A national court can set rates for mobile and fixed termination, according to a ruling by the EU Court of Justice in a case brought by Dutch operators against the national regulator ACM. The court must take account of the recommendations from the European Commission on termination, but can vary from these based on the specific circumstances of the local market.
The opinion follows a case brought by the Dutch operators against the ACM's decision of August 2013 setting new termination rates. The ACM followed the EC's recommendation to base the rates on the Bulric method for determining the costs of an efficient operator. The Dutch corporate appeals court (CBb) suspended the ACM's decision and set higher rates based on the Bulric Plus method.
The EU court said the national court can decide whether the alternative method would also meet the aims of the EU rules. The judge cannot then expect the regulator to prove that the regulation actually meets those aims.
The Dutch judge can now issue a final ruling in the case, determining the final method for setting the rates in the period 2013-2016. Meanwhile, the ACM aims to issue a new decision within the month that will set the rates for the current period.
The EU court ruling can have an impact on all 28 members of the EU, if they have also opted to adopt the recommended 'pure' Bulric method. In countries such as Germany other cases are underway over the level of termination rates and whether these are in line with EU rules. The European Commission's recommendation of 2009 (2009/396/EU) found that pure Bulric is the best approach and recommended all national regulators adopt this.
Earlier this year, the Commission held a consultation on possible updates to the Termination Rates Recommendation. While the results have not yet been published, the EU regulator Berec and the Dutch government filed comments saying the rules should be fixed at a higher level. The Commission aims to implement binding rules by the end of 2017.
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