CELEX: C2000/163/38
Language: en
Date: 2000-06-10 00:00:00
Title: Case C-146/00: Action brought on 17 April 2000 by the Commission of the European Communities against the French Republic

10.6.2000               EN                    Official Journal of the European Communities                                       C 163/21
4. If all such workers are not necessarily excluded, what test              accordance with the provisions of this Article, that univer-
     should the National Court apply in order to determine                  sal service obligations represent an unfair burden on an
     which workers employed in the road transport sector of                 organization’ that it may establish a mechanism for sharing
     activity are excluded by Article 1.3 and which are not?                the net cost of the universal service obligations. In the
                                                                            Commission’s view, there is nothing in the relevant
                                                                            documentation to show that a national system was needed
(1) Council Directive 93/104/EC of 23 November 1993 concerning              to share the net cost or that the universal service obligations
    certain aspects of the organization of working time (OJ L 307,          represent an unfair burden for France Télécom. On the
    13.12.1993, p. 18).                                                     contrary, France Télécom enjoyed an almost total mo-
                                                                            nopoly in 1997 over fixed telephony.
                                                                         — The timetable for the successive stages leading to the
                                                                            rebalancing of tariffs was not notified to the Commission
                                                                            even though such notification was required by 11 January
Action brought on 17 April 2000 by the Commission of                        1997. That non-notification means that the Commission
 the European Communities against the French Republic                       is not in a position to determine that France has fulfilled
                                                                            its obligations under Article 4e of Directive 90/388/EEC as
                          (Case C-146/00)                                   amended by Directive 96/19/EC in conjunction with the
                                                                            first paragraph of Article 2 of Directive 96/19/EC. Even
                                                                            supposing that that tariff of 65 francs excluding tax given
                          (2000/C 163/38)                                   in the decree on the universal service as the balancing tariff
                                                                            is in fact that tariff, the new subscription tariff of 64.68
An action against the French Republic was brought before the                francs excluding tax in force since 1 March 1999 is still
Court of Justice on 17 April 2000 by the Commission of the                  slightly lower than the latter. The French authorities thus
European Communities, represented by Barry Doherty, of its                  confirm that as from 1 March 1999 the cost of the
Legal Service, and Fabienne Siredey-Barnier, a national civil               imbalance until the end of the year is still 16 million
servant seconded to the Legal Service, acting as Agents, with               francs, financed by the universal service fund, and thus
an address for service in Luxembourg at the office of Carlos                admit that the rebalancing has not been completed in
Gómez de la Cruz, also of its Legal Service, Wagner Centre,                accordance with their own criteria. Consequently, the
Kirchberg.                                                                  French authorities should either have confirmed that
                                                                            France Télécom was authorised to continue with the
                                                                            rebalancing of its tariffs or notified the timetable provided
The Commission of the European Communities claims that                      for in Article 4c of Directive 90/388/EEC.
the Court of Justice should:
1. Declare that,
                                                                         — Contrary to Article 5(3) of Directive 97/33/EC in conjunc-
     — by failing to comply with Article 4c of Directive                    tion with Annex III thereto, the French rules provide for
         90/388/EEC (1), as amended by Directive 96/19/EC (2),              the taking into account, for the purpose of calculating the
         and                                                                net cost of the universal service, of profitable subscribers,
                                                                            and this unduly increases the amount of the burden which
     — by failing to observe Article 5(1), (3), (4) and (5) of              may give rise to compensation, to the detriment of
         Directive 97/33/EC (3),                                            new market entrants. Moreover, the calculation formula
                                                                            adopted in Article R.20-32 of the French Post and
     the French Republic has failed to fulfil its obligations;              Telecommunications Code does not allocate the burdens
                                                                            associated with the financing of the universal service to
2. Order the French Republic to pay the costs.                              each undertaking in accordance with objective criteria as
                                                                            required by Article 4c of Directive 90/388/EEC. Finally, it
                                                                            does not take account of the principle of transparency as
Pleas in law and main arguments                                             required by Directive 97/33/EC.
