Case C-462/99





Connect Austria Gesellschaft für Telekommunikation GmbH

v

Telekom-Control-Kommission





(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

«(Telecommunications – Mobile telecommunications services – Article 5a(3) of Directive 90/387/EEC – Appeal to an independent body against a decision of the national regulatory authority – Articles 82 EC and 86(1) EC – Article 2(3) and (4) of Directive 96/2/EC – Articles 9(2) and 11(2) of Directive 97/13/EC – Allocation to a public undertaking in a dominant position which holds a licence to provide digital mobile telecommunications services according to the GSM 900 standard of additional frequencies in the frequency band reserved for the DCS 1800 standard without imposing a separate fee)»

Opinion of Advocate General Geelhoed delivered on 13 December 2001 I - 0000

Judgment of the Court (Fifth Chamber), 22 May 2003 I - 0000

Summary of the Judgment

1.. Approximation of laws – Telecommunications sector – Open network provision – 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 92/2, 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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