Case C-152/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 20 March 2007 — Arcor AG & Co. KG v Bundesrepublik Deutschland
Date: 2007-06-23
Institutions: Court of Justice
Subjects: Germany, communications systems, competition law, interpretation of the law, public service, systems interconnection

23.6.2007

EN

Official Journal of the European Union

C 140/7

According to the settled case-law of the Court of First Instance
and the Court of Justice, the parties, and accordingly the reci-
pient of aid, have no right of access to documents in cases of
investigation of aid. It follows that the decision of the Court of
First Instance erred in law in paragraphs 87 to 89 of the judg-
ment under appeal by stating that there were no special circum-
stances making it manifestly clear that the access to documents
requested should be refused. In fact, it is clear from the case-law
that the documents concerned are fully covered by an exception
to the right of access to documents and accordingly that each
document should not be individually examined.

Furthermore, cases of
investigation of aid are proceedings
against the State granting the aid, particularly where the reci-
pient of the aid has no entitlement to aid. Accordingly, what is
relevant to the question of access to documents is what the
Court of Justice itself has ruled in relation to actions for infrin-
gement under Article 226 EC, namely that there is no public no
right of access to documents in such proceedings.

The judgment under appeal also leads to the absurd result that
the general public enjoys, on the basis of
the legislation
promoting transparency, namely Regulation No 1049/2001 (2),
more extensive rights of access to documents than a recipient of
aid who is directly subject to proceedings against him, who is
also — precisely because he is directly and individually
concerned for the purposes of Article 230(4) EC — entitled to
raise proceedings against the decision ending the procedure. It is
even harder to understand why the further consequence, namely
that an application of a recipient of aid under reference to the
applicable case-law may be rejected where such a response
cannot be given to an application of a recipient of aid or an
independent third party who relies on the transparency regu-
lation.

With the third ground of appeal, the Commission criticises the
judgment under appeal for giving the same expression, namely
the word ‘document’, in the singular, in Article 4(2) of Regu-
lation No 1049/2001 and in Article 6 of the regulation is given
a different meaning. While,
in Article 4(2), that word means
that each document must be considered for a refusal to be
given, the Court of First Instance interpreted Article 6 in such a
way that access may also be requested to a bundle of documents
that has been designated as an administrative file.

With the fourth ground of appeal, the Commission claims that
the Court of First Instance infringed Article 255 EC, inasmuch
as its decision was not arrived at on the basis of the language of
the legislation, but on the basis of assumptions reached without
reference to that wording.

Lastly, the Commission claims that the Court of First Instance
wrongly held that both the procedures relating to the investiga-
tion of the aid granted to Technische Glaswerke Ilmenau GmbH
had already been completed at
the decision
concerning access to the administrative file, so that the authori-
ties had no interest in maintaining the confidentiality of the
documents. That is partly incorrect because of the proceedings
pending before the Court of First Instance. The Court of First

the time of

Instance also appears to have wrongly concluded that Regu-
lation No 1049/2001 made the earlier case-law and the relevant
procedural provisions relating to the monitoring of aid obsolete.

(1) OJ 2006 C 331, p. 29
(2) OJ 2001 L 145, p. 43

Reference for a preliminary ruling from the Bundesverwal-
lodged on 20 March 2007 —
tungsgericht

(Germany)

Arcor AG & Co. KG v Bundesrepublik Deutschland

(Case C-152/07)

(2007/C 140/12)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Arcor AG & Co. KG

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services
(Competition Directive) (1) and Directive 97/33/EC of the Euro-
pean Parliament and of the Council of 30 June 1997 on inter-
connection in telecommunications with regard to ensuring
universal service and interoperability through application of the
principles of Open Network Provision (ONP) (Interconnection
Directive) (2) to be interpreted as meaning that the national
regulatory authority is precluded from requiring, in 2003, the
operator of a network which is interconnected with a public
local telecommunications network to pay a contribution to the
market-dominant operator of
the local network in order to
compensate him for the deficit incurred as a result of providing
the local loop?

C 140/8

EN

Official Journal of the European Union

23.6.2007

If the answer to the first question is in the affirmative:

If the answer to the first question is in the affirmative:

Is the incompatibility with Community law of such a require-
ment, which is a provision of domestic law, to be taken into
account by the national court in proceedings concerning the
approval of a contribution by the interconnected network
operator?

Is the incompatibility with Community law of such a require-
ment, which is a provision of domestic law, to be taken into
account by the national court in proceedings concerning the
approval of a contribution by the interconnected network
operator?

(1) OJ 1990 L 192, p. 10.
(2) OJ 1997 L 199, p. 32.

(1) OJ 1990 L 192, p. 10.
(2) OJ 1997 L 199, p. 32.

Reference for a preliminary ruling from the Bundesverwal-
tungsgericht
lodged on 20 March 2007 —
Communication Services TELE2 GmbH v Bundesrepublik
Deutschland

(Germany)

Reference for a preliminary ruling from the Bundesverwal-
tungsgericht
lodged on 20 March 2007 —
01051 Telekom GmbH v Bundesrepublik Deutschland
(Federal Republic of Germany)

(Germany)

(Case C-153/07)

(2007/C 140/13)

(Case C-154/07)

(2007/C 140/14)

Language of the case: German

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Communication Services TELE2 GmbH

Applicant: 01051 Telekom GmbH

Defendant: Bundesrepublik Deutschland

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Intervener: Deutsche Telekom AG

Questions referred

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services
(Competition Directive) (1) and Directive 97/33/EC of the Euro-
pean Parliament and of the Council of 30 June 1997 on inter-
connection in telecommunications with regard to ensuring
universal service and interoperability through application of the
principles of Open Network Provision (ONP) (Interconnection
Directive) (2) to be interpreted as meaning that the national
regulatory authority is precluded from requiring, in 2003, the
operator of a network which is interconnected with a public
local telecommunications network to pay a contribution to the
market-dominant operator of
the local network in order to
compensate him for the deficit incurred as a result of providing
the local loop?

Are Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services
(Competition Directive) (1) and Directive 97/33/EC of the Euro-
pean Parliament and of the Council of 30 June 1997 on inter-
connection in telecommunications with regard to ensuring
universal service and interoperability through application of the
principles of Open Network Provision (ONP) (Interconnection
Directive) (2) to be interpreted as meaning that the national
regulatory authority is precluded from requiring, in 2003, the
operator of a network which is interconnected with a public
local telecommunications network to pay a contribution to the
market-dominant operator of
the local network in order to
compensate him for the deficit incurred as a result of providing
the local loop?