# C_2004284EN.01002402.xml

| 20.11.2004 | EN | Official Journal of the European Union | C 284/24 |
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20.11.2004

EN

Official Journal of the European Union

C 284/24

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Action brought on 15 September 2004 by Gibtelecom Limited against the Commission of the European Communities

(Case T-367/04)

(2004/C 284/48)

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 15 September 2004 by Gibtelecom Limited, Gibraltar, represented by M. Llamas, Barrister and B. O'Connor, Solicitor.

The applicant claims that the Court should:

| — | Annul the Commission's Decision of 5 July 2004 rejecting the complaint brought by Gibtelecom under Article 86 EC in conjunction with Article 82 EC; |
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Annul the Commission's Decision of 5 July 2004 rejecting the complaint brought by Gibtelecom under Article 86 EC in conjunction with Article 82 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 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 her actions, Spain has infringed the numbering and access provisions of Directives 90/388 (1), 97/33 (2), 2002/21 (3) and 2002/77 (4). It also considers that infringement actions can be pursued against Spain under Article 86 EC whether or not the measures Spain took to prevent recognition, by Telefonica, of Gibraltar's International Dialling Code were of general application.

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The applicant also puts forward a number of procedural and administrative grounds for annulment referring, in this context, to a violation of the applicant's legitimate expectations which allegedly arose as a result of a letter sent on 7 June 2000 by three members of the Commission to Spain and the United Kingdom, requesting the two countries, among other things, to 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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(1)  Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (Official Journal L 192, 24.7.1990, p. 10–16).

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(2)  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) (Official Journal L 199, 26.7.1997, p. 32–52).

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(3)  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) (Official Journal L 108, 24.4.2002, p. 33–50).

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(4)  Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance) (Official Journal L 249, 17.9.2002, p. 21–26).

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