LJN: BH9324, Rotterdam Court, AWB 08/519 TELEC-T1 Printed copy of decision

Transcription

1 LJN: BH9324, Rotterdam Court, AWB 08/519 TELEC-T1 Printed copy of decision Date of decision: Date of publication: Jurisdiction: Administrative law other Type of proceedings: First instance multi-judge Indication of content: In the Court s opinion, Plaintiff cannot be designated as an electronic communication service. The circle to which Plaintiff offers its services can be considered as restricted. This circle can be gathered under a (target) group, i.e. institutions that concentrate on university and higher education. The group is sufficiently demarcated, which means that it is not accessible to the general public. The fact that Plaintiff has a website does not detract from this. Plaintiff s website only offers services to institutions that fit within the target group and not to other users. Decision ROTTERDAM COURT Administrative law section Multi-judge section Reg.no.: AWB 08/519 TELEC-T1 Decision in the case between SURFnet B.V. (hereinafter: Surfnet), with its registered office in Utrecht, Plaintiff, authorised representative meester J.R. van Angeren, lawyer in Amsterdam, and the Board of the Independent Post and Telecommunications Authority (OPTA), Respondent. 1 Origin and course of the proceedings By decision from the 30 th of August 2007 (hereinafter: primary decision I) Respondent registered Plaintiff as a provider of public electronic communication services and a public electronic communication network. Also by decision from the 30 th of August 2007 (hereinafter: primary decision II) Respondent set the remuneration for annual supervision due by Plaintiff. Plaintiff objected to these decisions.

2 By decision from the 21 st of December 2007 Respondent denied Plaintiff s objections against both decisions from the 30 th of August Plaintiff appealed against this decision (hereinafter: the contested decision). Respondent lodged a defence. Upon submitting the documents relating to the case, Respondent communicated that in accordance with article 8:29, first paragraph of the General Administrative Law Act (hereinafter: Awb) only the court was permitted to take cognizance of (parts of) two documents. By decision from the 2 nd of December 2008, the delegated judge considered limitation of the inspection of the documents submitted by Respondent justified, in the sense that only the court would be permitted to take cognisance of them. Plaintiff has granted the permission as referred to in article 8:29, fifth paragraph, of the Awb. The hearing took place on the 8 th of December Plaintiff was represented by its authorised representative, assisted by prof. meester E.J. Dommering and ir. C.A.M. Neggers. Respondent was represented by meester L.H. la Roi and meester J.M. de Kam, both employed by Respondent. 2 Considerations 2.1 Legal framework Article 1.1, section f, of the Telecommunications Act (hereinafter: Tw) reads as follows: "electronic communication service: service usually provided for a consideration that fully or mainly consists of transmitting signals through electronic communication networks (...)." Article 1.1, section g, of the Tw reads as follows: "public electronic communication service: electronic communication service that is available to the public". Article 1.1, section e, of the Tw reads as follows: "electronic communication network: transmission systems, including the switch or routing equipment and other tools that enable the transmission of signals through cables, radio waves, optical or other electromagnetic means, including satellite networks, fixed and mobile terrestrial networks, electricity networks, to the extent that these are used for the transfer of signals and networks for radio and television broadcasting and cable television networks, irrespective of the nature of the transmitted information. Article 1.1, section h, of the Tw reads as follows: "public electronic communication network: electronic communication network that is fully or mainly used for the provision of public electronic communication services (...) to the extent

