CELEX: C2004/047/37
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-545/03: Reference for a preliminary ruling by the Conseil d'État (Belgium) by order of that Court of 8 December 2003 in the case of S.A. Belgacom Mobile against Commune de Schaerbeek

C 47/22                EN                        Official Journal of the European Union                                           21.2.2004
Pleas in law and main arguments                                          1.     Should Article 49 of the EC Treaty be interpreted as
                                                                                precluding the introduction, by a national or local
                                                                                authority, of a tax on mobile and personal communi-
                                                                                cations infrastructures used to carry on activities covered
This action for annulment is aimed at defending fundamental                     by licences and authorisations?
rights, especially the rights of minors, in the Community legal
order. The Directive, whilst providing for valid rules for
codifying the law governing family reunification for third-              2.     Given that Article 3c of Commission Directive 90/388/
country nationals, nevertheless contains a number of pro-                       EEC of 28 June 1990 (1), as inserted by Commission
visions which are unacceptable having regard to fundamental                     Directive 96/2/EC of 16 January 1996 (2) amending
rights, including the right to family life and the right not to be              Directive 90/388/EEC with regard to mobile and personal
discriminated against, compliance with which must be ensured                    communications, refers to the lifting of ‘all restrictions’,
in the legal order of the European Union pursuant to Article 6                  does that article preclude the introduction, by a national
of the Treaty on European Union.                                                or local authority, of a tax on mobile and personal
                                                                                communications infrastructures used to carry on activities
                                                                                covered by licences and authorisations?
The right to family life as recognised by Article 8 of the
1950 European Convention on Human Rights (ECHR) and
interpreted in the case-law of the European Court of Human               (1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
Rights can be restricted only for certain reasons and each case              tition in the markets for telecommunications services (OJ L 192,
calls for a balancing of the interests of the third-country                  24.7.1990, p. 10).
nationals concerned and those of the host State. Derogations             (2) Commission Directive 96/2/EEC of 16 January 1996 amending
from the right to family reunification which are expressly                   Directive 90/388/EEC with regard to mobile and personal com-
authorised by the aforementioned provisions of the directive                 munications (OJ L 20, 26.1.1996, p. 59).
go beyond the permitted restrictions and violate the fundamen-
tal right to family life and the right not to be discriminated
against as guaranteed by the ECHR and as they result from the
constitutional traditions common to the Member States of the
EU as general principles of Community law, as established by
Article 6(2) of the Treaty on European Union.
(1) OJ 2003 L 251, p. 12.
                                                                         Reference for a preliminary ruling by the Conseil d’État
                                                                         (Belgium) by order of that Court of 8 December 2003 in
                                                                         the case of S.A. Belgacom Mobile against Commune de
                                                                                                      Schaerbeek
                                                                                                   (Case C-545/03)
Reference for a preliminary ruling by the Conseil d’État
(Belgium) by order of that Court of 8 December 2003 in                                              (2004/C 47/37)
   the case of S.A Mobistar against Commune de Fléron
                         (Case C-544/03)
                                                                         Reference has been made to the Court of Justice of the
                          (2004/C 47/36)                                 European Communities by order of the Conseil d’État (Belgium)
                                                                         of 8 December 2003, received at the Court Registry on
                                                                         23 December 2003, for a preliminary ruling in the case of S.A.
                                                                         Belgacom Mobile against Commune de Schaerbeek on the
                                                                         following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Conseil d’État (Belgium)            1.     Should Article 49 of the EC Treaty be interpreted as
of 8 December 2003, received at the Court Registry on                           precluding the introduction, by a national or local
23 December 2003, for a preliminary ruling in the case of S.A                   authority, of a tax on mobile and personal communi-
Mobistar against Commune de Fléron on the following                             cations infrastructures used to carry on activities covered
questions:                                                                      by licences and authorisations?
