Case C-190/06: Reference for a preliminary ruling from the Cour d'appel de Bruxelles lodged on  21 April 2006  — Belgacom Mobile SA v Institut belge des services postaux et des télécommunications
Date: 2006-07-01
Institutions: Court of Justice
Subjects: communications systems, interpretation of the law, mobile phone, provision of services, systems interconnection, technical standard, telecommunications, transmission network

C 154/10

EN

Official Journal of the European Union

1.7.2006

3. If European law does confer a right to interest on the repay-
ment of such sums in such circumstances is that a right to
simple interest or to compound interest?

Action brought on 12 April 2006 — Commission of the
European Communities v Kingdom of Belgium

(Case C-187/06)

(2006/C 154/22)

Language of the case: French

Action brought on 18 April 2006 — Commission of the
European Communities v Kingdom of Spain

Parties

(Case C-186/06)

(2006/C 154/21)

Language of the case: Spanish

Applicant: Commission of the European Communities (repre-
sented by: J.-P. Keppenne, H. Van Vliet, Agents)

Defendant: Kingdom of Belgium

Form of order sought

Parties

Applicant: Commission of the European Communities (repre-
sented by: D. Recchia and A. Alcover San Pedro, Agents, acting
as Agents)

Defendant: Kingdom of Spain

— declare that, by failing to execute within the prescribed
period the Decision of 24 April 2002 (C(2002)1341 final)
on the State aid implemented by Belgium for the Beaulieu
group (Ter Lembeek International) (State Aid C 36/01, ex
NN 73/00) (1), the Kingdom of Belgium has failed to fulfil
its obligations under the fourth paragraph of Article 249 of
the EC Treaty and Articles 2 and 3 of that Decision;

— order the Kingdom of Belgium to pay the costs.

Form of order sought

Pleas in law and main arguments

— a declaration that,

in relation to the plan to irrigate the
irrigable area of the Segarra-Garrigues Canal, the Kingdom
of Spain has failed to fulfil its obligations under Articles 2,
3 and 4(1) and (4) of Council Directive 79/409/EEC (1) of 2
April 1979 on the conservation of wild birds;

— an order that the Kingdom of Spain should pay the costs.

Pleas in law and main arguments

The Member States may not take advantage of their failure to
designate Zones in accordance with the Directive in order to
perform actions in those areas that may endanger its objectives
and when, as in this case, the Member State has not designated
protected areas where it ought to have done, the levels of
protection required in an area of importance for birds are those
laid down in Article 4(4) of the Directive.

In consequence, the Commission takes the view that, by having
provided for and implemented the procedures leading to the
authorisation of the Segarra-Garrigues Canal irrigation plan, the
Kingdom of Spain has failed to fulfil its obligations under Arti-
cles 2, 3 and 4(1) and (4) of the Directive.

(1) OJ 1979 L 103, p. 1

Nearly four years have passed since the Belgian authorities
were notified of the Decision, yet the disputed aid has not, to
date, actually been reimbursed by the beneficiary. The latter is
still enjoying the benefits of using the funds, which is exactly
what the Decision intended to put an end to.

(1) OJ 2002 L 296, p.60

Reference for a preliminary ruling from the Cour d'appel
de Bruxelles lodged on 21 April 2006 — Belgacom Mobile
SA v Institut belge des services postaux et des télécommu-
nications

(Case C-190/06)

(2006/C 154/23)

Language of the case: French

Referring court

Cour d'appel de Bruxelles

1.7.2006

EN

Official Journal of the European Union

C 154/11

Parties to the main proceedings

Applicant: Belgacom Mobile SA

Defendant: Institut belge des services postaux et des télécommu-
nications

Questions referred

1 Do individual rights of use for radio frequencies, as referred
to in Article 5(1) of Directive 2002/20/EC (Authorisation
Directive), (1) include the exclusive right to use devices such
as GSM devices or to authorise their use?

