Case C-280/08 P

Deutsche Telekom AG

v

European Commission

(Appeal – Competition – Article 82 EC – Markets for telecommunications services – Access to the fixed network of the incumbent operator – Wholesale charges for local loop access services to competitors – Retail charges for access services to end-users – Pricing practices of a dominant undertaking – Margin squeeze – Charges approved by the national regulatory authority – Leeway of the dominant undertaking – Attributability of the infringement – Meaning of ‘abuse’ – As-efficient-competitor test – Calculation of the margin squeeze – Effects of the abuse – Amount of the fine)

Summary of the Judgment

1. Appeals – Pleas in law – Mere repetition of the pleas and arguments put forward before the Court of First Instance – Inadmissibility – Challenge to the interpretation or application of Community law made by the Court of First Instance – Admissibility

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2. Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissibility

(Rules of Procedure of the Court of Justice, Art. 113(2))

3. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion

(Arts 81 EC, 82 EC and 226 EC)

4. Competition – Dominant position – Abuse – Margin squeeze – Telecommunications network access services provided by the owner-operator of the only available infrastructure – Commission decision finding the existence of the abuse in spite of the approval of the charges by the national regulatory authority – Attributability of the infringement

(Arts 81 EC and 82 EC)

5. Appeals – Pleas in law – Inadequate statement of reasons – Admissibility

(Statute of the Court of Justice, Art. 58, first para.)

6. Competition – Community rules – Infringements – Committed intentionally or negligently – Meaning – Margin squeeze generated by the charges of an undertaking with a monopoly on the wholesale services market and a virtual monopoly on the retail services market

(Council Regulation No 17, Art. 15(2), first subpara.)

7. Acts of the institutions – Obligation to state reasons – Subject-matter – Scope

(Art. 253 EC)

8. Competition – Dominant position – Abuse – Margin squeeze – Telecommunications network access services provided by the owner-operator of the only available infrastructure – Negative or insufficient spread between charges for competitors and retail charges

(Art. 82 EC)

9. Competition – Dominant position – Abuse – Margin squeeze – Concept

(Art. 82 EC)

10. Competition – Dominant position – Abuse – Margin squeeze – Telecommunications network access services provided by the owner-operator of the only available infrastructure – Calculation of the margin squeeze of competitors

(Art. 82 EC)

11. Competition – Dominant position – Abuse – Margin squeeze – Equality of opportunity – None – Taking into account revenues from other telecommunications services – Not included

(Art. 82 EC)

12. Competition – Dominant position – Abuse – Meaning – Conduct having a restrictive effect on competition

(Art. 82 EC)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Serious infringement – Margin squeeze generated by the charges of an undertaking with a monopoly – Attenuating circumstances

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1A, second para.)

14. Competition – Fines – Amount – Determination – Powers of the Commission – Change from previous practice – Breach of the principle of non-discrimination – None

(Council Regulation No 17)

1. It is apparent from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance (now ‘the General Court’). Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake.

However, provided that the appellant challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose.

(see paras 24-25)

2. The subject-matter of the proceedings before the General Court may not be changed in the appeal. The jurisdiction of the Court of Justice in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court.

(see paras 34, 42, 49)

3. It is for each Member State to take all appropriate measures, whether general or particular, to ensure the fulfilment by the national regulatory authorities of the obligations which are binding under European Union law. Articles 81 EC and 82 EC, in conjunction with Article 10 EC, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings.

However, as regards the possibility of the Commission bringing an action for failure to fulfil obligations against a Member State, since the judgment under appeal relates solely to the lawfulness of a decision adopted against an appellant company by the Commission pursuant to Article 82 EC, the Court of Justice must, in the context of the appeal, confine itself to ascertaining whether the complaints put forward in support of that appeal show that the General Court’s examination of the lawfulness of such a decision is vitiated by errors of law, irrespective of whether the Commission could, simultaneously or alternatively, have adopted a decision finding that the Member State in question had infringed European Union law.

Consequently, even if it is not inconceivable that the national regulatory authorities infringed European Union law, and the Commission could have chosen to bring an action for failure to fulfil obligations against the Member State under Article 226 EC, such possibilities are irrelevant at the stage of the appeal. Under the system laid down by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations, and it is not for the Courts of the European Union to assess whether it was appropriate to do so.

(see paras 45-47)

4. It is only if anti-competitive conduct is required of undertakings by national legislation, or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, that Articles 81 EC and 82 EC do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings.

Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of undertakings. The possibility of excluding anti-competitive conduct from the scope of Articles 81 EC and 82 EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has been accepted only to a limited extent by the Court of Justice. If a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC. Dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market.

In that regard, the mere fact that a dominant undertaking in the telecommunications sector was encouraged by the intervention of a national regulatory authority such as the regulatory authority for telecommunications and post to maintain the pricing practices which led to the margin squeeze of competitors who are at least as efficient as that undertaking cannot, as such, in any way absolve that undertaking from responsibility under Article 82 EC.

Since, notwithstanding such interventions, the undertaking had scope to adjust its retail prices for end-user access services, the margin squeeze was attributable to that undertaking. The existence or otherwise of any fault in conduct involving a failure to use that scope cannot alter the finding that the undertaking had scope to adopt that conduct, and can be taken into account only in determining whether that conduct was an infringement and at the stage of setting the level of the fines.

(see paras 80-85, 88-89)

5. The question whether the grounds of a judgment of the General Court are adequate is a question of law which is amenable, as such, to judicial review on appeal.

(see para. 123)

6. As regards the question whether the infringements of the competition rules were committed intentionally or negligently and are, therefore, liable to be punished by a fine in accordance with the first subparagraph of Article 15(2) of Regulation No 17, that condition is satisfied where the undertaking cannot be unaware of the anti-competitive nature of its conduct, whether or not it is aware that it is infringing the competition rules of the Treaty.

This is so in the case of an undertaking in the telecommunications sector which could not have been unaware that, notwithstanding the authorisation decisions of the regulatory authority for telecommunications and post, it had genuine scope to set its retail prices for end-user access services and, moreover, the margin squeeze entailed serious restrictions on competition, particularly in view of its monopoly on the wholesale market in local loop access services and its virtual monopoly on the retail market in end-user access services.

(see paras 124-125)

7. The obligation to provide a statement of reasons laid down in Article 253 EC is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. To that end, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent European Union judicature to exercise its power of review.

The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

(see paras 130-131)

8. Subparagraph (a) of the second paragraph of Article 82 EC expressly prohibits an undertaking in a dominant position from directly or indirectly imposing unfair prices and, inter alia, from adopting pricing practices which have an exclusionary effect on its equally efficient actual or potential competitors, that is to say practices which are capable both of making market entry very difficult or impossible for such competitors, and of making it more difficult or impossible for its co-contractors to choose between various sources of supply or commercial partners, thereby strengthening its dominant position by using methods other than those which come within the scope of competition on the merits. From that point of view, therefore, not all competition by means of price can be regarded as legitimate.

In so far as an undertaking in a dominant position in the telecommunications sector has scope to reduce or end a margin squeeze of its equally efficient competitors by adjusting its retail prices for end-user access services, that margin squeeze is capable, in itself, of constituting an abuse within the meaning of Article 82 EC in view of the exclusionary effect that it can create for those competitors.

Article 82 EC aims, in particular, to protect consumers by means of undistorted competition. It is irrelevant in that regard that the dominant undertaking has to increase its prices in order to end the abuse.

By further reducing the degree of competition existing on a market – the end-user access services market – already weakened precisely because of the presence of that undertaking, thereby strengthening its dominant position on that market, such a margin squeeze also has the effect that consumers suffer detriment as a result of the limitation of the choices available to them and, therefore, of the prospect of a longer-term reduction of retail prices as a result of competition exerted by competitors who are at least as efficient in that market.

The General Court is not obliged to establish that the wholesale prices for local loop access services or retail prices for end-user access services are in themselves abusive on account of their excessive or predatory nature, as the case may be.

(see paras 172, 177, 180-183)

9. In order to assess whether the pricing practices of a dominant undertaking are likely to eliminate a competitor contrary to Article 82 EC, it is necessary to adopt a test based on the costs and the strategy of the dominant undertaking. A dominant undertaking cannot drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them.

Where the abusive nature of the pricing practices of a dominant undertaking stems from their exclusionary effect on its competitors, it is appropriate to analyse that abusive nature solely on the basis of the charges and costs of the dominant undertaking. Such a test can establish whether a dominant undertaking in the telecommunications sector would itself have been able to offer its retail services to end-users otherwise than at a loss if it had first been obliged to pay its own wholesale prices for local loop access services. That test is therefore suitable for determining whether the pricing practices of a dominant undertaking have an exclusionary effect on competitors by squeezing their margins.

