The court found that the requirement was in violation of EU rules, which do not allow parliament to impose such a general requirement. Furthermore the required wholesale offer is not expected to significantly improve competition on the Dutch market. For example, consumers would not have a wider choice of content, as the channels offered would remain the same, regardless of the provider.
The cable operators filed the appeal already a year ago, but the case was held up pending a ruling by the European Court of Justice in a separate dispute between UPC and the city of Hilversum over the terms of a basic cable package. The Hilversum case found that cable packages fall under the EU definition of electronic communications services, and these can only be subject to ex ante regulation by an independent regulator, based on a market analysis.
As a result of the latest court ruling, article 6.14a in the Media Act, which permits the cable resale, and article 6a.21a Telecommunications Act, which allows the regulator ACM to impose the wholesale services on dominant operators, were declared invalid. The Hague court rejected the arguments of the state and Tele2 that the resale is part of audiovisual policy, which covers the content of subscription packages, noting that the wholesale offer would not affect the content of the analogue packages.
