# C_2006154EN.01001003.xml

| 1.7.2006 | EN | Official Journal of the European Union | C 154/10 |
| --- | --- | --- | --- |

1.7.2006

EN

Official Journal of the European Union

C 154/10

---

Reference for a preliminary ruling from the Cour d'appel de Bruxelles lodged on 21 April 2006 — Belgacom Mobile SA v Institut belge des services postaux et des télécommunications

(Case C-190/06)

(2006/C 154/23)

Language of the case: French

Referring court

Cour d'appel de Bruxelles

Parties to the main proceedings

Applicant: Belgacom Mobile SA

Applicant:

Defendant: Institut belge des services postaux et des télécommunications

Defendant:

Questions referred

| 1 | Do individual rights of use for radio frequencies, as referred to in Article 5(1) of Directive 2002/20/EC (Authorisation Directive), (1) include the exclusive right to use devices such as GSM devices or to authorise their use? |
| --- | --- |

1

Do individual rights of use for radio frequencies, as referred to in Article 5(1) of Directive 2002/20/EC (Authorisation Directive), (1) include the exclusive right to use devices such as GSM devices or to authorise their use?

1

| 2 | Must Article 7(3) of Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (2) be understood as meaning that it precludes a national measure making the use of SIM cards in GSM gateways subject to the prior permission of the mobile network operator concerned? |
| --- | --- |

2

Must Article 7(3) of Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (2) be understood as meaning that it precludes a national measure making the use of SIM cards in GSM gateways subject to the prior permission of the mobile network operator concerned?

2

| 3 | Does the concept of ‘access’ within the meaning of Directive 2002/19/EC (Access Directive) (3) cover the provision to another undertaking of a SIM card where that SIM card is used by that undertaking in GSM gateway devices in order to provide third parties with services which make it possible to bypass interconnection points? |
| --- | --- |

3

Does the concept of ‘access’ within the meaning of Directive 2002/19/EC (Access Directive) (3) cover the provision to another undertaking of a SIM card where that SIM card is used by that undertaking in GSM gateway devices in order to provide third parties with services which make it possible to bypass interconnection points?

3

| 4 | Where a national legal or administrative measure consists in requiring the prior permission of the operator of a public mobile telephony network which provides another undertaking with one or more SIM cards enabling the user of the SIM card to access the electronic communications services provided by that operator, and the SIM cards are used in devices which afford a technical means of accessing the operator's services without passing through interconnection points and without any need to obtain from that operator the provision of other resources and/or services, is that measure compatible with:






  — | Directive 2002/20/EC (Authorisation Directive) which introduced a system of general authorisation for all electronic communications networks and services; |
| --- | --- | --- |

4

Where a national legal or administrative measure consists in requiring the prior permission of the operator of a public mobile telephony network which provides another undertaking with one or more SIM cards enabling the user of the SIM card to access the electronic communications services provided by that operator, and the SIM cards are used in devices which afford a technical means of accessing the operator's services without passing through interconnection points and without any need to obtain from that operator the provision of other resources and/or services, is that measure compatible with:

—

Directive 2002/20/EC (Authorisation Directive) which introduced a system of general authorisation for all electronic communications networks and services;

| — | the [second] subparagraph of Article 8(1) of Directive 2002/21/EC (Framework Directive), (4) which provides that Member States are to ensure that, in carrying out their tasks, in particular those designed to ensure effective competition, national regulatory authorities take the utmost account of the desirability of making regulations technologically neutral; |
| --- | --- |

—

the [second] subparagraph of Article 8(1) of Directive 2002/21/EC (Framework Directive), (4) which provides that Member States are to ensure that, in carrying out their tasks, in particular those designed to ensure effective competition, national regulatory authorities take the utmost account of the desirability of making regulations technologically neutral;

4

| — | the competition rules to which recital 7 in the preamble to Directive 2002/19/EC (Access Directive) refers, in the sense that it would have the effect of linking the terms and conditions for access within the meaning of Article 2(a) of Directive 2002/19/EC (Access Directive) to the activities of the party seeking access, and specifically to the degree of its investment in network infrastructure; |
| --- | --- |

—

the competition rules to which recital 7 in the preamble to Directive 2002/19/EC (Access Directive) refers, in the sense that it would have the effect of linking the terms and conditions for access within the meaning of Article 2(a) of Directive 2002/19/EC (Access Directive) to the activities of the party seeking access, and specifically to the degree of its investment in network infrastructure;

| 5 | If it must be held that the use of GSM gateways for the commercial provision of electronic communications services requires the consent of the mobile operator concerned, must Articles 3 and 4 of Directive 97/33/EC (5) and Article 4 of Directive 2002/19/EC (Access Directive) be interpreted as meaning that such use must be covered by an agreement between the parties concerned on the technical and commercial terms and conditions? |
| --- | --- |

5

If it must be held that the use of GSM gateways for the commercial provision of electronic communications services requires the consent of the mobile operator concerned, must Articles 3 and 4 of Directive 97/33/EC (5) and Article 4 of Directive 2002/19/EC (Access Directive) be interpreted as meaning that such use must be covered by an agreement between the parties concerned on the technical and commercial terms and conditions?

5

| 6 | Must the obligation imposed on organisations notified as having significant market power to make their prices cost oriented, as referred to in Article 7 of Directive 97/33/EC and Article 13(1) of Directive 2002/19/EC (Access Directive), be interpreted as meaning that it does not preclude an operator which is subject to it from setting its tariffs in such a way as to recover the investment costs for interconnection points on the ground that these were established taking account of the total volume of 'off-net' calls, including calls diverted through GSM gateways? |
| --- | --- |

6

Must the obligation imposed on organisations notified as having significant market power to make their prices cost oriented, as referred to in Article 7 of Directive 97/33/EC and Article 13(1) of Directive 2002/19/EC (Access Directive), be interpreted as meaning that it does not preclude an operator which is subject to it from setting its tariffs in such a way as to recover the investment costs for interconnection points on the ground that these were established taking account of the total volume of 'off-net' calls, including calls diverted through GSM gateways?

| 7 | Must Article 10(6) of Directive 2002/20/EC (Authorisation Directive) and Article 7(6) of Directive 2002/21/EC (Framework Directive) be interpreted as meaning that they allow Member States the discretion to provide that, where the national regulatory authority adopts urgent interim measures, those measures may apply only for a limited period fixed at two months? |
| --- | --- |

7

Must Article 10(6) of Directive 2002/20/EC (Authorisation Directive) and Article 7(6) of Directive 2002/21/EC (Framework Directive) be interpreted as meaning that they allow Member States the discretion to provide that, where the national regulatory authority adopts urgent interim measures, those measures may apply only for a limited period fixed at two months?

---

(1)  Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ 2002 L 108, p. 21).

1

(2)  Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (OJ 1999 L 91, p. 10).

2

(3)  Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7).

3

(4)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communication networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

4

(5)  Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32).

5

---