Judgment of the Court (Third Chamber) of 30 November 2000 in Case C-384/99: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Telecommunications — Interconnection of networks — Interoperability of services — Provision of universal service)
Date: 2001-03-24
Institutions: Court of Justice
Subjects: Belgium, European Commission, action for failure to fulfil an obligation, costing, telecommunications, transmission network

C 95/2

EN

Official Journal of the European Communities

24.3.2001

JUDGMENT OF THE COURT

(Fifth Chamber)

of 30 November 2000

3. Where a Member State is obliged to take into account, in
calculating the pay of contractual
teachers and teaching
assistants, periods of employment in certain institutions in other
Member States comparable to the Austrian institutions listed
in Paragraph 26(2) of the Vertragsbedienstetengesetz 1948,
such period must be taken into account without any temporal
limitation.

in Case C-195/98 (reference for a preliminary ruling from
the Oberster Gerichtshof): O¨ sterreichischer Gewerk-
schaftsbund, Gewerkschaft öffentlicher Dienst v Republik
O¨ sterreich (1)

(1) OJ C 234 of 25.7.1998.

(Article 177 of the EC Treaty (now Article 234 EC) —
Definition of ‘court or tribunal of a Member State’ —
Freedom of movement for persons — Equal treatment —
Seniority — Part of career spent abroad)

(2001/C 95/02)

JUDGMENT OF THE COURT

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-195/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC)
from the Oberster
Gerichtshof (Supreme Court) Austria, for a preliminary ruling
in the proceedings pending before that court between O¨ ster-
reichischer Gewerkschaftsbund, Gewerkschaft öffentlicher
Dienst and Republik O¨ sterreich — on the interpretation of
Article 48 of the EC Treaty (now, after amendment, Article 39
EC) and Article 177 of the EC Treaty (now Article 234 EC) and
Article 7 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers
within the Community (OJ, English Special Edition 1968
(II), p. 475) — the Court (Fifth Chamber), composed of:
D.A.O. Edward (Rapporteur), acting for the President of the
Fifth Chamber, P. Jann and L. Sevo´ n, Judges, F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 30 November 2000, in which it has ruled:

1.

In exercising functions such as those provided for by Para-
graph 54(2) to (5) of the Arbeits- und Sozialgerichtsgesetz
(Law on Labour and Social Courts), the Oberster Gerichtshof
constitutes a court or tribunal within the meaning of Article 177
of the EC Treaty (now Article 234 EC).

2. Article 48 of the EC Treaty (now, after amendment, Article 39
EC) and 7(1) and (4), of Regulation (EEC) No 1612/68 of
the Council of 15 October 1968 on freedom of movement for
workers within the Community preclude a national rule such as
Paragraph 26 of the Vertragsbedienstetengesetz 1948 (Federal
Law on Contractual Public Servants of 1948) concerning the
account to be taken of previous periods of service for the
purposes of determining the pay of contractual teachers and
teaching assistants, where the requirements which apply to
periods spent in other Member States are stricter than those
applicable to periods spent in comparable institutions of the
Member State concerned.

(Third Chamber)

of 30 November 2000

in Case C-384/99: Commission of the European Communi-
ties v Kingdom of Belgium (1)

(Failure of a Member State to fulfil
its obligations —
Telecommunications — Interconnection of networks —
Interoperability of services — Provision of universal service)

(2001/C 95/03)

(Language of the case: French)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-384/99: Commission of the European Communities
(Agent: B. Doherty) v Kingdom of Belgium (Agent: A. Snoecx)
— application for a declaration that, by failing correctly to
implement Article 5 of Directive 97/33/EC of the European
Parliament and of the Council of 30 June 1997 on intercon-
nection in Telecommunications with regard to ensuring uni-
versal service and interoperability through application of the
principles of Open Network Provision (ONP) (OJ 1997 L 199,
p. 32), in conjunction with Annex I thereto, and by failing to
adopt all the measures necessary to implement Article 5 of
that directive, in conjunction with Annexes I and III thereto,
the Kingdom of Belgium has failed to fulfil its obligations
under those provisions and under the EC Treaty — the Court
(Third Chamber), composed of: C. Gulmann (Rapporteur),
President of the Chamber, J.-P. Puissochet and F. Macken,
Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has
given a judgment on 30 November 2000, in which it:

24.3.2001

EN

Official Journal of the European Communities

C 95/3

1. Declares that, by failing to bring into force within the prescribed
period the laws,
regulations and administrative measures
necessary to comply with Article 5 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 appli-
cation of the principles of Open Network Provision (ONP), in
conjunction with Annexes I and III thereto, the Kingdom of
Belgium has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of Belgium to pay the costs.

(1) JO C 6 of 8.1.2000.

JUDGMENT OF THE COURT

(Sixth Chamber)

of 7 December 2000

in Case C-324/98 (reference for a preliminary ruling
from the Bundesvergabeamt): Telaustria Verlags GmbH,
Telefonadress GmbH v Telekom Austria AG, formerly
Post & Telekom Austria AG (1)

(Public service contracts — Directive 92/50/EEC — Public
service contracts in the telecommunications sector — Direc-
tive 93/38/EEC — Public service concession)

(2001/C 95/04)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-324/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Bundesverga-
beamt (Federal Procurement Office), Austria, for a preliminary
ruling in the proceedings pending before that court between
Telaustria Verlags GmbH, Telefonadress GmbH and Telekom
Austria AG, formerly Post & Telekom Austria AG,
joined
party; Herold Business Data AG — on the interpretation of
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1) and of Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport

and telecommunications sectors (OJ 1993 L 199, p. 84) — the
Court (Sixth Chamber), composed of: V. Skouris (Rapporteur),
President of the Second Chamber, acting as President of
the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges;
N. Fennelly, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 7 December 2000, in
which it has ruled:

1. — Council Directive 93/38/EEC of 14 June 1993 coordin-
ating the procurement procedures of entities operating in
transport and telecommunications
the water, energy,
sectors covers a contract for pecuniary interest concluded
in writing between, on the one hand, an undertaking
which is specifically responsible under the legislation of a
Member State for operating a telecommunications service
and whose capital is wholly held by the public authorities
of that State and, on the other, a private undertaking,
where under that contract the first undertaking entrusts
the second with the production and publication, for the
purpose of distribution to the public, of printed and
electronically accessible lists of telephone subscribers (tele-
phone directories);

— although it is covered by Directive 93/38, such a contract
is excluded, under Community law as it stands at present,
from the scope of that directive by reason of the fact, in
particular, that the consideration provided by the first
undertaking to the second consists in the second obtaining
the right to exploit for payment its own service.

2. Notwithstanding the fact that, as Community law stands at
present, such contracts are excluded from the scope of Directive
93/38, the contracting entities concluding them are, none the
less, bound to comply with the fundamental rules of the Treaty,
in general, and the principle of non-discrimination on the
ground of nationality, in particular, that principle implying, in
particular, an obligation of transparency in order to enable the
contracting authority to satisfy itself that the principle has been
complied with.

3.

4.

That obligation of
transparency which is imposed on the
contracting authority consists in ensuring, for the benefit of any
potential tenderer, a degree of advertising sufficient to enable
the services market to be opened up to competition and the
impartiality of procurement procedures to be reviewed.

It is for the national court to rule on the question whether that
obligation was complied with in the case in the main proceedings
and also to assess the materiality of the evidence produced to
that effect.

(1) OJ C 327 of 24.10.1998.