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Entscheidung in der Sache 2131/2009/RT - Vorwurf der falschen und irreführenden Information

Die Beschwerdeführer sind zwei auf dem EU-Markt tätige Mobilfunkbetreiber.

Die Beschwerdeführer erhoben den Vorwurf, dass die Kommission im 14. Bericht, der am 25. März 2009 erschien, falsche und irreführende Informationen verbreitet habe. Die Beschwerdeführer argumentierten, dass die Kommission ihre vergleichende Beurteilung der Mobilfunkpreise nicht unter Nutzung der OECD-Methode hätte vornehmen sollen. So wiesen sie darauf hin, dass die Erkenntnisse des Berichts lediglich auf den Tarifen der beiden größten Mobilfunkbetreiber in jedem Mitgliedstaat basierten und nicht die Tarife der Beschwerdeführer berücksichtigten. Überdies habe die Kommission in den Datenblättern (Fact sheets) für die einzelnen Länder, die gleichzeitig mit dem 14. Bericht erschienen, irreführende Informationen verbreitet.

In ihrer Stellungnahme erklärte die Kommission, dass die OECD-Methode ein allgemein anerkanntes und geeignetes Verfahren für die Analyse sehr komplexer ökonomischer Fragen sei. Außerdem ermögliche es diese Methode nicht nur, Daten aus den einzelnen Mitgliedstaaten miteinander zu vergleichen, sondern diese Daten auch mit Daten aus OECD-Ländern zu vergleichen, die nicht Mitgliedstaaten der EU seien. Darüber hinaus führte die Kommission aus, dass sie sich auch deshalb entschieden habe, zur Ermittlung der Befunde in ihrem Bericht nur die Tarife der beiden größten Mobilfunkbetreiber in jedem Land zu berücksichtigen, weil diese in der Regel über 50 % des Marktes abdeckten. Die Kommission vertrat die Auffassung, dass die Kosten für die Entwicklung einer neuen Methode unverhältnismäßig hoch wären.

Der Bürgerbeauftragte hielt die Erklärung der Kommission für akzeptabel. Was jedoch die Informationen betraf, die die Kommission auf den gleichzeitig mit dem Bericht erschienenen Datenblättern zu den einzelnen Ländern veröffentlicht hatte, vertrat der Bürgerbeauftragte den Standpunkt, dass die Kommission es unterlassen habe, die Leser zu informieren, dass das Diagramm mit der Überschrift "Typical consumer price for average mobile usage in 2007 and 2008" (Typische Verbraucherpreise für durchschnittliche Mobilfunknutzung 2007 und 2008), das auf der ersten Seite des Datenblatts für jedes Land abgebildet sei, lediglich auf den Daten für die beiden größten Mobilfunkanbieter beruhe. Er war der Auffassung, dass diese Information irreführend sein könnte, und machte eine kritische Anmerkung.

THE BACKGROUND TO THE COMPLAINTS

1. According to Article 25 of Directive 2002/21/CE of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services[1], the Commission should periodically review the functioning of the telecoms market and report to the European Parliament and the Council.

2. On 11 April 2008, a French mobile operator wrote to the Commission regarding the 13th Progress Report on the single European electronic communications market 2007. It asked the Commission to correct the information provided in the above Report by stating that the Commission's findings do not reflect its mobile tariffs.

3. On 25 March 2009, the Commission published its 14th Progress Report on the single European electronic communications market 2008 ('the 14th Report'). The Commission attached the following documents to its publication of the 14th Report: (i) a Staff Working document consisting of two annexes[2]; (ii) a press release on the 14th Report regarding all EU Member States, (iii) a fact sheet for each EU Member State.

4. On 2 April 2009, the same French mobile operator again approached the Commission regarding the 14th Report. It again expressed its concerns regarding the method used by the Commission to make its comparative assessment of mobile prices across the EU.

5. On 20 May 2009, a Dutch mobile operator wrote to the Commission in relation to the 14th Report. It expressed similar concerns regarding the information provided by the Commission in relation to the comparative assessment of mobile prices across the EU.

6. On 7 May 2009 and 22 June 2009, respectively, the Commission replied to the above letters.

7. On 25 August 2009, a law firm acting on behalf of the French mobile operator turned to the Ombudsman with regard to the 14th Report (reference 2131/2009/RT).

8. On 17 September 2009, the same law firm, but this time acting on behalf of the Dutch mobile operator, submitted a new complaint to the Ombudsman concerning the 14th Report (reference 2373/2009/RT).

THE SUBJECT MATTER OF THE INQUIRY

9. The complainants alleged that the Commission provided inaccurate information in the 14th Report, and also in the annexed fact sheets relating to the Member States ('the first allegation').

10. The complainants further alleged that the above information was misleading. ('the second allegation').

11. In support of their first and second allegations, the complainants pointed out that the Commission (a) wrongly decided to use the OECD method, and (b) used the said method in an inappropriate way.

