Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission, and Mobilkom Austria AG.
Date: 2003-05-22
35.  It must be recalled first that, according to settled case-law, it is for the legal system of each Member State to determine which court or tribunal has jurisdiction to hear disputes involving individual rights derived from Community law. However, it is the Member States' responsibility to ensure that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to involve itself in the resolution of questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system (see, in particular, Case 179/84   Bozzetti   v   Invernizzi   [1985] ECR 2301, paragraph 17, and Case C-258/97   HI   [1999] ECR I-1405, paragraph 22).
37.  It is clear that on 3 March 1999, when the Verfassungsgerichtshof referred the appeal by Connect Austria to the Verwaltungsgerichtshof, Article 5a(3) of Directive 90/387 had not been implemented in Austrian law. As the Verfassungsgerichtshof rightly observed, and contrary to what the Austrian Government claims, a right of appeal such as that available before the Verfassungsgerichtshof, limited to cases where the applicant claims to have been injured by the infringement of a constitutionally guaranteed right or by the application of an unlawful regulation, an unconstitutional statute or an unlawful international treaty, cannot be said to constitute a suitable mechanism within the meaning of Article 5a(3) of Directive 90/387 and therefore does not comply with the requirements of that article.
38.  In those circumstances, it is appropriate to recall that the Court has consistently held that the obligation arising from a directive for the Member States to achieve the result envisaged therein and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure compliance with that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court which has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third subparagraph of Article 249 EC (Case C-91/92   Faccini Dori   v   Recreb   [1994] ECR I-3325, paragraph 26;   EvoBus Austria  , cited above, paragraph 18;   HI  , cited above, paragraph 25; and Case C-262/97   Engelbrecht   [2000] ECR I-7321, paragraphs 38 and 39).
39.  That obligation requires the national court to determine whether domestic law establishes suitable mechanisms to recognise the right of individuals to appeal against decisions of the national regulatory authority. In circumstances such as those in the main proceedings, the national court is required in particular to determine whether that right of appeal may be exercised before the court or tribunal competent to review the lawfulness of actions taken by the public authorities (see, to that effect,   EvoBus Austria  , paragraph 19).
40.  Where application of national law in accordance with the requirements of Article 5a(3) of Directive 90/387 is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in the measure the application of which would, in the circumstances of the case, lead to a result contrary to that directive, whereas national law would comply with the directive if that provision was not applied (see, to that effect,   Engelbrecht  , paragraph 40).
42.  Therefore, the answer to the first question referred for a preliminary ruling must be that in order to ensure that national law is interpreted in compliance with Directive 90/387 and that the rights of 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 down in Article 5a(3) of Directive 90/387. If national law cannot be applied so as to comply with the requirements of Article 5a(3) of Directive 90/387, a national court or tribunal which satisfies those requirements and which would be competent to hear appeals against decisions of the national regulatory authority if it was not prevented from doing so by a provision of national law which explicitly excluded its competence, such as that at issue in the main proceedings, has the obligation to disapply that provision.
The second question
Observations submitted to the Court
71.  First of all, as regards the interpretation of Paragraph 125(3) of the TKG, it is not for the Court of Justice to rule on the interpretation of provisions of national law, but it must take account, under the division of jurisdiction between the Community courts and the national courts, of the factual and legislative context in which the question put to it is set, as described in the order for reference (Case C-475/99   Ambulanz Glöckner   [2001] ECR I-8089, paragraph 10).
Interpretation of Articles 82 EC and 86(1) EC
75.  In that context, although it is for the national court to define the market for the services at issue, it should nevertheless be recalled that, according to the Court's case-law, in order for a market to be held to be sufficiently homogeneous and distinct from others, the service must be able to be distinguished from other services by virtue of specific characteristics as a result of which it is scarcely interchangeable with those alternatives as far as the consumer is concerned and is affected only to an insignificant degree by competition from them (see, to that effect, Case 27/76   United Brands   v   Commission   [1978] ECR 207, paragraphs 11 and 12, and Case 66/86   Ahmed Saeed Flugreisen and Others   v   Zentrale zur Bekämpfung unlauteren Wettbewerbs   [1989] ECR 803, paragraph 40). In that regard, the examination cannot be limited to the objective characteristics of the relevant services but must include the competitive conditions and the structure of supply and demand on the market (Case 322/81   Michelin   v   Commission   [1983] ECR 3461, paragraph 37).
79.  Since Mobilkom's dominant position extends over the territory of a Member State, it is capable of constituting a dominant position in a substantial part of the common market, in breach of Article 82 EC (see, to that effect, Case C-340/99   TNT Traco   [2001] ECR I-4109, paragraph 43).
80.  Secondly, it must be observed that the Court has consistently held that a Member State breaches the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights cannot avoid abusing its dominant position (see to that effect, in particular, Case C-18/88   GB-Inno-BM   [1991] ECR I-5941, paragraph 20; Case C-242/95   GT-Link   [1997] ECR I-4449, paragraphs 33 and 34; and Case C-203/96   Dusseldorp and Others   [1998] ECR I-4075, paragraph 61).
81.  Practices by an undertaking in a dominant position which tend to strengthen that position by distorting competition amount to abuse of a dominant position within the meaning of Article 82 EC (see to that effect   Hoffmann-La Roche   v   Commission  , paragraph 90, and   Michelin   v   Commission  , paragraph 73).
82.  The same is true when the conduct of an undertaking with a dominant position in a given market tends to extend that position to a neighbouring but separate market by distorting competition.
