CELEX: C2003/251/09
Language: en
Date: 2003-10-18 00:00:00
Title: Case C-337/03: Reference for a preliminary ruling by the Tribunale Ordinario di Torino — Sezione del Giudice per le Indagini Preliminari — by order of that Court of 15 July 2003 in the case against Fabrizio Barra

C 251/4                 EN                    Official Journal of the European Union                                          18.10.2003
     quantity of telephone numbers and the retrospective               basic telecommunications networks, is exempted from those
     imposition of fees in respect of this old stock is not            charges which are, however, payable by every other operator.
     possible for reasons of national law?
If the answer to Question 1 is in the affirmative:                     The more favourable treatment reserved for PT Comunicações
                                                                       compared to other operators as regards the economic condi-
                                                                       tions for the granting of rights of way is not objectively
2.   In such a situation may the new entrants to the market,           justified. Reserving to PT Comunicações treatment which
     irrespective of the level of their other entry costs and          differs from that afforded to other operators without any
     without an associated analysis of their competitive               objective justification whatsoever constitutes unequal treat-
     chances in comparison with the dominant undertaking,              ment in respect of the granting of rights of way to PT
     be charged for the allocation of a telephone number a             Comunicações, which amounts to infringement of Article 4d
     one-off fee in the amount of a particular percentage (in          of the Directive.
     this case 0,1 %) of the estimated annual sales which can
     be attained if the telephone number is passed on to a final
     customer?                                                         (1) Commission Directive 90/388/EEC of 28 June 1990 on competi-
                                                                           tion in the markets for telecommunications services (OJ L 192 of
                                                                           24 July 1990, p. 10).
(1) OJ L 117, p. 15.                                                   (2) Commission Directive 96/19/EC of 13 March 1996 amending
                                                                           Directive 90/388/EEC with regard to the implementation of full
                                                                           competition in telecommunications markets (OJ L 74 of 22 March
                                                                           1996, p. 13).
Action brought on 30 July 2003 by the Commission of
the European Communities against the Portuguese
                              Republic
                                                                       Reference for a preliminary ruling by the Tribunale
                          (Case C-334/03)                              Ordinario di Torino — Sezione del Giudice per le
                                                                       Indagini Preliminari — by order of that Court of 15 July
                          (2003/C 251/08)                                          2003 in the case against Fabrizio Barra
An action against the Portuguese Republic was brought before                                     (Case C-337/03)
the Court of Justice of the European Communities on 30 July
2003 by the Commission of the European Communities,
                                                                                                 (2003/C 251/09)
represented by A. M. Alves Vieira and S. Rating, acting as
Agents, with an address for service in Luxembourg.
The applicant claims that the Court should:                            Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Tribunale Ordinario
                                                                       di Torino — Sezione del Giudice per le Indagini Preliminari —
                                                                       (District Court, Turin — Preliminary Investigations Section) of
(1)   Declare that, by failing to ensure in practice the transpo-      15 July 2003, received at the Court Registry on 1st August
      sition into national law of Article 4d of Directive              2003, for a preliminary ruling in the case against Fabrizio
      90/388/EEC (1) in the latest version amended by                  Barra on the following questions:
      Directive 96/19/EC (2), the Portuguese Republic has failed
      to fulfil its obligations; and
(2)   Order the Portuguese Republic to pay the costs.                  1.    Must Article 44(3)(g) of the Treaty, Articles 2(1)(f) and 6
                                                                             of the first directive (Directive 68/151/EEC (1)) and
                                                                             Article 2(2), (3) and (4) of the fourth directive (Directive
                                                                             78/660/EEC (2), as amended by Directive 83/349 (3) and
Pleas in law and main arguments                                              Directive 90/605 (4)), be interpreted as meaning that that
                                                                             legislation precludes a law of a Member State according to
                                                                             which it is not a punishable offence for companies to
Article 13 of Law No 91/97 exempts the operators of basic                    infringe their obligations concerning disclosure and the
telecommunications networks from the payment of fees for                     provision of accurate information where statements are
the installations of their networks and the granting of the                  made which, although intended to deceive members of the
necessary rights of access to the public domain. As a result                 public with a view to securing an unjust profit, are the
of that provision, PT Comunicações, being the sole operator of               consequence of estimated valuations which, taken indivi-
 ---pagebreak--- 18.10.2003               EN                              Official Journal of the European Union                                        C 251/5
     dually, depart from actual values to an extent not greater                and, consequently,
     than a certain threshold?