12. In addition, the complainants alleged that the Commission failed, (i) to handle properly their letters dated 11 April 2008, and 2 April 2009, and (ii) to reply exhaustively to their letter dated 20 May 2009 ('the third allegation').

13. They claimed that the Commission should (i) efficiently adjust the method it used for the comparative assessment of mobile prices; and (ii) remove or clarify the inaccurate or misleading information it provided in the 14th Report, and in the fact sheets relating to the EU Member States. In this respect, the Commission should (i) take into consideration the tariffs set by all mobile operators on the market in each Member State; (ii) take into consideration the Purchasing Power Parity factor ('PPP'); and (iii) reflect the diversity of mobile offers across European markets. In any event, for such time as the Commission does not take into account the complainants' tariffs, it should specify in the Report and its Annexes, and in its press releases, that the comparative assessment of prices for mobile services is based on the tariffs set by the two main mobile operators.

THE INQUIRY

14. Given that the allegations and claims submitted by the complainants in both cases appeared to be closely linked, the Ombudsman decided to conduct a joint inquiry into both complaints.

15. On 9 October 2010, the Ombudsman invited the Commission to submit an opinion on both complaints. On 7 December 2009, the Commission sent the same opinion for both complaints, which was forwarded to the complainants[3] with an invitation to make observations.

16. On 1 February 2010, the complainants sent joint observations concerning both complaints.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Alleged inaccurate information

Arguments presented to the Ombudsman

17. In support of their allegation, the complainants originally pointed out that the Commission wrongly (a) decided to use the OECD method, and (b) used the said method in an inappropriate way.

18. The complainants and the Commission submitted complex arguments in support of their respective views. They may be summarised as follows.

19. First, the complainants argued that the Commission should not have chosen the OECD method[4] because the latter analyses the entire telecommunications market in each country on the basis of the tariffs of only the two main mobile operators in each country. They argued that, instead, account should be taken of all the mobile operators in the market concerned (that is, third operators and MVNOs[5]). Moreover, the Commission's analysis does not take into account the Purchasing Power Parity factor ('PPP') for the comparative assessment of mobile prices. In the complainants' view, the Commission should either adopt a method which takes into consideration the prices set by all mobile operators on the market, or should limit the application of its analysis and conclusions to the two main competitors on the market, and should not analyse the overall market on the basis of data relating to two competitors only.

20. The complainants further argued that the OECD method is not based on average figures arising from a comparison of all the offers of the two main operators, but only the average cost of their cheapest tariff plans. If this method is used, it is not possible to check whether the tariff plans used for the comparison are those actually used, and whether they are representative for the sector. Even if the Commission were to argue that rational consumers choose the cheapest tariffs and, therefore, the cheapest tariffs are bound to be those most commonly used, this would be pure presumption and would not ensure that the method applied makes it possible for the public to make a true comparison of the tariffs charged by mobile operators.

21. In addition, the complainants pointed out that the OECD method does not take into account the diversity and scope of mobile usage, the tariffs applied across European markets, or mobile phones prices. For instance, the OECD method does not take into account unlimited plans (calls or SMS). In this respect, if the OECD method is applied, only the cheapest offer in the medium usage basket is considered, which consists of 65 ongoing calls per month + 50 SMS messages + 2-3 MMS[6].

22. In its opinion, the Commission first referred to the background of the Reports and to their composition. Each year the Commission issues an annual report on the progress of the Single European Electronic Communications Market ('the Progress Report'). Each Progress Report presents the main economic and regulatory developments which have occurred during the reported period of one year, making it possible to compare data from the various Member States for a given year, and show their evolution from previous years. The Progress Report comprises a Communication from the Commission and a Staff Working Document, which consists of two annexes. The Communication from the Commission presents the overall trends and the Commission's findings for the reported year with regard to the Member States. The Commission Staff Working Document contains two annexes providing information on economic and regulatory trends in the overall electronic communications sector, as well as a detailed analysis of the various sector segments. Annex 2 of the Staff Working Document contains a number of economic indicators relating to the electronic communications sector. The data indicators and the presentation of the Progress Report are improved every year by including new indicators which take into account developments in the sector.

23. The Commission further explained how the Progress Reports are prepared. It highlighted its close cooperation in this respect with the relevant national ministries, and regulatory authorities (NRAs) in the Member States. When preparing the Progress Reports, the Commission monitors developments in each Member State on a daily basis, and assesses, among other things, the implementation of EU telecommunications rules. Commission officials are sent to the Member States each year on a fact-finding exercise. Meetings are held with NRAs, ministries, operators, consumer organisations and any other relevant national stakeholders, to discuss current developments in the Member State concerned. Subsequently, a "validation" meeting with representatives from NRAs takes place for every Progress Report before the report is finalised. Draft versions of the charts contained in the second annex of the Staff Working Document (excluding data on tariffs) are distributed to NRAs for their comments before the Progress Report is finalised. Most data are thus provided and validated by NRAs. However, some data, such as price information relating to mobile tariffs, fixed telephony (PSTN) tariffs, and retail leased line prices, come from specific studies carried out by independent companies at the Commission's request. Although the data for these studies are collected directly from the operators, they are still checked by the NRAs. The processing of data for the purpose of the study is based on "the OECD mobile usage baskets".