Such an approach is particularly justified because it is also consistent with the general principle of legal certainty in so far as the account taken of the costs of the dominant undertaking allows that undertaking, in the light of its special responsibility under Article 82 EC, to assess the lawfulness of its own conduct. While a dominant undertaking knows what its own costs and charges are, it does not, as a general rule, know what its competitors’ costs and charges are.

Those findings are not affected by the less onerous legal and material conditions to which the dominant undertaking’s competitors are subject in the provision of their telecommunications services to end-users. Even if that assertion were proved, it would not alter either the fact that a dominant undertaking cannot adopt pricing practices which are capable of driving equally efficient competitors from the relevant market, or the fact that such an undertaking must, in view of its special responsibility under Article 82 EC, be in a position itself to determine whether its pricing practices are compatible with that provision.

(see paras 198-203)

10. Even if, from the point of view of the end-user, access services and call services can indeed constitute a whole, the Commission is entitled to consider the existence of a margin squeeze in relation to access services alone, without call services being included, in the light of the principles of tariff rebalancing and equality of opportunity.

The General Court does not commit any error of law in taking into account the principle of tariff rebalancing which arises from the legislation relating to the telecommunications sector in order to consider the merits of the Commission’s application of Article 82 EC to the abusive pricing practices of a dominant undertaking. Since the legislation relating to the telecommunications sector defines the legal framework applicable to it and, in so doing, contributes to the determination of the competitive conditions under which a dominant undertaking carries on its business in the relevant markets, it is a relevant factor in the application of Article 82 EC to the conduct of that undertaking, whether for the purposes of defining the relevant markets, assessing the abusive nature of such conduct or setting the amount of the fines.

That finding is not affected by the fact that the tariff rebalancing principle applies only to the dominant undertaking and not to its competitors, since the General Court is fully entitled to rely, in accordance with the as-efficient-competitor test, on the situation and the costs of the dominant undertaking for the purpose of determining whether that undertaking’s pricing practices constitute an abuse in the light of Article 82 EC.

Consequently, since the General Court held that the tariff rebalancing referred to in European Union legislation in relation to the telecommunications sector had to take the form, in particular, of a reduction in the charges for regional and international calls and an increase in the monthly rental and local call rates, it could lawfully infer from this that the principle of tariff rebalancing does require that retail prices for access services and retail prices for call services be considered separately for the purpose of determining whether the relevant pricing practices of the dominant undertaking are abusive.

(see paras 221, 223-226)

11. A system of undistorted competition can be guaranteed only if equality of opportunity is secured as between the various economic operators.

This means that a dominant undertaking in the telecommunications sector and its equally efficient competitors are placed on an equal footing in the retail market in end-user access services. That condition is not fulfilled where wholesale prices paid to the dominant undertaking for local loop access services cannot be reflected in their retail prices for end-user access services other than by providing those services at a loss.

Since, on the one hand, the retail market for end-user access services constitutes a separate market and, on the other, wholesale local loop access services are indispensable to enabling competitors who are at least as efficient to enter into effective competition on that market with an undertaking which has a dominant position largely as a result of the legal monopoly it enjoyed before the liberalisation of the telecommunications sector, the establishment of a system of undistorted competition requires that the dominant undertaking should not be able – by means of its pricing practices on that retail market – to impose on all its equally efficient competitors a competitive disadvantage such as to prevent or restrict their access to that market or the growth of their activities on it.

That is particularly the case given that, since any provision by those competitors of other telecommunications services to end-users across the dominant undertaking’s fixed network also requires them to acquire wholesale local loop access services from the dominant undertaking, that competitive disadvantage on the retail market for end-user access services is necessarily reflected in the markets for those other telecommunications services. That last point does not, however, mean that revenues from those other telecommunications services have to be taken into account in order to ascertain whether competitors who are at least as efficient as the dominant undertaking are subject to inequality in competitive conditions on the retail market for end-user access services. Those other telecommunications services fall within markets that are distinct from the latter market.

Therefore, it must be held that the dominant undertaking’s pricing practices on the retail market for end-user access services place all of its equally efficient competitors on an unequal footing on that market by comparison with the dominant undertaking itself, resulting in a margin squeeze of those competitors in relation to access services.

(see paras 230, 233-236, 240)

12. By prohibiting the abuse of a dominant position in so far as trade between Member States is capable of being affected, Article 82 EC refers to the conduct of a dominant undertaking which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition. It follows from this that the existence of a pricing practice resulting in a margin squeeze of its equally efficient competitors constitutes an abuse within the meaning of Article 82 EC only if proof of an anti-competitive effect is produced.

As regards the pricing practices of a dominant undertaking in the telecommunications sector resulting in a margin squeeze of its equally efficient competitors, the anti-competitive effect which the Commission is required to demonstrate relates to the possible barriers which those pricing practices could have created for the growth of products on the retail market in end-user access services and, therefore, on the degree of competition in that market. Such a pricing practice is an abuse within the meaning of Article 82 EC if it has an exclusionary effect on competitors who are at least as efficient as the dominant undertaking itself and is capable of making market entry more difficult or impossible for those competitors, and thus of strengthening the position of the dominant undertaking on that market to the detriment of consumers’ interests.

Where a dominant undertaking actually implements a pricing practice resulting in a margin squeeze of its equally efficient competitors, with the purpose of driving them from the relevant market, the fact that the desired result is not ultimately achieved does not alter its categorisation as abuse within the meaning of Article 82 EC. However, in the absence of any effect on the competitive situation of competitors, such a pricing practice cannot be classified as exclusionary if it does not make their market penetration any more difficult.

(see paras 251-254)

13. The Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with those provisions. It is for the Court of Justice to verify whether the General Court has correctly assessed the Commission’s exercise of that discretion.

The gravity of the infringements of EU competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up. The factors capable of affecting the assessment of the gravity of infringements include the conduct of the undertaking concerned, the role it played in the establishment of the practice in question, the profit which it was able to derive from that practice, its size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union.

(see paras 271-274)

14. The fact that the Commission, in the past, imposed fines of a certain level for particular types of infringement does not mean that it is stopped from raising that level within the limits indicated in Regulation No 17, if that is necessary to ensure the implementation of European Union competition policy. The proper application of the European Union’s competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy.

(see para. 294)

JUDGMENT OF THE COURT (Second Chamber)

14 October 2010 ( )





Table of contents





I – Background to the dispute

II – The proceedings before the General Court and the judgment under appeal

III – Forms of order sought

IV – Appeal

A – Admissibility

B – Substance

1. Preliminary observations

2. The first ground of appeal, alleging errors of law concerning the manner in which the regulation of the appellant’s activities by RegTP as the competent national regulatory authority was dealt with

a) The first part of the first ground of appeal, concerning the attributability of the infringement

i) Judgment under appeal

ii) Arguments of the parties

iii) Findings of the Court

b) The second part of the first ground of appeal, concerning the principle of the protection of legitimate expectations

i) Judgment under appeal

ii) Arguments of the parties

iii) Findings of the Court

c) The third part of the first ground of appeal, concerning the intentional or negligent nature of the infringement of Article 82 EC

i) Judgment under appeal

ii) Arguments of the parties

iii) Findings of the Court

d) Conclusion as to the first ground of appeal

3. The second ground of appeal, alleging errors of law in the application of Article 82 EC

a) Judgment under appeal

b) The first part of the second ground of appeal, concerning the relevance of the margin squeeze test for the purpose of establishing an abuse within the meaning of Article 82 EC

i) Arguments of the parties

ii) Findings of the Court

c) The second part of the second ground of appeal, concerning the adequacy of the method of calculating the margin squeeze

i) The complaint concerning the misapplication of the as-efficient-competitor test

– Arguments of the parties

– Findings of the Court

ii) The complaint concerning an error of law in that call services and other telecommunications services were not taken into account in calculating the margin squeeze

– Arguments of the parties

– Findings of the Court

d) The third part of the second ground of appeal, concerning the effects of the margin squeeze

i) Arguments of the parties

ii) Findings of the Court

e) Conclusion as to the second ground of appeal

4. The third ground of appeal, alleging errors of law in the calculation of the fines owing to the failure to take the regulation of charges into account

a) Judgment under appeal

b) Arguments of the parties

i) The first part of the third ground of appeal, concerning the serious nature of the infringement

– Arguments of the parties

– Findings of the Court

ii) The second part of the third ground of appeal, concerning the failure to take the regulation of charges into appropriate consideration as a mitigating circumstance

– Arguments of the parties

– Findings of the Court

iii) The third part of the third ground of appeal, concerning the imposition of a symbolic fine

