Case T-244/05: Action brought on 1 July 2005 by Gibtelecom Limited against the Commission of the European Communities
Date: 2005-08-20
Institutions: Court of First Instance
Subjects: European Commission, Gibraltar, Spain, action for annulment (EU), dominant position, regulation of telecommunications, telecommunications, telephone

20.8.2005

EN

Official Journal of the European Union

C 205/37

Action brought on 1 July 2005 by Gibtelecom Limited
against the Commission of the European Communities

(Case T-244/05)

(2005/C 205/65)

(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 1 July 2005 by Gibtelecom Limited,
established in Europort (Gibraltar), represented by M. Llamas,
Barrister, B. O'Connor, Solicitor, and S. Brummel, lawyer.

The applicant claims that the Court should:

— annul the Commission's decision, notified to Gibtelecom by
a letter dated 26 April 2005 (Reference No. 1982), by
which the Commission implicitly rejected the complaint
brought by Gibtelecom against Spain under Article 86 EC
in conjunction with Article 49 EC and/or 12 EC;

— order the Commission to pay Gibtelecom's costs.

Pleas in law and main arguments

By the contested decision the Commission rejected a complaint
by the applicant filed on 31 October 1996 and 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 giving instructions to
Telefonica to refuse the ITU-assigned 350 IDD code for
Gibraltar, Spain created and maintained discriminatory obsta-
cles to the free movement of
telecommunications services,
contrary to Article 49 EC. Further, the applicant considers that
the Spanish State's refusal
to recognise this code produces
discriminatory treatment based on nationality and residence
and is contrary to the prohibition on discrimination in Article
12 EC.

The applicant also maintains that by considering,
in the
contested decision, that a suitable solution in the numbering
problem should be found through direct bilateral discussions
between Spain and the United Kingdom, the Commission has
committed a further manifest error of assessment
since,
according to the applicant, there is no suitable alternative to
the Commission's intervention.

The applicant also puts forward a number of procedural and
administrative grounds for annulment. The applicant refers, in
this context, to an alleged violation of the Commission's duty,
under Article 253 EC, to state adequate reasons for its decision,
as well as a violation of the applicant's legitimate expectations
which allegedly arose from a letter sent on 7 June 2000 by
three members of the Commission to Spain and the United
Kingdom, requesting the two countries, amongst other things,
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.