CELEX: C1999/100/42
Language: en
Date: 1999-04-10 00:00:00
Title: Case T-54/99: Action brought on 22 February 1999 by max.mobil. Telekommunikation Service GmbH against the Commission of the European Communities

C 100/22              EN                  Official Journal of the European Communities                                 10.4.1999
    Fernwärmetechnik         Kartell),   as     amended      by      Vienna, Austria, represented by Dr Stefan Köck,
    Commission Decision K(1998) 3415 final of                        Rechtsanwalt, of Bruckhaus Westrick Heller Löber,
    6 November 1998 (Case IV/35.691 Ð Vorisolierte                   Vienna, with an address for service in Luxembourg at the
    Rohre), in so far as it refers to the applicant, holding         Chambers of Bonn & Schmitt, 62 Avenue Guillaume.
    it liable for participation in the overall agreement';
                                                                     The apllicant claims that the Court should:
Ð in the alternative, annul Article 3 of the decision in so
    far as it sets the applicant's fine at ECU 400 000, or
    substantially reduce the fine;                                   1.    annul that part of the Commission's decision,
                                                                           notified to the applicant by letter (D 18497) of
                                                                           11 December 1998,
Ð order the Commission to pay the costs.
                                                                     1.1. by which the Commission rejected the applicant's
                                                                           application to the Commission to declare that the
Pleas in law and main arguments adduced in support
                                                                           Republic of Austria had infringed Article 90(1) in
                                                                           conjunction with Article 86 of the EC Treaty,
The pleas in law and main arguments are similar to those
in Case T-9/99 HFB Holding and Others v.                                   Ð by placing Mobilkom in a more favourable
Commission (1).                                                                position than the applicant, with respect both to
                                                                               determination of the amount and to the terms of
                                                                               payment of the concession fee, and
The applicant pleads in particular that the Commission
has failed to state adequate grounds in relation to the                    Ð be giving preference to the third network
applicant's participation in the infringement at issue, and                    operator, Connect, over the applicant when
has erroneously assessed the role played by the European                       determining the amount of the concession fee,
District Heating Pipe Manufacturers' Association in the                        and
context of the overall agreement.
                                                                     1.2. by which the Commission rejected the applicant's
Concerning the reduction in the basic amount of the fine                   application,
owing to the secondary role played by the applicant in the
infringement, the applicant maintains that only in the case                Ð to the Commission to require the Republic
of Sigma is it possible to dispute the company's                               of Austria to create equal conditions of
membership of the contact grop for the market concerned,                       competition for mobile telephone operators, by
or at least knowledge that it formed part of an overall                        prescribing additional concession fees or partially
agreement, whereas Ke-Kelit had never denied such                              waiving concession fees; and
knowledge.
(1) OJ C 86, 27.3.1999, p. 24.                                       2.    order the Commission to pay the costs.
                                                                     Pleas in law and main arguments adduced in support
                                                                     The applicant, which entered on the Austrian market in
                                                                     October 1996 as the second operator of a GSM mobile
Action brought on 22 February 1999 by max.mobil.                     communications network after Mobilkom Austria AG, a
Telekommunikation          Service     GmbH      against    the      company predominantly owned by the State, lodged a
          Commission of the European Communities                     complaint with the Commission in October 1997. It
                                                                     complained that it had been treated less favourably than
                         (Case T-54/99)
                                                                     Mobilkom Austria and the third mobile network operator
                        (1999/C 100/42)                              Connect Austria, which had in the meantime entered the
                                                                     market in August 1997, with respect to the determination
                                                                     and terms of collection of the fees for GSM concessions,
               (Language of the case: German)                        and submitted that there had been a breach of
                                                                     Article 90(1) in conjunction with Article 86 of the EC
                                                                     Treaty.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on February 1999                By the decision contained in the Commission's letter of
by max.mobil. Telekommunikation Service GmbH, of                     11 December 1998 the applicant was assured that its
 ---pagebreak--- 10.4.1999           EN                 Official Journal of the European Communities                                    C 100/23
complaint would be pursued in part. As regards the                Ð    unlawfully failed, at least in part, to apply Article 90
contested amount of the concession fee, the Commission                 of the EC Treaty to the facts before it, interpreted
stated that the applicant had produced no evidence of an               that provision in a manifestly wrong way, and made
abuse of a dominant position and pointed out that in                   an incorrect assessment of the facts;
comparable cases, according to its practice hitherto, it had
started proceedings for failure to fulfil obligations only
when a Member State had imposed a higher concession               Ð    by giving an inadequate statement of reasons,
fee on an undertaking newly entering the market than on                infringed     essential    procedural       requirements
the undertaking already active in the market.                          (Article 190 of the EC Treaty), since in its decision,
                                                                       in only two sentences, it restricted itself to describing
                                                                       the applicant's statements as insufficient and referred
According to      the  applicant,   in  its   decision   the           generally to its practice hitherto', which may not be
Commission:                                                            regarded as sufficient.