CELEX: C2003/171/01
Language: en
Date: 2003-07-19 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 22 May 2003 in Case C-462/99 (Reference for a preliminary ruling from the Verwaltungsgerichtshof): Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission (Telecommunications — Mobile telecommunications services — Article 5a(3) of Directive 90/387/EEC — Appeal to an independent body against a decision of the national regulatory authority — Articles 82 EC and 86(1) EC — Article 2(3) and (4) of Directive 96/2/EC — Articles 9(2) and 11(2) of Directive 97/13/EC — Allocation to a public undertaking in a dominant position which holds a licence to provide digital mobile telecommunications services according to the GSM 900 standard of additional frequencies in the frequency band reserved for the DCS 1800 standard without imposing a separate fee)

19.7.2003               EN                           Official Journal of the European Union                                                C 171/1
                                                                          I
                                                                   (Information)
                                                      COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       L 192, p. 1), as amended by Directive 97/51/EC of the
                                                                             European Parliament and of the Council of 6 October 1997
                                                                             (OJ 1997 L 295, p. 23); of Article 2(3) and (4) of Commission
                          (Fifth Chamber)                                    Directive 96/2/EC of 16 January 1996 amending Directive 90/
                                                                             388/EEC with regard to mobile and personal communications
                          of 22 May 2003                                     (OJ 1996 L 20, p. 59); of Articles 9(2) and 11(2) of Directive
                                                                             97/13/EC of the European Parliament and of the Council
                                                                             of 10 April 1997 on a common framework for general
in Case C-462/99 (Reference for a preliminary ruling from                    authorisations and individual licences in the field of telecom-
the Verwaltungsgerichtshof): Connect Austria Gesell-                         munications services (OJ 1997 L 117, p. 15); and of Articles 82
schaft für Telekommunikation GmbH v Telekom-Control-                         EC and 86(1) EC, the Court (Fifth Chamber), composed of:
                           Kommission ( 1)                                   D. A. O. Edward, acting for the President of the Fifth Chamber,
                                                                             A. La Pergola (Rapporteur) and P. Jann, Judges; L. A. Geelhoed,
                                                                             Advocate General; H. A. Rühl, Principal Administrator, for the
(Telecommunications — Mobile telecommunications services                     Registrar, has given a judgment on 22 May 2003, in which it
— Article 5a(3) of Directive 90/387/EEC — Appeal to an                       has ruled:
independent body against a decision of the national regulat-
ory authority — Articles 82 EC and 86(1) EC — Article 2(3)
and (4) of Directive 96/2/EC — Articles 9(2) and 11(2) of
Directive 97/13/EC — Allocation to a public undertaking in
a dominant position which holds a licence to provide
digital mobile telecommunications services according to the
GSM 900 standard of additional frequencies in the frequency
band reserved for the DCS 1800 standard without imposing
                           a separate fee)
                          (2003/C 171/01)
                                                                             1.   In order to ensure that national law is interpreted in compliance
                                                                                  with Council Directive 90/387/EEC of 28 June 1990 on the
                   (Language of the case: German)                                 establishment of the internal market for telecommunications
                                                                                  services through the implementation of open network provision,
                                                                                  as amended by Directive 97/51/EC of the European Parliament
(Provisional translation; the definitive translation will be published            and of the Council of 6 October 1997, and that the rights of
                   in the European Court Reports)                                 individuals are effectively protected, national courts must
                                                                                  determine whether the relevant provisions of their national law
                                                                                  provide individuals with a right of appeal against decisions of
                                                                                  the national regulatory authority which satisfies the criteria laid
In Case C-462/99: Reference to the Court under Article 234                        down in Article 5a(3) of Directive 90/387, as amended by
EC by the Verwaltungsgerichtshof (Austria) for a preliminary                      Directive 97/51. If national law cannot be applied so as to
ruling in the proceedings pending before that court between                       comply with the requirements of Article 5a(3) of that directive,
Connect Austria Gesellschaft für Telekommunikation GmbH                           a national court or tribunal which satisfies those requirements
and Telekom-Control-Kommission; intervener: Mobilkom                              and which would be competent to hear appeals against decisions
Austria AG, on the interpretation of Article 5a(3) of Council                     of the national regulatory authority if it was not prevented from
Directive 90/387/EEC of 28 June 1990 on the establishment                         doing so by a provision of national law which explicitly excludes
of the internal market for telecommunications services through                    its competence, such as that at issue in the main proceedings,
the implementation of open network provision (OJ 1990                             has the obligation to disapply that provision.
 ---pagebreak--- 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