– Arguments of the parties

– Findings of the Court

c) Conclusion as to the third ground of appeal

Costs

(Appeal – Competition – Article 82 EC – Markets for telecommunications services – Access to the fixed network of the incumbent operator – Wholesale charges for local loop access services to competitors – Retail charges for access services to end-users – Pricing practices of a dominant undertaking – Margin squeeze – Charges approved by the national regulatory authority – Leeway of the dominant undertaking – Attributability of the infringement – Meaning of ‘abuse’ – As-efficient-competitor test – Calculation of the margin squeeze – Effects of the abuse – Amount of the fine)

In Case C‑280/08 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 23 June 2008,

Deutsche Telekom AG, established in Bonn (Germany), represented by U. Quack, S. Ohlhoff and M. Hutschneider, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

European Commission, represented by K. Mojzesowicz, W. Mölls and O. Weber, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

Vodafone D2 GmbH, formerly Vodafone AG & Co. KG, formerly Arcor AG & Co. KG, established in Eschborn (Germany), represented by M. Klusmann, Rechtsanwalt,

Versatel NRW GmbH, formerly Tropolys NRW GmbH, formerly CityKom Münster GmbH Telekommunikationsservice and TeleBeL Gesellschaft für Telekommunikation Bergisches Land mbH, established in Essen (Germany),

EWE TEL GmbH, established in Oldenburg (Germany),

HanseNet Telekommunikation GmbH, established in Hamburg (Germany),

Versatel Nord GmbH, formerly Versatel Nord-Deutschland GmbH, formerly KomTel Gesellschaft für Kommunikations- und Informationsdienste mbH, established in Flensburg (Germany),

NetCologne Gesellschaft für Telekommunikation mbH, established in Cologne (Germany),

Versatel Süd GmbH, formerly Versatel Süd-Deutschland GmbH, formerly tesion Telekommunikation GmbH, established in Stuttgart (Germany),

Versatel West GmbH, formerly Versatel West-Deutschland GmbH, formerly Versatel Deutschland GmbH & Co. KG, established in Dortmund (Germany),

represented by N. Nolte, Rechtsanwalt,

interveners at first instance,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, A. Arabadjiev, U. Lõhmus, A. Ó Caoimh (Rapporteur) and P. Lindh, Judges,

Advocate General: J. Mazák,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 25 November 2009,

after hearing the Opinion of the Advocate General at the sitting on 22 April 2010,

gives the following

Judgment

1 By its appeal, Deutsche Telekom AG seeks to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 10 April 2008 in Case T‑271/03 Deutsche Telekom v Commission [2008] ECR II‑477 (‘the judgment under appeal’) dismissing its action for annulment of Commission Decision 2003/707/EC of 21 May 2003 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-1/37.451, 37.578, 37.579 – Deutsche Telekom AG) (OJ 2003 L 263, p. 9; ‘the decision at issue’).

I – Background to the dispute

2 The facts of the case were set out by the General Court in paragraphs 1 to 24 of the judgment under appeal as follows:

‘1 The applicant, Deutsche Telekom AG, is the incumbent telecommunications operator in Germany. …

2 The applicant operates the German fixed telephone network. Before the full liberalisation of telecommunications markets, it enjoyed a legal monopoly in the retail provision of fixed-line telecommunications services. The German markets in the provision of infrastructure and in the provision of telephone services have been liberalised since 1 August 1996, when the Telekommunikationsgesetz (German Law on telecommunications; “TKG”) of 25 July 1996 (BGBl. 1996 I, p. 1120) came into force. Since then, the applicant has faced varying degrees of competition from alternative operators on the two markets.

3 The applicant’s local networks each consist of a number of local loops for subscribers. The term “local loop” signifies the physical circuit connecting the network termination point at a subscriber’s premises to the main distribution frame or equivalent facility in the fixed public telephone network.

4 The applicant offers access to its local networks to other telecommunications operators and to subscribers. As regards the applicant’s access services and charges, it is therefore necessary to distinguish between the local network access services which the applicant offers its competitors (“wholesale [local loop] access [services]”) and the local network access services which the applicant offers its subscribers (“[end-user access services]”).

I – Wholesale [local loop] access [services]

5 By Decision No 223a of the Federal Ministry of Post and Telecommunications … of 28 May 1997, the applicant was required to offer its competitors fully unbundled access to the local loop with effect from June 1997.

6 The applicant’s charges for wholesale [local loop] access [services] are made up of two components: a monthly subscription charge, and a one-off charge. …

7 Under Paragraph 25(1) of the TKG, the applicant’s wholesale [charges for local loop access services] must be approved in advance by the Regulierungsbehörde für Telekommunikation und Post (German regulatory authority for telecommunications and post; “RegTP”).

8 In that context, RegTP checks whether the wholesale [charges for local loop access services] proposed by the applicant satisfy the requirements laid down by Paragraph 24 of the TKG. Thus, under Paragraph 24(1) of the TKG, “[r]ates shall be based on the costs of efficient service provision”. …

…

II – [End-user access services]

10 As regards [end-user access services], the applicant offers two basic variants: the traditional analogue connection … and the digital narrowband connection ... Both these variants of end-user access can be provided over the applicant’s existing copper pair network (narrowband connections). The applicant also offers end-users a broadband connection (… ADSL …), for which it had to upgrade the existing [narrowband] networks so as to be able to offer broadband services such as faster Internet access.

…

12 The applicant’s retail prices [for end-user access services] are made up of two components: a basic monthly charge, which depends on the quality of the line and services supplied, and a one-off charge for a new connection or takeover of a line, …

A – Charges for retail analogue lines … and digital narrowband … lines …

13 Retail prices for analogue and [digital narrowband] lines are regulated under a price cap system. Under point 2 of Paragraph 27(1) and Paragraph 25(1) of the TKG …, retail prices for connection to the applicant’s network and for telephone calls are not regulated separately for each service, according to the individual cost of that service; they are regulated for a block of services at a time, with different services being grouped together in “baskets”.

14 … The system was taken over by RegTP on 1 January 1998, whereupon RegTP established two baskets, one for services to residential customers and the other for services to business customers. Each basket contained both [end-user access services] … and the full range of telephone products offered by the applicant, such as local, regional, long-distance and international calls.

…

17 Under the terms of the decision of the [Federal Ministry of Post and Telecommunications] of 17 December 1997, the applicant was to reduce the aggregate price for each of the two baskets by 4.3% in the period from 1 January 1998 to 31 December 1999 (first price cap period). When that first period ended on 31 December 1999, RegTP – by decision of 23 December 1999 – essentially maintained the composition of the baskets and lowered the prices by a further 5.6% in the period from 1 January 2000 to 31 December 2001 (second price cap period).

18 Within this framework of binding price reductions, the applicant could modify the charges for individual components of each basket after obtaining prior authorisation from RegTP. … The system thus enabled the charges for one or more components of a basket to be increased, provided that the price ceiling for the basket was not exceeded. …

19 In the first two price cap periods [from 1 January 1998 to 31 December 2001], the applicant reduced the retail prices in both baskets substantially, going far beyond the mandatory reductions. Those price reductions essentially applied to call charges. Retail prices for analogue lines …, on the other hand, remained unchanged throughout both price cap periods, … As regards retail prices for [digital narrowband] lines, the applicant lowered basic monthly charges during the same period …

20 A new price cap system … has been in effect since 1 January 2002 … In place of the two baskets for residential and business customers, the new system uses four baskets, for end-user lines (basket A), local calls (basket B), domestic long-distance calls (basket C), and international calls (basket D).

21 On 15 January 2002, the applicant informed RegTP that it proposed to increase its monthly charges for analogue and [digital narrowband] lines … That increase was authorised by RegTP …

22 On 31 October 2002, the applicant made a further application to increase its retail charges. RegTP partly refused that application …

B – Charges for ADSL lines …

23 ADSL … charges are not subject to advance regulation under the price cap system. Under Paragraph 30 of the TKG, those charges may be reviewed subsequently.

24 On 2 February 2001, following a number of complaints from competitors of the applicant, RegTP initiated a retrospective investigation of the applicant’s ADSL prices in order to determine whether there was any practice of below-cost selling, contrary to the German rules on competition. RegTP closed the proceeding on 25 January 2002, having found that the price increase which the applicant had announced on 15 January 2002 did not give rise to a suspicion of price dumping.’

3 Following the lodging in 1999 of complaints from competitors of the appellant, the Commission of the European Communities adopted the decision at issue by which it found, particularly in recitals 57, 102, 103 and 107 of that decision, that the appellant had committed an abuse in the form of a ‘margin squeeze’ generated by an inappropriate spread between wholesale charges for local loop access services and retail charges for end-user access services.

