# C_2006131EN.01004601.xml

| 3.6.2006 | EN | Official Journal of the European Union | C 131/46 |
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3.6.2006

EN

Official Journal of the European Union

C 131/46

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Action brought on 12 April 2006 — Vodafone España and Vodafone Group v Commission

(Case T-109/06)

(2006/C 131/85)

Language of the case: English

Parties

Applicants: Vodafone España, SA (Madrid, Spain) and Vodafone Group plc (Newbury, United Kingdom) (represented by: J. Flynn, QC, E. McKnight and K. Fountoukakos-Kyriakakos, Solicitors)

Applicants:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | Order the annulment of the decision of the Commission comprised in its letter dated 30 January 2006 addressed to the Spanish CMT; and |
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Order the annulment of the decision of the Commission comprised in its letter dated 30 January 2006 addressed to the Spanish CMT; and

| — | order the Commission to pay Vodafone's costs of the present proceedings. |
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order the Commission to pay Vodafone's costs of the present proceedings.

Pleas in law and main arguments

The applicants seek the annulment of a decision of the Commission of the European Communities contained in a letter dated 30 January 2006 to the Spanish Comisión del Mercado de las Telecomunicaciones (‘CMT’), adopted pursuant to Article 7 of the Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (1) (‘Framework Directive’).

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By the contested Decision the Commission endorsed, at the end of the first phase investigation provided for in Article 7 of the Framework Directive and without opening a further two month investigation pursuant to Article 7(4) (‘second phase’), a proposed measure notified to the Commission by the CMT by which the CMT had provisionally decided to:

| i) | find that Vodafone and two other undertakings (Telefonica and Amena) jointly enjoyed significant market power by holding a position of collective dominance on the wholesale market for access and call origination on public mobile telephone networks in Spain; and |
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i)

find that Vodafone and two other undertakings (Telefonica and Amena) jointly enjoyed significant market power by holding a position of collective dominance on the wholesale market for access and call origination on public mobile telephone networks in Spain; and

| ii) | impose an obligation on the three undertakings to respond to reasonable requests for access to their networks and to offer reasonable terms for the supply of access services. |
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ii)

impose an obligation on the three undertakings to respond to reasonable requests for access to their networks and to offer reasonable terms for the supply of access services.

The applicants submit that the contested Decision infringes Article 7 of the Framework Directive as the Commission should have opened a second phase investigation because it

| i) | should have realised that the CMT could not, by reference to the evidence and reasoning contained in the proposed measure, justify a finding of joint significant market power; |
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i)

should have realised that the CMT could not, by reference to the evidence and reasoning contained in the proposed measure, justify a finding of joint significant market power;

| ii) | should have identified serious doubts as to whether the CMT had applied the concept of significant market power correctly according to the case law of the Court of Justice and the Court of First Instance; and |
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ii)

should have identified serious doubts as to whether the CMT had applied the concept of significant market power correctly according to the case law of the Court of Justice and the Court of First Instance; and

| iii) | should have identified serious doubts as to whether the CMT had collated and examined all relevant evidence. |
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iii)

should have identified serious doubts as to whether the CMT had collated and examined all relevant evidence.

Further, the applicants allege that the contested Decision leads to unequal treatment of undertakings in comparable situations and creates obstacles to the single market as the Decision is inconsistent with other decisions taken under Article 7 of the Framework Directive.

Finally, the applicants submit that the Commission infringed the applicants' procedural rights by not opening a second phase investigation and by depriving the applicants of the opportunity to comment, during the Commission's first phase investigation, on additional information that the Commission obtained from the CMT.

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(1)  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).

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