Bundesrepublik Deutschland v ISIS Multimedia Net GmbH und Co. KG, represented by ISIS Multimedia Net Verwaltungs GmbH (C-327/03), and Firma O2 (Germany) GmbH und Co. OHG (C-328/03).
Date: 2005-10-20
23. In that respect, it must be stated that, although Article 11(2) of Directive 97/13 allows the application of a charge to manage a ‘scarce resource’ in an optimal manner, it does not define that concept.
36. In that regard, it must be noted that the German Government has not submitted any figures in support of its contention that the free allocation of that stock constitutes compensation for the charges borne by Deutsche Telekom in respect of its universal service obligations or because of the payment of the pensions of the staff it has taken over. As the Court has held previously, to the extent that Article 11(2) of Directive 97/13 introduces a derogation to the general rule set out in Article 11(1), it must be interpreted restrictively (see Joined Cases C-292/01 and C-293/01 Albacom and Infostrada [2003] ECR I-9449, paragraphs 33 and 34). Consequently, justifications based on Article 11(2) cannot be put forward in a purely general manner.
38. Even if the German Government managed to show the allegedly non-discriminatory nature of the stock of telephone numbers available to Deutsche Telekom, there would remain to determine whether, in accordance with the third condition set out in Article 11(2), the payment of the charge for the allocation of numbers takes into account the need to foster the development of innovative services and competition.
39. In that regard, a system of undistorted competition can be guaranteed only if equality of opportunity is secured as between the various economic operators (see Case C-462/99 Connect Austria  [2003] ECR I-5197, paragraph 83).
40. The Court has already had to examine the competition law question raised by legislation providing for the allocation free of charge to a public undertaking in a dominant position of certain operating facilities, in that case additional frequencies in the digital mobile telecommunications sector, whereas a new operator had had to pay a fee to obtain a licence for the same sector. In that respect, the Court held that such legislation is likely to infringe Article 82 EC by extending or strengthening the dominant position of that undertaking. It stated, however, that the competition rules do not preclude such legislation if the fee paid previously by the public undertaking in a dominant position to obtain a licence in the field of mobile telecommunications and the allocation free of charge of additional frequencies appear to be equivalent in economic terms to the fee imposed on the competitor (see Connect Austria , cited above, paragraphs 85 to 90).
41. A similar examination must therefore be carried out comparing charges applied to the undertaking in a dominant position and to its competitors for the allocation of telephone numbers.
45. Instead of making a significant contribution to the entry of new operators into the market, as stated in recital 5 in the preamble to Directive 97/13 (see Albacom and Infostrada , cited above, paragraph 35), by lessening disparities in relation to competition between the undertaking in a dominant position and new operators on the telecommunications market, legislation such as that in the main proceedings has the effect of maintaining those disparities. It constitutes a barrier to entry of new operators into that market and therefore acts as a brake on the development of competition and the fostering of innovative services, contrary to the third condition in Article 11(2) of Directive 97/13.