2 Must Article 7(3) of Directive 1999/5/EC of the European
Parliament and of the Council of 9 March 1999 on radio
equipment and telecommunications terminal equipment and
the mutual recognition of their conformity (2) be understood
as meaning that it precludes a national measure making the
use of SIM cards in GSM gateways subject to the prior
permission of the mobile network operator concerned?

3 Does the concept of ‘access’ within the meaning of Directive
2002/19/EC (Access Directive) (3) cover the provision to
another undertaking of a SIM card where that SIM card is
used by that undertaking in GSM gateway devices in order
to provide third parties with services which make it possible
to bypass interconnection points?

4 Where a national legal or administrative measure consists in
requiring the prior permission of the operator of a public
mobile telephony network which provides another under-
taking with one or more SIM cards enabling the user of the
SIM card to access the electronic communications services
provided by that operator, and the SIM cards are used in
devices which afford a technical means of accessing the
operator's services without passing through interconnection
points and without any need to obtain from that operator
the provision of other resources and/or services,
is that
measure compatible with:

— Directive 2002/20/EC (Authorisation Directive) which
introduced a system of general authorisation for all elec-
tronic communications networks and services;

— the [second] subparagraph of Article 8(1) of Directive
2002/21/EC (Framework Directive), (4) which provides
that Member States are to ensure that, in carrying out
their tasks, in particular those designed to ensure effec-
tive competition, national regulatory authorities take the
utmost account of the desirability of making regulations
technologically neutral;

— the competition rules to which recital 7 in the preamble
to Directive 2002/19/EC (Access Directive) refers, in the
sense that it would have the effect of linking the terms
and conditions for access within the meaning of Article
2(a) of Directive 2002/19/EC (Access Directive) to the
activities of the party seeking access, and specifically to
the degree of its investment in network infrastructure;

5 If it must be held that the use of GSM gateways for the
commercial provision of electronic communications services
requires the consent of the mobile operator concerned, must
Articles 3 and 4 of Directive 97/33/EC (5) and Article 4 of
Directive 2002/19/EC (Access Directive) be interpreted as
meaning that such use must be covered by an agreement
between the parties concerned on the technical and commer-
cial terms and conditions?

6 Must the obligation imposed on organisations notified as
having significant market power to make their prices cost
oriented, as referred to in Article 7 of Directive 97/33/EC
and Article 13(1) of Directive 2002/19/EC (Access Directive),
it does not preclude an
be interpreted as meaning that
operator which is subject to it from setting its tariffs in such
a way as to recover the investment costs for interconnection
points on the ground that these were established taking
account of the total volume of 'off-net' calls, including calls
diverted through GSM gateways?

7 Must Article 10(6) of Directive 2002/20/EC (Authorisation
Directive)
and Article 7(6) of Directive 2002/21/EC
(Framework Directive) be interpreted as meaning that they
allow Member States the discretion to provide that, where
the national
interim
those measures may apply only for a limited
measures,
period fixed at two months?

regulatory authority adopts urgent

(1) Directive 2002/20/EC of

the
Council of 7 March 2002 on the authorisation of electronic
communications networks and services (Authorisation Directive) (OJ
2002 L 108, p. 21).

the European Parliament and of

(2) Directive 1999/5/EC of the European Parliament and of the Council
of 9 March 1999 on radio equipment and telecommunications
terminal equipment and the mutual recognition of their conformity
(OJ 1999 L 91, p. 10).
(3) Directive 2002/19/EC of

the
Council of 7 March 2002 on access to, and interconnection of, elec-
tronic communications networks and associated facilities (Access
Directive) (OJ 2002 L 108, p. 7).

the European Parliament and of

(4) Directive 2002/21/EC of

the
Council of 7 March 2002 on a common regulatory framework for
electronic communication networks and services (Framework Direc-
tive) (OJ 2002 L 108, p. 33).

the European Parliament and of

(5) 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) (OJ
1997 L 199, p. 32).