# C_2004262EN.01005201.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/52 |
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23.10.2004

EN

Official Journal of the European Union

C 262/52

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Action brought on 11 August 2004 by Centro Europa 7 srl against the Commission of the European Communities

(Case T-338/04)

(2004/C 262/96)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 August 2004 by Centro Europa 7 srl, represented by Vittorio Ripa di Meana and Roberto Mastroianni, lawyers.

The applicant claims that the Court should:

| — | annul the decision not to take any further action on the complaint lodged by the applicant on 18 October 2001, notified to the applicant by letter by the Director of DG Competition, Mr Menshing, on 4 June 2004, sent by fax on 9 June 2004, No D (2004)/471; |
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annul the decision not to take any further action on the complaint lodged by the applicant on 18 October 2001, notified to the applicant by letter by the Director of DG Competition, Mr Menshing, on 4 June 2004, sent by fax on 9 June 2004, No D (2004)/471;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant in the present case participated in July 1999 in the tender procedure organised in Italy for the granting of private terrestrial analogue television broadcasting licences, obtaining the award of a six-year contract for unencrypted transmission, renewable for a further six years. However, the applicant has still not been able to transmit in the clear because it has still not been allocated the frequencies under the contract. Implementation of the national frequency plan, which would have fulfilled its legitimate expectations, has not been carried out because, in accordance with the Italian legislation in force, the frequencies are taken up by television operators which have not obtained a licence and have been able to continue operating under the ‘transitional arrangements’ introduced by Law No 249 of 1997. Accordingly, the fact that the third network of the group Mediaset (Retequattro) continues to carry on business has made it impossible to free up the necessary frequencies in order to allow the applicant to commence transmission as it should after obtaining the broadcasting licence.

This action has been brought against the decision not to take action against the complaint regarding distortion of competition as a result of the abovementioned situation and of the request to the Commission asking it to take action, pursuant to Article 86(3) of the EC Treaty, regarding measures favouring the undertaking RTI on which Italian law has conferred special rights.

In support of its claims, the applicant alleges infringement of Articles 82 and 86 of the Treaty and breach of the obligation to provide reasons inasmuch as the defendant:

| — | should have examined the complaint in question for not having replied to the principal complaint regarding the discrimination suffered in respect of access to the television broadcasting market. |
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should have examined the complaint in question for not having replied to the principal complaint regarding the discrimination suffered in respect of access to the television broadcasting market.

| — | adopted the act in question without taking into consideration the fact that the measures which the Italian authorities adopted or failed to adopt, by excluding Europa 7 from the market in television broadcasting, strengthened RTI's dominant position. |
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adopted the act in question without taking into consideration the fact that the measures which the Italian authorities adopted or failed to adopt, by excluding Europa 7 from the market in television broadcasting, strengthened RTI's dominant position.

| — | failed to take into consideration the consequences of the entry into force of Law No 11 of 2004 on the applicant's position. In that connection, the applicant also alleges breach of the general principle of sound administration, as enshrined in Article 47 of the Charter of Fundamental Rights. |
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failed to take into consideration the consequences of the entry into force of Law No 11 of 2004 on the applicant's position. In that connection, the applicant also alleges breach of the general principle of sound administration, as enshrined in Article 47 of the Charter of Fundamental Rights.

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