4 In regard to that margin squeeze the General Court recalled, in paragraph 38 of the judgment under appeal, the terms of recitals 102 to 105 of the decision at issue, which are as follows:

‘102 A margin squeeze exists if the charges to be paid to [the applicant] for wholesale [local loop] access [services], taking monthly charges and one-off charges together, are so expensive that competitors are forced to charge their end-users prices higher than the prices [the applicant] charges its own end-users for similar services. If wholesale charges [for local loop access services] are higher than retail charges [for end-user access services], [the applicant’s] competitors, even if they are at least as efficient as [the applicant], can never make a profit, because on top of the wholesale charges [for local loop access services] they pay to [the applicant] they also have other costs such as marketing, billing, debt collection …

103 If [the applicant] charges its competitors [wholesale] prices for [local loop] access [services] that are higher than its own prices for retail local network access, [the applicant] prevents its competitors from offering access via the local loop in addition to call services. …

104 [The applicant] takes the view that there cannot be abusive pricing in the form of a margin squeeze in the present case, because wholesale charges [for local loop access services] are imposed by [RegTP]. …

105 Contrary to [the applicant’s] view, however, the margin squeeze is a form of abuse that is relevant to this case. On related markets on which competitors buy wholesale [local loop access] services from the established operator, and depend on the established operator in order to compete on a [retail] product or service market, there can very well be a margin squeeze between regulated wholesale [prices for local loop access services] and retail prices [for end-user access services]. To show that there is a margin squeeze it is sufficient that there should be a disproportion between the two charges such that competition is restricted. …’

5 Under Article 1 of the decision at issue, the Commission therefore found that ‘[the applicant] has since 1998 infringed Article 82(a) of the EC Treaty by charging its competitors and [its] end-users unfair monthly and one-off charges for access to the local loop, thus significantly impeding competition on the market for access to the local network’.

6 Under Article 3 of the decision at issue, the Commission imposed a fine of EUR 12.6 million on the appellant for that infringement.

II – The proceedings before the General Court and the judgment under appeal

7 By application lodged at the Registry of the General Court on 30 July 2003, the appellant brought an action, principally, for annulment of the decision at issue and, in the alternative, for a reduction of the fine imposed by that decision.

8 In support of its application for annulment of the decision at issue, the appellant put forward, inter alia, a plea in law alleging infringement of Article 82 EC and a plea in law alleging misuse of powers and infringement of the principles of proportionality, legal certainty and protection of legitimate expectations.

9 The plea alleging infringement of Article 82 EC was in several parts, of which three are relevant for the purposes of the present appeal: the first alleging the absence of an abuse as the appellant did not have sufficient scope to avoid a margin squeeze; the second complaining that the method used by the Commission to establish the margin squeeze was unlawful; and the fourth alleging that the margin squeeze had no effect on the market.

10 The General Court rejected all those parts of the plea, noting in particular in its review, in paragraphs 150 and 242 of the judgment under appeal, that the appellant had not, in its application, challenged the definition of the relevant markets that was accepted in the decision at issue, according to which it is appropriate to distinguish, on the one hand, between a wholesale market for local loop access services and, on the other, a retail market for access to the local loop, which includes a market for narrowband access and a market for broadband access, all of which have a national dimension.

11 As regards the first part of that plea, the General Court found, in paragraphs 140 and 151 of the judgment under appeal, that the Commission had been entitled to find in the decision at issue that the appellant had sufficient scope during the period in question to reduce the margin squeeze identified in that decision by adjusting retail prices for end-user access services.

12 As regards the second part of that plea, in paragraph 168 of the judgment under appeal the General Court rejected the appellant’s complaint that the abusive nature of the margin squeeze could arise only from the abusive nature of its retail prices for end-user access services. It went on to state, in paragraphs 193, 203 and 206 of its judgment, that the Commission had been correct to analyse the abusive nature of the appellant’s pricing practices solely – in accordance with the as-efficient-competitor test – on the basis of the appellant’s particular situation, namely on the basis of the appellant’s charges and costs, and by taking into account only revenues from access services while excluding revenues from other services, such as call services, and comparing the wholesale price for local loop access services to retail prices for all end-user access services, namely narrowband and broadband access.

13 As regards the fourth part of the plea, the General Court noted, in particular, in paragraph 237 of the judgment under appeal that the margin squeeze at issue will, in principle, hinder the growth of competition in the retail markets for end-user access services.

14 The plea in law alleging misuse of powers and infringement of the principles of proportionality, legal certainty and protection of legitimate expectations was also rejected in its entirety by the General Court. As regards the complaint that the Commission was subjecting the appellant’s charges to double regulation, thereby infringing the principles of proportionality and legal certainty, the General Court stated, in particular, in paragraph 265 of the judgment under appeal:

‘While it is not inconceivable that the German authorities also infringed Community law – particularly the provisions of [Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10)], as amended by [Commission Directive 96/19/EC of 13 March 1996 (OJ 1996 L 74, p. 13)] – by opting for a gradual rebalancing of connection and call charges, such a failure to act, if it were to be established, would not remove the scope which the applicant had to reduce the margin squeeze.’

15 Furthermore, as regards the complaint of infringement of the principle of protection of legitimate expectations, the General Court found, in paragraph 269 of the judgment under appeal, that RegTP’s decisions could not have created such a legitimate expectation for the appellant.

16 Lastly, as regards the complaint as to misuse of powers, the General Court held in paragraph 271 of its judgment:

‘In the [decision at issue], the Commission refers only to the applicant’s pricing practices and not to the decisions of the German authorities. Even if RegTP had infringed a Community rule and even if the Commission could have initiated proceedings against the Federal Republic of Germany for failure to fulfil obligations, such possibilities cannot affect the lawfulness of the [decision at issue]. In that decision, the Commission merely found that the applicant had committed an infringement of Article 82 EC, a provision which concerns only economic operators, not the Member States. The Commission did not therefore misuse its powers by making that finding on the basis of Article 82 EC.’

17 In support of its claim for a reduction of the fine imposed, the appellant put forward six pleas in law, including, in particular, a third plea based on the lack of negligence and intentional fault, a fourth plea alleging that insufficient account was taken of the regulation of charges in calculating the level of the fine and a sixth plea alleging a failure to take account of attenuating circumstances. The General Court rejected those three pleas in paragraphs 290 to 321 of the judgment under appeal.

18 Consequently, the General Court dismissed the whole action and ordered the appellant to bear its own costs and to pay those incurred by the Commission.

III – Forms of order sought

19 By its appeal, the appellant claims that the Court should:

– set aside the judgment under appeal;

– annul the decision at issue;

– in the alternative, in the exercise of its unlimited jurisdiction, reduce the fine imposed on it under Article 3 of the decision at issue; and

– order the Commission to pay the costs.

20 The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

21 Vodafone D2 GmbH, formerly Vodafone AG & Co. KG, formerly Arcor AG & Co. KG (‘Vodafone’), contends that the Court should dismiss the appeal as inadmissible or, at the very least, unfounded, and order the appellant to pay the costs.

22 Versatel NRW GmbH, formerly Tropolys NRW GmbH, formerly CityKom Münster GmbH Telekommunikationsservice and TeleBeL Gesellschaft für Telekommunikation Bergisches Land mbH, EWE TEL GmbH, HanseNet Telekommunikation GmbH, Versatel Nord GmbH, formerly Versatel Nord-Deutschland GmbH, formerly KomTel Gesellschaft für Kommunikations- und Informationsdienste mbH, NetCologne Gesellschaft für Telekommunikation mbH, Versatel Süd GmbH, formerly Versatel Süd-Deutschland GmbH, formerly tesion Telekommunikation GmbH, and Versatel West GmbH, formerly Versatel West-Deutschland GmbH, formerly Versatel Deutschland GmbH & Co. KG (together ‘Versatel’) also contended at the hearing that the Court should dismiss the appeal, endorsing the forms of order sought by the Commission and by Vodafone.

IV – Appeal

A – Admissibility

23 Vodafone and Versatel plead, as a preliminary point, that the appeal is inadmissible in that it is limited – under the first ground of appeal and the first and second parts of the second ground of appeal which, in essence, challenge the General Court’s findings concerning the application of Article 82 EC to the relevant pricing practices of the appellant and concerning observance of the principles of proportionality, legal certainty and protection of legitimate expectations – to reproducing the arguments on which the appellant relied in the proceedings at first instance for the sole purpose of securing a re-examination of those arguments by the Court of Justice.

24 In that regard, it should be borne in mind that it is apparent from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, merely reproduces the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, in particular, Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 34 and 35, and Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraphs 46 and 47).

25 However, provided that the appellant challenges the interpretation or application of European Union law (‘EU law’) by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, in particular, Case C‑321/99 P ARAP and Others v Commission [2002] ECR I‑4287, paragraph 49).

