WRITTEN QUESTION P-0593/98 by W.G. van Velzen (PPE) to the Commission (23 February 1998)

Subject: Commission reply to the complaint by EnerTel N. V.

On 15 July 1997 the Dutch telecommunications consortium EnerTel N.V. lodged a complaint with the Commission concerning the draft law on the auction of frequencies for mobile telecommunications in the Netherlands. On 18 December 1997 the original complaint was expanded. EnerTel asked the Commission to take a rapid decision, by the end of 1997, since the company was one of the parties competing for a mobile licence. Partly as a result of the economic uncertainty caused by the slow passage of the legislation and the Commission's silence, EnerTel N.V. decided on 6 January 1998 that it would have to withdraw from participation in the auction of mobile licences. EnerTel was then informed in a Commission reply of 3 February 1998 that 'the grounds for the complaint would appear to have lapsed in view of press reports that the company has withdrawn from the auction'.

1. Is the Commission aware of the connection between the slow processing of the complaint by EnerTel N.V. and the company's decision to withdraw from the auction?

2. Is the Commission aware that by acting in this way it has done nothing to improve the Commission's credibility as an arbiter of complaints?

3. Does the Commission not consider it at least desirable that it should still answer the substance of EnerTel's complaint, particularly in view of its general relevance, and if so, can the Commission make this answer known?

4. Is the Commission aware that in the rapidly liberalizing telecommunications market it is of great importance, especially to new telecom companies, to obtain an answer to complaints as fast as possible, and does not the Commission regard a rapid answer as one of its effective instruments for promoting competition in practice? If so, how will the Commission be speeding up the complaints procedure in future?

Answer given by Mr Van Miert on behalf of the Commission (19 March 1998)

1. The Commission strives to handle complaints within a reasonable time, i.e. either by starting an infringement procedure against the Member State concerned within one year after the complaint has been submitted or to inform the complainant that the Commission will not give effect to the complaint within that period. The complaint to which the Honourable Member refers has been handled within that time-limit. Furthermore it should be stressed that national courts are also entitled to apply European law. Undertakings can, even in parallel with complaints pending before the Commission open a case before a national court and request interim measures to secure their rights.

2. In procedures such as the present, complainants are not parties in the strict sense of the word. After all, the Commission has a discretionary power whether or not to start infringement procedures against a Member State. This has repeatedly been confirmed by the Court of justice.

3. Since the reception of the complaint to which the Honourable Member refers, the Dutch government has approved the Auction Act Mobile Frequencies and auctioned the frequencies for future DCS-1800 operators. In this way the Netherlands have implemented Article 2 of Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/338/EEC with regard to mobile and personal communications ((OJ L 20, 26.1.1996. )). Therefore, the main arguments of the complainant have been overtaken.

4. The Commission strives, as has been mentioned already, to handle complaints within a reasonable time. Moreover, the cooperation with the national authorities will be intensified. This should in the near future lead to even more effective handling of possible complaints with regard to an alleged obstruction of competition in the telecommunications sector.