Judgment of the Court (Fifth Chamber) of 22 May 2003 in Case C-462/99 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission (Telecommunications — Mobile telecommunications services — Article 5a(3) of Directive 90/387/EEC — Appeal to an independent body against a decision of the national regulatory authority — Articles 82 EC and 86(1) EC — Article 2(3) and (4) of Directive 96/2/EC — Articles 9(2) and 11(2) of Directive 97/13/EC — Allocation to a public undertaking in a dominant position which holds a licence to provide digital mobile telecommunications services according to the GSM 900 standard of additional frequencies in the frequency band reserved for the DCS 1800 standard without imposing a separate fee)
Date: 2003-07-19
Institutions: Court of Justice
Subjects: freedom to provide services, harmonisation of standards, interpretation of the law, radio telecommunications, telecommunications, waveband

19.7.2003

EN

Official Journal of the European Union

C 171/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

L 192, p. 1), as amended by Directive 97/51/EC of the
European Parliament and of the Council of 6 October 1997
(OJ 1997 L 295, p. 23); of Article 2(3) and (4) of Commission
Directive 96/2/EC of 16 January 1996 amending Directive 90/
388/EEC with regard to mobile and personal communications
(OJ 1996 L 20, p. 59); of Articles 9(2) and 11(2) of Directive
97/13/EC of the European Parliament and of the Council
of 10 April 1997 on a common framework for general
authorisations and individual licences in the field of telecom-
munications services (OJ 1997 L 117, p. 15); and of Articles 82
EC and 86(1) EC, the Court (Fifth Chamber), composed of:
D. A. O. Edward, acting for the President of the Fifth Chamber,
A. La Pergola (Rapporteur) and P. Jann, Judges; L. A. Geelhoed,
Advocate General; H. A. Rühl, Principal Administrator, for the
Registrar, has given a judgment on 22 May 2003, in which it
has ruled:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 22 May 2003

in Case C-462/99 (Reference for a preliminary ruling from
the Verwaltungsgerichtshof): Connect Austria Gesell-
schaft für Telekommunikation GmbH v Telekom-Control-
Kommission (1)

(Telecommunications — Mobile telecommunications services
— Article 5a(3) of Directive 90/387/EEC — Appeal to an
independent body against a decision of the national regulat-
ory authority — Articles 82 EC and 86(1) EC — Article 2(3)
and (4) of Directive 96/2/EC — Articles 9(2) and 11(2) of
Directive 97/13/EC — Allocation to a public undertaking in
a dominant position which holds a licence to provide
digital mobile telecommunications services according to the
GSM 900 standard of additional frequencies in the frequency
band reserved for the DCS 1800 standard without imposing
a separate fee)

(2003/C 171/01)

1.

(Language of the case: German)

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

In Case C-462/99: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Connect Austria Gesellschaft für Telekommunikation GmbH
and Telekom-Control-Kommission;
intervener: Mobilkom
Austria AG, on the interpretation of Article 5a(3) of Council
Directive 90/387/EEC of 28 June 1990 on the establishment
of the internal market for telecommunications services through
the implementation of open network provision (OJ 1990

effectively protected, national

In order to ensure that national law is interpreted in compliance
with Council Directive 90/387/EEC of 28 June 1990 on the
establishment of the internal market for telecommunications
services through the implementation of open network provision,
as amended by Directive 97/51/EC of the European Parliament
and of the Council of 6 October 1997, and that the rights of
individuals are
courts must
determine whether the relevant provisions of their national law
provide individuals with a right of appeal against decisions of
the national regulatory authority which satisfies the criteria laid
down in Article 5a(3) of Directive 90/387, as amended by
Directive 97/51. If national law cannot be applied so as to
comply with the requirements of Article 5a(3) of that directive,
a national court or tribunal which satisfies those requirements
and which would be competent to hear appeals against decisions
of the national regulatory authority if it was not prevented from
doing so by a provision of national law which explicitly excludes
its competence, such as that at issue in the main proceedings,
has the obligation to disapply that provision.