26 In the present case, the first and second grounds of appeal, taken as a whole, are such that the appeal does indeed seek to call into question the position adopted by the General Court in relation to a number of points of law put to it at first instance concerning the application of Article 82 EC to the relevant pricing practices of the appellant and observance of certain general principles of EU law. The appeal includes a precise indication of those aspects of the judgment under appeal which are being contested and of the pleas in law and complaints on which it is based.

27 It follows from this that the first and second grounds of appeal, viewed as a whole, cannot be regarded as inadmissible. It will, however, be necessary to examine the admissibility of specific complaints put forward in support of those grounds when examining them in turn.

B – Substance

28 In support of its appeal, the appellant puts forward three pleas in law alleging, respectively, (i) errors of law concerning the manner in which the regulation of its activities by RegTP as the competent national regulatory authority was dealt with, (ii) errors of law in the application of Article 82 EC, and (iii) errors of law in the calculation of fines owing to a failure to take such regulation into account.

29 It must be borne in mind in that regard that, by the judgment under appeal, the General Court dismissed in its entirety the action brought by the appellant against the decision at issue, holding, in essence, as can be seen from paragraphs 3 to 6 of the present judgment, that the Commission was entitled to impose a fine on the appellant for infringement of Article 82 EC on account of the implementation of an unfair pricing practice, resulting for competitors who are at least as efficient as the appellant in a margin squeeze generated by an inappropriate spread between wholesale charges for local loop access services and retail charges for end-user access services, preventing them from competing effectively with the appellant for the provision of the latter services.

30 By its three grounds of appeal, the appellant seeks to challenge, in essence, the General Court’s findings in the judgment under appeal with regard to:

– the attributability to the appellant of the infringement on the basis of the appellant’s scope to adjust its retail prices for end-user access services and the relevance to the application of Article 82 EC of the regulation of prices for telecommunications services by national regulatory authorities;

– the appropriateness, for the purpose of establishing an abuse within the meaning of Article 82 EC, of the margin squeeze test in the circumstances of the case, having regard to the national regulatory authorities’ regulation of wholesale prices for local loop access services, as well as the lawfulness of the method of calculating that margin squeeze and the analysis of its effects in the light of Article 82 EC; and

– whether the amount of the fine is justified in the light of the national regulatory authorities’ regulation of the telecommunications sector.

31 By contrast, the appellant does not challenge in principle the proposition that a pricing practice adopted by a dominant undertaking which results in a margin squeeze of its competitors who are at least as efficient is to be regarded as unfair in the light of Article 82 EC.

32 Indeed, the appellant does not criticise the General Court’s view that an undertaking abuses its dominant position within the meaning of Article 82 EC if, owing to an inappropriate spread between its wholesale prices for local loop access services and its retail prices for end-user access services in the markets in which it is dominant, its pricing practices lead to such a margin squeeze. It merely submits in that regard, by its second ground of appeal, that, in the present case, margin squeeze is not a relevant basis for establishing that it has committed an infringement of Article 82 EC, since its wholesale prices for local loop access services are subject to regulation by the national regulatory authorities.

33 That being the case, the Court will consider the grounds of appeal in the order in which they have been presented by the appellant, which corresponds to the order in which the pleas in law at first instance were presented and considered by the General Court in the judgment under appeal.

1. Preliminary observations

34 In order to consider the substance of the appellant’s grounds of appeal against that judgment, it should, in the first place, be pointed out that, according to Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The Court’s jurisdiction in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, in particular Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 59; Case C‑68/05 P Koninklijke Coöperatie Cosun v Commission [2006] ECR I‑10367, paragraph 96; and Case C‑564/08 P SGL Carbon v Commission [2009] ECR I‑0000, paragraph 22).

35 Both in its appeal and at the hearing, the appellant argued that it did not have any scope to determine wholesale prices for local loop access services, since those were set by the national regulatory authority, namely RegTP. The margin squeeze at issue was said to be caused, in reality, by the excessive wholesale prices set by RegTP. In order to end that margin squeeze, the Commission should, therefore, have brought an action for failure to fulfil obligations under Article 226 EC against the Federal Republic of Germany for breach of EU law, instead of adopting a decision against the appellant under Article 82 EC. Furthermore, it is wrong, according to the appellant, to take the view that wholesale prices for local loop access services are set on the basis of the appellant’s costs. Those prices are determined by RegTP on the basis of the cost of efficient service provision in accordance with a model laid down by the national regulatory authority.

36 By contrast, the Commission and Versatel contend that wholesale prices for local loop access services are attributable to the appellant since, according to the provisions of the TKG, those prices are set by RegTP on the basis of an application made by the appellant by reference to its own costs. The appellant cannot, therefore, complain that those prices are excessive. As is apparent from the decision at issue, the appellant is, moreover, legally obliged to make a fresh application to RegTP for a reduction of wholesale prices for local loop access services if its costs decrease.

37 In that regard, Versatel also claimed at the hearing that the appellant had, since 1997, systematically sought to undermine the proper conduct of the national procedure for setting wholesale prices for local loop access services by withdrawing its applications for approval and by failing to produce any proof or evidence of the costs that might justify those wholesale prices, in spite of the obligation to that effect under national law.

38 With regard to those points at issue between the parties, it must nevertheless be observed, first of all, that the question of the appellant’s scope to adjust its wholesale prices for local loop access services was not argued before the General Court, which handed down the judgment under appeal having accepted the premiss, undisputed before it, that the appellant did not have the necessary scope.

39 In paragraph 93 of the judgment under appeal, the General Court observed that although, in the decision at issue, the Commission did not rule out that the appellant had the possibility of reducing its wholesale prices for local loop access services, it confined its examination to the question whether the appellant had real room for manoeuvre to adjust its retail prices for end-user access services.

40 Since that approach was not challenged before the General Court, the latter accordingly confined itself, in paragraphs 85 to 152 of the judgment under appeal, to considering – for the purpose of determining whether the margin squeeze identified in the decision at issue was attributable to the appellant – whether the Commission had been entitled to conclude in that decision that the appellant had real scope to adjust its retail prices for end-user access services in order to end or reduce that margin squeeze. It concluded in that regard, in paragraphs 140 and 151 of the judgment under appeal, that the Commission had been entitled to take the view that there was such leeway, notwithstanding RegTP’s regulation of retail prices for end-user access services.

41 Similarly, before rejecting, in paragraphs 183 to 213 of the judgment under appeal, the complaints put forward by the appellant in contesting the abusive nature of and method of calculating the margin squeeze identified in the decision at issue, the General Court stated in paragraph 167 of its judgment that the Commission had established only that the appellant had scope to adjust its retail prices for end-user access services.

42 In those circumstances it is not for the Court of Justice, in the context of the present appeal, to consider to what extent the appellant could, where appropriate, have adjusted wholesale prices for local loop access services, as claimed by the Commission and Versatel, since to do so would be to go beyond the pleas in law that were argued before the General Court. According to the case-law cited in paragraph 34 of the present judgment, any plea or complaint on that issue is beyond the scope of the present appeal and, therefore, inadmissible.

43 In order to assess the substance of the complaints put forward by the appellant to call into question the lawfulness of the judgment under appeal, in particular those by which it denies responsibility for the infringement and the abusive nature of the margin squeeze identified in the decision at issue – complaints put forward by the first and second grounds of appeal – it is accordingly necessary to rely solely on the premiss accepted in that judgment: that the appellant had scope only to adjust its retail prices for end-user access services, scope whose existence is undisputed in the context of the present appeal.

44 Second, it should be stressed that, if the subject-matter of the proceedings before the General Court is not to be changed, it is not possible in the context of the present appeal to accuse the General Court of failure to censure the Commission for not calling into question the conduct of the national regulatory authorities on the premiss that those authorities, having set an excessive wholesale price for local loop access services, may be said to be solely responsible for the margin squeeze identified in the decision at issue.

45 Admittedly, according to the case-law of the Court, it is for each Member State to take all appropriate measures, whether general or particular, to ensure the fulfilment by the national regulatory authorities of the obligations which are binding under EU law (see, to that effect, Case C‑268/06 Impact [2008] ECR I‑2483, paragraph 85). Furthermore, Articles 81 EC and 82 EC, in conjunction with Article 10 EC, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see, in particular, Case 13/77 GB-Inno-BM [1977] ECR 2115, paragraph 31, and Case C‑96/94 Centro Servizi Spediporto [1995] ECR I‑2883, paragraph 20).

46 However, as regards the possibility of the Commission bringing an action for failure to fulfil obligations against the Member State concerned, since the judgment under appeal in the present case relates solely to the lawfulness of a decision adopted against the appellant by the Commission pursuant to Article 82 EC, the Court must, in the context of that appeal, confine itself to ascertaining whether the complaints put forward in support of that appeal show that the General Court’s examination of the lawfulness of such a decision is vitiated by errors of law, irrespective of whether the Commission could, simultaneously or alternatively, have adopted a decision finding that the Member State in question had infringed EU law.