 ---pagebreak--- 21.2.2004               EN                         Official Journal of the European Union                                             C 47/23
2.     Given that Article 3c of Commission Directive 90/388/               3.    otherwise arrange for and open the oral procedure;
       EEC of 28 June 1990 (1), as inserted by Commission
       Directive 96/2/EC of 16 January 1996 (2) amending
       Directive 90/388/EEC with regard to mobile and personal             4.    after which, annul the decision of the European Com-
       communications, refers to the lifting of ‘all restrictions’,              mission of 20 or 27 February 2002 to conclude a research
       does that article preclude the introduction, by a national                contract with T. Lefevre, who states that he is the Director
       or local authority, of a tax on mobile and personal                       of the ‘Center for Energy — Environment Research &
       communications infrastructures used to carry on activities                Development’.
       covered by licences and authorisations?
(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
                                                                           Pleas in law and main arguments
    tition in the markets for telecommunications services (OJ L 192,
    24.7.1990, p. 10).
(2) Commission Directive 96/2/EEC of 16 January 1996 amending
    Directive 90/388/EEC with regard to mobile and personal com-
    munications (OJ L 20, 26.1.1996, p. 59).
                                                                           (a) Procedural irregularity
                                                                           The Court of First Instance dismissed the AIT’s application in
                                                                           Case T-288/02 as manifestly inadmissible, relying on the
                                                                           provisions of Article 111 of its Rules of Procedure. Manifest
                                                                           inadmissibility may be raised only at the start of the proceed-
                                                                           ings and cannot in any case be based on further investigation.
                                                                           If a ground of inadmissibility is revealed by a measure of
                                                                           inquiry, it is then governed by Article 113 of the Rules of
                                                                           Procedure of the Court of First Instance and not by Article 111.
Appeal brought on 22 December 2003 by Asian Institute                      The safeguard in respect of non-manifest inadmissibility means
of Technology (AIT) against the order made on 15 Octo-                     that, in contrast to Article 111, where the cancellation of the
ber 2003 by the Fifth Chamber of the Court of First                        oral procedure is automatic, such cancellation is within the
Instance of the European Communities in Case T-288/02                      discretionary power of the Court of First Instance in cases of
between Asian Institute of Technology (AIT) and the                        non-manifest inadmissibility. In this case, the Court of First
          Commission of the European Communities                           Instance has made a finding of manifest inadmissibility based
                                                                           on the results of an additional enquiry, thus depriving the
                                                                           party of the guarantee that cancellation of the oral procedure
                         (Case C-547/03 P)                                 is subject to the CFI’s discretion.
                           (2004/C 47/38)
                                                                           (b)   Error of assessment as to admissibility having regard to
                                                                                 the fourth subparagraph of Article 230 of the EC Treaty
An appeal against the order made on 15 October 2003 by the                 Since it is understood that the AIT is not the ‘addressee’ of the
Fifth Chamber of the Court of First Instance of the European               decision to award the contract, the CFI should have applied
Communities in Case T-288/02 between Asian Institute of                    the test in Plaumann, with the flexibility which the Court of
Technology (AIT) and the Commission of the European                        Justice has brought to that case-law in order to give a
Communities was brought before the Court of Justice of the                 less restrictive interpretation to the second paragraph of
European Communities on 22 December 2003 by Asian                          Article 173 (now the fourth paragraph of Article 230 of
Institute of Technology (AIT), represented by H. Teissier du               the EC Treaty). ‘CEERD/FIHRDS’ to which the Commission
Cros, avocat, with an address for service in Luxembourg.                   awarded the contract, is a competitor of ‘CEERD/AIT’, and
                                                                           even an unfair competitor. The award of the contract to
                                                                           ‘CEERD/FIHRDS’ by the Commission, which has deprived the
                                                                           AIT of the competitive advantages flowing from the fact that
The applicant claims that the Court should:                                the ‘CEERD/AIT’ is one of its departments, adversely and
                                                                           substantially affects it in its competitive position. The contested
                                                                           decision also impairs the AIT’s entitlement to use its name and
1.     set aside the contested order dated 15 October 2003 of              logo ‘CEERD’, a prejudice which distinguishes its situation in
       the Court of First Instance of the European Communities;            relation to all other economic operators. The contested
                                                                           contract concerns the AIT directly and individually because it
                                                                           substantially affects its competitive position, even though it is
2.     refer the case back to the Court of First Instance;                 not a trader.