                                                                                    1.   annul the decision taken by the Commission on
                                                                                         5 April 2000 refusing to apply the weighting for
2.   With reference to the duty of each Member State to adopt                            the United Kingdom to the applicant's pension from
     ‘appropriate penalties’ for the infringements established                           8 May 1999 and, in so far as necessary, annul the
     by1 the first and fourth directives (Directive 68/151/EEC                           Commission's decision of 23 February 2001 rejecting
     and Directive 78/660/EEC), must the directives themselves                           the applicant's complaint of 18 July 2000,
     and in particular the combined provisions of Article 44(3)
     (g) of the Treaty, Articles 2(1)(f) and 6 of the first directive
     (Directive 68/151/EEC) and Article 2(2), (3) and (4) of
     the fourth directive (Directive 78/660/EEC, as amended by                      2.   order the Commission to apply the weighting for the
     Directive 83/349 and Directive 90/605), be interpreted as                           United Kingdom with retroactive effect to 8 May
     meaning that that legislation precludes a law of a Member                           1999,
     State which, in the case of infringement of the obligations
     imposed in order to safeguard the principle of public and
     accurate company information, lays down a sanctionative
     system which actually allows false accounting to the                           3.   order the Commission to pay damages provisionally
     extent of one fifth of the company's net assets?                                    assessed on an equitable basis at EUR 10 000 and to
                                                                                         pay interest of 7 % on the balance of the pension
                                                                                         payable from 8 May 1999,
(1) English special edition...: Series-I I Chapter 1968(I), p. 41.
(2) OJ L 222 of 14.8.1978, p. 11.
(3) OJ L 193 of 18.7.1983, p. 1.                                                    4.   order the Commission to pay all the costs.
(4) OJ L 317 of 16.11.1990, p. 60.
                                                                               B.   Set aside the decision of the Court of First Instance in so
                                                                                    far as it dismissed the application in Case T-320/01 for
                                                                                    the period prior to 1 January 2001
Appeal brought on 11 August by P. Del Vaglio against the
judgment delivered on 4 June 2003 by the Court of First                        and, consequently,
Instance of the European Communities (Single Judge) in
Joined Cases T-124/01 and T-320/01 between P. Del
  Vaglio and Commission of the European Communities                                 1.   annul the decision taken by the Commission on
                                                                                         6 September 2001 rejecting the applicant's complaint
                          (Case C-352/03 P)                                              in respect of the application to his pension of a
                                                                                         weighting for the United Kingdom with effect from
                                                                                         24 September 2000,
                           (2003/C 251/10)
                                                                                    2.   order the Commission to apply a weighting for the
                                                                                         United Kingdom with retroactive effect to
An appeal against the judgment delivered on 4 June 2003 by                               24 September 2000,
the Court of First Instance of the European Communities
(Single Judge) in Joined Cases T-124/01 and T-320/01 between
P. Del Vaglio and Commission of the European Communities                            3.   order the Commission to pay damages provisionally
was brought before the Court of Justice of the European                                  assessed on an equitable bases at EUR 15 000 and to
Communities on 11 August 2003 by P. Del Vaglio, represented                              pay interest of 7 % on the balance of the pension
by M. Famchon and B. Desrez, lawyers, with an address for                                from 24 September 2000 until 1 April 2001.
service in Paris.
                                                                               Pleas and main arguments
The appellant claims that the Court should:
                                                                               The Court of First Instance erred in considering that the docu-
                                                                               ments produced provided sufficient evidence of the applicant's
A.    Set aside the judgment of the Court of First Instance of                 intention to establish his residence in London only from
      4 June 2003 in so far as it dismisses the application in                 1 January 2001. The Court of First Instance also made an
      Case T-124/01                                                            error of law in considering that the fact that the applicant was