47 Consequently, as the General Court itself found in substance, inter alia, in paragraphs 265 and 271 of the judgment under appeal, even if it is not inconceivable that the national regulatory authorities infringed EU law in this instance, and the Commission could indeed therefore have chosen to bring an action for failure to fulfil obligations against the Federal Republic of Germany under Article 226 EC, such possibilities are irrelevant at the stage of the present appeal, not least because, according to the case-law of the Court, under the system laid down by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations, and it is not for the Courts of the European Union (‘Courts of the Union’) to assess whether it was appropriate to do so (see, in particular, Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 31).

48 As regards the appellant’s claim that the wholesale prices for local loop access services were excessive, it must be observed furthermore that the appellant did not, in its application to the General Court, in any way attempt to call into question the lawfulness of those prices in the light of EU law. The appellant confined itself in that respect to submitting that, if wholesale prices for local loop access services are set by the national regulatory authorities and cannot be adjusted by the appellant, only the retail prices for end-user access services can be abusive within the meaning of Article 82 EC and, moreover, that if the pricing policy of those authorities in respect of those services is contrary to EU law, it is incumbent on the Commission to bring an action against those authorities for failure to fulfil obligations.

49 Consequently, the Court cannot, in the present appeal, review complaints which challenge the lawfulness of wholesale prices for local loop access services, particularly on the basis of their allegedly excessive nature as compared with the costs incurred by the appellant in supplying them (see, on that point, Case C‑55/06 Arcor [2008] ECR I‑2931, paragraph 69). Such complaints go beyond the pleas argued at first instance and are, therefore, in accordance with the case-law cited in paragraph 34 of the present judgment, inadmissible in this appeal.

50 Third, it must be noted that, in the proceedings at first instance, the appellant did not, as the General Court observed in paragraphs 150 and 242 of the judgment under appeal, challenge the Commission’s definition of the relevant markets in the decision at issue, according to which (i) the relevant geographic market is the German market and (ii) as regards the markets for the services at issue, the wholesale market in local loop access services is a single market, distinct from the retail market in end-user access services which comprises two separate segments, namely access to narrowband lines, on the one hand, and access to broadband lines, on the other.

51 Similarly it must be observed that the appellant did not at any time call into question before the General Court the Commission’s finding in the decision at issue that the appellant had a dominant position within the meaning of Article 82 EC on all those service markets.

52 It follows from this that, in accordance with the case-law cited in paragraph 34 of the present judgment, neither the definition of the relevant markets that was accepted by the General Court in the judgment under appeal, nor the finding that the appellant had a dominant position on all those markets can be called into question in the examination of the present appeal.

53 In the second place, it should be recalled, concerning specifically the assessment of market data and the competitive situation, that it is not for the Court of Justice, on an appeal, to substitute its own assessment for that of the General Court. In accordance with Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice, the appeal must be limited to questions of law. Assessment of the facts does not, save where there may have been distortion of the facts or evidence, which has not been pleaded here, constitute a question of law which is subject, as such, to review by the Court of Justice (see Case C‑95/04 P British Airways v Commission [2007] ECR I‑2331, paragraph 78 and the case-law cited).

54 The pleas in law put forward by the appellant in support of the present appeal will be examined by the Court in the light of those considerations.

2. The first ground of appeal, alleging errors of law concerning the manner in which the regulation of the appellant’s activities by RegTP as the competent national regulatory authority was dealt with

55 The first ground of appeal relied on by the appellant is subdivided into three parts concerning, respectively, the attributability of the infringement, the principle of protection of legitimate expectations and the intentional or negligent nature of the infringement of Article 82 EC.

a) The first part of the first ground of appeal, concerning the attributability of the infringement

i) Judgment under appeal

56 As regards the appellant’s scope to avoid the margin squeeze, the General Court recalled in paragraphs 85 to 89 of the judgment under appeal the principles identified by the relevant case-law of the Court, and went on to consider, in paragraphs 97 to 152 of its judgment, whether the German legal framework, in particular the TKG and the decisions taken by RegTP during the period covered by the decision at issue, removed any possibility of competitive activity by the appellant, or whether it gave the appellant sufficient scope to set its prices at a level which would have enabled it to end or reduce the margin squeeze identified in the decision at issue.

57 As regards, first of all, the period from 1 January 1998 to 31 December 2001, having noted in paragraph 100 of its judgment that, within the applicable legislative framework, the appellant was able to adjust its prices after obtaining the prior authorisation of RegTP, the General Court concluded in paragraph 105 of its judgment that the Commission was correct to find that, having regard to the six applications for reductions in call charges in that period, the appellant had scope during that period to apply for increases in the retail prices of its narrowband access services to end-users, while respecting the overall ceilings for baskets of residential and business services.

58 Next, the General Court considered in paragraphs 106 to 124 of the judgment under appeal whether, notwithstanding that scope, RegTP’s intervention in the setting of the appellant’s retail prices for end-user access services had the effect that the appellant was no longer governed by Article 82 EC. In that respect, it held in paragraph 107 of its judgment that the fact that those retail prices have to be approved by RegTP does not absolve the appellant from responsibility under Article 82 EC, since the appellant influences the level of its retail prices for end-user access services through applications to RegTP for authorisation.

59 In that regard, the General Court, in paragraphs 108 to 124 of the judgment under appeal, rejected the appellant’s argument that it does not have any responsibility under Article 82 EC because RegTP checks the compatibility with Article 82 EC of its retail prices for end-user access services in advance.

60 In paragraphs 109 to 114 of the judgment under appeal, the General Court stated that the retail prices for access to analogue lines were based on decisions taken under the legislation in force before the adoption of the TKG by the Federal Ministry of Post and Telecommunications, that the provisions of the TKG do not indicate that RegTP considers whether applications for the adjustment of retail prices for access to narrowband services are compatible with Article 82 EC, that the national regulatory authorities operate under national law, that national law may, as regards telecommunications policy, have objectives which differ from those of European Union competition policy and that the various decisions of RegTP to which the appellant refers do not include any reference to Article 82 EC.

61 As to the fact that RegTP has considered, in a number of decisions, the question of the existence of a margin squeeze, the General Court stated in paragraphs 116 to 119 of the judgment under appeal that the fact that, having found a negative spread between wholesale prices for local loop access services and the appellant’s retail prices for end-user access services, RegTP took the view in each case that other operators should be able to offer their end-users competitive prices by resorting to cross-subsidised charges for access services and call charges shows that RegTP did not consider the compatibility of the charges in question with Article 82 EC or, at any rate, that it applied Article 82 EC incorrectly.

62 The General Court pointed out in paragraph 120 of the judgment under appeal that, in any event, even on the assumption that RegTP is obliged to consider whether the retail prices for end-user access services proposed by the appellant are compatible with Article 82 EC, the Commission cannot be bound by a decision taken by a national body pursuant to that article.

63 Furthermore, the General Court noted in paragraphs 121 to 123 of the judgment under appeal that the attribution of any infringement to the appellant depends on whether the latter had sufficient scope at the material time to fix its retail prices for narrowband access services to end-users at a level that would have enabled it to end or reduce the margin squeeze at issue. The General Court reiterated in that regard that the appellant was able to influence the level of those retail prices through applications to RegTP for authorisation. It also observed that, in its judgment of 10 February 2004, the Bundesgerichtshof had expressly confirmed the appellant’s responsibility to make such applications and that the German legal framework did not preclude RegTP from having authorised prices which are contrary to Article 82 EC.

64 Consequently, the General Court found in paragraph 124 of the judgment under appeal that, notwithstanding RegTP’s intervention in the setting of the appellant’s retail prices for narrowband access services to end-users, the appellant had sufficient discretion during the period from 1 January 1998 to 31 December 2001 for its pricing policy to fall within the scope of Article 82 EC.

65 As regards, in the second place, the period from 1 January 2002, having noted in paragraphs 144 and 145 of the judgment under appeal that the appellant does not deny that it could have increased its retail prices for broadband access services (ADSL) from that date and that, since it fixes those prices at its own discretion, within the limits imposed under German law, its pricing practices in that area are capable of being caught by Article 82 EC, the General Court considered in paragraphs 147 to 151 of its judgment whether the appellant could have reduced the margin squeeze by increasing its retail prices for broadband access services. Paragraphs 148 and 149 of the judgment under appeal are worded as follows:

‘148 It must be noted in that regard that since wholesale [local loop] access services can provide end-users with the whole range of … access services, the applicant’s scope to increase its [retail prices for broadband access services] is capable of reducing the margin squeeze between wholesale prices [for local loop access services], on the one hand, and retail prices for the whole range of [end-user] access services, on the other. A combined analysis, at end-user level, of … access services is required not only because they amount to a single supply of services at wholesale level, but also because, as the Commission explained in the [decision at issue] without having been challenged by the applicant on that point, ADSL cannot be offered to end-users on its own because, for technical reasons, it always involves an upgrading of … narrowband connections.

