CELEX: C2001/095/03
Language: en
Date: 2001-03-24 00:00:00
Title: Judgment of the Court (Third Chamber) of 30 November 2000 in Case C-384/99: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Telecommunications — Interconnection of networks — Interoperability of services — Provision of universal service)

C 95/2                   EN                       Official Journal of the European Communities                                           24.3.2001
                  JUDGMENT OF THE COURT                                      3.    Where a Member State is obliged to take into account, in
                                                                                   calculating the pay of contractual teachers and teaching
                                                                                   assistants, periods of employment in certain institutions in other
                           (Fifth Chamber)                                         Member States comparable to the Austrian institutions listed
                                                                                   in Paragraph 26(2) of the Vertragsbedienstetengesetz 1948,
                       of 30 November 2000                                         such period must be taken into account without any temporal
                                                                                   limitation.
in Case C-195/98 (reference for a preliminary ruling from
the Oberster Gerichtshof): Österreichischer Gewerk-                         (1) OJ C 234 of 25.7.1998.
schaftsbund, Gewerkschaft öffentlicher Dienst v Republik
                             Österreich (1)
(Article 177 of the EC Treaty (now Article 234 EC) —
Definition of ‘court or tribunal of a Member State’ —
Freedom of movement for persons — Equal treatment —
            Seniority — Part of career spent abroad)
                            (2001/C 95/02)                                                     JUDGMENT OF THE COURT
                    (Language of the case: German)                                                     (Third Chamber)
                                                                                                    of 30 November 2000
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             in Case C-384/99: Commission of the European Communi-
                                                                                               ties v Kingdom of Belgium (1)
In Case C-195/98: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Oberster
Gerichtshof (Supreme Court) Austria, for a preliminary ruling                (Failure of a Member State to fulfil its obligations —
in the proceedings pending before that court between Öster-                 Telecommunications — Interconnection of networks —
reichischer Gewerkschaftsbund, Gewerkschaft öffentlicher                     Interoperability of services — Provision of universal service)
Dienst and Republik Österreich — on the interpretation of
Article 48 of the EC Treaty (now, after amendment, Article 39
EC) and Article 177 of the EC Treaty (now Article 234 EC) and                                           (2001/C 95/03)
Article 7 of Regulation (EEC) No 1612/68 of the Council of
15 October 1968 on freedom of movement for workers
within the Community (OJ, English Special Edition 1968
(II), p. 475) — the Court (Fifth Chamber), composed of:                                           (Language of the case: French)
D.A.O. Edward (Rapporteur), acting for the President of the
Fifth Chamber, P. Jann and L. Sevón, Judges, F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 30 November 2000, in which it has ruled:                                  (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
1.    In exercising functions such as those provided for by Para-
      graph 54(2) to (5) of the Arbeits- und Sozialgerichtsgesetz            In Case C-384/99: Commission of the European Communities
      (Law on Labour and Social Courts), the Oberster Gerichtshof            (Agent: B. Doherty) v Kingdom of Belgium (Agent: A. Snoecx)
      constitutes a court or tribunal within the meaning of Article 177      — application for a declaration that, by failing correctly to
      of the EC Treaty (now Article 234 EC).                                 implement Article 5 of Directive 97/33/EC of the European
                                                                             Parliament and of the Council of 30 June 1997 on intercon-
2.    Article 48 of the EC Treaty (now, after amendment, Article 39          nection in Telecommunications with regard to ensuring uni-
      EC) and 7(1) and (4), of Regulation (EEC) No 1612/68 of                versal service and interoperability through application of the
      the Council of 15 October 1968 on freedom of movement for              principles of Open Network Provision (ONP) (OJ 1997 L 199,
      workers within the Community preclude a national rule such as          p. 32), in conjunction with Annex I thereto, and by failing to
      Paragraph 26 of the Vertragsbedienstetengesetz 1948 (Federal           adopt all the measures necessary to implement Article 5 of
      Law on Contractual Public Servants of 1948) concerning the             that directive, in conjunction with Annexes I and III thereto,
      account to be taken of previous periods of service for the             the Kingdom of Belgium has failed to fulfil its obligations
      purposes of determining the pay of contractual teachers and            under those provisions and under the EC Treaty — the Court
      teaching assistants, where the requirements which apply to             (Third Chamber), composed of: C. Gulmann (Rapporteur),
      periods spent in other Member States are stricter than those           President of the Chamber, J.-P. Puissochet and F. Macken,
      applicable to periods spent in comparable institutions of the          Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has
      Member State concerned.                                                given a judgment on 30 November 2000, in which it:
 ---pagebreak--- 24.3.2001               EN                        Official Journal of the European Communities                                                 C 95/3
1.    Declares that, by failing to bring into force within the prescribed    and telecommunications sectors (OJ 1993 L 199, p. 84) — the
      period the laws, regulations and administrative measures               Court (Sixth Chamber), composed of: V. Skouris (Rapporteur),
      necessary to comply with Article 5 of Directive 97/33/EC of            President of the Second Chamber, acting as President of
