Case C-55/06: Reference for a preliminary ruling from the Verwaltungsgericht Köln by order of that court of  26 January 2006  in Arcor AG & Co. KG v Federal Republic of Germany, interested party: Deutsche Telekom AG
Date: 2006-04-22
Institutions: Court of Justice
Subjects: competition, interpretation of the law, telecommunications, telephone, telephone charges, transmission network

22.4.2006

EN

Official Journal of the European Union

C 96/3

Action brought on 27 January 2006 by the Commission of
the European Communities against the Kingdom of the
Netherlands

Reference for a preliminary ruling from the Verwaltungs-
gericht Köln by order of that court of 26 January 2006 in
Arcor AG & Co. KG v Federal Republic of Germany, inter-
ested party: Deutsche Telekom AG

(Case C-50/06)

(2006/C 96/04)

(Language of the case: Dutch)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
27 January 2006 by the Commission of the European Commu-
nities, represented by Maria Condou-Durande and Rudi Troos-
ters, acting as Agents, with an address for service in Luxem-
bourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by not applying to citizens of the European
Union Council Directive 64/221/EEC (1) of 25 February
1964 on the coordination of special measures concerning
the movement and residence of foreign nationals which are
justified on grounds of public policy, public security or
public health, but rather applying to them general legisla-
tion on aliens which makes it possible to establish a
systematic and automatic connection between a criminal
conviction and an expulsion measure, the Kingdom of the
Netherlands has failed to fulfil its obligations under Directive
64/221/EEC;

2. order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

the Netherlands Vreemdelingenwet

Article 8(e) of
(Law on
Aliens) 2000 provides that an alien will be lawfully resident in
the Netherlands as a Community national only on condition
that that national is resident on the basis of a rule, including a
rule pursuant to the EC Treaty.

Most of the provisions of the Vreemdelingenwet 2000 are
otherwise applicable in full to 'aliens' in general, that term being
construed, in accordance with Article 1(m) of the Law, as also
covering nationals of a Member State of the EU. As such, no
reference is made in the Vreemdelingenwet
to Directive
64/221/EEC and the principles contained in that directive are
not incorporated in the text of the Law. A fortiori, the obliga-
tions resulting from Directive 64/221/EEC have not been trans-
posed in a clear and unambiguous manner in that legislation.

(1) OJ, English Special Edition 1963-1964, p. 117.

(Case C-55/06)

(2006/C 96/05)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht Köln
(Administrative Court, Cologne)
(Germany) of 26 January
2006, received at the Court Registry on 2 February 2006, for a
preliminary ruling in the proceedings between Arcor AG & Co.
interested party:
KG and Federal Republic of Germany,
Deutsche Telekom AG, on the following questions:

1. Is Article 1(4) of Regulation (EC) No 2887/2000 (1) to be
understood as meaning that the conditions for cost-orienta-
tion under Article 3(3) of
regulation lay down
minimum requirements in the sense that national law of the
Member States may not deviate from that standard to the
prejudice of beneficiaries?

that

2. Are imputed interest and cost-accounting depreciation also
encompassed by the cost-orientation requirement under
Article 3(3) of Regulation (EC) No 2887/2000?

3. If Question 2 is to be answered in the affirmative:

(a) Is the calculation basis for that interest and depreciation
the replacement value of the assets after the depreciation
made prior to the time of valuation, or is the calculation
basis
value,
expressed in terms of current daily prices at the time of
valuation?

replacement

exclusively

current

the

(b) In any event, do the costs used as the calculation basis
for imputed interest and cost-accounting depreciation,
in particular those which are not directly associated
with service (overheads), have to be proven by compre-
hensible documents detailing the costs of the notified
operator?

C 96/4

EN

Official Journal of the European Union

22.4.2006

(c) If Question 3(b)

is to be answered either entirely or

partially in the negative:

May the costs alternatively be proven by a valuation
made on the basis of an analytical cost model?

Which methodological and other substantive require-
ments do those alternative methods of valuation have to
satisfy?

Appeal brought on 3 February 2006 by Luigi Marcuccio
against the judgment delivered on 24 November 2005 by
the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-236/02 Luigi Marcuccio
v Commission of the European Communities

(Case C-59/06 P)

(2006/C 96/06)

(Language of the case: Italian)

(d) Is the national regulatory authority entitled, when asses-
its authority
sing cost-orientation in the context of
under Article 4(1)
to (3) of Regulation (EC) No
2887/2000, to a so-called scope for evaluation which is
subject only to limited judicial control?

An appeal against the judgment of the Court of First Instance
(Fifth Chamber) of 24 November 2005 in Case T-236/02 Luigi
Marcuccio v Commission of the European Communities was
brought before the Court of Justice of the European Commu-
nities on 3 February 2006 by Luigi Marcuccio, represented by
L. Garofolo, avvocato.

(e) If Question 3(d) is to be answered in the affirmative:

Parties

Is that scope also applicable, in particular, to methods
of cost calculation and questions of determining the
appropriate amount of imputed interest (for borrowed
and/or own capital)
and appropriate depreciation
periods?

Appellant: Luigi Marcuccio (represented by: L. Garofolo)

The other party to the proceedings before the Court of First
Instance: Commission

Where do the boundaries of that scope lie?

The appellant claims that the Court should:

(f) Do the cost-orientation requirements at least serve to
protect the rights of competitors as beneficiaries, with
the consequence that those competitors can make use of
legal protection against rates for access which are not
set on the basis of cost-orientation?

(g) Does the notified operator bear the burden of unprova-
bility (burden of proof) if, in the supervisory procedure
under Article 4 of Regulation (EC) No 2887/2000 or in
the subsequent judicial proceedings, costs are totally or
partially unverifiable?

(h) If Questions 3(f) and 3(g) are to be answered in the affir-

mative:

Is the burden of proof for the cost-orientation also on
the notified operator if a beneficiary competitor brings
an action against
rates approved by a regulatory
authority under national law on the ground that, since
they were not set on the basis of cost-orientation, the
approved rates for access are too high?

(1) OJ 2000 L 336, p. 4.

— set aside the judgment under appeal and grant the other

forms of order sought by the appellant.

Pleas in law and main arguments

The appellant claims that the judgment of the Court of First
Instance is flawed by reason of:

1. distortion and misrepresentation of the facts and the state-
ments made by the appellant in his written submissions
which, in turn, led to substantial inaccuracy in the findings
of fact made by the Court of First Instance;

2. failure to give a ruling on a number of fundamental issues

in the case;

3. procedural errors of a serious nature such as to damage

irreparably the interests of the appellant;

4. total failure to state grounds concerning a number of vital
issues in the case by reason, inter alia, of a failure to make
inquiries and the fact that the reasons supposedly put
forward by way of justification were confused, inconsis-
tent, inadequate, unreasonable, tautologous, arbitrary, self-
evident
regards both primary and
secondary grounds;

and illogical

as

5. misinterpretation and misapplication of the second para-
graph of Article 26 of the Staff Regulations of Officials of
the European Communities;

6. misinterpretation and misapplication of the concept of the
to a fair hearing and unconsidered and illogical

right
failure properly to apply the relevant case-law;