Opinion of the Advocate General — ECLI:EU:C:2001:683
Date: 2001-12-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Freedom to provide services;Telecommunications;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-462/99 
Summary of the Judgment 
1. Approximation of laws — Telecommunications sector — Open network provi­
sion — Directive 90/387 — Provision requiring Member States to establish bodies 
to hear appeals — Failure to transpose the Directive — Consequences — National 
courts required to determine whether appeals are possible on the basis of national law 
to be disapplied — National provision excluding the competence of a court which 
would otherwise be competent 
(Art. 10 EC; Council Directive 90/387, Art. 5a(3)) 
2. Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Telecommunications sector — National legislation 
under which additional frequencies in a frequency band may be allocated to a public 
undertaking in a dominant position without the imposition of a separate fee whereas a 
new operator pays a fee to use the same frequency band — Measure creating 
conditions for abuse of a dominant position — Not permissible unless the fee 
previously imposed on the public undertaking which also covers additional frequencies 
is equivalent in economic terms to that paid by its competitor to enter the market 
(Arts 82 EC and 86(1) EC) 
3. Competition — Public undertakings and undertakings to which Member States grant 
special or exclusive rights — Telecommunications sector — Directive 96/2 — 
Mobile and personal communications — National legislation under which additional 
frequencies in a frequency band may be allocated to a public undertaking in a dominant 
position without the imposition of a separate fee whereas a new operator pays a fee to 
use the same frequency band — Not permissible unless the fee previously imposed on 
the public undertaking which also covers additional frequencies is equivalent in 
economic terms to that paid by its competitor to enter the market or unless the 
frequencies initially allocated have reached saturation point — Legislation allowing 
such allocation after a specified period has elapsed or where the frequencies initially 
allocated have reached saturation point — Whether permissible 
(Commission Directive 96/2, Art. 2(3) and (4)) 
4. Approximation of laws — Telecommunications sector — Common framework for 
general authorisations and individual licences — Directive 97/13 — Procedures for 
granting — Prohibition of discrimination 
(Directive 97/13/EC of the European Parliament and of the Council, Arts 9(2) and 
11(2)) 
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1. In order to ensure that national law is 
interpreted in compliance with Direc­
tive 90/387 on the establishment of the 
internal market for telecommuni­
cations services through the implemen­
tation of open network provision, and 
that the rights of individuals are effec­
tively protected, national courts must 
determine whether the relevant provi­
sions of their national law provide 
individuals with a right of appeal 
which satisfies the criteria laid down 
in Article 5a(3) of that directive against 
decisions of the national regulatory 
authority responsible for authorising 
the provision of telecommunication 
services. If national law cannot be 
applied so as to comply with the 
requirements of that article, a national 
court or tribunal which satisfies those 
requirements and which would be 
competent to hear appeals against 
decisions of the national regulatory 
authority if it was not prevented from 
doing so by a provision of national law 
which explicitly excludes its compet­
ence, has the obligation to disapply 
that provision. 
Where a provision of a directive con­
ferring rights on individuals has not 
been transposed into the national legal 
system, the obligation arising from a 
directive for the Member States to 
achieve the result envisaged therein 
and their duty under Article 10 EC to 
take all appropriate measures, whether 
general or particular, to ensure com­
pliance with that obligation is binding 
on all the authorities of Member States, 
including, for matters within their 
jurisdiction, the courts. It follows that, 
when applying national law, whether 
adopted before or after the directive, 
the national court which has to inter­
pret that law must do so, as far as 
possible, in the light of the wording 
and the purpose of the directive so as to 
achieve the result it has in view and 
thereby comply with the third para­
graph of Article 249 EC. 
Where application of national law in 
accordance with the requirements of 
the directive is not possible, the 
national court must fully apply Com­
munity law and protect the rights 
conferred thereunder on individuals, if 
necessary disapplying any provision in 
the measure the application of which 
would, in the circumstances of the case, 
lead to a result contrary to that direc­
tive, whereas national law would 
comply with the directive if that provi­
sion was not applied. 