3 that this is done to the public." Pursuant to article 2.1, first paragraph, of the Tw, the person or body providing a public electronic communication network or a public electronic communication service, is obliged to inform the Board of this. Pursuant to article 2.1, fourth paragraph, of the Tw the Board registers the person or body who made the aforementioned notice, after receipt of the notice and the related data. 2.2 Facts and background Starting point for the current set-up of the registration system is that no licence or prior permission is required for telecommunication activities and that all obligations have been laid down in the Tw, but that for the supervision of Tw compliance, the market parties do have to be recognisable. For this reason, the Netherlands has opted for the system of notification and registration. In 1986, the Ministers of Education and Sciences, Agriculture and Fisheries and Economic Affairs adopted a government position with regard to the facilities for communication and information processing in the Dutch higher education and research system. The position states that the social meaning of the facilities for communication and information processing in Dutch higher education and scientific research is highly significant. For the execution of the plans as stated in the government position it was necessary to set up a collaborative organisation of the parties involved. This collaborative organisation became the foundation Stichting SURF. In addition, the government position states that a company should be formed for operating the national research network. This company became SURFnet. By letter from the 21 st of February 2007, Respondent pointed out to Plaintiff the statutory obligation of giving notice of the offering of a public electronic communication service and a public electronic communication network, as referred to in article 2.1, first paragraph, of the Tw. Following a decision to impose periodic penalty payments, Plaintiff gave notice, under protest, of its activities by means of a form to that effect. In the contested decision, Respondent rejected the Plaintiff s objections against both primary decision I (registration as provider) and primary decision II (remuneration due). 2.3 Parties positions Respondent s position In Respondent s opinion, the question of whether a public electronic communication network and a public electronic communication service is being offered should be answered based on the stipulations in article 1.1, sections g and h of the Tw. Central to this is the criterion "to the extent that this [the service] is offered to the public". Within this scope, Respondent points out the stipulations concerning this in the Explanatory Memorandum to the Tw from 1998 (Parliamentary Documents II 1996/97, 25533, no. 3, p. 72) as well as what is stated in the Explanatory Memorandum to the amendment of the Tw in 2004 (Parliamentary Documents II

4 2002/03, 28851, no. 3, p. 89). In brief, this states that the aforementioned criterion means that the particular service is in principle offered publicly and is available to everyone who wants to make use of this offer. Based on this, Respondent holds the view that Plaintiff, in conformance with article 1.1, sections g and h, of the Tw can be regarded as a provider of public electronic communication services and a public electronic communication network. Within that scope, Respondent firstly remarks that the mere fact that Plaintiff makes its offer through its website, is in itself an indication that Plaintiff makes a public offer. In addition, the circle of those to whom Plaintiff offers its services (institutions and incidental end users) is not restricted in such a way in Respondent s opinion that this does not concern a public offer. The clientele shows that the description of Plaintiff s target group is so broad and general that this leads to an enormous group of different kinds of users in practice. Within this scope, Respondent observes that it has appeared that the housing corporation Stadswonen in Rotterdam offers occupants who are also students the option of purchasing internet access through Plaintiff. This shows that, in this case, Plaintiff acts as an alternative provider of internet access services. Although the target group is restricted to students and members of staff employed by institutions affiliated with Plaintiff, Plaintiff enters into agreements with individual end users in this case. The fact that Plaintiff makes a selection from the public, does not affect its notification obligation for registration. The legislative system does not result in parties being permitted to evade the obligation for notification by opting in favour of a limitation of the target group. In addition, Respondent is of the opinion that the user group is not a closed user groupeither. Although there is a limitation to institutions that can make use of Plaintiff s network and services, they form a very varied group of institutions, so that the limitation cannot in reasonableness lead to the qualification of restricted user group. Although each of Plaintiff s customers could in a number of cases possibly be designated as a restricted user group, Plaintiff and the institutions jointly cannot be designated as such, as this group is so broad that in practice this can no longer be regarded as a restricted group. The decision cited by Plaintiff from the Trade and Industry Appeals Tribunal (CBb) concerning VSTI from the 10 th of March 2004 (AB (administrative law) 2005, 270) Respondent does not deem relevant within this scope, as the CBb has not explained the concept public in more detail. In addition, Respondent observes that Plaintiff rents connections (rental lines) from market parties with own networks and with them provides, inter alia, high-capacity internet access services to the purchasing institutions. Obtaining and exchanging information with third parties through the internet access service does not just concern the mutual traffic between the particular institutions, but in principle the communication with every user of the internet. Respondent is consequently of the opinion that the services that Plaintiff provides go beyond the exchange of communication between institutions that have a sustainable professional relationship with each other. Plaintiff does not act any differently from other ISPs that provide internet access services to companies and institutions. According to Respondent, this