24. The Commission referred in detail to the 14th Report. In 2008, the Commission issued the 14th edition of the Report which gives a snapshot of the EU telecoms market and the main regulatory developments which took place in 2008. In its opinion, the Commission explained the contents of Annexes 1 and 2 to the Staff Working Document. Annex 1 contains a section on the mobile market which refers to retail and wholesale prices for mobile services, mobile phone use across the EU ("mobile penetration rate"), market players, developments in data services and international roaming and, finally, the evolution of mobile number portability. Annex 2 contains a number of market indicators and the methodology used therein.

25. The Commission emphasised that the objective of presenting data on average mobile prices in the 14th Report is not to provide end users with a comprehensive overview of the available actual retail prices across the EU, but to provide them with comparative data on price trends.

26. Since 1999, the Progress Reports have been providing information on typical mobile prices paid by users in the various Member States. Since 2002, this information has been refined to reflect the intensity of usage of mobile services (low, medium or high). The method is described in detail in Annex 2 of the Staff Working Document (indicating the operators which were taken into account for the calculation of a typical price in each Member State)[7]. This method makes it possible to carry out a satisfactory comparison, not only of prices in the various EU Member States, but also of the prices in OECD countries which are not EU Member States. The Commission explained that the method is designed to cover at least 50% of the market, based on the number of subscribers. This percentage is generally achieved by selecting two mobile operators. In particular, in France the two mobile operators with the highest market shares together represent approximately 77% of the market, based on the number of subscribers. In the Commission’s view, this can be considered a robust representation of the mobile market. Similarly, in Belgium, the two mobile operators with the highest market shares also account for approximately 77% of the market; in Germany they represent 69% of the market, and in Spain 76.5%. According to these percentages, the Commission considers that the 14th Report covers a significant and representative proportion of the mobile market for each Member State, and can thus be regarded as an appropriate tool for comparing mobile price trends across the EU. In other words, the results achieved are representative of the price trends in the various Member States. According to the Commission, including more than the two most prominent operators for one Member State in the study would increase the cost significantly without adding anything to the value of the results. Given the diversity and the increasing complexity of retail mobile tariffs in Europe, establishing a method for comparing typical mobile prices in the various Member States is a complex process. For all of the above reasons, the Commission considered that using the OECD method was the most efficient means available for reporting average mobile prices in the 14th Report.

27. The Commission further explained that the OECD method was applied consistently in relation to each Member State.

28. Finally, although the Commission considers that the OECD method remains the most appropriate means of reporting on typical mobile prices, it acknowledges that this method has its limits. Therefore, and in response to discussions with several mobile operators, two of which are the complainants, it developed additional indicators which would also provide information on retail mobile services in the various Member States. As a result, the 14th Report contained two new indicators, namely, an indicator on the average price per minute for mobile communications, and an indicator on the average revenue per mobile user in each Member State. According to the indicator for the average price per minute for mobile communications, the prices for mobile voice communication in 2007 in Belgium and France were 19 €-cents and 15 €-cents, respectively, both of which were above the EU average of 14 €-cents. The Commission also asked the company it engaged to carry out the study of mobile markets in the EU to take into account in its analysis, where relevant, pre-paid offers, flat rates and unbundled offers, in addition to the standard OECD "post-paid packages", in order to ensure that the said study would provide a more accurate reflection of the current consumption patterns of typical European consumers. Finally, the Commission explained that it is currently working together with the OECD to improve these usage baskets so that the latest developments in consumer usage patterns can be reflected in greater detail.

29. The Commission acknowledged the differences in price levels that might result if the comparison was to be made in nominally expressed values (namely, prices in €) or in PPP adjusted values. The Commission explained that it used PPP adjusted prices in the Progress Reports for 1999, 2000, and 2001, (the 5th, 6th and 7th Progress Reports, respectively), because the OECD had used PPP in its annual Communication Outlooks. However, it pointed out that the 14th Report aims to assess the effectiveness of market regulation, including, for this purpose information on the trends in actual prices paid by consumers. Therefore, the Commission considered that the use of nominal values is more suitable when comparing price developments over a period of time, as opposed to PPP adjusted values which are generally used to assess the price of goods/services against the disposable income of consumers at a given point in time.

30. In their observations, the complainants pointed out that the above changes to the method of assessment did not address the issue of the number of operators taken into account. While the Commission concedes that is important to adapt its method to accommodate new types of offers, it totally dismisses the need to take into account the increase in the number of independent players in the market.

