CELEX: C2003/171/02
Language: en
Date: 2003-07-19 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 22 May 2003 in Case C-355/00 (Reference for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis): Freskot AE v Elliniko Dimosio (Common agricultural policy — Free movement of goods — Freedom to provide services — State aid — Special contribution in favour of an agricultural insurance organisation)

C 171/2                EN                           Official Journal of the European Union                                             19.7.2003
2.  Articles 82 EC and 86(1) EC in principle preclude national              5.    The prohibition on discrimination laid down in Articles 9(2)
    legislation such as that at issue in the main proceedings, under              and 11(2) of Directive 97/13/EC of the European Parliament
    which additional frequencies in the frequency band reserved for               and of the Council of 10 April 1997 on a common framework
    the DCS 1800 standard may be allocated to a public                            for general authorisations and individual licences in the field of
    undertaking in a dominant position which already holds a                      telecommunications services does not preclude national legis-
    licence to provide digital mobile telecommunications services                 lation such as that at issue in the main proceedings, under
    according to the GSM 900 standard without the imposition of                   which additional frequencies in the frequency band reserved for
    a separate fee, whereas a new entrant to the market at issue has              the DCS 1800 standard may be allocated to existing holders
    had to pay a fee to obtain a licence to provide digital mobile                of a licence to provide digital mobile telecommunications services
    telecommunications services according to the DCS 1800                         according to the GSM 900 standard without the imposition of
    standard. However, those provisions do not preclude such                      a separate fee, whereas the operator which was granted a licence
    national legislation if the fee imposed on the public undertaking             to provide digital mobile telecommunications services according
    in a dominant position for its GSM 900 licence, including the                 to the DCS 1800 standard has had to pay a fee, if the fee
    subsequent allocation without additional payment of additional                charged to existing operators for their GSM 900 licence,
    frequencies in the frequency band reserved for the DCS 1800                   including the subsequent allocation without additional payment
    standard, appears to be equivalent in economic terms to the fee               of additional frequencies in the frequency band reserved for the
    imposed on the competitor which was granted the DCS 1800                      DCS 1800 standard, appears to be equivalent in economic
    licence.                                                                      terms to the fee imposed on the operator which holds the
                                                                                  DCS 1800 licence.
                                                                            (1 ) OJ C 47 of 19.2.2000.
3.  Article 2(3) and (4) of Commission Directive 96/2/EC of
    16 January 1996 amending Directive 90/388/EEC with
    regard to mobile and personal communications in principle
    precludes national legislation such as that at issue in the main
                                                                                               JUDGMENT OF THE COURT
    proceedings, under which additional frequencies in the frequency
    band reserved for the DCS 1800 standard may be allocated to
    a public undertaking in a dominant position which already                                           (Fifth Chamber)
    holds a licence to provide digital mobile telecommunications
    services according to the GSM 900 standard without the                                              of 22 May 2003
    imposition of a separate fee, whereas a new entrant to the
    market at issue has had to pay a fee to obtain a licence to             in Case C-355/00 (Reference for a preliminary ruling from
    provide digital mobile telecommunications services according to         the Dioikitiko Protodikeio Thessalonikis): Freskot AE v
    the DCS 1800 standard. However, that provision does not                                          Elliniko Dimosio ( 1)
    preclude such national legislation if the fee imposed on the
    public undertaking in a dominant position for its GSM 900
                                                                            (Common agricultural policy — Free movement of goods
    licence, including the subsequent allocation without additional
                                                                            — Freedom to provide services — State aid — Special
    payment of additional frequencies in the frequency band reserved
                                                                            contribution in favour of an agricultural insurance organis-
    for the DCS 1800 standard, appears to be equivalent in
                                                                                                              ation)
    economic terms to the fee imposed on the competitor which was
    granted the DCS 1800 licence.
                                                                                                        (2003/C 171/02)
                                                                                                  (Language of the case: Greek)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                                 in the European Court Reports)
4.  Article 2(3) and (4) of Directive 96/2 does not preclude
    national legislation such as that at issue in the main proceed-
    ings, under which a limited number of additional frequencies in
    the frequency band reserved for the DCS 1800 standard may               In Case C-355/00: Reference to the Court under Article 234
    be allocated to existing holders of a licence to provide digital        EC by the Diikitiko Protodikio Thessalonikis (Greece) for a
    mobile telecommunications services according to the GSM 900             preliminary ruling in the proceedings pending before that
    standard, including a public undertaking in a dominant                  court between Freskot AE and Elliniko Dimosio, on the
    position, after at least three years have elapsed since the             interpretation of Articles 30 and 38 of the EC Treaty (now,
    1997 decision to grant the licence to provide digital mobile            after amendment, Articles 28 EC and 32 EC), Article 39 of the
    telecommunications services according to the DCS 1800                   EC Treaty (now Article 33 EC), Articles 40 and 59 of the EC
    standard. Nor does that provision preclude national legislation         Treaty (now, after amendment, Articles 34 EC and 49 EC),
    such as that at issue in the main proceedings, which allows such        Article 60 of the EC Treaty (now Article 50 EC) and Article 92
    an allocation before that period has elapsed if it is established       of the EC Treaty (now, after amendment, Article 87 EC), and
    that the user capacity of those operators has been exhausted            First Council Directive 73/239/EEC of 24 July 1973 on the
    despite the use of all commercially viable technical possibilities.     coordination of laws, regulations and administrative provisions
 ---pagebreak--- 19.7.2003                EN                          Official Journal of the European Union                                                  C 171/3
relating to the taking-up and pursuit of the business of direct                    those Treaty provisions. It is for the referring court to determine
insurance other than life assurance (OJ 1973 L 228, p. 3), as                      whether that scheme is in fact justified by social policy objectives
amended by Second Council Directive 88/357/EEC of 22 June                          and to examine, in particular, whether the cover provided by
1988 (OJ 1988 L 172, p. 1), the Court (Fifth Chamber),                             that compulsory insurance scheme is proportionate to those
composed of: M. Wathelet, President of the Chamber,                                objectives.