149 The applicant’s observations concerning the purported cross-price elasticity between ADSL and narrowband connections and between the different ADSL variants must be rejected. First, those observations do not preclude the existence of scope for the applicant to increase its ADSL charges. Second, a limited increase in ADSL charges would have led to a higher average retail price for narrowband and associated broadband access services, and would thus have reduced the margin squeeze identified. In view, in particular, of the advantages of broadband as regards data transmission, end-users of broadband access services would not automatically choose to revert to a narrowband connection when ADSL retail access charges are increased.’

ii) Arguments of the parties

66 As regards, in the first place, the period from 1 January 1998 to 31 December 2001, the appellant submits by its first complaint that the General Court erred in relying on the premiss that the existence of scope to adjust its retail prices for end-user access services is a necessary and sufficient requirement in order for an infringement to be attributable. The existence of such leeway does not resolve the issue whether the failure on the appellant’s part to apply to RegTP for authorisation to increase those retail prices amounted to wrongful conduct.

67 According to the appellant, the General Court did not take into account the fact that RegTP considered the purported margin squeeze and took the view that it did not restrict competition. Where a dominant undertaking is subject to regulation by a national regulatory authority created for that purpose in a legal framework geared towards competition, and particular conduct is reviewed, and not challenged, by the national regulatory authority which has the relevant power within that framework, the dominant undertaking’s responsibility for preserving the structure of the market is supplanted by the responsibility of that authority. In such a situation, the responsibility of the dominant undertaking is limited to the obligation to send the national regulatory authority all the information necessary in order for its conduct to be reviewed.

68 In those circumstances, the appellant maintains that paragraph 113 of the judgment under appeal is incorrect since RegTP was obliged to respect European Union competition law (‘EU competition law’). Likewise, paragraph 123 of that judgment is vitiated by an error. The Bundesgerichtshof did not hold that the appellant’s responsibility to make applications for the adjustment of its charges means that it has to substitute its own assessment of the application of Article 82 EC for that of the national regulatory authority. Furthermore, paragraph 120 of the judgment under appeal, according to which the appellant must be responsible for the margin squeeze on the ground that the Commission cannot be bound by a decision taken by a national body pursuant to Article 82 EC is not compelling. First, the issue in the present case is solely that of attributability, not whether RegTP’s assessment binds the Commission as to the substance. Second, the national regulatory authorities have an autonomous role in the creation of a competition regime in the telecommunications sector. Lastly, the principle of legal certainty requires that a dominant undertaking which is subject to regulation at national level should be able to rely on the correctness of that regulation.

69 By its second complaint, the appellant claims that the considerations in paragraphs 111 to 119 of the judgment under appeal are irrelevant or are vitiated by errors of law. The General Court’s reasoning leads to an unlawful vicious circle as a result of the inference from the alternative conclusion reached that the appellant was not entitled to rely on the outcome of the review carried out by RegTP. Furthermore, the concept of ‘cross-subsidisation’ used by RegTP did not give rise to any doubt as to the correctness of its findings. In addition, paragraphs 111 to 114 of that judgment contain errors of law for the reasons already set out in paragraph 66 of the present judgment.

70 By its third complaint, the appellant submits that, contrary to what the General Court held in paragraphs 109 and 110 of the judgment under appeal, the fact that its retail prices for analogue lines were based on authorisation by the Federal Ministry of Post and Telecommunications is irrelevant to the consideration of attributability. RegTP’s rejection of the complaint of a margin squeeze restricting competition is, by contrast, decisive.

71 As regards, in the second place, the period from 1 January 2002 to 21 May 2003, the appellant submits by its first complaint that the judgment under appeal is erroneous in so far as, just as in the case of the previous period, the margin squeeze cannot be attributed to the appellant.

72 By its second complaint, the appellant takes the view that in the judgment under appeal there is a contradiction between the examination of the attributability of the infringement and the calculation of the margin squeeze. The General Court required ‘cross-subsidisation’ between two markets, namely the narrowband access market, on the one hand, and the broadband access market, on the other. Yet, in the context of the calculation of the margin squeeze, the General Court failed to take into account the revenues which competitors obtain from call services, in particular on the ground that they cannot be subject to the possibility of cross-subsidisation between two markets, namely the end-user access services market, on the one hand, and the call services market, on the other.

73 By its third complaint, the appellant claims that the General Court erred in law in making unfounded assumptions as to the possibility of a reduction of the margin squeeze. The finding in paragraph 149 of the judgment under appeal that cross-price elasticity does not remove the appellant’s scope to increase its ADSL prices is accurate but irrelevant. However, the General Court did not consider whether, and to what extent, an end-user of a narrowband line would decline to switch to a broadband line as a result of an increase in its price.

74 The Commission points to the erroneous nature of the appellant’s key argument that the infringement cannot be attributed to the appellant because the matter is within the remit of the national regulatory authority and that the Commission cannot issue proceedings directly against a regulated undertaking in a case in respect of which RegTP has already taken a decision. It contends that the appellant’s complaints should, therefore, be rejected in their entirety.

75 Vodafone contends that the first part of the first ground of appeal is inadmissible because the appellant merely reproduces the arguments on which it relied during the proceedings before the General Court, solely for the purpose of securing a re-examination of that argument by the Court of Justice. In the alternative, the appellant’s complaints should be rejected as unfounded.

76 Versatel also contended at the hearing that the General Court had correctly held that the appellant had sufficient scope to increase its retail prices for end-user access services.

iii) Findings of the Court

77 As a preliminary point it must be observed that, although, by the first part of the present ground of appeal, the appellant largely reiterates the arguments put forward before the General Court, it claims, in essence, that the General Court erred in law by adopting a legally incorrect test in respect of the attributability of the infringement of Article 82 EC. Contrary to Vodafone’s contention, that part of the first ground of appeal is, therefore, admissible in accordance with the case-law cited in paragraph 25 of the present judgment.

78 As regards the substance of the first part of the first ground of appeal, it must be noted that the appellant claims, in essence, that the General Court considered the margin squeeze identified in the decision at issue to be attributable to the appellant under Article 82 EC solely on the ground that it had the scope to adjust its retail prices for end-user access services. The whole of that part of the first ground of appeal is based on the premiss that such scope is not a sufficient condition for the application of Article 82 EC where, as in this instance, the relevant pricing practice was approved by the national regulatory authority responsible for the regulation of the telecommunications sector, RegTP.

79 However, that premiss is incorrect.

80 According to the case-law of the Court of Justice, it is only if anti-competitive conduct is required of undertakings by national legislation, or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, that Articles 81 EC and 82 EC do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings. Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of undertakings (Joined Cases C‑359/95 P and C‑379/95 P Commission and France v Ladbroke Racing [1997] ECR I‑6265, paragraphs 33 and 34 and the case-law cited).

81 The possibility of excluding anti-competitive conduct from the scope of Articles 81 EC and 82 EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has thus been accepted only to a limited extent by the Court of Justice (see Case 41/83 Italy v Commission [1985] ECR 873, paragraph 19; Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission [1985] ECR 3831, paragraphs 27 to 29; and Case C‑198/01 CIF [2003] ECR I‑8055, paragraph 67).

82 Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 36 to 73, and CIF, paragraph 56).

83 According to the case-law of the Court, dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market (Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 57).

84 It follows from this that the mere fact that the appellant was encouraged by the intervention of a national regulatory authority such as RegTP to maintain the pricing practices which led to the margin squeeze of competitors who are at least as efficient as the appellant cannot, as such, in any way absolve the appellant from responsibility under Article 82 EC (see, to that effect, Case 123/83 Clair [1985] ECR 391, paragraphs 21 to 23).

85 Since, notwithstanding such interventions, the appellant had scope to adjust its retail prices for end-user access services, the General Court was entitled to find, on that ground alone, that the margin squeeze at issue was attributable to the appellant.

86 In the present case, it must be noted that the appellant does not deny the existence of such scope in the arguments put forward in the first part of the first ground of appeal. In particular, the appellant does not challenge the General Court’s findings in paragraphs 97 to 105 and 121 to 151 of the judgment under appeal that, in essence, the appellant was able to make applications to RegTP for authorisation to adjust its retail prices for end-user access services, specifically retail prices for narrowband access services for the period between 1 January 1998 and 31 December 2001, and retail prices for broadband access services for the period from 1 January 2002.

