Case T-398/07: Action brought on 31 October 2007 — Kingdom of Spain v Commission of the European Communities
Date: 2007-10-31
Institutions: Court of First Instance
Subjects: European Commission, Internet access provider, Spain, action for annulment (EU), competition law, electronic mail, regulation of telecommunications

12.1.2008

EN

Official Journal of the European Union

C 8/17

Action brought on 31 October 2007 — Kingdom of Spain
v Commission of the European Communities

(Case T-398/07)

(2008/C 8/32)

Language of the case: Spanish

tion rules. Furthermore, inconsistency of the results obtained
by the Commission with international experience and the
reality of the Spanish market, impeding the Spanish national
regulatory authority from attaining the objectives set out in
that regulatory framework, and breach of the principle of
specificity.

— Breach of the principle of legal certainty, since the contested
decision implies an ex post change in the concept of the
regulatory framework as defined ex ante.

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad,
Agent)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 4 July 2007 relating to
a proceeding under Article 82 EC (Case COMP/38.784 —
Wanadoo España v Telefónica) and

— Order the defendant to pay the costs

Pleas in law and main arguments

The present action is brought against the decision of 4 July
2006 relating to a proceeding under Article 82 EC (Case
COMP/38.784 — Wanadoo España v Telefónica) in which the
Commission imposed a fine of EUR 151 875 000 on Telefó-
nica, S.A. and jointly and severally on Telefónica de España S.A.
U., for an infringement of Article 82 EC. According to the
Commission, from September 2001 until December 2006 both
companies charged unfair tariffs in the form of disproportion
between their wholesale and retail broadband access prices.

In support of
following grounds:

its claims,

the applicant puts

forward the

— Breach of the duty to cooperate laid down in Article 10 EC
and in Article 7(2) of Directive 2002/21/EC (1) in so far as
the Commission did not give the Spanish national regulatory
authority the opportunity to collaborate with it,
for the
purposes of considering the means which might have
enabled the alleged infringement to be resolved, in the most
effective way possible.

— Infringement of Article 82 EC on account of manifest errors
of assessment as regards the indispensability of the whole-
sale products, the calculation of costs and the effects of Tele-
fónica's behaviour on competitors and consumers.

— Ultra vires application of Article 82 EC, since the contested
decision impinges on the regulatory framework for current
electronic communications in force in Spain, and thus
upsets the balance between ex ante regulation and competi-

— Breach of

the principle of

legitimate expectation with
respect to Telefónica, and with respect to the rest of the
operators in that market, by failing to comply with the regu-
latory framework in a matter that had already been regulated
by the Commission for the Telecommunications Market.

(1) Directive 2002/21/EC of

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

the European Parliament and of

Action brought on 2 November 2007 — Caixa Geral de
Depósitos v Commission

(Case T-401/07)

(2008/C 8/33)

Language of the case: Portuguese

Parties

Applicant: Caixa Geral de Depósitos SA (Lisbon, Portugal) (repre-
sented by: Nuno Mimoso Ruiz, Francisca Ponce de Leão
Paulouro and Carla Farinhas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare that the action for annulment brought pursuant to
Article 230 of the EC Treaty and, simultaneously and cumu-
latively, the action brought pursuant to Article 238 of the
EC Treaty on the basis of the arbitration clause laid down in
Article 18 of the agreement concluded on 15 November
1995 between the Commission and the CGD were brought
in accordance with law;