Cases C-327/03 and C-328/03: Reference for a preliminary ruling by the Bundesverwaltungsgerichts by order of that Court of 30 April 2003 in the case of Federal Republic of Germany, represented by the Bundesministerium für Wirtschaft und Technologie against ISIS Multimedia Net GmbH und Co. KG and Firma O2 (Germany) GmbH and Co. OHG
Date: 2003-10-18
Institutions: Court of Justice
Subjects: competition law, dominant position, interpretation of the law, tax system, telecommunications, telephone

18.10.2003

EN

Official Journal of the European Union

C 251/3

Beroep voor het bedrijfsleven (Administrative Court for Trade
and Industry) of 26 June 2003, received at the Court Registry
on 30 June 2003, for a preliminary ruling in the proceedings
between Arch Timber Protection BV and College voor de
toelating van bestrijdingsmiddelen; party to these proceedings:
Stichting Behoud Leefmilieu en Natuur Maas en Waal on the
following question:

Does the Substances Directive permit a Member State to lay
down additional conditions for the placing on the market and
use of a biocidal product the active substance of which is
included in Annex I to the Substances Directive?

rights either from the national scheme to the European
scheme or, conversely, from the European scheme to the
national scheme;

in that by providing that the worker concerned must
expressly waive the right to transfer from the Belgian
scheme to the European scheme or by causing an
administrative practice to that effect, without the afore-
mentioned comparison having been made, these provi-
sions mislead or could mislead the worker;

and in that these national provisions do not allow years of
service as an official of the European Union to be taken
into account for the purposes of the grant of an early
national pension?

2.

3.

(1) English special edition Series-I I Chapter 1968(II) p. 475.

Reference for a preliminary ruling by the Tribunal du
Travail de Bruxelles by judgment of
that Court of
20 May 2003 in the case of Gregorio MY against
L'Office National des Pensions (O.N.P.)

(Case C-293/03)

(2003/C 251/06)

Reference for a preliminary ruling by the Bundesver-
waltungsgerichts by order of that Court of 30 April
2003 in the case of Federal Republic of Germany, repre-
sented by the Bundesministerium für Wirtschaft und
Technologie against ISIS Multimedia Net GmbH und Co.
KG and Firma O2 (Germany) GmbH and Co. OHG

Justice of
the
Reference has been made to the Court of
European Communities by judgment of
the Tribunal du
Travail de Bruxelles (Brussels Labour Court) of 20 May 2003,
received at the Court Registry on 4 July 2003, for a prelimin-
ary ruling in the case of Gregorio MY against L'Office
National des Pensions (O.N.P.) (National Pensions Office) on
the following questions:

Are national provisions, such as the Belgian Law of 21 May
1991 (establishing a certain relationship between the Belgian
pension schemes and those of international public law bodies)
and the second paragraph of Article 4 of the Belgian Royal
Decree of 23 December 1996 (implementing Articles 15, 16
and 17 of the Law of 26 July 1996 modernising social security
and ensuring the viability of the statutory pension schemes), or
Article 11 of Annex VIII to the Staff Regulations of Officials
of the European Communities, not contrary to Articles 2, 3,
17, 18, 39, 40, 42 and 283 of the EC Treaty and Article 7
of Regulation (EEC) No 1612/68 of 15 October 1968 on
freedom of movement for workers within the Community (1):

1.

in that these national provisions and the Staff Regulations
do not allow a citizen of the European Union, such as the
plaintiff, whose professional career has been carried out
first in an undertaking or in a national public service and
then in the European Union civil service, or vice versa, to
compare the pension benefits which he would obtain
under each scheme, be it national or European, through
transfer of rights acquired under the other schemes, and
based on this comparison, to request transfer of these

(Cases C-327/03 and C-328/03)

(2003/C 251/07)

Justice of

Reference has been made to the Court of
the
European Communities by order of the Bundesverwaltungs-
gerichts (Federal Administrative Court) of 30 April 2003,
received at the Court Registry on 28 July 2003, for a preli-
minary ruling in the case of Federal Republic of Germany,
represented by the Bundesministerium für Wirtschaft und
Technologie against ISIS Multimedia Net GmbH und Co. KG
and Firma O2 (Germany) GmbH and Co. OHG on the follow-
ing questions:

1.