(see paras 38, 40, 42, operative part 1) 
2. A Member State breaches the prohib­
itions laid down by Article 86( 1) EC in 
conjunction with Article 82 EC if it 
adopts any law, regulation or adminis­
trative provision that creates a situ­
ation in which a public undertaking or 
an undertaking on which it has con-
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SUMMARY — CASE C-462/99 
ferred special or exclusive rights cannot 
avoid abusing its dominant position. 
That is the case where an undertaking 
in a dominant position adopts conduct 
which, by distorting competition, that 
is to say by competing in a way that 
does not ensure that the various econ­
omic operators have equal opportun­
ities, reinforces that position or extends 
it to a neighbouring but separate mar­
ket. 
Accordingly, Articles 82 EC and 86(1) 
EC in principle preclude national legis­
lation under which additional fre­
quencies in a frequency band may be 
allocated to a public undertaking in a 
dominant position which already holds 
a licence to provide the same tele­
communications services in another 
band without the imposition of a 
separate fee, whereas a new entrant to 
the market at issue has had to pay a fee 
to obtain a licence to provide services 
in the former band. However, those 
provisions do not preclude such 
national legislation if the fee imposed 
on the public undertaking for its 
licence, including the subsequent allo­
cation without additional payment of 
additional frequencies, appears to be 
equivalent in economic terms to the fee 
imposed on the new entrant. 
(see paras 80-83, 95, 
operative part 2) 
3. It follows from Article 2(2) and (4) of 
Directive 96/2, amending Directive 
90/388 on competition in the markets 
for telecommunications services, with 
regard to mobile and personal com­
munications, that Member States are to 
extend existing licences to provide 
digital mobile telecommunications ser­
vices to combined digital mobile tele­
communications systems complying 
with the GSM 900 standard and the 
DCS 1800 standard respectively only 
where that extension is justified by the 
need to ensure effective competition 
between operators competing in the 
relevant markets. 
Accordingly those provisions in prin­
ciple preclude national legislation 
under which additional frequencies in 
the frequency band reserved for the 
DCS 1800 standard may be allocated 
to a public undertaking in a dominant 
position which already holds a licence 
to provide digital mobile telecommuni­
cations services according to the GSM 
900 standard without the imposition of 
a separate fee, whereas a new entrant 
to the market at issue has had to pay a 
fee to obtain a licence to provide digital 
mobile telecommunications services 
according to the DCS 1800 standard. 
However, those provisions do not pre­
clude such national legislation if the fee 
imposed on the public undertaking in a 
dominant position for its GSM 900 
licence, including the subsequent allo­
cation without additional payment of 
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additional frequencies in the frequency 
band reserved for the DCS 1800 stan­
dard, appears to be equivalent in 
economic terms to the fee imposed on 
the competitor which was granted the 
DCS 1800 licence. Similarly, they do 
not preclude national legislation allow­
ing such allocation of a limited number 
of additional frequencies, after at least 
three years have elapsed since grant of 
the DCS 1800 licence or before that 
period has elapsed if the user capacity 
of the public undertaking holding a 
GSM 900 licence has been exhausted 
despite the use of all commercially 
viable technical possibilities. 
(see paras 98, 105, 112, 
operative part 3-4) 
4. The prohibition on discrimination 
between operators laid down in 
Articles 9(2) and 11(2) of Directive 
97/13 on a common framework for 
general authorisations and individual 
licences in the field of telecommuni­
cations services does not preclude 
national legislation under which addi­
tional frequencies in a frequency band 
may be allocated to existing holders of 
a licence in another frequency band 
without the imposition of a separate 
fee, whereas an operator which was 
granted a licence to provide digital 
mobile telecommunications services in 
the former frequency band has had to 
pay a fee, if the fee charged to existing 
operators for their licence, including 
the subsequent allocation without 
additional payment of additional fre­
quencies appears to be equivalent in 
economic terms to the fee imposed on 
the new entrant. 
(see para. 118, 
operative part 5) 
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