31. As regards the Commission’s argument that the conclusions of the 14th Report include new indicators, such as the average price per minute for mobile communications, which complement results obtained using the OECD method, the complainants pointed out that if call prices are compared, the results differ, and, in some cases, they even contradict those obtained by using the OECD method. In fact, using the new indicators produces a totally different result to that reached using the Commission's traditional OECD method. By way of example, the complainants emphasised that the new indicators show that France ranks 12th as the country with the most expensive call prices, as opposed to being portrayed as the second most expensive country in the EU if the OECD method is applied. Similar conclusions apply for Spain which ranks as the 9th most expensive country in terms of price of mobile voice communications as opposed to being portrayed as the most expensive country in the EU. Equally, Germany ranks as the 20th most expensive country, whereas if the OECD method is applied, it ranks 13th. Belgium is the only country where the OECD ranking correlates to some extent with the price per minute classification. Thus, the comparison between the ranking obtained using the OECD method and the ranking obtained on the basis of call prices demonstrates that the Commission can hardly corroborate its OECD conclusions with a call price comparison. On average, there is a seven-position discrepancy between the OECD ranking and the price per minute ranking.

32. The complainants also pointed out that, by using only three baskets for 27 countries, the Commission price analysis could not be described as reliable. The three baskets cannot take into account the vast diversity of usage which exists among Member States. In this respect, they pointed out that, for instance, in France, the French Statistical Institute (INSEE) also uses the basket method. The INSEE, however, designates 18 baskets per operator, or a total of 54 baskets which account for the diversity of mobile consumption profiles. Mobile usage can vary significantly between Member States and designating only three baskets for the 27 Member States does not appear to be statistically sufficient to account for the diversity in mobile usage[8]. Moreover, the three baskets have been constructed and defined by the OECD on the basis of data from OECD countries. The OECD comprises 30 countries of which only 19 are also EU Member States. In the complainants' view, the three OECD baskets could not be representative of the EU Member States. Moreover, for instance, the "high" basket of the Commission includes around 250 outgoing minutes per month, namely, approximately four hours of usage per month. In the complainants' opinion, considering how unlimited plans are developing, four hours of mobile consumption per month is not representative of high usage.

33. As regards the use of PPP, the complainants stated that the OECD uses the PPP factor in order to establish an accurate comparative assessment of mobile prices. The method used by the Commission does not give accurate information on the real price paid, for instance, by French consumers for mobile services, because it does not consider the PPP factor. If the Commission had taken the PPP factor into account, France would be 11th instead of 2nd in the EU general ranking as regards the level of prices paid by consumers for using their mobile phones.

34. The complainants also pointed out that the Commission did not explain why it considered that it would be less suitable to include PPP-adjusted figures as opposed to actual prices. The complainants questioned this all the more in view of the fact that the Commission used PPP-adjusted figures in the past for its 5th, 6th and 7th Progress Reports. As regards the alleged need to appraise the impact of regulation on tariffs, a reliable annual comparison, the complainants pointed out, can be obtained with PPP adjusted figures. This can be done by simply multiplying the nominal prices by the PPP factor. Even if the Commission's stated goal was to assess only the evolution of prices, and not also the level of prices in each Member State (even though, in the country sheet for France, the Commission assessed both the level and the evolution of prices[9]), the use of PPP adjusted figures would not mean that price evolution over a period of time could not be compared.

35. The complainants emphasised that NRAs in each Member State take into account the economic conditions prevailing in their respective country when they adopt a market regulation. Therefore, if the purpose of the OECD method is to assess the effectiveness of market regulation, price comparisons should be made by according special consideration to the respective countries' levels of wealth.

36. The complainants also argued that the Commission's own statements in the 14th Report contradict its arguments. In this respect, for instance, when the Commission examines the reasons for large tariff discrepancies in the EU, it indicates that "local costs and purchasing power" may be one of the reasons for such differences.

The Ombudsman's assessment

37. The Ombudsman again points out that many of the complainants' and the Commission’s arguments are complex and of a highly technical nature. In summary, the complainants took the view that the Commission provided inaccurate information in the 14th Report. First, they considered that the Commission should not have used the OECD method to asses the mobile tariffs on the EU market. Second, once this (unfortunate) choice was made, the said method should have been applied properly, which was not the case.

38. The Ombudsman thus recalls the established case-law, according to which in matters involving an appraisal of complex economic and technical situations judicial review is limited. In such circumstances, the analysis of the arguments and counter-arguments submitted by both parties is limited to ascertaining that the facts were accurately stated and that no manifest error of assessment[10] was made. The Ombudsman considers it appropriate to adopt the same approach in his present inquiry when dealing with the issue of the Commission's choice of method on which to base the 14th Report, and of whether it applied that method correctly. His review will thus be limited to examining the reasonableness of the Commission's arguments in favour of using the OECD method, and to reviewing the procedure adopted by the Commission in drafting the 14th Report on the basis of that method. The Ombudsman recalls in this respect that the presumption that there was a manifest error of assessment cannot be based on the mere fact that the complainants held a different economic opinion to that of the Commission. If the facts reasonably allow differing economic assessments, the Commission's preference for one of them, if properly justified, does not constitute a manifest error of assessment.

