Case C-545/03: Reference for a preliminary ruling by the Conseil d'État (Belgium) by order of that Court of 8 December 2003 in the case of S.A. Belgacom Mobile against Commune de Schaerbeek
Date: 2004-02-21
Institutions: Court of Justice
Subjects: interpretation of the law, mobile phone, tax system, telecommunications

C 47/22

EN

Official Journal of the European Union

21.2.2004

1.

Should Article 49 of the EC Treaty be interpreted as
precluding the introduction, by a national or local
authority, of a tax on mobile and personal communi-
cations infrastructures used to carry on activities covered
by licences and authorisations?

2. Given that Article 3c of Commission Directive 90/388/
EEC of 28 June 1990 (1), as inserted by Commission
Directive 96/2/EC of 16 January 1996 (2) amending
Directive 90/388/EEC with regard to mobile and personal
communications, refers to the lifting of ‘all restrictions’,
does that article preclude the introduction, by a national
or local authority, of a tax on mobile and personal
communications infrastructures used to carry on activities
covered by licences and authorisations?

(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
tition in the markets for telecommunications services (OJ L 192,
24.7.1990, p. 10).

(2) Commission Directive 96/2/EEC of 16 January 1996 amending
Directive 90/388/EEC with regard to mobile and personal com-
munications (OJ L 20, 26.1.1996, p. 59).

Pleas in law and main arguments

This action for annulment is aimed at defending fundamental
rights, especially the rights of minors, in the Community legal
order. The Directive, whilst providing for valid rules for
codifying the law governing family reunification for third-
country nationals, nevertheless contains a number of pro-
visions which are unacceptable having regard to fundamental
rights, including the right to family life and the right not to be
discriminated against, compliance with which must be ensured
in the legal order of the European Union pursuant to Article 6
of the Treaty on European Union.

The right to family life as recognised by Article 8 of the
1950 European Convention on Human Rights (ECHR) and
interpreted in the case-law of the European Court of Human
Rights can be restricted only for certain reasons and each case
calls for a balancing of the interests of the third-country
nationals concerned and those of the host State. Derogations
from the right to family reunification which are expressly
authorised by the aforementioned provisions of the directive
go beyond the permitted restrictions and violate the fundamen-
tal right to family life and the right not to be discriminated
against as guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States of the
EU as general principles of Community law, as established by
Article 6(2) of the Treaty on European Union.

(1) OJ 2003 L 251, p. 12.

Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in
the case of S.A. Belgacom Mobile against Commune de
Schaerbeek

Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in
the case of S.A Mobistar against Commune de Fléron

(Case C-545/03)

(2004/C 47/37)

(Case C-544/03)

(2004/C 47/36)

Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)
of 8 December 2003, received at the Court Registry on
23 December 2003, for a preliminary ruling in the case of S.A.
Belgacom Mobile against Commune de Schaerbeek on the
following questions:

Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)
of 8 December 2003, received at the Court Registry on
23 December 2003, for a preliminary ruling in the case of S.A
Mobistar against Commune de Fléron on the following
questions:

1.

Should Article 49 of the EC Treaty be interpreted as
precluding the introduction, by a national or local
authority, of a tax on mobile and personal communi-
cations infrastructures used to carry on activities covered
by licences and authorisations?

21.2.2004

EN

Official Journal of the European Union

C 47/23

2. Given that Article 3c of Commission Directive 90/388/
EEC of 28 June 1990 (1), as inserted by Commission
Directive 96/2/EC of 16 January 1996 (2) amending
Directive 90/388/EEC with regard to mobile and personal
communications, refers to the lifting of ‘all restrictions’,
does that article preclude the introduction, by a national
or local authority, of a tax on mobile and personal
communications infrastructures used to carry on activities
covered by licences and authorisations?

3.

otherwise arrange for and open the oral procedure;

4.

after which, annul the decision of the European Com-
mission of 20 or 27 February 2002 to conclude a research
contract with T. Lefevre, who states that he is the Director
of the ‘Center for Energy — Environment Research &
Development’.

(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
tition in the markets for telecommunications services (OJ L 192,
24.7.1990, p. 10).

(2) Commission Directive 96/2/EEC of 16 January 1996 amending
Directive 90/388/EEC with regard to mobile and personal com-
munications (OJ L 20, 26.1.1996, p. 59).

Pleas in law and main arguments

(a)

Procedural irregularity

Appeal brought on 22 December 2003 by Asian Institute
of Technology (AIT) against the order made on 15 Octo-
ber 2003 by the Fifth Chamber of the Court of First
Instance of the European Communities in Case T-288/02
between Asian Institute of Technology (AIT) and the
Commission of the European Communities

(Case C-547/03 P)

(2004/C 47/38)

An appeal against the order made on 15 October 2003 by the
Fifth Chamber of the Court of First Instance of the European
Communities in Case T-288/02 between Asian Institute of
Technology (AIT) and the Commission of
the European
Communities was brought before the Court of Justice of the
European Communities on 22 December 2003 by Asian
Institute of Technology (AIT), represented by H. Teissier du
Cros, avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

set aside the contested order dated 15 October 2003 of
the Court of First Instance of the European Communities;

2.

refer the case back to the Court of First Instance;

The Court of First Instance dismissed the AIT’s application in
Case T-288/02 as manifestly inadmissible, relying on the
provisions of Article 111 of its Rules of Procedure. Manifest
inadmissibility may be raised only at the start of the proceed-
ings and cannot in any case be based on further investigation.
If a ground of inadmissibility is revealed by a measure of
inquiry, it is then governed by Article 113 of the Rules of
Procedure of the Court of First Instance and not by Article 111.
The safeguard in respect of non-manifest inadmissibility means
that, in contrast to Article 111, where the cancellation of the
oral procedure is automatic, such cancellation is within the
discretionary power of the Court of First Instance in cases of
non-manifest inadmissibility. In this case, the Court of First
Instance has made a finding of manifest inadmissibility based
on the results of an additional enquiry, thus depriving the
party of the guarantee that cancellation of the oral procedure
is subject to the CFI’s discretion.

(b)

Error of assessment as to admissibility having regard to
the fourth subparagraph of Article 230 of the EC Treaty

Since it is understood that the AIT is not the ‘addressee’ of the
decision to award the contract, the CFI should have applied
the test in Plaumann, with the flexibility which the Court of
Justice has brought
to that case-law in order to give a
less restrictive interpretation to the second paragraph of
Article 173 (now the fourth paragraph of Article 230 of
the EC Treaty).
‘CEERD/FIHRDS’ to which the Commission
awarded the contract, is a competitor of ‘CEERD/AIT’, and
even an unfair competitor. The award of the contract to
‘CEERD/FIHRDS’ by the Commission, which has deprived the
AIT of the competitive advantages flowing from the fact that
the ‘CEERD/AIT’
is one of its departments, adversely and
substantially affects it in its competitive position. The contested
decision also impairs the AIT’s entitlement to use its name and
logo ‘CEERD’, a prejudice which distinguishes its situation in
relation to all other economic operators. The contested
contract concerns the AIT directly and individually because it
substantially affects its competitive position, even though it is
not a trader.