EN

Official Journal of the European Union

C 112/28

(Case C-49/19)

(2019/C 112/34)

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: P. Costa de Oliveira and L. Nicolae, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

The applicant claims that the Court of Justice should:

—Declare that, by instituting an extraordinary contribution for the purposes of sharing the net cost of universal service obligations, from 2007 to the start of the provision of universal services, by the undertaking(s) designated under Article 99(3) of Law No 5/2004, as provided for in Articles 17 and 18 of Law No 35/2012 on the Compensation Fund, the Portuguese Republic has failed to fulfil its obligations under Article 13(3) and Part B of Annex IV to Directive 2002/22/EC of the European Parliament and of the Council on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive); (1) and

—Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

In accordance with the combined provisions of Article 13(3) and Part B of Annex IV to the Universal Service Directive, any mechanism for sharing the net cost of universal service obligations by electronic communications network operators and service providers is to respect the principles of transparency, least market distortion, non-discrimination and proportionality.

Portuguese Law No 35/2012 establishes a compensation fund in respect of universal electronic communications services, intended to finance the net costs arising from compliance with universal service obligations, and guarantee that those costs are shared between the undertakings that are required to contribute.

Under Article 6 of that Law, the compensation fund is intended to finance the net costs of universal services, determined in the context of the public procurement procedures referred to in Article 99(3) of Law No 5/2004 of 10 February 2004, and found to be excessive by the ICP-ANACOM. The fund is also intended to finance the net costs of universal services incurred up until the start of the provision of universal services by the undertaking(s) designated under the abovementioned provision, through the institution of an extraordinary contribution levied on undertakings that are required to contribute, in respect of each of the years 2013, 2014 and 2015.

The Commission takes the view that by levying an extraordinary contribution which was intended to cover the costs of universal services during the period prior to the adoption of Law No 35/2012, the Portuguese Republic has failed to comply with the principles of transparency, least market distortion, non-discrimination and proportionality, as required by Article 13(3) and Part B of Annex IV to the Universal Service Directive.

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).