39. First, the Ombudsman considers that the Commission's 14th Report provided sufficient and coherent information on the main features of the OECD method. Section 1.5 of Annex 2 II of the Staff Working Document, which provides that the analysis of national mobile services in the 14th Report is based on the 2006 OECD method ("Baskets for digital mobile services"), describes the method in detail in the following terms: "OECD baskets have undergone a revision that resulted in a new set of baskets at the beginning of 2006, as opposed to old 2002 OECD baskets. …The baskets contain an SMS element, they include calls to several mobile networks, and they do not cover international calls. In addition, MMS element is included in the basket, while both MMS and SMS are separated for peak and off-peak times, and on-net and off-net destinations. Also, voicemail is included in the baskets, whereas off-net calls can be directed to several networks. There are 3 different baskets, based on low, medium and high usage levels[11]. … The two most prominent operators in each country are covered, based on available subscriber numbers. All relevant packages from each operator are considered, but the final results presented here only show the cheapest package for each basket." This information corresponds to the information provided by OECD on its website[12].

40. As regards the choice of the OECD method, the Ombudsman understands that the Commission main objective in drafting the 14th Report was to (a) provide the public with information on the trends in actual prices paid by consumers for electronic communication services and thus (b) allow the public to make a comparative assessment of the evolution of prices of mobile services on the EU market. In the Commission's view this objective may be better attained by using the OECD method for the following reasons: (i) the OECD method is a widely recognised tool for analysing very complex economic environments; (ii) the two main mobile operators in each country usually cover more than 50% of the market, and this percentage is sufficient to show price trends; (iii) the OECD method has been used successfully, with amendments, since 1999, and the cost involved in developing a new method would not be proportionate; (iv) the OECD method makes it possible to compare EU Member States with one another, and also with OECD countries which are not EU Member States; (v) since 2002, the OECD baskets have been revised in order to reflect the intensity of usage of mobile services. In the challenged 14th Report, the Commission used, for the first time, an indicator on the average price per minute for mobile communications and an indicator on the average revenue per mobile user in each Member State. Moreover, the Commission asked the company it engaged to carry out studies of mobile markets in the EU to take into account in its future analysis, where relevant, pre-paid offers, flat rates and unbundled offers, in addition to the standard OECD "post-paid packages", in order to ensure that the said studies would provide a more accurate picture of the current consumption patterns of typical European consumers.

41. As regards the Commission's argument under point (i) in paragraph 40 above, concerning the international reputation of the OECD method, the Ombudsman notes that this method was established on the basis of independent economic studies and following consultations with stakeholders and national regulatory authorities. He also notes that the complainants did not propose an alternative, internationally recognised method, but suggested adapting the OECD method. The Ombudsman understands that the Commission is already considering some of these suggestions and that it intends to implement them in its future Reports. The announced changes designed to address the diversity of mobile offers across the EU constitute a case in point. The Ombudsman therefore considers the Commission's argument to be reasonable.

42. As regards its arguments under points (ii) and (iii) in paragraph 40 above, concerning the better use of resources, to which the Commission referred in its opinion, and also in its letter to the complainants dated 20 May 2009[13], the Ombudsman agrees with the Commission. The complainants proposed that information on the tariffs set by all mobile operators on the telecom market should be included in the Commission's Progress Reports. The Ombudsman believes that this would inevitably lead to a greater demand on resources and extra costs. Establishing such a new method of assessment would not significantly increase the value of the Commission's Progress Report, and would not, therefore, be proportionate.

43. As regards the complainants' argument that it would be better to compare the trends in mobile prices by applying the PPP factor, the Ombudsman points out that, as stated by the Commission in its opinion, the main objective of the Progress Report is to show the trends in mobile prices over certain periods of time. The Ombudsman considers that, in order to achieve this goal, it is sufficient to compare nominal prices in Euros.

44. Moreover, the Ombudsman notes the Commission's explanation, which the complainants did not contest, that the OECD method makes it possible to compare mobile prices, not only between EU Member States, but also between EU Member States and OECD countries which are not part of the EU (see point (iv) in paragraph 40 above).

45. The Ombudsman considers that the Commission provided sufficient arguments to justify its decision to choose the OECD method. The Commission's statement that it is working with the OECD on developing this method further, and on other new indicators, is also worthy of note.

46. As regards the application of the method, the Ombudsman notes that the Commission's 14th Report is based on data provided mainly by mobile operators and NRAs[14]. In addition to the work carried out by the independent company the Commission engaged to collect the above data, Commission officials have regular meetings with NRAs, ministries, operators, consumer organisations and other relevant stakeholders. Moreover, both the Commission's study and the final 14th Report were reviewed and validated by the NRAs before publication. The Ombudsman therefore considers that, when drafting the 14th Report, the Commission adopted a satisfactory procedure in order to achieve a high degree of accuracy in the data provided in that Report.