83.  The Court has consistently ruled that a system of undistorted competition, as laid down in the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators (Case C-202/88   France   v   Commission   [1991] ECR I-1223, paragraph 51, and   GB-Inno-BM  , cited above, paragraph 25).
84.  If inequality of opportunity between economic operators, and therefore distorted competition, results from a State measure, such a measure constitutes an infringement of Article 86(1) EC in conjunction with Article 82 EC.
85.  In that regard, the fact that, in the main case, a new entrant on the market at issue, namely the third national operator in the mobile telecommunications services sector, must pay a fee for its DCS 1800 licence whereas the first national operator, a public undertaking which has a dominant position, is allocated additional frequencies in the DCS 1800 band without having to pay a separate fee is liable to amount to a competitive advantage, allowing the latter either to extend its dominant position in the digital mobile telecommunications services market according to the DCS 1800 standard or to reinforce its dominant position in the digital mobile telecommunications services market or in the mobile telecommunications services market, depending on how the market at issue is defined, by distorting competition, and therefore to infringe Article 82 EC.
86.  As a result of the financial charge imposed on its competitor which obtained a DCS 1800 licence (Connect Austria), Mobilkom, a public undertaking in a dominant position and, as Connect Austria rightly points out, a former monopoly which already enjoys a number of advantages such as a presence on the markets for analogue mobile telecommunications services and digital mobile telecommunications services according to the GSM 900 standard and a sizeable number of existing clients, could find itself in a situation which would lead it,   inter alia  , to offer reduced rates, in particular to potential subscribers to the DCS 1800 system, and to carry out intensive publicity campaigns in conditions with which Connect Austria would find it difficult to compete.
87.  Therefore, national legislation such as that at issue in the main proceedings, under which additional frequencies in the DCS 1800 band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas the new entrant to the market at issue has had to pay a fee for its DCS 1800 licence, is likely to lead the public undertaking in a dominant position to breach Article 82 EC by extending or strengthening its dominant position, depending on how the market at issue is defined, by distorting competition. Given that the distorted competition would therefore result from a State measure which creates a situation where equality of opportunity for the various economic operators concerned cannot be ensured, it may amount to a breach of Article 86(1) EC in conjunction with Article 82 EC.
88.  Nevertheless, the order for reference makes clear that in the main case Mobilkom and max.mobil each paid ATS 4 billion for licences allocating each of them a frequency cluster of 2 x 8 MHz in the band reserved for GSM 900, while Connect Austria paid a fee of ATS 2.3 billion for a licence allocating it a frequency cluster of 2 x 16.8 MHz, which could be increased to 2 x 22.5 MHz if it reached a user volume of 300 000, in the band reserved for DCS 1800.
89.  In that regard, it is important to recall that national legislation such as that at issue in the main proceedings is not contrary to Articles 82 EC and 86(1) EC if, taking into account the fees imposed on the different operators involved for their respective licences, the allocation of additional frequencies in the DCS 1800 band, without the imposition of a separate fee, to a public undertaking in a dominant position must be considered to comply with the requirement to ensure equality of opportunity for different economic operators and therefore to guarantee undistorted competition.
90.  If the fee imposed on the public undertaking in a dominant position for its GSM 900 licence, including subsequent allocation of additional frequencies in the DCS 1800 band without additional payment, appears to be equivalent in economic terms to the fee imposed on the competitor which was granted the DCS 1800 licence, national legislation such as that at issue in the main proceedings must be deemed to ensure equality of opportunity for different economic operators and therefore guarantee undistorted competition.
93.  In the course of its examination, the national court must also determine the economic value of the licences concerned, taking account   inter alia   of the size of the different frequency clusters allocated, the time when each of the operators concerned entered the market and the importance of being able to present a full range of mobile telecommunications systems.
96.  It is appropriate to bear in mind that Directive 96/2 is intended to establish a legislative framework enabling the potential of mobile and personal communications to be exploited by abolishing, as soon as possible, all exclusive and special rights, by removing, for operators of mobile networks, both restrictions on the freedom to operate and develop those networks for the purpose of carrying out the activities authorised by their licences or authorisations and distortions of competition and by allowing those operators control over their costs (Joined Cases C-396/99 and C-397/99   Commission   v   Greece   [2001] ECR I-7577, paragraph 25).
97.  In accordance with that objective, Article 2(1) of Directive 96/2 requires Member States, from 1 January 1998, to refrain from refusing to allocate licences for operating mobile systems according to the DCS 1800 standard (see   Commission   v   Greece  , cited above, paragraph 26).
114.  In that regard, it should be observed that, contrary to what the TCK contends, Articles 9(2) and 11(2) of Directive 97/13 are, as regards their content, unconditional and sufficiently precise and may therefore, in accordance with settled case-law (see,   inter alia  , Case 8/81   Becker   [1982] ECR 53, paragraph 25, and Case C-141/00   Kügler  [2002] ECR I-6833, paragraph 51), in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State.
115.  It should also be recalled that it is settled case-law that discrimination consists in particular in treating like cases differently, involving a disadvantage for some operators in relation to others, without that difference in treatment being justified by the existence of substantial objective differences (see,   inter alia  , Joined Cases 17/61 and 20/61   Klöckner-Werke and Hoesch   v   High Authority   [1962] ECR 325, at 345, and Case C-351/98   Spain   v   Commission   [2002] ECR I-8031, paragraph 57).