# C_2008092EN.01000302.xml

| 12.4.2008 | EN | Official Journal of the European Union | C 92/3 |
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12.4.2008

EN

Official Journal of the European Union

C 92/3

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Judgment of the Court (Second Chamber) of 21 February 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Tele2 Telecommunication GmbH v Telekom-Control-Kommission

(Case C-426/05) (1)

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(Electronic communications - Networks and services - Common regulatory framework - Articles 4 and 16 of Directive 2002/21/EC (Framework Directive) - Appeals - Administrative market analysis procedure)

(2008/C 92/04)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Tele2 Telecommunication GmbH

Applicant:

Defendant: Telekom-Control-Kommission

Defendant:

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Articles 4(1) and 16(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33) — Market analysis proceedings — Meaning of person ‘affected’ or ‘concerned’ (‘betroffen’) — National legislation that only an undertaking to which the decision imposing, amending or withdrawing specific regulatory obligations is addressed has the capacity of ‘party affected’, to the exclusion of competitors

Operative part of the judgment

| 1) | The terms user ‘affected’ or undertaking ‘affected’ for the purposes of Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and the term party ‘affected’ within the meaning of Article 16(3) of that directive must be interpreted as being applicable not only to an undertaking (formerly) having significant power on the relevant market which is subject to a decision of a national regulatory authority taken in the context of a market analysis procedure referred to in Article 16 of that directive and which is the addressee of that decision, but also to users and undertakings in competition with such an undertaking which are not themselves addressees of that decision but the rights of which are adversely affected by it; |
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1)

The terms user ‘affected’ or undertaking ‘affected’ for the purposes of Article 4(1) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) and the term party ‘affected’ within the meaning of Article 16(3) of that directive must be interpreted as being applicable not only to an undertaking (formerly) having significant power on the relevant market which is subject to a decision of a national regulatory authority taken in the context of a market analysis procedure referred to in Article 16 of that directive and which is the addressee of that decision, but also to users and undertakings in competition with such an undertaking which are not themselves addressees of that decision but the rights of which are adversely affected by it;

| 2) | A provision of national law which, in the context of non-adversarial market analysis proceedings, grants party status only to undertakings (formerly) having significant power on the relevant market and in respect of which specific regulatory obligations are imposed, amended or withdrawn is not, in principle, contrary to Article 4 of Directive 2002/21. However, it is for the national court to ensure that national procedural law guarantees the safeguarding of the rights which users and undertakings in competition with an undertaking (formerly) having significant power on the relevant market derive from the Community legal order in a manner which is not less favourable than that in which comparable domestic rights are safeguarded and which does not prejudice the effectiveness of the legal protection of those users and undertakings guaranteed in Article 4 of Directive 2002/21. |
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2)

A provision of national law which, in the context of non-adversarial market analysis proceedings, grants party status only to undertakings (formerly) having significant power on the relevant market and in respect of which specific regulatory obligations are imposed, amended or withdrawn is not, in principle, contrary to Article 4 of Directive 2002/21. However, it is for the national court to ensure that national procedural law guarantees the safeguarding of the rights which users and undertakings in competition with an undertaking (formerly) having significant power on the relevant market derive from the Community legal order in a manner which is not less favourable than that in which comparable domestic rights are safeguarded and which does not prejudice the effectiveness of the legal protection of those users and undertakings guaranteed in Article 4 of Directive 2002/21.

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(1)  OJ C 22, 28.1.2006.

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