Presentation

1. Soft Law and the Margin of
Appreciation of the National
Judge
The Dutch FTA-MTA-case
Heico Kerkmeester | University of Antwerp, Administrative Court of
Appeal for Trade and Industry (CBb), The Hague

2. Background of the case
• Commission Recommendation of 7 May 2009 on the Regulatory Treatment
of Fixed and Mobile Termination Rates in the EUR (2009/396/EC):
recommending ”pure BULRIC” (rather than plus BULRIC);
• 2012: CBb annulled decision by ACM, replacing pure by plus BULRIC, in
spite of recommendation;
• 2013: new regulatory round; ACM applies pure BULRIC again; CBb refers
question to Court of Justice;
• 15 September 2016: judgment of the Court (case C-28/15), after
Conclusion AG Mengozzi on 28 April 2016;
• 11 January 2017: hearing at the CBb, discussing the implication of the
Court judgment;

3. Question 1
• 1. Article 4(1) of [the Framework Directive], read in conjunction
with Articles 8 and 13 of [the Access Directive], must be interpreted
as meaning that a national court, hearing a dispute concerning the
legality of a tariff obligation imposed by the national regulatory
authority for the provision of fixed and mobile call termination
services, may depart from Commission Recommendation
2009/396/EC (…) advocating the ‘pure Bulric’ (Bottom-Up Long-Run
Incremental Costs) cost model as the appropriate price regulation
measure in the termination market 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.

4. Question 2
• EU law must be interpreted as meaning that a national court hearing a
dispute concerning the legality of a tariff obligation imposed by the
national regulatory authority for the provision of fixed and mobile call
termination services can assess the proportionality of that obligation in the
light of the objectives set out in Article 8 of [the Framework Directive] and
Article 13 of [the Access Directive] 2, and take into account the fact that
the obligation has the effect of promoting the interests of end-users on a
retail market which has not been earmarked for regulation. A national
court may not, when carrying out a judicial review of a decision of the
national regulatory authority, require that authority to demonstrate that
the obligation actually attains the objectives set out in Article 8 of [the
Framework Directive].

5. What is clarified
• Deviation from pure BULRIC requires a motivation on the basis of the
individual facts of the case;
• Effects on the retail market for mobile telephony (allthough regarded
as competitive and therefore not regulated) can be taken into account
by the NRI;
• The standard of proof for the NRI regarding the realization of the
objectives of Article 8 of the Framework is not extremely high.

6. What was discussed on 11 January 2017
• How to reconcile the judgment with national procedural law?
• CBb did not ask whether ACM should demonstrate that the objections of Article 8 FD are
“actually attained”; Dutch administrative procedure requires demonstration of “plausibility”;
• E.g. relevant effects on the internal market may not be plausible (while differences in the WACC are
accepted: CBb 19 January 2017);
• Dutch administrative procedure is not familiar with a notion of a presumption of
proportionality, to be rebutted by the regulated party (suggested by the AG, pt 65 and 66);
• As to “to the facts of the individual case, in particular the specific characteristics of the
market of the Member State in question”, it might require too much form the regulated
parties to proof that the Dutch market is different from others;
• The jurisprudence of CBb is rather strict that “cost orientation” implies that an
efficient operator can actually recover its costs; the AG (e.g. pt 71) suggests a
lower standard.
• How to weigh the objectives of Article 8 FD against each other?
• Parties at least seem to agree that a welfare analysis is important (although they differ as to
the concrete effects of pure versus plus BULRIC).