Judgment_paragraph 39 · Eircom Limited v Commission for Communications Regulation (C-494/21)

39As regards the concept of an ‘unfair burden’, this is not defined by the Universal Service Directive. However, as the Court has already had occasion to observe in its judgment of 6 October 2010, Base and Others (C‑389/08, EU:C:2010:584, paragraph 42), it is apparent from recital 21 of the Universal Service Directive that the EU legislature intended to link the mechanisms for the recovery of net costs which an undertaking may incur as a result of the provision of universal service to the existence of an unfair burden on that undertaking. In that context, in concluding that the net cost of universal service does not necessarily represent an unfair burden for all the undertakings concerned, it intended to exclude the possibility that any net costs of universal service provision automatically give rise to a right to compensation. The Court concluded from this that the unfair burden which must be found to exist by the NRA before any compensation is paid is a burden which, for each undertaking concerned, is excessive in view of the undertaking’s ability to bear it, account being taken of all the undertaking’s own characteristics, in particular the quality of its equipment, its economic and financial situation and its market share.