87 Instead, in its various complaints and arguments the appellant merely underlines the encouragement provided by RegTP’s intervention, and states, in particular, that RegTP itself considered and approved the margin squeeze at issue in the light both of national and European Union telecommunications law and of Article 82 EC and, moreover, that the Bundesgerichtshof held in a judgment of 10 February 2004 that the appellant cannot take the place of RegTP in assessing whether a pricing practice is contrary to Article 82 EC.

88 For the reasons set out in paragraphs 80 to 85 of the present judgment, such arguments cannot, however, in any way alter the fact that that pricing practice is attributable to the appellant, since it is common ground that the appellant had scope to adjust its retail prices for end-user access services, and, therefore, such arguments are ineffective as a means of challenging the General Court’s findings on that point.

89 In particular, the appellant cannot complain that the General Court did not consider whether there was ‘fault’ on its part by failing to use the scope which it had to apply to RegTP for authorisation to adjust its retail prices for end-user access services. The existence or otherwise of any ‘fault’ in such conduct cannot alter the finding that the appellant had scope to adopt that conduct, and can be taken into account only in determining whether that conduct was an infringement and at the stage of setting the level of the fines.

90 Moreover, as the General Court held in paragraph 120 of the judgment under appeal, the Commission cannot, in any event, be bound by a decision taken by a national body pursuant to Article 82 EC (see, to that effect, Case C‑344/98 Masterfoods and HB [2000] ECR I‑11369, paragraph 48). In the present case, the appellant does not, indeed, deny that RegTP’s decisions are not binding on the Commission.

91 Admittedly it is not inconceivable, as the appellant observes, that the national regulatory authorities may themselves have infringed Article 82 EC in conjunction with Article 10 EC, and therefore that the Commission could have brought an action for failure to fulfil obligations against the Member State concerned. However, that circumstance also does not affect the scope which the appellant had to adjust its retail prices for end-user access services and, accordingly, it is, as paragraphs 44 to 49 of the present judgment have already shown, ineffective in the present appeal for the purpose of challenging the General Court’s findings as to whether the infringement can be attributed to the appellant.

92 The same applies to the appellant’s claim that the purpose of RegTP’s regulation is to open the relevant markets up to competition. It is common ground that that regulation did not in any way deny the appellant the possibility of adjusting its retail prices for end-user access services or, therefore, of engaging in autonomous conduct that is subject to Article 82 EC, since the competition rules laid down by the EC Treaty supplement in that regard, by an ex post review, the legislative framework adopted by the Union legislature for ex ante regulation of the telecommunications markets.

93 Similarly, the Court must reject the complaint that, by reason of the cross-price elasticity of retail prices for broadband access services and retail prices for narrowband access services, the General Court erred in law in paragraph 149 of the judgment under appeal with regard to the possibility of the appellant reducing the margin squeeze from 1 January 2002 by increasing its retail prices for broadband access services. As the General Court stated in the same paragraph, that complaint does not in any way preclude the existence of scope for the appellant to adjust its retail prices for broadband access services. Furthermore, in so far as the appellant also seeks to deny that that increase led to a higher average retail price for narrowband and broadband access services taken together, the present complaint must, in accordance with the case-law cited in paragraph 53 of the present judgment, be rejected as inadmissible, since it seeks to call into question the General Court’s definitive assessment of the facts in the judgment under appeal, while making no claim as to distortion of those facts.

94 Finally, the complaint as to contradictory grounds, mentioned in paragraph 72 of the present judgment, cannot be upheld because it is founded on an incorrect premiss. While it is true that, particularly in paragraphs 119 and 199 to 201 of the judgment under appeal, the General Court rejected the possibility of cross-subsidisation between two separate markets – namely the market in end-user access services and that in call services for subscribers – at the stage of calculating the margin squeeze, it is wrong to take the view that the General Court required such cross-subsidisation when it was examining the attributability of the infringement.

95 In paragraphs 148 to 150 of the judgment under appeal, the General Court merely found in that regard that the appellant’s scope to increase its retail prices for broadband access services was capable of reducing the margin squeeze generated by the spread between wholesale prices for local loop access services and retail prices for all end-user access services. In doing so, the General Court did not in any way require there to be a practice of cross-subsidisation between narrowband and broadband access services, particularly since – as stated in paragraph 148 of the judgment under appeal, which the appellant has not challenged in the present appeal – there is a single, separate services market at the level of wholesale local loop access services, the access services provided at that level allowing the appellant’s competitors to supply both narrowband and broadband access services to their end-users, whereas for technical reasons the latter services cannot be offered on their own to end-users.

96 Consequently, the first part of the first ground of appeal must be rejected in its entirety as, in part, inadmissible and, in part, ineffective or unfounded.

b) The second part of the first ground of appeal, concerning the principle of the protection of legitimate expectations

i) Judgment under appeal

97 After recalling in paragraph 267 of the judgment under appeal that RegTP had taken the view in a number of decisions adopted in the period at issue that, even though there was a negative spread between the appellant’s wholesale prices for local loop access services and its retail prices for end-user access services, other operators should be able to offer their end-users competitive prices by resorting to cross-subsidisation of access services and call services, the General Court found, in paragraph 268 of its judgment, that RegTP’s decisions do not include any reference to Article 82 EC, and that it follows implicitly but necessarily from RegTP’s decisions that the appellant’s pricing practices have an anti-competitive effect, since the appellant’s competitors have to resort to cross-subsidisation in order to be able to remain competitive on the market in access services.

98 The General Court concluded from this in paragraph 269 of the judgment under appeal:

‘In those circumstances, RegTP’s decisions could not have created for the applicant a legitimate expectation that its pricing practices were compatible with Article 82 EC. It must be observed furthermore that, in its judgment of 10 February 2004 setting aside the judgment of the Oberlandesgericht Düsseldorf of 16 January 2002, the Bundesgerichtshof confirmed that “the administrative examination procedure [undertaken by RegTP] does not preclude the possibility in practice of an undertaking submitting a charge by which it abuses its dominant position and obtains authorisation for it because the abuse is not revealed during the examination procedure”.’

ii) Arguments of the parties

99 The appellant takes the view that the General Court applied the principle of the protection of legitimate expectations incorrectly. RegTP’s decisions repeatedly denied the existence of a margin squeeze that restricted competition, and this created a legitimate expectation on the part of the appellant that its charges were lawful.

100 In that regard, the appellant claims, by its first complaint, that whether or not RegTP’s decisions expressly refer to Article 82 EC is irrelevant, since RegTP had in any event found that there was no margin squeeze that restricted competition.

101 By its second complaint, the appellant submits that, contrary to the view taken by the General Court in paragraphs 267 and 268 of the judgment under appeal, it follows neither from RegTP’s statement concerning the possibility of ‘cross-subsidisation’ with the prices of call services, nor from the use of the term ‘cross-subsidisation’, that its pricing practices have an anti-competitive effect.

102 By its third complaint, the appellant submits that the reference in paragraph 269 of the judgment under appeal to a judgment of the Bundesgerichtshof of 10 February 2004 is of no relevance. That judgment was delivered after the reference period and cannot, therefore, determine whether the appellant was entitled to rely on the accuracy of RegTP’s decisions during that period. On the contrary, the appellant could have inferred from a judgment of the Oberlandesgericht Düsseldorf of 16 January 2002 that it was entitled to rely on the decisions of RegTP, since that court held that RegTP’s decisions precluded any infringement of Article 82 EC.

103 The Commission contends that, while RegTP’s pronouncements do not anticipate its assessment with regard to Article 82 EC, neither can they form the basis of a legitimate expectation that the Commission will share the opinion of RegTP. The appellant’s complaints should, therefore, be rejected as ineffective or unfounded.

104 Vodafone takes the view that the second part of the first ground of appeal is inadmissible, since the appellant, in essence, merely repeats the complaints already raised before the General Court concerning the significance of RegTP’s earlier decisions, its statements concerning the possibility of cross-subsidisation and the meaning of a judgment of the Oberlandesgericht Düsseldorf. In any event, that part of the ground of appeal is unfounded since a legitimate expectation can be created only by the authority responsible for the legal situation at issue.

iii) Findings of the Court

105 By the present complaints, the appellant merely claims that decisions adopted by RegTP or handed down by certain national courts were capable of creating for the appellant a legitimate expectation that its pricing practices were compatible with Article 82 EC, reiterating or developing the arguments relied on at first instance before the General Court in order to show that the Commission infringed the principle of the protection of legitimate expectations, but it fails to expound any legal arguments to demonstrate why paragraphs 267 to 269 of the judgment under appeal are vitiated by an error of law.

106 The appellant thereby seeks, by calling into question the decision at issue in this way, to secure a re-examination of the application that was made before the General Court. Consequently, in accordance with the case-law cited in