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EU Court of justice Dec. C-411-02

Judgment of the Court (Second Chamber) of 14 September 2004.
Commission of the European Communities v Republic of Austria.

In Case C-411/02,

ACTION under Article 226 EC for failure to fulfil obligations,
brought on
18 November 2002,

Commission of the European Communities, represented by C. Schmidt and M. Shotter, acting as Agents, with an address for service in Luxembourg,
applicant,

v

Republic of Austria, represented by E. Riedl and T. Kramler, acting as Agents, with an address for service in Luxembourg,
defendant,

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric, Judges,

Advocate General: M. Poiares Maduro,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 12 February 2004,
after considering the observations submitted by the parties,
after hearing the Opinion of the Advocate General at the sitting on 16 March 2004,
gives the following

Judgment

1. By its application the Commission of the European Communities seeks a declaration by the Court that, by opting for billing which lists charges only according to the type of charge and is not sufficiently detailed to ensure effective verification and control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) 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, the directive).

Legal background
Community legislation

2. The aims of the directive, as set out in the second subparagraph of Article 1(1) thereof, 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.

3. To that end, Article 14 of the directive, entitled Itemised billing, tone dialling and selective call barring, provides that:
1. In order to ensure that users have access over fixed public telephone networks as early as possible to the facilities of:
– …
– itemised billing and selective call barring as facilities available on request,
Member States may designate one or more operators to provide these facilities to most telephone users before 31 December 1998 and to ensure that they are generally available by 31 December 2001.

2. 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, itemised bills shall show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network and/or fixed public telephone services.
A basic level of itemised billing shall be available at no extra charge to the user. Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or at no charge. National regulatory authorities may lay down the basic level of itemised bills.
Calls which are free of charge to the calling subscriber, including calls to helplines, shall not be identified in the calling subscribers itemised bill.

National legislation
4. The Telekommunikationsgesetz (Federal Law on telecommunications, BGBl. I, No 10/1997, hereinafter the TKG) and four decrees seek to transpose the directive. In particular, Paragraph 94(1) of the TKG, which is intended to transpose Article 14(2) of the directive, provides:
1. The charges to the subscriber shall be presented in the form of a bill consisting of a breakdown of the amounts according to the type of charge. If the subscriber so requests, the bill must be itemised or provide other levels of detail, as provided for in the terms and conditions of the contract. In respect of bills showing a higher level of detail than a standard bill, provision may be made in the terms and conditions for the charging of a fee. The amount of that fee shall be determined on the basis of the costs incurred in the provision of the more detailed bill.

The pre-litigation procedure
5. By letter of 23 September 1998, the Republic of Austria, by way of transposition of the directive into Austrian law, sent the text of the TKG to the Commission, together with various implementing provisions.

6. By letter of 20 April 2001, the Commission stated that it had reservations regarding Austrias correct transposition of Article 14(2) of the directive and, in accordance with Article 226 EC, gave Austria formal notice to submit its observations within two months.

7. By letter of 20 June 2001, the Austrian authorities informed the Commission that they considered that Paragraph 94 of the TKG satisfied the requirements of Article 14(2) of the directive. In their opinion, the standard bill provided for in Paragraph 94 of the TKG showed a sufficient level of detail to allow consumers to carry out an effective verification and control of their telephone charges, as provided for in the directive.

8. Considering that the standard Austrian itemised billing in no way allowed consumers effectively to check their telephone charges, the Commission on 20 December 2001 sent Austria a reasoned opinion setting out the same complaint and requesting it to adopt the necessary measures to comply with the directive within two months of notification of the opinion.

9. Since the Austrian Government confirmed, by letter of 27 February 2002, its view that its national legislation correctly transposed Article 14(2) of the directive, the Commission decided to bring the present action.
The action

10. The Commission claims that the Republic of Austria failed to comply with the provisions of Article 14(2) of the directive, under which itemised bills are to show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network.

11. According to the Commission, the Austrian legislation does not comply with that requirement. By requiring service providers to
set up a billing system consisting of a breakdown of the amounts according to the type of charge only, Paragraph 94(1) of the TKG allows operators to apply a practice of listing charges on the bill by type of call without showing each call separately.