Is Directive 97/13/EC (1) of the European Parliament and
of the Council of 10 April 1997 on a common frame-
work for general authorisations and individual licences in
the field of telecommunications services (OJ 1997 L 117,
p. 15) to be interpreted as meaning that, in respect of the
allocation of telephone numbers by the national regula-
tory authority, a fee taking account of the economic value
of the telephone numbers allocated may be imposed even
though a telecommunications undertaking operating on
the same market and occupying a dominant position on it
took over free of charge from its predecessor in law, the
former State undertaking with a monopoly, a very large

C 251/4

EN

Official Journal of the European Union

18.10.2003

telephone numbers and the retrospective
quantity of
imposition of fees in respect of this old stock is not
possible for reasons of national law?

basic telecommunications networks, is exempted from those
charges which are, however, payable by every other operator.

If the answer to Question 1 is in the affirmative:

2.

In such a situation may the new entrants to the market,
irrespective of the level of their other entry costs and
their competitive
without an associated analysis of
chances in comparison with the dominant undertaking,
be charged for the allocation of a telephone number a
one-off fee in the amount of a particular percentage (in
this case 0,1 %) of the estimated annual sales which can
be attained if the telephone number is passed on to a final
customer?

(1) OJ L 117, p. 15.

The more favourable treatment reserved for PT Comunicações
compared to other operators as regards the economic condi-
tions for the granting of rights of way is not objectively
justified. Reserving to PT Comunicações treatment which
differs from that afforded to other operators without any
objective justification whatsoever constitutes unequal treat-
ment
the granting of rights of way to PT
Comunicações, which amounts to infringement of Article 4d
of the Directive.

in respect of

(1) Commission Directive 90/388/EEC of 28 June 1990 on competi-
tion in the markets for telecommunications services (OJ L 192 of
24 July 1990, p. 10).

(2) Commission Directive 96/19/EC of 13 March 1996 amending
Directive 90/388/EEC with regard to the implementation of full
competition in telecommunications markets (OJ L 74 of 22 March
1996, p. 13).

Action brought on 30 July 2003 by the Commission of
the Portuguese
the European Communities

against

Republic

(Case C-334/03)

(2003/C 251/08)

Reference for a preliminary ruling by the Tribunale
Ordinario di Torino — Sezione del Giudice per le
Indagini Preliminari — by order of that Court of 15 July
2003 in the case against Fabrizio Barra

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 30 July
the European Communities,
2003 by the Commission of
represented by A. M. Alves Vieira and S. Rating, acting as
Agents, with an address for service in Luxembourg.

(Case C-337/03)

(2003/C 251/09)

The applicant claims that the Court should:

(1) Declare that, by failing to ensure in practice the transpo-
law of Article 4d of Directive
sition into national
90/388/EEC (1)
in the latest version amended by
Directive 96/19/EC (2), the Portuguese Republic has failed
to fulfil its obligations; and

Justice of

Reference has been made to the Court of
the
European Communities by order of the Tribunale Ordinario
di Torino — Sezione del Giudice per le Indagini Preliminari —
(District Court, Turin — Preliminary Investigations Section) of
15 July 2003, received at the Court Registry on 1st August
2003, for a preliminary ruling in the case against Fabrizio
Barra on the following questions:

(2) Order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

Article 13 of Law No 91/97 exempts the operators of basic
telecommunications networks from the payment of fees for
the installations of their networks and the granting of the
necessary rights of access to the public domain. As a result
of that provision, PT Comunicações, being the sole operator of

1. Must Article 44(3)(g) of the Treaty, Articles 2(1)(f) and 6
the first directive (Directive 68/151/EEC (1)) and
of
Article 2(2), (3) and (4) of the fourth directive (Directive
78/660/EEC (2), as amended by Directive 83/349 (3) and
Directive 90/605 (4)), be interpreted as meaning that that
legislation precludes a law of a Member State according to
which it is not a punishable offence for companies to
infringe their obligations concerning disclosure and the
provision of accurate information where statements are
made which, although intended to deceive members of the
public with a view to securing an unjust profit, are the
consequence of estimated valuations which, taken indivi-