— There was no legal basis for France to require mobile
     phone operators to contribute to the universal service in
     1997. Contrary to the impression given by the French                — Certain components of the universal service cost are fixed
     authorities, recitals 4 and 26 in the preamble to Directive            on a flat-rate basis contrary to the obligation to undertake
     96/19/EC do not create obligations not appearing in the                a specific calculation (Article 5(3) of Directive 97/33/EC).
     operative part of the directive but indicate that for so long          Thus, the net cost of unprofitable subscribers should not
     as the long-standing operator enjoys exclusive rights for              have been fixed on a flat-rate basis. The net cost of the
     the supply of the voice telephony service, no additional               universal service for 1997 should not have been fixed on
     measure is required in order to ensure that the universal              a flat-rate basis. And the contribution paid to France
     service is provided. Article 5(1) of Directive 97/33 is even           Télécom to compensate it for the cost of certain social
     clearer: it is only where ‘a Member State determines, in               tariffs has been fixed in an imprecise manner.
 ---pagebreak--- C 163/22               EN                    Official Journal of the European Communities                                     10.6.2000
— The Commission also makes the following criticisms of                 The appellants claim that the Court should:
     France:
                                                                        1. annul the order made on 9 February 2000 by the Court of
     — it calculated by an incorrect method the net cost of                 First Instance in Case T-111/97;
         ‘non-profitable zones’;
                                                                        2. refer the case back to the Court of First Instance in
                                                                            order that that court, having followed the corresponding
     — it did not take account of the intangible benefits
                                                                            procedure, may determine the substance of the action;
         accruing to France Télécom as a result of providing the
         universal service;
                                                                        3. reserve the decision on costs.
     — it infringed the rule that ‘Revenues shall be taken into
         account in calculating the net costs. Costs and revenues       Pleas in law and main arguments
         should be forward-looking’ (Annex III to Directive
         97/33/EC) by refusing to correct the figures forecast
         for 1998 because it would be ‘a delicate matter to             Infringements of the law: the appellants maintain their alle-
         integrate [the methodological progress achieved] in the        gation that the decision of 7 February 1996 (published in the
         definitive evaluation for 1998 having regard to the            Administrative Notices of 27 March 1996) constituted a new
         requirement of a degree of stability in the evaluation         fact justifying the fixing of a new time-limit for contesting the
         methods for a given year.’                                     Commission’s decisions classifying the appellants in grade at
                                                                        the time of their establishment as officials of the Commission.
— Article 5(5), second subparagraph, of Directive 97/33/EC
     has not been completely transposed into French domestic            The appellants further consider that, for the purposes of
     law and, in any event, has not been applied in a compliant         assessing whether their request was submitted within the
     manner by the French authorities as regards the publication        prescribed period, the Commission, and thereafter the Court
     of individual contributions by the operators involved in           of First Instance, should have taken into account the duty
     financing the universal service.                                   incumbent on the Community institutions to have regard for
                                                                        the welfare and interests of officials. The contested order does
                                                                        not deal with that argument put forward by the appellants.
(1) OJ L 192 of 24 July 1990, p. 10.
(2) OJ L 74 of 22.3.1996, p. 13.
(3) OJ L 199 of 26.7.1997, p. 32.
                                                                        Action brought on 19 April 2000 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                                      Austria
                                                                                                 (Case C-150/00)
Appeal brought on 19 April 2000 by G. Valero Jordana                                             (2000/C 163/40)
and S. Vadé against the order made on 9 February 2000
by the First Chamber of the Court of First Instance of the
                                                                        An action against the Republic of Austria was brought before
European Communities in Case T-111/97 between
                                                                        the Court of Justice of the European Communities on 19 April
G. Valero Jordana and S. Vadé and the Commission of the
                                                                        2000 by the Commission of the European Communities,
                     European Communities
                                                                        represented by Josef Christian Schieferer, of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg at
                        (Case C-149/00 P)                               the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                        Wagner Centre C 254, Kirchberg.
                         (2000/C 163/39)
                                                                        The applicant claims that the Court should:
An appeal against the order made on 9 February 2000 by the              1. declare that, by classifying vitamin and mineral nutrient
First Chamber of the Court of First Instance of the European                preparations as medicinal products where they contain
Communities in Case T-111/97 between G. Valero Jordana                      vitamins A, D and K or mineral nutrients of the chromate
and S. Vadé and the Commission of the European Communi-                     group and where they exceed the daily dose or generally,
ties was brought before the Court of Justice of the European                without explaining that, by reason of the addition of extra
Communities on 19 April 2000 by G. Valero Jordana and                       vitamins or because of their vitamin or mineral content,
S. Vadé, represented by C. Amo Quiñones, lawyer, with an                   they constitute a serious risk to health, the Republic of
address for service at 23 Avenue Jacques Pasteur, B-1180                    Austria has infringed its obligations under Article 28 EC
Brussels.                                                                   (formerly Article 30 of the EC Treaty);