Case C-536/15, Tele2 Nederland – Goodbye Belgian Operator! Our Dutch telephone directory data will not be supplied!

Telecoms companies in Holland have been asked to sell the data in their telephone directories to a Belgian company. The companies in Holland have refused that request. However, their refusal has caused the Belgian company to point out that the refusal contravenes the EU’s ‘Universal Service Directive’ 2002/22/EC. Article 25(2) requires Member States to ensure that subscriber-information is supplied on FRAND terms. This has not persuaded the telecoms companies on the Dutch market, who claim that the FRAND obligation is national in its territorial scope so that a Belgian company cannot invoke it. Furthermore, they say that Dutch privacy law prevents them from supplying the data requested.

Background
European Directory Assistance is a company which has compiled a telephone directory and it sells ‘subscriber-information-services’ in Belgium.

A few years ago, this Belgian company contacted various telecoms companies which were active on the Dutch market. The Belgian company wanted access to the information in Dutch telephone directories. Despite their best endeavours, the Belgian company got nowhere and it was rebuffed by the Dutch telecoms companies.

Not accepting this situation, the Belgian company duly contacted the Dutch ‘OPTA’ telecoms regulator (the ‘OPTA’ is now the ‘ACM’ [Autoriteit Consument en Markt]). Not only did the Belgian company contact the Dutch regulator, it initiated the regulator’s arbitration procedure to resolve its dispute with the Dutch companies.

Under the auspices of the arbitration, the Belgian company pointed out that the key piece of EU legislation justifying their request for the information in the Dutch telephone books was in the EU’s ‘Universal Service’ Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (OJ [2002] L108/ 51).

In particular, Article 25 of the Directive governs ‘Operator assistance and directory enquiry services’. Subsection (2) has a FRAND obligation, and provides:

Member States shall ensure that all undertakings which assign telephone numbers to subscribers meet all reasonable requests to make available, for the purposes of the provision of publicly available directory enquiry services and directories, the relevant information in an agreed format on terms which are fair, objective, cost oriented and non-discriminatory.

This legal argument was accepted by the Dutch regulator, which then found for the Belgian company.

However, the telecoms companies active on the Dutch market promptly appealed the
regulator’s decision. There were two aspects to their appeal. The first concerned the Article 25(2) FRAND obligation. The telecoms companies claimed that the obligation only applied to companies inside the territory of a particular Member State. It did not apply to foreign operators in other Member States. As a result of the Belgian company only being active on the Belgian market, the telecoms companies in Holland claimed that the Belgian company could not invoke the FRAND obligation.

Yet the telecoms companies also advanced a second aspect to their appeal, and it turned on a Dutch rule that implemented the EU’s ‘privacy and electronic communications’ Directive 2002/58/EC (OJ [2002] L201/37).

Article 12 of that Directive also has a provision dealing with ‘Directories of subscribers’, and subsection (2) reads:

Member States shall ensure that subscribers are given the opportunity to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory, and to verify, correct or withdraw such data. Not being included in a public subscriber directory, verifying, correcting or withdrawing personal data from it shall be free of charge.

Now, the regulator had interpreted this provision to mean that the Dutch telecoms companies were required to obtain the express consent from every single one of their subscribers for the requisite data processing to occur such that their data would be incorporated in telephone directories, including foreign directories.

This finding of the regulator was contested by the telecoms companies, albeit for varying reasons. Some companies thought that they could infer the necessary consent from the standard terms and conditions that were already written into their customers’ contracts. Other companies thought that a customer’s express consent would only be needed if data would be supplied to foreign firms.

In light of their dissatisfaction with the regulator’s decision, the telecoms companies took their appeal before the relevant Dutch appellate body, known as the ‘College van Beroep voor het bedrijfsleven’.

At the College van Beroep voor het bedrijfsleven
The Dutch judges at the appellate body queried whether the telecoms companies were right to say that the FRAND obligation in Article 25 of the Directive was only for competitors on the Dutch market. As the regulator had pointed out, if that were so, then this would generate discrimination in the internal market.