47. In light of the above, the Ombudsman does not consider that the complainants succeeded in demonstrating that the Commission's choice of the OECD method was not suitable, and that the Commission failed to adopt and apply a correct procedure when drafting the 14th Report. The Ombudsman does not, therefore, find any manifest error in the Commission's challenged actions. He concludes that there is no instance of maladministration as regards the first allegation.

B. Alleged misleading information

Arguments presented to the Ombudsman

48. According to the complainants, the Commission provided misleading information, mainly in the fact sheets relating to individual countries ('the country fact sheets') which accompanied the publication of the 14th Report. In this respect, the complainants referred, for instance, to the country fact sheet relating to France, entitled "Towards a single European telecoms Market: Focus on France". This fact sheet indicates that "Despite a decrease in mobile prices in 2008, a French consumer making medium use of their mobile phone would pay the second highest monthly price in the EU, just under €30.".

49. The complainants also noted that, on 22 June 2009, in an exchange of correspondence with one of them, the Commission stated that "specific challenger operator prices would be quoted in specific country chapters [of the 14th Report] where relevant". However, Annex 1 of the Staff Working document, which relates to each Member State, does not refer to the tariffs of any challenger operator.

50. Moreover the chart on "[t]he average price per minute of mobile communication" is only provided in the 14th Report, and is not included in the country fact sheets. The complainants emphasised that the country fact sheets are more commonly used than the Report, and are widely quoted by Member States' national media as reflecting the Commission's view of the sector. If the indicator on the mobile price per minute of voice communication were relevant for the comparative assessment of how prices for mobile services were evolving, the Commission should also have included the chart in the country fact sheets.

51. Furthermore, the Commission included two charts in the country fact sheets. The first was entitled, "Typical consumer price for average mobile usage in 2007 and 2008", and the second, "Telecoms sector key figures".The complainants pointed out that the first chart, which is placed on the first page, does not make any reference to the fact that the comparison of mobile prices across the EU takes into account only the cheapest prices set by the two main mobile operators in each Member State. The second chart, placed on the second page of the country fact sheet, does provide this information, but only in the footnote[15]. This footnote does not, however, give any information on the 2007 tariffs used for the comparative assessment, and does not permit the reader to conclude that the tariffs set by the complainants are lower than those of their main competitors.

52. The Commission pointed out in its opinion that both the general press release and the individual country fact sheets are intended to provide a reader-friendly synthesis of the overall findings of the 14th Report by underlining the issues where most progress was observed in each Member State, and the areas in which some improvement is necessary. In this respect, one of the main findings of the 14th Report was the high and growing trend of the use of mobiles within the EU. Another was the fact that prices for mobile services had decreased significantly over the last five years.

53. As regards the inclusion in the country fact sheets of the chart entitled "Typical consumer price for average mobile usage in 2007 and 2008" instead of the chart entitled "The average price per minute of mobile communication", the Commission stated that, in its view, the first chart "gave a robust enough comparison of the price situation for mobile services in every Member State, as well as its evolution from the previous year". Moreover, a comparison of how the average price per minute of mobile communications had evolved over time would not have been possible since this indicator was only included for the first time in the 14th Report. The Commission also pointed out that it indicated on the second page of every country fact sheet that the chart showing the comparison of mobile prices reflected the prices of the two main mobile operators only.

54. Both complainants shared the view, submitted in their observations, that two footnotes at the bottom of page 2 of the respective country fact sheets, which refer to the method used to compare prices, were not sufficiently clear. Furthermore, the same footnotes do not appear under the chart entitled "Typical consumer price for average mobile usage in 2007 and 2008" on the first page, which focuses on price comparison and ranking between EU countries. There is no indication of the number of operators taken into account for the purpose of the tariff comparison. Reference to the fact that only the tariffs of the two most prominent operators are quoted is made only on the second page in the chart entitled "Telecoms sector key figures". This means that the general public and journalists could not reasonably be expected to understand that they were supposed to supplement the explanation regarding the method employed, which accompanied the chart of comparisons on the first page of the country fact sheet, with the comment in the two footnotes relating to the chart found on the second page of the country fact sheet.

55. The complainants reiterated that the information provided by the Commission in the chart on the first page of the respective country fact sheets has been widely quoted by the national press as reflecting of the average mobile prices paid by consumers in the various countries.

The Ombudsman's assessment

56. The Ombudsman analysed the country fact sheets which accompanied the publication of the Commission’s 14th Report. He understands that the purpose of the country fact sheets was to provide a summary of the information contained in the 14th Report, in order to make the information easily accessible to the public. The Ombudsman further remarks that it is reasonable to expect that the public would use the country fact sheets without reading the whole Report. For that reason, they should be as self-explanatory as possible, and they should not mislead readers.