5 is also apparent from the provision of internet access services to two libraries in Rotterdam and Maastricht and the transfer from other libraries to commercial market parties. This shows that, for the provision of more or less identical electronic communication services, institutions from the target group can choose between Plaintiff and commercial providers of public electronic communication services Plaintiff s position Plaintiff takes the position that it is not a provider of a public electronic communication network and not a provider of a public electronic communication service, but a provider of a national research network for scientific research and higher education (hereinafter: research network). In addition, Plaintiff points out Stichting Surf s objective in accordance with the articles of association, from which follows that it is a collaborative organisation of higher education and research. The five sectors university education, higher vocational education, non-commercial non-university research, commercial research and others determine Plaintiff s target group. Furthermore, Plaintiff states it wishes to operate a network that is as innovative as possible and is of the opinion that it follows from the above that it has a special and unique position. In addition, Plaintiff points out that it has linked its research network to the research networks in other countries. Its financing, Plaintiff states, is effected through contributions from the institutions affiliated with the network and partly through contributions from authorities. Plaintiff is also of the opinion that it distinguishes itself clearly from commercial market parties. Plaintiff also adopts the position that the contested decision is in violation of the principle of legal certainty and the general duty of care. Within this scope, Plaintiff points out that Respondent wrote to Plaintiff concerning the registration as early as in 2000 and in Respondent never reacted to Plaintiff s motivated replies, so that Plaintiff could be of the opinion that Respondent shared its view. Furthermore, Plaintiff states that Respondent has consciously kept third parties advice, favourable for Plaintiff, outside the proceedings. Furthermore, Plaintiff adopts the position that parliamentary history shows that the characteristic of a public service is that this service is actually available to the public. Within this scope, Plaintiff refers to the evaluation of chapter 13 of the Tw by Tilburg University s Centre for Law, Technology and Society from November 2005, which states that decisive for the concept public is the character of the use of the service that is provided. A service is public if everyone, without distinction, can make use of it, or can subscribe to it. Characteristic for the public character consequently is that a telecommunication service is available to the public. As outlined before, Plaintiff is of the opinion that its research network is not freely accessible, i.e. not available to "the public" and only available to institutions that fit within its user group. Anyone who does not fit within its objective is refused.

6 Within this scope, Plaintiff also refers to article 2, section d, of the Framework Directive. The original commission proposal COM(2000)393 states that the concept public has the meaning of generally available. In addition, pursuant to article 7 of the Framework Directive, Respondent should have discussed this in a European context. Legal precedents also show that by public is meant that the service must be available to the public. To this effect, Plaintiff firstly refers to the CBb s decision from the 10 th of March 2004 (AB 2005, 270). Differently from Respondent, Plaintiff does consider this decision to be relevant, because it confirms that the availability to the public must be the only relevant criterion for assessment. Furthermore, Plaintiff refers to this Court s decision from the 17 th of July 2002 (TELEC 01/64). According to this decision, the concept public is determined by whether everyone can make use of the providing company s offer. This is not the case with Plaintiff. The offer is strictly limited to the set user group of approx. 160 institutions. Plaintiff also does not agree with Respondent s opinion that the mere fact that Plaintiff makes its offer through its website is in itself an indication that Plaintiff makes a public offer. In addition, Plaintiff considers Respondent s view that its target group is broad and general to be completely incorrect. The users of its network can all be gathered in a group, i.e. institutions that concentrate on scientific research and higher education. There consequently is a clearly demarcated group of institutions. Considering its structure and the articles of association, Plaintiff is of the opinion that it must be clear that it does NOT want to extend its user group to the (general) public. Moreover, Plaintiff disputes that it enters into agreements with students individually and it resists Respondent s statement that the restriction to part of the public is a choice. The limitation is not self-selected, but results from the government decision from 1986, in which its set-up for the operation of a national research network was decided. In addition, Plaintiff is of the opinion that, in contrast to Respondent s statement, it cannot be compared to other ISPs. It is, after all, a provider of a unique innovative network to a restricted group of institutions. No other market party can offer this network. The fact that a number of libraries no longer make use of its service is because they did not feel the need for Plaintiff s comprehensive package with the advanced network, but considered the services of an ISP to be sufficient. This shows that Plaintiff s network distinguishes itself from commercial market parties networks. Respondent wrongly states that the services are more or less identical. 2.4 Assessment The dispute between parties is not that Plaintiff provides an electronic communication network and is a provider of electronic communication services. Neither is the dispute that the purchasers of Plaintiff s services do not form a closed user group. The dispute focuses on the question of whether Plaintiff can be designated as a provider of a public electronic communication service or a public electronic communication network. In the Court s opinion, the availability of a service to the public is decisive for answering the

