Case T-367/04: Action brought on 15 September 2004 by Gibtelecom Limited against the Commission of the European Communities
Date: 2004-11-20
Institutions: Court of First Instance
Subjects: European Commission, Gibraltar, Spain, action for annulment (EU), dominant position, infringement of EU law, regulation of telecommunications, telecommunications, telephone

C 284/24

EN

Official Journal of the European Union

20.11.2004

Action brought on 10 September 2004 by Dominique
the European Union and
Cantoni against Council of

Commission of the European Communities

— order the Commission to pay Gibtelecom's costs.

(Case T-365/04)

(2004/C 284/47)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of the European Communities was brought before
the Court of First Instance of the European Communities on 10
September 2004 by Dominique Cantoni, residing in Marseilles
(France), represented by Jean-François Péricaud, lawyer.

The applicant claims that the Court should:

— order the Council of the European Union and the Commis-
sion of the European Communities jointly and severally to
the sum of
pay to Mr Cantoni, as a primary claim,
sum of
the
EUR 916 000,
EUR 862 010, together, in any event, with interest at the
rate prescribed by law from the date this action for
payment was brought;

alternative,

in the

and,

— order the Council of the European Union and the Commis-
sion of the European Communities jointly and severally to
pay the costs.

Pleas in law and main arguments:

The pleas in law and main arguments are those relied on in
Case T-440/03 Arizmendi and Others v Council and Commis-
sion. (1)

(1) OJ C 59 of 6.3.2004, p. 31.

Action brought on 15 September 2004 by Gibtelecom
Limited against the Commission of the European Commu-
nities

(Case T-367/04)

(2004/C 284/48)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 15 September 2004 by Gibtelecom
Limited, Gibraltar, represented by M. Llamas, Barrister and B.
O'Connor, Solicitor.

The applicant claims that the Court should:

— Annul the Commission's Decision of 5 July 2004 rejecting
the complaint brought by Gibtelecom under Article 86 EC
in conjunction with Article 82 EC;

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint
by the applicant filed on 31 October 1996 alleging that the
Spanish telecommunications operator, Telefonica SA, had
committed a series of abuses of dominant position contrary to
Article 82 EC in refusing to recognise Gibraltar's International
Dialling Code (‘350’) and insisting on acceptance of restrictive
conditions for the exchange of automatic direct dial traffic
between Spain and Gibraltar. The applicant later converted that
complaint into a complaint under Article 86 EC, in conjunction
with Articles 82 EC, 49 EC and 12 EC against Spain, alleging
that Telefonica was acting under instructions from the Spanish
Government which claims sovereignty over Gibraltar.

In support of its application, the applicant invokes a series of
alleged manifest errors of assessment of the contested decision.
According to the applicant, the Commission erred in consid-
ering that Telefonica is not a public undertaking or that it
enjoys special rights within the meaning of Article 86 EC.

The applicant further alleges that, by her actions, Spain has
infringed the numbering and access provisions of Directives
90/388 (1), 97/33 (2), 2002/21 (3) and 2002/77 (4).
It also
infringement actions can be pursued against
considers that
Spain under Article 86 EC whether or not the measures Spain
took to prevent recognition, by Telefonica, of Gibraltar's Inter-
national Dialling Code were of general application.

The applicant also puts forward a number of procedural and
administrative grounds for annulment referring, in this context,
to a violation of the applicant's legitimate expectations which
allegedly arose as a result of a letter sent on 7 June 2000 by
three members of the Commission to Spain and the United
Kingdom, requesting the two countries, among other things, to
find a solution to the numbering complaint. The applicant
further submits,
in the context of the same plea, that the
Commission has failed to act impartially and that it has brea-
ched the principle requiring it
to act within a reasonable
period.

(1) Commission Directive 90/388/EEC of 28 June 1990 on competition
in the markets for telecommunications services (Official Journal L
192, 24.7.1990, p. 10–16).

(2) Directive 97/33/EC of the European Parliament and of the Council
of 30 June 1997 on interconnection in Telecommunications with
regard to ensuring universal service and interoperability through
application of the principles of Open Network Provision (ONP)
(Official Journal L 199, 26.7.1997, p. 32–52).

(3) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communications networks and services
(Framework
Directive) (Official Journal L 108, 24.4.2002, p. 33–50).

the European Parliament and of

(4) Commission Directive 2002/77/EC of 16 September 2002 on
competition in the markets for electronic communications networks
and services (Text with EEA relevance)
Journal L 249,
17.9.2002, p. 21–26).

(Official