C 171/2

EN

Official Journal of the European Union

19.7.2003

2. Articles 82 EC and 86(1) EC in principle preclude national
legislation such as that at issue in the main proceedings, under
which additional frequencies in the frequency band reserved for
the DCS 1800 standard may be allocated to a public
undertaking in a dominant position which already holds a
licence to provide digital mobile telecommunications services
according to the GSM 900 standard without the imposition of
a separate fee, whereas a new entrant to the market at issue has
had to pay a fee to obtain a licence to provide digital mobile
services according to the DCS 1800
telecommunications
standard. However,
those provisions do not preclude such
national legislation if the fee imposed on the public undertaking
in a dominant position for its GSM 900 licence, including the
subsequent allocation without additional payment of additional
frequencies in the frequency band reserved for the DCS 1800
standard, appears to be equivalent in economic terms to the fee
imposed on the competitor which was granted the DCS 1800
licence.

3. Article 2(3) and (4) of Commission Directive 96/2/EC of
16 January 1996 amending Directive 90/388/EEC with
regard to mobile and personal communications in principle
precludes national legislation such as that at issue in the main
proceedings, under which additional frequencies in the frequency
band reserved for the DCS 1800 standard may be allocated to
a public undertaking in a dominant position which already
holds a licence to provide digital mobile telecommunications
services according to the GSM 900 standard without the
imposition of a separate fee, whereas a new entrant to the
market at issue has had to pay a fee to obtain a licence to
provide digital mobile telecommunications services according to
the DCS 1800 standard. However, that provision does not
preclude such national legislation if the fee imposed on the
public undertaking in a dominant position for its GSM 900
licence, including the subsequent allocation without additional
payment of additional frequencies in the frequency band reserved
for the DCS 1800 standard, appears to be equivalent in
economic terms to the fee imposed on the competitor which was
granted the DCS 1800 licence.

4. Article 2(3) and (4) of Directive 96/2 does not preclude
national legislation such as that at issue in the main proceed-
ings, under which a limited number of additional frequencies in
the frequency band reserved for the DCS 1800 standard may
be allocated to existing holders of a licence to provide digital
mobile telecommunications services according to the GSM 900
including a public undertaking in a dominant
standard,
least three years have elapsed since the
position, after at
1997 decision to grant the licence to provide digital mobile
telecommunications
services according to the DCS 1800
standard. Nor does that provision preclude national legislation
such as that at issue in the main proceedings, which allows such
an allocation before that period has elapsed if it is established
that the user capacity of those operators has been exhausted
despite the use of all commercially viable technical possibilities.

5.

The prohibition on discrimination laid down in Articles 9(2)
and 11(2) of Directive 97/13/EC of the European Parliament
and of the Council of 10 April 1997 on a common framework
for general authorisations and individual licences in the field of
telecommunications services does not preclude national legis-
lation such as that at issue in the main proceedings, under
which additional frequencies in the frequency band reserved for
the DCS 1800 standard may be allocated to existing holders
of a licence to provide digital mobile telecommunications services
according to the GSM 900 standard without the imposition of
a separate fee, whereas the operator which was granted a licence
to provide digital mobile telecommunications services according
to the DCS 1800 standard has had to pay a fee, if the fee
charged to existing operators for their GSM 900 licence,
including the subsequent allocation without additional payment
of additional frequencies in the frequency band reserved for the
DCS 1800 standard, appears to be equivalent in economic
terms to the fee imposed on the operator which holds the
DCS 1800 licence.

(1) OJ C 47 of 19.2.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 22 May 2003

in Case C-355/00 (Reference for a preliminary ruling from
the Dioikitiko Protodikeio Thessalonikis): Freskot AE v
Elliniko Dimosio (1)

(Common agricultural policy — Free movement of goods
— Freedom to provide services — State aid — Special
contribution in favour of an agricultural insurance organis-
ation)

(2003/C 171/02)

(Language of the case: Greek)

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

In Case C-355/00: Reference to the Court under Article 234
EC by the Diikitiko Protodikio Thessalonikis (Greece) for a
preliminary ruling in the proceedings pending before that
court between Freskot AE and Elliniko Dimosio, on the
interpretation of Articles 30 and 38 of the EC Treaty (now,
after amendment, Articles 28 EC and 32 EC), Article 39 of the
EC Treaty (now Article 33 EC), Articles 40 and 59 of the EC
Treaty (now, after amendment, Articles 34 EC and 49 EC),
Article 60 of the EC Treaty (now Article 50 EC) and Article 92
of the EC Treaty (now, after amendment, Article 87 EC), and
First Council Directive 73/239/EEC of 24 July 1973 on the
coordination of laws, regulations and administrative provisions