C. W. A. Timmermans (Rapporteur), D. A. O. Edward, P. Jann
and S. von Bahr, Judges; C. Stix-Hackl, Advocate General;                    4.    The term ‘undertaking’ within the meaning of Article 92 of the
H. A. Rühl, Principal Administrator, for the Registrar, has                        EC Treaty (now, after amendment, Article 87 EC) does not
given a judgment on 22 May 2003, in which it has ruled:                            cover a body such as the Organismos Ellenikon Georgikon
                                                                                   Asfaliseon (ELGA) in respect of its activities under the
                                                                                   compulsory insurance scheme against natural risks.
1.    The EC Treaty provisions on the common agricultural policy             (1 ) OJ C 335 of 25.11.2000.
      and Regulation (EEC) No 2777/75 of the Council of 29 Octo-
      ber 1975 on the common organisation of the market in
      poultrymeat, as amended by Council Regulation (EEC)
      No 1235/89 of 3 May 1989, do not preclude a quasi-fiscal
      charge established by a Member State, such as a special
      insurance contribution levied on sales and purchases of domestic
      agricultural products which fall within the common organis-
      ation for the market in poultrymeat, the revenue from which is                           JUDGMENT OF THE COURT
      used to fund a public body responsible for the prevention of,
      and compensation for, damage caused to agricultural holdings
                                                                                                        of 20 May 2003
      by natural risks in that State.
                                                                             in Joined Cases C-465/00, C-138/01 and C-139/01 (Refer-
      Those Treaty provisions and Regulation No 2777/75, as                  ence for a preliminary ruling from the Verfassungsgericht-
      amended by Regulation No 1235/89, do preclude such a                   shof and Oberster Gerichtshof): Rechnungshof (C-465/00)
      quasi-fiscal charge however where it is such as to undermine the       v Österreichischer Rundfunk and Others and between
      aims and objects of the common organisation of the market in           Christa Neukomm (C-138/01), Joseph Lauermann (C-139/
      question and, in particular, where it does in fact restrict intra-                 01) and Österreichischer Rundfunk (1)
      Community trade.
                                                                             (Protection of individuals with regard to the processing of
      It is for the national court to decide whether the contribution        personal data — Directive 95/46/EC — Protection of private
      does in fact have that effect.                                         life — Disclosure of data on the income of employees of
                                                                                      bodies subject to control by the Rechnungshof)
2.    Community law on the free movement of goods, in particular                                        (2003/C 171/03)
      Articles 9 and 12 of the EC Treaty (now, after amendment,
      Articles 23 EC and 25 EC), Article 16 of the EC Treaty                                     (Language of the case: German)
      (repealed by the Treaty of Amsterdam) and Article 95 of the
      EC Treaty (now, after amendment, Article 90 EC), does not
      preclude a contribution such as that referred to in paragraph 1        (Provisional translation; the definitive translation will be published
      of the operative part of the present judgment.                                             in the European Court Reports)
3.    Benefits such as those provided by the Organismos Ellenikon            In Joined Cases C-465/00, C-138/01 and C-139/01: References
      Georgikon Asfaliseon (ELGA) under the compulsory insurance             to the Court under Article 234 EC by the Verfassungsgerichts-
      scheme against natural risks do not fall within the scope of           hof (C-465/00) and the Oberster Gerichtshof (C-138/01 and
      either Article 59 of the EC Treaty (now, after amendment,              C-139/01) (Austria) for preliminary rulings in the proceedings
      Article 49 EC) and Article 60 of the EC Treaty (now Article 50         pending before those courts between Rechnungshof (C-465/
      EC) or First Council Directive 73/239/EEC of 24 July 1973              00) and Österreichischer Rundfunk, Wirtschaftskammer Stei-
      on the coordination of laws, regulations and administrative            ermark, Marktgemeinde Kaltenleutgeben, Land Niederösterre-
      provisions relating to the taking-up and pursuit of the business       ich, Österreichische Nationalbank, Stadt Wiener Neustadt,
      of direct insurance other than life assurance, as amended by           Austrian Airlines, Österreichische Luftverkehrs-AG, and
      Second Council Directive 88/357/EEC of 22 June 1988.                   between Christa Neukomm (C-138/01), Joseph Lauermann
                                                                             (C-139/01) and Österreichischer Rundfunk, on the interpret-
                                                                             ation of Directive 95/46/EC of the European Parliament and
      Such a compulsory insurance scheme may, however, constitute            of the Council of 24 October 1995 on the protection of
      a restriction on the freedom of insurance companies established        individuals with regard to the processing of personal data and
      in other Member States, who wish to offer services covering            on the free movement of such data (OJ 1995 L 281, p. 31),
      such risks in Greece, to provide services, within the meaning of       the Court, composed of: G. C. Rodríguez Iglesias, President,