The court imposed new tariff caps of 1.861 eurocents per minute for mobile and 0.302 cents per minute for fixed. These will apply as an interim measure, until it gives a final ruling on the case. The main issue to be examined is the use of the Pure Bulric or Bulric Plus methodology in calculating the rates, the same as when the previous round of termination rate cuts ended up in court.
The ACM used the Pure Bulric method, recommended by the European Commission, in its decision, while the rates imposed by the court injunction are based on Bulric Plus. Pure Bulric is based on the underlying costs of terminating a call, with no adjustment for non-incremental costs. Bulric Plus allows for an adjustment based on these costs and a reasonable return.
The same as in 2011, the court has based the interim rates on Bulric Plus, as it found the market situation has not changed significantly since then. In its previous ruling, the court found that if the two methods achieve a similar effect towards addressing the competition issues, national law requires the regulator should choose the least onerous one for the market. While the ACM argued that the use of Bulric Plus could distort the internal market in the EU, the court noted that not all EU countries have moved to Pure Bulric and some, such as Germany, are also using Bulric Plus.
In a first reaction, the ACM called the decision bad for consumers and businesses, who pay the bills in the end. The ACM decision would have seen rates fall from 2.4 cents to 1.019 cents per minute for mobile termination and from 0.370 cents to 0.108 cents per minute for fixed. These rates would apply for three years.
A final decision on the case is not expected until sometime in 2014. If the court confirms the use of Bulric Plus, the European Commission may start a new case against the Dutch regulator to force the use of Pure Bulric. However in the previous case in 2011, the EC was forced to abandon its opposition, as the regulator could not ignore the national court ruling.