57. In light of the above preliminary considerations, the Ombudsman notes that the first page of every fact sheet included a chart entitled "Typical consumer price for average mobile usage in 2007 and 2008" ('the typical price chart'). The explanation accompanying this chart reads as follows: "The above table relates to the cheapest offer in the medium usage basket using OECD methodology as of 2006. It consists of 65 outgoing calls per month + 50 SMS messages + 2-3 MMS. 21% of calls are to fixed line phones, 72% to mobile phones, 7% to voicemail. Where appropriate, it includes monthly rental, and any registration charges (post-paid offers, in particular)."

58. The typical price chart does not indicate that only the tariffs set by the two main operators in each Member State were taken into account when the tariffs were compared. This information is, however, necessary because, otherwise, the country fact sheet could mislead the public by suggesting that the cheapest price shown in the country fact sheet is the cheapest price which exists on the market concerned, while in reality it reflects only the lowest price of the two main operators. This could be indeed prejudicial to the image of mobile operators, whose tariffs are lower than those of the two main operators, but were, nevertheless, not taken into account when the mobile prices on the EU telecom market were compared.

59. The Ombudsman notes in this respect that the second page of each country fact sheet contains another chart entitled "Telecom sector’s key figures", which offers a detailed comparison of EU and national average key figures on the telecom market. Below the chart entitled "Telecom sector’s key figures" the following explanation could be read: "The figure… refers to the cheapest available offer of the two largest operators on the market" (Ombudsman's emphasis). The Ombudsman does not see, therefore, why the same information was not included in the typical price table which was placed on the first page of the country fact sheet. In this respect, the Ombudsman agrees with the complainants that the general public and journalists, for whom the information contained in the country fact sheets was mainly intended, could not reasonably be expected to understand that they were supposed to supplement the explanation accompanying the chart on the first page of the country fact sheet with the comment accompanying the chart on second page of the country fact sheet. Moreover, this important comment appeared only in the footnote.

60. In light of the above, the Ombudsman considers that by failing to inform readers, on the very first page of the country fact sheet containing the chart entitled "Typical consumer price for average mobile usage in 2007 and 2008" that the chart was based on the data of the two main mobile operators only, the Commission misled them and therefore committed an instance of maladministration. The Ombudsman will make a critical remark below. He also trusts that, as regards its future reports, the Commission will clearly indicate in the country fact sheets that the comparison of prices paid for mobile services is based on tariffs set by the two main mobile operators on each national market.

C. Allegation of failure to handle properly and to reply exhaustively to the complainants' correspondence

Arguments presented to the Ombudsman

61. The complainants argued that (i) the Commission did not reply to their letter dated 11 April 2008 at all, and that (ii) its replies dated 7 May 2009 and 22 June 2009 failed to reply exhaustively to their letters dated 2 April 2009, and 20 May 2009.

62. The Commission first explained that the letters to which the complainants referred were not their only contact or correspondence with the Commission. In this respect, the Commission stated that discussions were held regularly with the complainants regarding the subject matter of their complaints. As a result, the complainants were fully informed of the method used by the Commission for calculating mobile price trends across the EU, and they were given reasons as to why this method was adopted. This was done by letter, in meetings with Commission officials, and through contact with the associations to which the complainants belong. The Commission submitted copies of its exchange of correspondence with the complainants on the subject matter of their complaints, as well as a list of the various meetings which were held to discuss the matter.

63. The Commission considers that the above-mentioned copies constitute sufficient evidence that there was regular communication and an exchange of ideas between the Commission's services and the complainants. Furthermore, the Commission pointed out that, on 8 May 2008, it replied to the complainants’ letter dated 11 April 2008. As regards the complainants’ letter dated 2 April 2009, the Commission stated that, given that the complainants raised similar concerns to those raised in their previous correspondence, the Commission sent them a more concise reply on 7 May 2009. Finally, the Commission pointed out that, in its letter dated 22 June 2009, it replied to the arguments raised by the complainants in their letter dated 20 May 2009, and that it provided appropriate reasons regarding the method it used by way of reply to the concerns expressed by the complainants.

64. In their observations, the complainants stated that they never received the Commission's letter dated 8 May 2008. Even if they had received it, they considered that this letter would not have been an adequate response within the meaning of Article 18 of the European Code of Good Administrative Behaviour. In this respect, the complainants pointed out that, in their letter dated 11 April 2008, they argued that the 13th Progress Report (2007) contained inaccurate and misleading statements on French mobile prices, since the Commission's analysis reflected only the prices of the two main mobile operators active on the French market, without considering the complainants' tariffs. The complainants requested that the Commission should clearly adjust its method to include the tariffs of all mobile operators active on the French market, or, alternatively, clearly specify that the general statement on price trends contained in its report do not include the complainants' tariffs. In its reply, the Commission simply stated that its 13th Progress Report clearly indicated that the price comparison was established on the basis of data provided by two mobile operators, in accordance with a method which is generally considered to be satisfactory, and which has been applied since 2000.