12. On the basis of such billing, subscribers can only deduce that they have made a certain number of calls costing a certain total amount within the different tariff bands during the period covered by the bill. Such billing does not therefore enable the date on which a call was made to be verified, or the number called, and does not allow subscribers to carry out an effective verification and control of their charges.

13. The Austrian Government disputes that interpretation of the directive and the assessment of it by the Commission. In its view, the rules in Paragraph 94 of the TKG, which require the inclusion in the standard itemised bill of a list of the amounts classified according to the particular tariff, comply with the terms of Article 14(2) of the directive.

14. Neither that provision nor the general objective of the directive requires the date of calls and the numbers called to appear on the bill in order to allow consumers to carry out an effective verification and control of their charges.

15. The Austrian Government maintains that the information, as provided for in Paragraph 94 of the TKG, allows anomalies or errors to be immediately detected by a comparison with previous bills of the amounts appearing on the bill classified by type of call. It emphasises that that comparison allows bills to be checked, in particular, by verification of the types of higher-cost calls or by identification of calls which are more frequent or longer than average in contrast to previous calls.

16. Although Article 14(2) of the directive does not specifically indicate what information is required to appear on standard itemised bills, the directive lays down a minimum level of information which is dictated by the need to allow subscribers to verify and control the charges incurred in using the fixed public telephone network.

17. Yet, as the Commission has observed, the form of billing required by Paragraph 94(1) of the TKG, which only allows subscribers to deduce that they have made a certain number of calls costing a certain total amount within the different tariff bands during the period covered by the bill, does not allow subscribers to use the bill to verify and control their charges.

18. Without its being necessary to determine whether a standard itemised bill should take account of each of the factors determining the cost of each call, clearly, it cannot but be noted that, on the basis of the Austrian standard itemised bills, it is not possible to identify, within the different tariff bands, each call viewed individually and, consequently, to check that it was in fact made.

19. A billing system which shows only the number of calls, the total number of tariff units used and the corresponding total price does not therefore allow verification and control of the charges incurred in using the fixed public telephone network as required by Article 14(2) of the directive.

20. Nor is that finding contradicted either by the Austrian Governments argument that fixing, for the standard itemised bills, a higher level of detail than that required under Paragraph 94 of the TKG is to be ruled out since it would negate the option expressly provided for in Article 14(2) of the directive under which bills showing a higher level of detail may be issued, or by its argument that bills showing the level of detail required by the Commission would of necessity include information which would be in breach of legislation governing the protection of privacy and personal data.

21. Firstly, it must be pointed out that incorporating in standard itemised bills a higher level of detail than that required under Paragraph 94(1) of the TKG, in order to comply with Article 14(2) of the directive, would not have the effect of negating the option, expressly permitted by that article, of issuing bills showing a higher level of detail.

22. In fact, it is also possible to provide other levels of detail on the basis of which subscribers can obtain, as shown by the examples given by the Advocate General in paragraphs 50 and 51 of his Opinion, a higher level of additional detail in order to facilitate a yet greater control of their expenditure or to provide them with other information on the use of the telephone services. Furthermore, it cannot be excluded that free calls which, under the third subparagraph of Article 14(2) of the directive, are not shown on the itemised bill of the calling subscriber may be shown in a more detailed layout.

23. With regard to the assertion that bills showing the level of detail required by the Commission would of necessity include information which would be in breach of legislation governing the protection of privacy and personal data, it should be noted that the Austrian Government has failed entirely to support that assertion with detailed arguments which would allow the Court to assess whether it is well founded.

24. In those circumstances, it must be held that, by opting for billing which lists charges only according to the type of charge and is not sufficiently detailed to ensure effective verification and control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) of the directive.

Costs
25. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful partys pleadings. Since the Commission has applied for costs and the Republic of Austria has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Second Chamber) hereby:

1. Declares that, by opting for billing which lists charges only according to the type of charge and is not sufficiently detailed to ensure effective verification and control by the consumer, the Republic of Austria has failed to fulfil its obligations under Article 14(2) 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;

2. Orders the Republic of Austria to pay the costs.

——————-

EU Court of Justice original text

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