CELEX: C2003/019/23
Language: en
Date: 2003-01-25 00:00:00
Title: Case C-401/02: Action brought on 12 November 2002 by the Commission of the European Communities against the Federal Republic of Germany (received by fax on 11 November 2002)

25.1.2003               EN                    Official Journal of the European Communities                                           C 19/13
Action brought on 12 November 2002 by the Com-                                 under the directive but solely as a preparatory document.
mission of the European Communities against the Federal                        Third, the reference to the glossary of the Green Paper is
Republic of Germany (received by fax on 11 November                            out-dated and must be considered within its historical
                               2002)                                           context, particularly in light of subsequent developments.
                                                                               In particular, the extent of carrier pre-selection depends
                                                                               on the degree of liberalisation achieved within the market
                          (Case C-401/02)                                      concerned. In the Resolution of 17 July 1997 on the
                                                                               Green Paper on a numbering policy for telecommuni-
                                                                               cations services in Europe, ( 2) the European Parliament
                           (2003/C 19/23)                                      called on the Commission to make proposals in the
                                                                               amendment to the existing Directive 97/33/EC which
                                                                               would be directed at the introduction of carrier pre-
                                                                               selection for fixed local access providers with significant
                                                                               market power in order to facilitate fair competition. As
An action against the Federal Republic of Germany was                          the Council subsequently found in its Resolution of
brought before the Court of Justice of the European Communi-                   22 September 1997 on the further development of a
ties on 12 November 2002 (received by fax on 11 November                       numbering policy for telecommunications services in the
2002) by the Commission of the European Communities,                           European Community, ( 3) the gradual introduction of
represented by C. Schmidt, acting as Agent, with an address                    carrier pre-selection should ‘encourage competition in all
for service in Luxembourg.                                                     sectors of the market’, at least for carriers with significant
                                                                               market power providing fixed local public telephone
                                                                               services. Following liberalisation of the market for local
                                                                               calls (that is to say, in principle from 1 January 1998),
The Commission of the European Communities claims that
                                                                               the availability of carrier pre-selection at local level should
the Court should:
                                                                               encourage competition within this market sector.
1.    Rule that, by failing to adopt the measures necessary to
      ensure application of Directive 98/61/EC of the European                 The Commission accordingly confirmed the applicability
      Parliament and of the Council (1) of 24 September 1998                   of Article 12(7) to pre-selection at local level through the
      amending Directive 97/33/EC with regard to operator                      express reference to, inter alia, carrier pre-selection in the
      number portability and carrier pre-selection, or in any                  case of local calls as an obligation under Article 12(7) of
      event by failing to notify the Commission of those                       the directive in the second and third recitals in its decision
      measures, the Federal Republic of Germany has failed to                  of 22 December 1999 on the United Kingdom’s request
      fulfil its obligations under Article 12(7) of Directive 97/              for deferment of the obligation to introduce carrier pre-
      33/EC;                                                                   selection pursuant to Article 20(2) of Directive 97/33/EC,
                                                                               as amended by Directive 98/61/EC.
2.    Order the defendant to pay the costs of the proceedings.
                                                                         —     Deferment of obligations may be granted only in accord-
                                                                               ance with the procedure under Article 20(2) of the
Pleas in law and main arguments                                                directive. Germany is not one of the countries to which
                                                                               an additional transitional period was granted for the
The Commission alleges that — notwithstanding the fact that                    transposition of Article 12(7) of the directive. The
the period within which actual carrier pre-selection had to be                 Commission also takes the view that, since 1 January
introduced expired on 1 January 2000 — no carrier pre-                         2000 at the latest, there could be no further grounds for
selection for local calls is at present being offered in Germany               any legitimate expectation that the economic conditions
by the carrier notified as the ‘organisation with significant                  governing investments in local networks would be main-
market power’. The Commission considers that the grounds                       tained.
given in justification of this are invalid:
—     The question whether the possibility for carrier pre-
      selection is also to be provided with regard to local calls
      must be resolved on the basis of the directive’s wording.          (1 ) OJ L 268, 3.10.1998, p. 37.
      The recitals in the preamble may be adduced as an aid to           (2 ) OJ C 286, 22.09.1997, p. 232.
      interpretation if that wording allows of several interpret-        (3 ) OJ C 303, 04.10.1997, p. 1.
      ations. The wording of Article 12(7), however, is
      unequivocal with regard to the applicability of carrier
      pre-selection in the case of local calls. Second, the fifth
      recital in the preamble, to which the German Government
      refers, mentions the Green Paper on a numbering policy
      for telecommunications services in Europe not as a
      reference document setting out the obligations arising