# C_2005205EN.01003701.xml

| 20.8.2005 | EN | Official Journal of the European Union | C 205/37 |
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20.8.2005

EN

Official Journal of the European Union

C 205/37

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Action brought on 1 July 2005 by Gibtelecom Limited against the Commission of the European Communities

(Case T-244/05)

(2005/C 205/65)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 July 2005 by Gibtelecom Limited, established in Europort (Gibraltar), represented by M. Llamas, Barrister, B. O'Connor, Solicitor, and S. Brummel, lawyer.

The applicant claims that the Court should:

| — | annul the Commission's decision, notified to Gibtelecom by a letter dated 26 April 2005 (Reference No. 1982), by which the Commission implicitly rejected the complaint brought by Gibtelecom against Spain under Article 86 EC in conjunction with Article 49 EC and/or 12 EC; |
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annul the Commission's decision, notified to Gibtelecom by a letter dated 26 April 2005 (Reference No. 1982), by which the Commission implicitly rejected the complaint brought by Gibtelecom against Spain under Article 86 EC in conjunction with Article 49 EC and/or 12 EC;

| — | order the Commission to pay Gibtelecom's costs. |
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order the Commission to pay Gibtelecom's costs.

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint by the applicant filed on 31 October 1996 and alleging that the Spanish telecommunications operator, Telefonica SA, had committed a series of abuses of dominant position contrary to Article 82 EC in refusing to recognise Gibraltar's International Dialling Code (‘350’) and insisting on acceptance of restrictive conditions for the exchange of automatic direct dial traffic between Spain and Gibraltar. The applicant later converted that complaint into a complaint under Article 86 EC, in conjunction with Articles 82 EC, 49 EC and 12 EC against Spain, alleging that Telefonica was acting under instructions from the Spanish Government which claims sovereignty over Gibraltar.

In support of its application, the applicant invokes a series of alleged manifest errors of assessment of the contested decision. According to the applicant, the Commission erred in considering that Telefonica is not a public undertaking or that it enjoys special rights within the meaning of Article 86 EC.

The applicant further alleges that, by giving instructions to Telefonica to refuse the ITU-assigned 350 IDD code for Gibraltar, Spain created and maintained discriminatory obstacles to the free movement of telecommunications services, contrary to Article 49 EC. Further, the applicant considers that the Spanish State's refusal to recognise this code produces discriminatory treatment based on nationality and residence and is contrary to the prohibition on discrimination in Article 12 EC.

The applicant also maintains that by considering, in the contested decision, that a suitable solution in the numbering problem should be found through direct bilateral discussions between Spain and the United Kingdom, the Commission has committed a further manifest error of assessment since, according to the applicant, there is no suitable alternative to the Commission's intervention.

The applicant also puts forward a number of procedural and administrative grounds for annulment. The applicant refers, in this context, to an alleged violation of the Commission's duty, under Article 253 EC, to state adequate reasons for its decision, as well as a violation of the applicant's legitimate expectations which allegedly arose from a letter sent on 7 June 2000 by three members of the Commission to Spain and the United Kingdom, requesting the two countries, amongst other things, find a solution to the numbering complaint. The applicant further submits, in the context of the same plea, that the Commission has failed to act impartially and that it has breached the principle requiring it to act within a reasonable period.

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