Case C-401/02: Action brought on 12 November 2002 by the Commission of the European Communities against the Federal Republic of Germany (received by fax on 11 November 2002)
Date: 2003-01-25
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, communications systems, public service, systems interconnection, technical standard, telecommunications, transmission network

25.1.2003

EN

Official Journal of the European Communities

C 19/13

Action brought on 12 November 2002 by the Com-
mission of the European Communities against the Federal
Republic of Germany (received by fax on 11 November
2002)

(Case C-401/02)

(2003/C 19/23)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 12 November 2002 (received by fax on 11 November
2002) by the Commission of the European Communities,
represented by C. Schmidt, acting as Agent, with an address
for service in Luxembourg.

The Commission of the European Communities claims that
the Court should:

1.

Rule that, by failing to adopt the measures necessary to
ensure application of Directive 98/61/EC of the European
Parliament and of the Council (1) of 24 September 1998
amending Directive 97/33/EC with regard to operator
number portability and carrier pre-selection, or in any
event by failing to notify the Commission of
those
measures, the Federal Republic of Germany has failed to
fulfil its obligations under Article 12(7) of Directive 97/
33/EC;

2. Order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The Commission alleges that — notwithstanding the fact that
the period within which actual carrier pre-selection had to be
introduced expired on 1 January 2000 — no carrier pre-
selection for local calls is at present being offered in Germany
by the carrier notified as the ‘organisation with significant
market power’. The Commission considers that the grounds
given in justification of this are invalid:

— The question whether the possibility for carrier pre-
selection is also to be provided with regard to local calls
must be resolved on the basis of the directive’s wording.
The recitals in the preamble may be adduced as an aid to
interpretation if that wording allows of several interpret-
ations. The wording of Article 12(7), however,
is
unequivocal with regard to the applicability of carrier
pre-selection in the case of local calls. Second, the fifth
recital in the preamble, to which the German Government
refers, mentions the Green Paper on a numbering policy
for telecommunications services in Europe not as a
reference document setting out the obligations arising

under the directive but solely as a preparatory document.
Third, the reference to the glossary of the Green Paper is
out-dated and must be considered within its historical
context, particularly in light of subsequent developments.
In particular, the extent of carrier pre-selection depends
on the degree of liberalisation achieved within the market
concerned. In the Resolution of 17 July 1997 on the
Green Paper on a numbering policy for telecommuni-
cations services in Europe, (2) the European Parliament
called on the Commission to make proposals in the
amendment to the existing Directive 97/33/EC which
would be directed at the introduction of carrier pre-
selection for fixed local access providers with significant
market power in order to facilitate fair competition. As
the Council subsequently found in its Resolution of
22 September 1997 on the further development of a
numbering policy for telecommunications services in the
European Community, (3) the gradual
introduction of
carrier pre-selection should ‘encourage competition in all
sectors of the market’, at least for carriers with significant
market power providing fixed local public telephone
services. Following liberalisation of the market for local
calls (that is to say, in principle from 1 January 1998),
the availability of carrier pre-selection at local level should
encourage competition within this market sector.

The Commission accordingly confirmed the applicability
of Article 12(7) to pre-selection at local level through the
express reference to, inter alia, carrier pre-selection in the
case of local calls as an obligation under Article 12(7) of
the directive in the second and third recitals in its decision
of 22 December 1999 on the United Kingdom’s request
for deferment of the obligation to introduce carrier pre-
selection pursuant to Article 20(2) of Directive 97/33/EC,
as amended by Directive 98/61/EC.

— Deferment of obligations may be granted only in accord-
ance with the procedure under Article 20(2) of the
directive. Germany is not one of the countries to which
an additional transitional period was granted for the
transposition of Article 12(7) of
the directive. The
Commission also takes the view that, since 1 January
2000 at the latest, there could be no further grounds for
any legitimate expectation that the economic conditions
governing investments in local networks would be main-
tained.

(1) OJ L 268, 3.10.1998, p. 37.
(2) OJ C 286, 22.09.1997, p. 232.
(3) OJ C 303, 04.10.1997, p. 1.