7 question of whether an electronic communication service is public. Within this scope, the Court refers to the Explanatory Memorandum to the current article 1.1, preamble and under g, of the Tw (TK , 28851, nr. 3, p. 89), stating inter alia that a public electronic communication service means that the particular service is in principle offered publicly by the particular company and is available for anyone who wants to make use of the offer. The fact that a company offers a service to a particular group of users a company or government institution for instance under special conditions, does not mean that this service is not public. This is only the case if the service is not also offered to other users, irrespective of the conditions under which this is done. Differently from Respondent, the Court is of the opinion that the circle to whom Plaintiff offers its services, can definitely be considered as restricted. After all, this circle can be gathered under one (target) group, i.e. institutions that concentrate on scientific research and higher education. In the Court s opinion, this is a sufficiently demarcated group. This group is not accessible to the general public. Plaintiff consists of a research group that particularly attends to the linking of various internet connections between its affiliated institutions. Plaintiff s network is exclusively accessible to those institutions that were affiliated under specific terms and conditions, and not to third parties. This implies that not 'everyone', without distinction, can gain access to Plaintiff s research network. The service is consequently not public. Individual users, students for example, can only make use of Plaintiff s network directly, if they are present at the university. The fact that Plaintiff s internet traffic does not just concern mutual traffic between the institutions but also communication with everyone who is an internet user, is not deemed by the Court to be a circumstance to be able to speak of a public service or a public network. In cases where Plaintiff s network is used from outside the university, this always takes place through another network. In the Court s opinion, with its reference to the website Plaintiff has sufficiently refuted Respondent s view - based on an investigation performed with housing corporation Stadswonen in Rotterdam - that Plaintiff acts as an alternative provider of internet access services and enters into agreements with individual end users. This shows that students can enter into an agreement with an ISP, who subsequently ascertains whether the particular person is a student at the institution affiliated with Plaintiff. Without a subscription with an ISP, a student can consequently establish a connection with Plaintiff s network. Within this scope, the Court refers to a decision taken by Respondent on the 18 th of May 2005 concerning the Erasmus University Rotterdam (EUR). The EUR has an electronic communication network that is linked to the networks of Plaintiff and the Rotterdam Internet Exchange. Within this scope, Respondent adopted the position that members of staff and students at the EUR have access to the EUR network and that only own computers are linked to the EUR network as well as that there are no other connection points with third party user options. Because of this, EUR is not a provider of a public electronic communication network according to Respondent.

8 The fact that Plaintiff has a website, does not detract from the above. Plaintiff s website, shows its history, mission and activities. It states clearly that only the institutions that fall within its user group comprising of the Ministry of Education, Culture and Sciences supported institutions and industrial research, can become customers. In addition, Plaintiff s website contains a list of approximately 160 affiliated institutions. With regard to the circumstance that Plaintiff gives information on its website concerning the options for individual end users, the Court establishes that Surfnet refers to another company whilst doing so, i.e. InterNLnet BV, which offers various services. Respondent s reference to the Court s decision from the 31 st of July 2008, reg.no. TELEC 07/3022, does not apply, as the particular company in that case actually offers its options to the public through a website. On one of this company s web pages, people wanting to make use of the offer can fill in their details. Plaintiff s website, on the other hand, only offers services to institutions that fit within the target group and not to other users. Neither does Plaintiff s website have a general possibility of making use of its services through a form. In view of the above, the Court is of the opinion that Plaintiff s network has not been offered and is not available to the general public. Considering this, Respondent has wrongly taken the position concerning the contested decision that Plaintiff can be designated as a provider of a public electronic communication service or a public electronic communication network. Considering this, Plaintiff s other grievances do not require further discussion. The above leads to the conclusion that the appeal must be allowed and the contested decision must be overturned. With due regard for the considerations in this decision, Respondent shall have to take a new decision. The Court sees reason to order Respondent to pay for the costs that Plaintiff has in reasonableness had to incur in connection with the processing of the appeal up to this decision. The Court determines the proceeding costs to be 644 in costs for legal assistance granted by a third party. 3 Decision The Court, giving judgment: declares the appeal upheld,

9 overturns the contested decision, directs that Respondent reimburses Plaintiff for the court registry fee paid of 288, orders Respondent to pay the costs of the proceedings to an amount of 644 and designates OPTA as the legal entity who has to reimburse Plaintiff for these costs. Done by meester drs. J.W.H.G. Loyson, chairperson, and meester J.H. de Wildt and meester Y.E. de Muynck, members, in the presence of meester A. Vermaat, registrar. The Registrar: The Chairperson: Delivered in open court on the 27 th of March An interested party including at least Plaintiff - and Respondent can appeal against this decision with the College van Beroep voor het bedrijfsleven (Trade and Industry Appeals Tribunal), PO Box 20021, 2500 EA The Hague. The term for submitting the appeal is six weeks and commences on the day after the one on which the copy of this decision was sent.