25.10.2021

Official Journal of the European Union

C 431/9

(Case C-494/21)

(2021/C 431/08)

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Eircom Limited

Defendant: Commission for Communications Regulation

Notice parties: Vodafone Ireland Limited, Three Ireland (Hutchinson) Limited, Three Ireland Services (Hutchinson) Limited

Questions referred

In circumstances where:

1.the telecommunications market has been liberalised and there are multiple telecommunication services providers operating in the market;

2.one service provider (the ‘Universal Service Provider’ or ‘USP’) has been selected by the National Regulatory Authority (‘NRA’) to perform Universal Service Obligations (‘USOs’);

3.it has been determined by the NRA that there is a positive net cost associated with the performance of the USOs (‘USO Net Cost’); and

4.it has been determined by the NRA that the USO Net Cost is material compared to the administrative costs of the establishment of a sharing mechanism in respect of the USO Net Cost amongst participants in the market;

If the NRA is required, pursuant to its obligations under the Universal Services Directive 2002/22 (1), to consider whether the USO Net Cost is excessive in view of the ability of the USP to bear it, account being taken of all the USP's characteristics, in particular, the quality of its equipment, its economic and financial situation and its market share (as referred at para. 42 of Base) is it permissible under the Directives for the NRA to conduct that assessment by having regard exclusively to the characteristics/situation of the USP, or is it required to assess the characteristics/situation of the USP relative to its competitors in the relevant market?

(1) 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).