Case C-544/03: 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 Mobistar against Commune de Fléron
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?