65. As regards the Commission's reply to the complainants' letter dated 2 April 2009, the Commission acknowledged that its answer was even 'more concise ' due to the fact that the Commission had already provided a reply on 8 May 2008. However, the Commission failed to inform the complainants that the 14th Report contains a new set of "per minute" mobile tariff comparisons, which were not included in the 13th Report.

66. Finally, as regards the Commission’s answer of 22 June 2009, sent in reply to the complainant's letter dated 20 May 2009, the complainants pointed out that, in relation to the first two issues raised in their letter, namely, the exclusion of challengers from annual implementation reports, and the failure to consider the latest consumer consumption/usage patterns, the Commission merely stated that (i) it would be disproportionate from a cost perspective to include all market players in its analysis, and (ii) its current assessment method is based on an model developed by the OECD which has been used since 2000, and which, up until now, has satisfactorily illustrated major trends in the sector. As regards the complainants' argument relating to the Commission’s failure to consider the tariffs of the challenger operators, the Commission did not contest that the reporting method currently used was not adapted to dealing with certain issues which affect competition, such as price differences between on-net and off-net calls and difficulties of portability. It merely indicated that it was aware of these issues and that it was working with the OECD to introduce changes aimed at addressing these specific concerns.

67. Finally, the complainants took the view that, in its opinion, the Commission did not refer to any specific trade association to which the Dutch mobile operator belongs and through which it would have had indirect contact with the Commission's services on the issues raised in the complaint.

The Ombudsman’s assessment

68. As regards the Dutch complainant's argument that the Commission did not name the organisations to which it belongs, and through which it could be informed of the Commission's views, the Ombudsman notes that the complainant did not ultimately deny that the information in question was given to organisations of which it is a member.

69. The Ombudsman notes that there was an intensive exchange of correspondence between the complainants and the Commission. He also notes that the Commission replied to all the complainants' letters.

70. Moreover, in its opinion on the present complaint, the Commission replied in detail to the complainants' concerns. The Ombudsman considers, therefore, that no further inquiries are justified as regards the complainants' allegation.

D. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

On the very first page of the fact sheet containing the chart entitled "Typical consumer price for average mobile usage in 2007 and 2008", the Commission failed to inform readers that the chart was based on the data provided by only the two main mobile operators. This could be misleading. The Commission's failure to draw the reader's attention to this fact constitutes an instance of maladministration.

The complainants and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 30 July 2010


[1] OJEU L 108 p. 33.

[2] SEC(2009) 376 dated 24 March 2009. On 30 July 2009, the Commission published a corrigendum to the EN version of this document (SEC(2009) 376/2).

[3] "The complainants" in the plural refers to the complainant in case 2131/2009/RT and the complainant in case 2373/2009/RT, both covered by the joint inquiry.

[4] The analysis of national mobile services in the 14th Report is based on the OECD baskets for digital mobile services. There are 3 different baskets, based on low, medium, and high usage levels.

[5] Mobile virtual network operators.

[6] Multimedia messaging service.

[7] "The two most prominent operators in each country are covered, based on available subscriber numbers. All relevant packages from each operator are considered, but the final results presented here only show the cheapest package for each basket".

[8] For example, the average mobile consumption is equal to around 100 minutes per month per user in Poland and Luxembourg, while the average mobile consumption is twice as high in Ireland and Austria.

[9] The complainants referred to the following statement comprised in the country fact sheet for France: "the prices decreased, but still remained high for consumers".

[10] See Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 40; Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala ('Impala') [2008] ECR I-4951, paragraph 117; and Case C-47/07 P Masdar (UK) v Commission [2008] ECR I-0000, paragraph 77.

[11] Low usage basket with:

30 outgoing calls (44 minutes) per month + 33 SMS messages + 2/3 MMS

22% of calls are to fixed line phones, 70% to mobile phones, 8% to voicemail;

Medium usage basket with:

65 outgoing calls (114 minutes) per month + 50 SMS messages + 2/3 MMS

21% of calls are to fixed line phones, 72% to mobile phones, 7% to voicemail;

High usage basket with:

140 outgoing calls (246 minutes) per month + 55 SMS messages + 1 MMS

20% of calls are to fixed line phones, 73% to mobile phones, 7% to voicemail.

[12] OECD Communications Outlook 2009 available at the following address: http://www.oecd.org/document/44/0,3343,en_2649_34225_43435308_1_1_1_1,00.html#TOC

[13] In its letter of 20 May 2009 to the complainants, a copy of which the Commission provided with its opinion, the Commission stated, for instance, that it would be disproportionate from a cost perspective to include all market players in its analysis.

[14] The study is available on the Commission's website at the following address: http://ec.europa.eu/information_society/policy/ecomm/doc/library/ext_studies/price_developments_1998_2008/tariff_trends_report_1998_2008.pdf

[15] In this respect, it should be noted that, as explained by the Commission in its Staff Working document (SEC(2009) 376, annexed to the Report (p. 149), the OECD basket takes into account "the two operators with highest number of subscribers in each country, which have a total market share of 50% based on the subscribers numbers".