WRITTEN QUESTION E-0801/96 by Cristiana Muscardini (NI), Amedeo Amadeo (NI), Roberta Angelilli (NI), Spalato Belleré (NI), Sebastiano Musumeci (NI), Antonio Trizza (NI), Marco Cellai (NI), Gastone Parigi (NI) and Salvatore Tatarella (NI) to the Commission (3 April 1996)

Subject: Litigation in connection with the second licensing round for GSM mobile telephones in Italy

When the call was made for tenders for the second round of GSM licences,first in Italy, then in Spain and finally in Belgium, the Commission initially allowed the tendering procedure to take its course, and it was only after the procedure had been closed and, in the case of Italy, the licences had actually been awarded that it began to voice its disapproval of the inclusion, among the terms of the call for tenders, of the requirement for competitors to make a financial offer.

Moreover, in the three cases in question, which were all very similar, it was only in the case of Italy that a formal decision was taken against the government, requesting a reply within just three months, while in the case of the other two states no formal steps were taken and no deadline was set for any action to be taken by them.

Following the Commission's decision, the Italian State, the main mobile telephone operator (TIM) and the fixed-link telephone services operator (Telecom Italia) were obliged to bring proceedings before both the Court of Justice and the Tribunal of First Instance.

Why, however, was it only in the case of Italy that the Commission was in such a hurry to close the matter which, moreover, it had taken up so rigorously and so belatedly that it adopted the unusual procedure of separating the delivery of its formal decision winding up the affair from any discussion of the measures decided?

Does this not reinforce the unfortunate impression that the Commission wished to take advantage of a temporary power vacuum in Italy by a display of the most extraordinary zeal in relation to a Community country?

Answer given by Mr Van Miert on behalf of the Commission (24 April 1996)

One of the Commission's priorities has been to open up mobile and personal communications to competition. Well before Directive 96/2/EC ((OJ No L 20, 26.1.96, p. 59. )) was adopted on 16 January 1996, it instituted infringement proceedings against those Member States that were maintaining the public operator's monopoly for the supply of GSM services, namely Italy, Belgium and Ireland.

In the course of those proceedings, it emerged that the three Member States' selection of a second operator was to be based on an auction. As soon as it discovered this, the Commission drew their attention to the fact that such a selection procedure would inevitably distort competition. Unlike in the case of Belgium and Ireland, the Commission was unable, in the case of Italy, to react before the deadline for receiving tenders expired since it did not receive the relevant details from the Italian Government until after the tendering procedure had been completed.

Before selecting the second GSM operator, the Belgian and Irish Governments gave a written undertaking that they would require the public operator to pay a similar fee. By contrast, the Italian Government made no specific proposal. The Commission was thus obliged to adopt a formal decision on 4 October 1995 enjoining Italy to notify such measures. That decision was therefore unrelated to the political situation in Italy.

The purpose of decisions taken under Article 90(3) of the EC Treaty is to put a stop to infringements, with the Member States concerned invariably being asked to notify the Commission of the measures taken in order to bring the situation back into line with Community law. In the case at issue, a number of approaches could be adopted in order to put an end to the infringement, which places the public operator at an unfair competitive advantage in the Italian GSM market. It is up to the Italian Government, and not the Commission, to choose between the alternative solutions. In its letter of 18 January 1996, the Italian Government listed the corrective measures that it intended to take in order to implement the decision:

- immediate transposal of Directives 96/2/EC and 96/19/EC ((OJ No L 74, 22.3.96, p. 13. )) by means of specific laws that inter alia would permit the second GSM operator to use without restriction its own, alternative infrastructure in order to provide its service;

- non-discriminatory access for both mobile operators to the GSM frequencies (890-960 MHz);

- allocation of DCS 1800 frequencies to OPI (Ommibel Pronto Italia) under its licence, and authorization to operate this service once a third mobile operator has the opportunity to become established on the market, and in any event not later than 1 January 1998;

- a 25% reduction in the charges for interconnection between OPI's mobile GSM network and Telecom Italia's switched telephone network in 1996 and 1997, up to an amount of LIT 60 000 million.

The Commission has confirmed that it would regard these measures as sufficient to comply with the decision, and it is now awaiting their implementation before formally terminating the proceedings.