EN Official Journal of the European Union C 223/13

Judgment of the Court (Grand Chamber) of 17 July 2008 (references for a preliminary ruling from the Bundesverwaltungsgericht — Germany) — Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07) v Bundesrepublik Deutschland

(Joined Cases C-152/07 to C-154/07) (1)

(Telecommunications - Networks and services - Tariff rebalancing - Article 4c of Directive 90/388/EEC - Article 7(2) of Directive 97/33/EC - Article 12(7) of Directive 98/61/EC - Regulatory authority - Direct effect of directives - Triangular situation)

(2008/C 223/20)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicants: Arcor AG & Co. KG (C-152/07), Communication Services TELE2 GmbH (C-153/07), Firma 01051 Telekom GmbH (C-154/07)

Defendant: Bundesrepublik Deutschland

Intervening Party: Deutsche Telekom AG

Re:

Reference for a preliminary ruling — Bundesverwaltungsgericht — Interpretation of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10) and Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 1997 L 199, p. 32) — National legislation prescribing, in addition to interconnection charges calculated on the basis of the cost of the service, a financial contribution from other operators to cover the ‘connection cost deficit’ incurred by the incumbent operator as a result of providing the local loop — Obligation of the Member States to remove obstacles to the rebalancing of tariffs by former telecommunications organisations following the interconnection of networks — Ability of an individual to rely on the direct effect of a directive before the courts of a Member State in order to secure the annulment of an administrative decision laying down a financial obligation in favour of another individual

Operative part of the judgment

1. Article 12(7) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP), as amended by Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998, and Article 4c of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, as amended by Commission Directive 96/19/EC of 13 March 1996, the latter article read in conjunction with recitals 5 and 20 in the preamble to Directive 96/19, must be interpreted as precluding a national regulatory authority from requiring an operator of a network interconnected with a public network to pay to the market-dominant subscriber network operator a connection charge which is additional to an interconnection charge and is intended to compensate the latter operator for the deficit incurred as a result of providing the local loop for the year 2003.

2. Article 4c of Directive 90/388, as amended by Directive 96/19, and Article 12(7) of Directive 97/33, as amended by Directive 98/61, produce direct effect and can be relied on directly before a national court by individuals to challenge a decision of the national regulatory authority.

(1) OJ C 140, 23.6.2008.