CELEX: C2003/275/89
Language: en
Date: 2003-11-15 00:00:00
Title: Case T-329/03: Action brought on 25 September 2003 by Ricci Fabio Andrés against the Commission of the European Communities

15.11.2003            EN                       Official Journal of the European Union                                           C 275/53
Pleas in law and main arguments                                        Action brought on 25 September 2003 by Ricci Fabio
                                                                       Andrés against the Commission of the European Com-
                                                                                                     munities
The contested decision concerns an agreement between the
applicant, O2, and T-Mobile Deutschland GmbH. The agree-                                         (Case T-329/03)
ment provides for infrastructure sharing and national roaming
for the third generation of mobile telecommunications in the
German market.                                                                                  (2003/C 275/89)
                                                                                           (Language of the case: Italian)
The agreement was notified to the Commission and O2 and T-
Mobile requested negative clearance under Article 81(1) EC
and Article 53(1) EEA, or in the alternative for an exemption
under Article 81(3) EC and Article 53(3) EEA. Negative
clearance was granted in respect of the infrastructure sharing         An action against the Commission of the European Communi-
provisions. The Commission found however that the national             ties was brought before the Court of First Instance of the
roaming provisions restricted competition, but granted indi-           European Communities on 25 September 2003 by Ricci Fabio
vidual exemptions for these provisions under Article 81(3) Ec          Andrés, represented by Massimo Condinanzi, avvocato.
and Article 53(3) EEA for specified periods of time.
                                                                       The applicant claims that the Court should:
The applicant seeks the annulment of the specific provisions
of the decision that address the restrictions of competition           1.    Annul the decision rejecting the applicant’s candidature
alleged to flow from national roaming, namely article 2                      in the competition COMR/B/04/2000 — Radiation pro-
and 3(a) of the contested decision. The applicant submits that               tection, notified to the applicant by letter of 28 November
the Commission’s reasoning errs in law and is insufficient.                  2002, no. B01-HR/RRA/BDU/D (2002) 14307, from the
                                                                             Director of DG JRC, Mr Jean-Pierre Vandersteen;
                                                                       2.    Order the Commission to pay the costs.
Firstly, the applicant claims that there is no restriction on
competition within the meaning of Article 81(1) EC or
Article 53(1) EEA. According to the applicant, the decision
does not rest on an analysis of the actual effects of the
agreement on competition. The Commission would simply                  Pleas in law and main arguments
rely on the assumption that the purchase by one network
operator of network services from another operator will
restrict competition between the two on coverage, quality,
transmission rates or wholesale prices. The applicant submits          The present action is brought against the decision contained
furthermore that this assumption is contradicted by the                in the letter of 28 November 2002 of the Director of JRC
Commission’s own factual findings and by the case-law of the           Resources in Ispra by which the applicant, who was none the
Court and the practice of the Commission.                              less on the reserve list for the selection procedure COMR/B/
                                                                       04/2000, was notified that he did not satisfy all the necessary
                                                                       requirements for recruitment, thereby excluding him from the
                                                                       recruitment procedure.
The applicant claims secondly that the alleged restrictions of
competition do not flow from an agreement within the
meaning of Article 81(1) EC or Article 53(1) EEA, but rather           In support of his pleas the applicant alleges:
result from the unilateral actions of the applicant. According
to the applicant, the agreement does not contain any provision
restricting the competition by the applicant on coverage,              —     Breach of the independence and powers of the selection
quality, transmission rates and wholesale prices, and any                    board for the competition in question.
restriction that could arise from the agreement, would be the
result of the unilateral commercial decisions of the applicant.        —     Breach of the vacancy notice by failing to consider that it
The applicant therefore submits that the agreement is not the                allowed access to a Category C post. It is stated in this
cause of the alleged restriction on competition.                             regard that the vacancy notice was drawn up with
                                                                             reference to access to Category C3-B5/B3 in the scientific
                                                                             service. The defendant erred in stating, after the compe-
                                                                             tition, that the selection procedure was for access exclus-
                                                                             ively to a Category B post.
 ---pagebreak--- C 275/54              EN                          Official Journal of the European Union                                    15.11.2003
—    Breach of the vacancy notice in that the Commission, in                     Removal from the register of Case T-58/02 (1)
     disregard of the decision made by the selection board,
     erred in its assessment of the applicant’s professional                                       (2003/C 275/91)
     qualifications, which perfectly matched the requirements
     set out in the vacancy notice and qualified him for                                    (Language of the Case: English)
     admission also to a Category B post.
—    Breach of the principle of legitimate expectations and of            By order of 15 July 2003 the President of the Second Chamber
     the principles of sound administration.                              of the Court of First Instance of the European Communities
                                                                          ordered the removal from the register of Case T-58/02:
                                                                          Kabushiki Kaisha Kenwood v Office for Harmonisation in the
                                                                          Internal Market.
                                                                          (1) OJ C 131 of 1.6.2002.
       Removal from the register of Case T-33/01 (1)
                        (2003/C 275/90)
                  (Language of the Case: English)                              Removal from the register of Case T-143/03 R (1)
                                                                                                   (2003/C 275/92)
By order of 24 June 2003 the President of the Fifth Chamber
of the Court of First Instance of the European Communities                                   (Language of the Case: Dutch)
ordered the removal of the name of Kirch Media GmbH & Co
KgaA from the register of Case T-33/01: Kirch Media GmbH
& Co KgaA and Kirchmedia WM AG v Commission of the                        By order of 17 July 2003 the President of the Court of First
European Communities.                                                     Instance of the European Communities ordered the removal
                                                                          from the register of Case T-143/03: Elisabeth Saskia Smit v
(1) OJ C 134 of 5.5.2001.
                                                                          Europol.
                                                                          (1) OJ C 63 of 4.3.2000.