Case C-438/04: Reference for a preliminary ruling by the Cour d'Appel de Bruxelles, 9ème Chambre, by judgment of that court of 14 October 2004 in the case of Mobistar SA against Institut belge des services postaux et des télécommunications, joined parties, Belgacom Mobile SA and Base SA
Date: 2005-01-08
Institutions: Court of Justice
Subjects: interpretation of the law, telecommunications, telephone, telephone charges, transmission network, universal service

C 6/24

EN

Official Journal of the European Union

8.1.2005

Action brought on 5 October 2004 by the Commission of
the European Communities against the Hellenic Republic

(Case C-427/04)

(2005/C 6/45)

(Language of the case: Greek)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 5 October
2004 by the Commission of the European Communities, repre-
sented by Wouter Wils and Georgios Zavvos, members of the
Commission's Legal Service.

The applicant claims that the Court should:

1) declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Direc-
tive 2001/16/EC of the European Parliament and of the
Council of 19 March 2001 on the interoperability of the
rail system (1), and in any
trans-European conventional
event by failing to inform the Commission thereof, the
Hellenic Republic has failed to fulfil its obligations under
that directive.

2) order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for
national law expired on 20 April 2003.

transposing the directive into

(1) OJ L 110, 20.4.2001, p. 1.

Reference for a preliminary ruling by the Cour d'Appel de
Bruxelles, 9ème Chambre, by judgment of that court of 14
October 2004 in the case of Mobistar SA against Institut
belge des services postaux et des télécommunications,
joined parties, Belgacom Mobile SA and Base SA

(Case C-438/04)

(2005/C 6/46)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by judgment of the Cour d'Appel de Brux-

elles, 9ème Chambre, (Court of Appeal, Brussels, Ninth Chamber)
(Belgium) of 14 October 2004 received at the Court Registry
on 19 October 2004, for a preliminary ruling in the case of
Mobistar SA against Institut belge des services postaux et des
telecommunications, joined parties, Belgacom Mobile SA and
Base SA on the following questions:

With regard to the number portability facility provided
for in Article 30 of Directive 2002/22/EC (1) (Universal
Service Directive):

1. Does Article 30(2) of the Universal Service Directive, which
provides that national regulatory authorities are to ensure
that pricing for interconnection related to the provision of
number portability is cost-oriented, refer only to costs
related to traffic to the ported number, or does it also refer
to tariffs of costs incurred by operators in executing requests
for number porting?

2. If Article 30(2) of the directive refers only to interconnec-
tion costs related to traffic to the ported number, must it be
interpreted:

(a) as leaving operators free to negotiate the commercial
conditions for the facility and as prohibiting Member
States from imposing ex ante commercial conditions on
undertakings obliged to provide the number portability
facility in respect of the services provided in relation to
the execution of a request for porting?

(b) as not prohibiting Member States from imposing ex
ante commercial conditions in respect of that facility on
operators which have been designated as having signifi-
cant market power in a particular market?

3. If Article 30(2) of

the directive must be interpreted as
imposing on all operators the obligation of cost orientation
in respect of the costs of number porting, must it be inter-
preted as precluding:

(a) a national

regulatory measure imposing a specific
method of calculation for the calculation of the costs in
question?

(b) a national measure which fixes ex ante the allocation of

the costs between the operators?

(c) a national measure which empowers the national regula-
tory authority to fix ex ante for all operators and for a
given period the maximum amount of
the charges
which the donor operator may claim from the recipient
operator?

8.1.2005

EN

Official Journal of the European Union

C 6/25

(d) a national measure which grants to the donor operator
the right to apply the tariff set by the national regulatory
authority, relieving that operator of the obligation to
prove that the tariff which it applies is oriented to its
own costs?

With regard to the right of appeal provided for by Article
4 of Directive 2002/21/EC (2) (Framework Directive):

Must Article 4(1) of the Framework Directive be interpreted as
meaning that the authority designated to hear and determine
appeals must be able to have at its disposal all the information
necessary for the merits of the case to be duly taken into
account, including the confidential information on the basis of
which the national regulatory authority adopted the decision
which is the subject-matter of the appeal?

that the fact that the contract of sale is void, by reason of a
rule of domestic civil law which renders the contract incur-
ably void as contrary to public policy on the ground of
illegal basis of the contract attributable to the seller, cannot
cause that taxable person to lose his right to deduct that
tax?

2. Is the answer different where the contract is incurably void

for fraudulent evasion of VAT itself?

3. Is the answer different where the unlawful basis of the
incurably void under
contract of sale which renders it
domestic law is a fraudulent evasion of value added tax
known to both parties to the contract?

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
communications networks and services
(Universal Service Directive) (OJ L 108 of 24.4.2002 p. 51).

the European Parliament and of

(2) Directive 2002/21/EC of

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

the European Parliament and of

Reference for a preliminary ruling by the Belgian Cour de
Cassation (1st Chamber) by decision of that court of 7
October 2004 in the case of Axel Kittel against Belgian
State

(Case C-439/04)

(2005/C 6/47)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Belgian Cour de Cassation
(Court of Cassation) (1st Chamber) of 7 October 2004, received
at the Court Registry on 19 October 2004, for a preliminary
ruling in the case of Axel Kittel against the Belgian State on the
following questions:

1. Where the recipient of a supply of goods is a taxable person
who has entered into a contract
in good faith without
knowledge of a fraud committed by the seller, does the prin-
ciple of fiscal neutrality in respect of value added tax mean

Reference for a preliminary ruling by the Belgian Cour de
Cassation (1st Chamber) by decision of that court of 7
October 2004 in the case of the Belgian State against
Recolta Recycling s.p.r.l.

(Case C-440/04)

(2005/C 6/48)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Belgian Cour de Cassation
(Court of Cassation) (1st Chamber) of 7 October 2004, received
at the Court Registry on 19 October 2004, for a preliminary
ruling in the case of the Belgian State against Recolta Recycling
s.p.r.l. on the following questions:

1. Where the recipient of a supply of goods is a taxable person
who has entered into a contract
in good faith without
knowledge of a fraud committed by the seller, does the prin-
ciple of fiscal neutrality in respect of value added tax mean
that the fact that the contract of sale is void, by reason of a
rule of domestic civil law which renders the contract incur-
ably void as contrary to public policy on the ground of
illegal basis of the contract attributable to the seller, cannot
cause that taxable person to lose his right to deduct that
tax?

2. Is the answer different where the contract is incurably void

for fraudulent evasion of VAT itself?