      the European Parliament and of the Council of 30 June 1997             the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges;
      on interconnection in Telecommunications with regard to                N. Fennelly, Advocate General; L. Hewlett, Administrator, for
      ensuring universal service and interoperability through appli-         the Registrar, has given a judgment on 7 December 2000, in
      cation of the principles of Open Network Provision (ONP), in           which it has ruled:
      conjunction with Annexes I and III thereto, the Kingdom of
      Belgium has failed to fulfil its obligations under that directive;
                                                                             1.   —      Council Directive 93/38/EEC of 14 June 1993 coordin-
                                                                                         ating the procurement procedures of entities operating in
2.    Orders the Kingdom of Belgium to pay the costs.
                                                                                         the water, energy, transport and telecommunications
                                                                                         sectors covers a contract for pecuniary interest concluded
                                                                                         in writing between, on the one hand, an undertaking
(1) JO C 6 of 8.1.2000.                                                                  which is specifically responsible under the legislation of a
                                                                                         Member State for operating a telecommunications service
                                                                                         and whose capital is wholly held by the public authorities
                                                                                         of that State and, on the other, a private undertaking,
                                                                                         where under that contract the first undertaking entrusts
                                                                                         the second with the production and publication, for the
                                                                                         purpose of distribution to the public, of printed and
                                                                                         electronically accessible lists of telephone subscribers (tele-
                                                                                         phone directories);
                 JUDGMENT OF THE COURT
                                                                                  —      although it is covered by Directive 93/38, such a contract
                                                                                         is excluded, under Community law as it stands at present,
                          (Sixth Chamber)                                                from the scope of that directive by reason of the fact, in
                                                                                         particular, that the consideration provided by the first
                       of 7 December 2000                                                undertaking to the second consists in the second obtaining
                                                                                         the right to exploit for payment its own service.
in Case C-324/98 (reference for a preliminary ruling
from the Bundesvergabeamt): Telaustria Verlags GmbH,                         2.   Notwithstanding the fact that, as Community law stands at
Telefonadress GmbH v Telekom Austria AG, formerly                                 present, such contracts are excluded from the scope of Directive
                 Post & Telekom Austria AG (1)                                    93/38, the contracting entities concluding them are, none the
                                                                                  less, bound to comply with the fundamental rules of the Treaty,
                                                                                  in general, and the principle of non-discrimination on the
(Public service contracts — Directive 92/50/EEC — Public
                                                                                  ground of nationality, in particular, that principle implying, in
service contracts in the telecommunications sector — Direc-
                                                                                  particular, an obligation of transparency in order to enable the
          tive 93/38/EEC — Public service concession)
                                                                                  contracting authority to satisfy itself that the principle has been
                                                                                  complied with.
                           (2001/C 95/04)
                                                                             3.   That obligation of transparency which is imposed on the
                                                                                  contracting authority consists in ensuring, for the benefit of any
                   (Language of the case: German)                                 potential tenderer, a degree of advertising sufficient to enable
                                                                                  the services market to be opened up to competition and the
                                                                                  impartiality of procurement procedures to be reviewed.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             4.   It is for the national court to rule on the question whether that
                                                                                  obligation was complied with in the case in the main proceedings
In Case C-324/98: reference to the Court under Article 177 of                     and also to assess the materiality of the evidence produced to
the EC Treaty (now Article 234 EC) from the Bundesverga-                          that effect.
beamt (Federal Procurement Office), Austria, for a preliminary
ruling in the proceedings pending before that court between
Telaustria Verlags GmbH, Telefonadress GmbH and Telekom
Austria AG, formerly Post & Telekom Austria AG, joined
party; Herold Business Data AG — on the interpretation of                    (1) OJ C 327 of 24.10.1998.
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1) and of Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport