third parties. That concept must therefore be interpreted in light of its context and of the purpose of the Directive.

17Thus, under the second paragraph of Article 1(1) of the Directive, the aims of the Directive are 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 in the context of universal service in the light of specific national conditions, at an affordable price and, pursuant to the title of the Directive, ‘in a competitive environment’.

18The Directive thus aims to ensure a balance between the specific interests of the supplier of the universal service and those of undertakings within the competitive sector, as well as those of users, including consumers.

19With regard first of all to the universal service, it is important to recall that that service is defined in Article 2(2)(f) of the Directive as a defined minimum set of services of specified quality available to all users irrespective of their geographical location and, in the light of specific national conditions, at an affordable price.

20As the Commission correctly submits, it is clear from the words ‘[i]n order to ensure provision of the services referred to in paragraph 2(b) and 2(c)’, at the beginning of Article 6(3) of the Directive, that the Member States' obligation to ensure that entities allocating telephone numbers to subscribers respond to all reasonable enquiries about the provision of relevant information comes within the context of the supply of a universal service.

21It is therefore necessary to consider the data necessary for securing the supply of such a service.

22In that connection Article 6(2)(b) of the Directive provides only that directories must contain, in order to be available to users, all subscribers who have not expressed opposition to being listed, including fixed, mobile and personal numbers. As KPN has rightly pointed out, it follows that data other than those mentioned in that provision are not necessary in order to produce a telephone directory in the context of a universal service.

23The question none the less arises whether such a limitation on the data in the context of the supply of information to the competitors of the supplier of the universal service meets the requirements of liberalisation of the telecommunications market which forms the backdrop to the Directive. OPTA and Denda express serious doubts as to that and argue that only a broad interpretation of the concept of the data to be provided is such as to ensure fair competition.

24According to KPN, the Directive is not however intended to enable third parties to benefit from the endeavours of the supplier of the universal service, such as the costly compilation of the additional data, as those endeavours do not form part of its obligations in regard to the supply of the service in the strict sense. Any other interpretation of the Directive would lead to a distortion of competition between companies producing directories since one of them would be obliged to help its competitors yet they would not be under any obligation to reciprocate.

25In that regard it is common ground that the Directive repeatedly mentions its purpose, which is to encourage the opening up of a competitive market in the telecommunications field. With regard more particularly to directories, the seventh recital to the Directive states that the ‘provision of directory services is a competitive activity’. In addition, in so far as it provides for the making available to competing companies of certain subscriber-related information, Article 6(3) of the Directive corroborates that purpose.

26In the Member State concerned the fact that there are companies compiling directories other than the supplier of the universal service, such as Denda and Topware, demonstrates that a competitive market in directories has in fact developed.

27However it is not impossible that the refusal to provide the information in question in the main proceedings may influence the circumstances in which such a competitive market involving companies offering directories can develop. As to those circumstances, Article 6(3) of the Directive provides that they must be ‘fair, cost oriented and nondiscriminatory’. Therefore, if the supplier of the universal service complies with the requirements of that provision he is not bound also to provide all the additional information sought by competitors.

28It follows that the refusal to make available to third parties data other than that listed in Article 6(2) (b) of the Directive is compatible with the liberalisation of the telecommunications market, which is one of the objectives of the Directive.

29Finally, with regard to the specific interests of users, including those of consumers, it is primarily those persons who are supposed under the second paragraph of Article 1(1) of the Directive to benefit from the competitive conditions on the market in question. The seventh recital of the Directive states that users and consumers ‘desire comprehensive directories and [a] directory enquiry service covering all listed telephone subscribers and their numbers (including fixed, mobile and personal telephone numbers)’, and Article 6(2) (b) of the Directive is worded analogously.

30The counterpart of that need for information on the part of users is the right under Article 6(2)(a) of the Directive not only to appear in a directory but also to request the total or partial withholding of certain information appearing therein. Similarly as the Commission rightly pointed out, Article 6(1) of the Directive expressly refers to certain Community provisions on the protection of personal data and privacy.

31Moreover, as the Court has held, albeit in another context, but which relates none the less to the application of Article 6(2) of the Directive, that provision embraces the principle that every service provider must maintain a list of its own customers who do not wish to be listed in the general directory and not disclose the names of those customers to the publisher of the general telephone directory (Case C-146/00 Commission v France [2001] ECR I-9767 paragraph 68).

32Plainly, therefore, the protection of personal data and privacy is a factor of the first importance to be taken into account in determining the data that an operator is required to make available to a third-party competitor. In fact a broad approach requiring the indiscriminate provision of all the data at an operator's disposal, with the exception, however, of those concerning subscribers who in no way wish to appear on a published list, is not reconcilable either with the protection of those data or with the privacy of the persons concerned.

33Nor, consequently, does the account taken of the specific interests of the users of the services at issue, including consumers, militate in favour of a broad construction of the concept of ‘relevant information’.

34In light of all the foregoing considerations concerning the various interests at stake the words ‘relevant information’ in Article 6(3) of the Directive must be strictly interpreted. The entities allocating telephone numbers must therefore communicate to third parties only 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 post code, of subscribers, together with any telephone numbers allocated to them by the entity concerned.

35In light of that, and as the Commission argues and the Advocate General notes at point 28 of his Opinion, there may be differences at national level in the demand among users of voice telephony services. Inasmuch as, by using the words ‘relevant information’, the directive does not seek complete harmonisation of all the criteria which may appear necessary to identify subscribers, the Member States retain competence for determining whether in a specific national context certain additional data ought to be made available to third parties.

36The reply to the first question must therefore be that Article 6(3) of the Directive 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.

Second question

37By its second question the national court is essentially asking which elements of the costs of compiling, updating and providing relevant information on subscribers may be included in the price of the supply of the data in the context of Article 6(3) of the Directive.

38In that regard it is sufficient to state, as OPTA and Denda rightly point out, that the compilation of the basic data relating to subscribers, that is to say their names, addresses and telephone numbers, is inextricably linked to the telephony service and does not demand any particular effort on the part of the provider of the universal service.

39As the Advocate General stated at point 49 of his Opinion, the costs relating to the compilation, or allocation, of those data, unlike the costs incurred in making them available to third parties, must in any event be borne by the supplier of a voice telephony service and are already included in the costs and revenue of such a service. In those circumstances, passing the costs associated with compiling or allocating data on to persons requesting access to them would result in an excessive and unwarranted offset of the costs in question.

40It follows that, when communicating those data to competing companies on the market for the provision of directories, only the additional costs associated with that communication may be invoiced by the supplier of the universal service but not the costs relating to the compilation of those data.

41However, it would be otherwise in the case of additional data in respect of which the supplier of the universal service has himself had to bear the additional costs of compilation. In such a case, if the supplier of the universal service decides to make such data available to third parties, even though not bound by the directive to do so, there is no provision in the Directive to prevent those additional costs from being invoiced to the third parties, provided that those third parties are treated in a nondiscriminatory manner.

42The reply to the second question must therefore be that Article 6(3) of the Directive, in so far as it provides that the relevant information must be provided to third parties on terms which are fair, cost oriented and nondiscriminatory, 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 nondiscriminatory manner.

Costs

43Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

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 nondiscriminatory, 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 nondiscriminatory manner.