Furthermore, the judges also queried whether the telecoms companies were correct about the issue of consent for the processing of customer’s data. Again, the regulators had adduced an opinion from the Dutch Data Processing Agency which explained that the express consent of a subscriber was required before data could be included in telephone directories, and that as a matter of law no distinction could be made which would function to distinguish ‘Dutch’ directories from foreign directories.

Extra doubts arose in the judges’ minds about the fact that the telecoms companies were running various arguments about the relationship between competition law and privacy law, and which domain of the law should prevail.

In particular, the judges noted that Vodafone was claiming that even if a FRAND sale of the directory information would benefit companies that were not operating on the Dutch market, then Vodafone was still not going to supply subscriber data because competition in the internal market could not prevail over privacy law. In that context, Vodafone recalled paragraphs of reasoning from Advocate General Trstenjak’s Opinion in Case C-543/09 Deutsche Telekom AG v Bundesrepublik Deutschland – an Opinion, which had put the consumer at the centre of the law’s concern.

Yet the Dutch judges also realised that other telecoms companies had taken a different line. That is to say, those companies had pointed out that since the level of privacy protection was not the same throughout the EU, the EU principle of non-discrimination between operators could not be made to apply. Since the EU principle did not apply, it was still open to them, as a matter of law, to continue to make distinctions between the various types of companies seeking information, and the supply of that information. Equally, as a matter of law, it would be right for the telecoms companies to ask their customers if they wanted to have their data processed by companies that were located in particular countries.

For completeness, the Dutch judges also recorded the position of the Dutch regulator, which was that data processing law was harmonised in the EU and that each Member State offered the same protection so the principle of non-discrimination applied.

Faced with such diverging interpretations of EU law, the appellate judges in the College van Beroep voor het bedrijfsleven decided to make a preliminary reference to the CJEU.

Questions Referred
My unofficial translation of the questions asked by the College van Beroep voor het bedrijfsleven reads:

1. Does the term ‘requests’ in Article 25(2) of Directive 2002/22/EC include a request from a company established in another Member State which asks for information for the purposes of supplying publicly available directory enquiry services and directories in that Member State and/or in other Member States?

2. If the answer to Question 1 is in the affirmative, and the supplier of the telephone numbers is subject to a national rule requiring subscriber-consent for the inclusion [of their data] in standard telephone directories and standard directory enquiry services; then can the supplier, on the basis of the principle of non-discrimination, tailor the consent-question according to the Member State of the company offering the directory enquiry services and the directory, [and] requests the information pursuant to Article 25(2) of the Directive?

Comment
The information in this post was first reported on EU Law Radar on 15 August 2015 as an update to Case C-170/13, Huawei Technologies.

The Tele2 Nederland reference may be of immediate interest to competition lawyers because it comes hot on the heels of the CJEU’s ‘FRAND obligation’ judgment in Case C-170/13, Huawei Technologies.

However, the Tele2 Nederland reference may also interest privacy lawyers too. The issue of consent and the ‘purpose’ of data processing follows in the wake of the CJEU’s Bara judgment; see further, Case C-201/14, Bara – giving personal data and consent to processing for just one purpose.

Perhaps the most peculiar aspect of the Tele2 Nederland reference is the assertion made by the Dutch ACM regulator that there is a basic and same level of privacy protection across the EU.

In that context, it is worth pausing to reflect upon two other preliminary references that are currently pending before the CJEU.

The first is another preliminary reference from the Dutch courts. It is all about peoples’ rights to privacy and the real level of effective protection that they enjoy, in circumstances where the Dutch regulator will never ever act to enforce an individual’s rights, even where their privacy rights have been traduced; see further, Case C-192/15, Rease – secretly spied on, medical data leaked, and left unprotected by the Dutch regulator.

The second reference is a Swedish preliminary reference. It involves the Swedish branch of Tele2 and would seem to demonstrate amply the lack of uniformity in protection when it comes to privacy and data retention; see further, Case C-203/15, Tele2 Sverige – Swedish data retention despite Digital Rights Ireland.

Update – 4 September 2016
The Second Chamber is due to hear Tele2 Nederland on 5 October 2016.

Update – 16 October 2016
Five weeks after the hearing, the Opinion of Advocate General Bot is due to be given to the Second Chamber on 9 November 2016.

Update – 16 February 2017
The judgment of the Second Chamber is due  on 15 March 2017.