Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission, and Mobilkom Austria AG.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: La Pergola
• ECLI: ECLI:EU:C:2001:683
• Date: 13 December 2001
• Docket Number: C-462/99
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL
GEELHOED
delivered on 13 December 2001 (1)


Case C-462/99

Connect Austria Gesellschaft für Telekommunikation GmbH
v
Telecom-Control-Kommission (intervener: Mobilkom Austria Aktiengesellschaft)


(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

((Interpretation of Article 5a(3) of Council Directive 90/387/EEC of 28 June 1990 on the 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 and of the Council of 6 October 1997 – Appeal to an independent body against decisions of the regulatory authority – Direct effect))

I ─ Introduction 1. The Austrian Verwaltungsgerichtshof (Federal Administrative Court) has referred two questions in this case. 2. The first question concerns the interpretation of Article 5a(3) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (ONP), (2) as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997. (3) More particularly, the Verwaltungsgerichtshof asks about the direct effect of that provision, which gives certain parties a right of appeal to an independent body. 3. The second question ─ concerning the interpretation of Article 82 EC, Article 86 EC and Article 2 of Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications (4) and Articles 9 and 11 of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (5) ─ is about the admissibility of certain allocations of extra DCS 1800 frequencies. DCS 1800 is part of the existing systems for GSM telephony. The referring court requires an answer to this second question only in so far as Article 5a(3) of Directive 90/387/EEC has direct effect. II ─ The legal framework European law 4. Article 5a(3) of Directive 90/387/EEC reads as follows: 3. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a body independent of the parties involved. 5. Paragraphs 3 and 4 of Article 2 of Directive 96/2/EC, which are relevant to the second question put by the referring court, provide as follows: (6) 3. Member States shall not restrict the combination of mobile technologies or systems, in particular where multistandard equipment is available. When extending existing licences to cover such combinations Member States shall ensure that such extension is justified in accordance with the provisions of paragraph 4. 4. Member States shall adopt, where required, measures to ensure the implementation of this article taking account of the requirement to ensure effective competition between operators competing in the relevant markets. 6. I would also refer to the recitals in the preamble to Directive 96/2/EC. The eighth recital reads as follows:In this context, due account should be taken of the requirement to promote investments by new entrants in these areas. Member States should be able to refrain from granting a licence to existing operators, for example to operators of GSM systems already present on their territory, if it can be shown that this would eliminate effective competition in particular by the extension of a dominant position. In particular, where a Member State grants or has already granted DCS 1800 licences, the granting of new or supplementary licences for existing GSM or DCS 1800 operators may take place only under conditions ensuring effective competition.The 15th recital states, inter alia, as follows:In the context of mobile and personal communications systems radiofrequencies are a crucial bottleneck resource. The allocation of radiofrequencies for mobile and personal communications systems by Member States according to criteria other than those which are objective, transparent and non-discriminatory constitutes a restriction incompatible with Article 90 in conjunction with Article 59 of the Treaty to the extent that operators from other Member States are disadvantaged in these allocation procedures. The development of effective competition in the telecommunications sector may be an objective justification to refuse the allocation of frequencies to operators already dominant in the geographical market. 7. Article 9(2) of Directive 97/13/EC provides as follows: 2. Where a Member State intends to grant individual licences:

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it shall grant individual licences through open, non-discriminatory and transparent procedures and, to this end, shall subject all applicants to the same procedures, unless there is an objective reason for differentiation, and

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it shall set reasonable time limits; inter alia, it shall inform the applicant of its decision as soon as possible but not more than six weeks after receiving the application. In the provisions adopted to implement this directive, Member States may extend this time limit to up to four months in objectively justified cases which have been defined specifically in those provisions. ... 8. Article 11 of the same directive states: 1. Member States shall ensure that any fees imposed on undertakings as part of authorisation procedures seek only to cover the administrative costs incurred in the issue, management, control and enforcement of the applicable individual licences. The fees for an individual licence shall be proportionate to the work involved and be published in an appropriate and sufficiently detailed manner, so as to be readily accessible. 2. Notwithstanding paragraph 1, Member States may, where scarce resources are to be used, allow their national regulatory authorities to impose charges which reflect the need to ensure the optimal use of these resources. Those charges shall be non-discriminatory and take into particular account the need to foster the development of innovative services and competition. National law 9. The Telekommunikationsgesetz (Law on Telecommunications) (7) provides that the allocation of frequencies for public mobile telecommunications is made by way of a licence granted in accordance with the procedure laid down in Article 22 et seq. of that Law. The national regulatory authority grants the licence to the party that guarantees the most efficient use of the frequencies, which is determined on the basis of the level of the price offered by the party concerned for the use of the frequencies. The frequencies are allocated according to open, just and non-discriminatory principles on the basis of a public invitation to tender. The allocation of additional frequencies to the holder of a licence for the same service constitutes an extension of the existing licence and takes effect pursuant to the provisions of the licence. If the licence contains no provisions on this, the normal procedure is applied. 10. The Telekom-Control-Kommission (Telecom Monitoring Commission) has been designated as the national regulatory authority. (8) The Telekom-Control-Kommission is empowered, inter alia, to grant, withdraw and revoke licences and to approve transfers of and amendments to licences. The Telekom-Control-Kommission was established by statute as an independent collegiate authority. It consists of three members appointed by the Federal Government. One member must belong to the judiciary. The Commission takes its decisions at final (and sole) instance. 11. An appeal against a decision of the Telekom-Control-Kommission can be made to the Verfassungsgerichtshof (Federal Constitutional Court) under Article 144(1) of the Bundes-Verfassungsgesetz (Federal Constitutional Law) (hereinafter the B-Vg). The power of review of the Verfassungsgerichtshof is limited. That Court examines only whether there has been an infringement of a constitutionally guaranteed right or an infringement of a right by reason of the application of an unlawful regulation, an unlawful statute or an unlawful State treaty or convention. 12. Austrian law as applicable to the main proceedings does not provide for an appeal on grounds other than those listed. Matters on which the Telekom-Control-Kommission has taken decisions are excluded, under Austrian law, from the jurisdiction of the Verwaltungsgerichtshof. Under Article 133, point 4, of the B-Vg, the Verwaltungsgerichtshof has no jurisdiction in matters on which another collegiate body comprising at least one member of the judiciary takes decisions at final instance, save where an appeal to the Verwaltungsgerichtshof is expressly declared admissible. This has not happened in respect of decisions of the Telekom-Control-Kommission, which can be regarded as a collegiate body within the meaning of Article 133, point 4. 13. The Austrian national legislation has, incidentally, since been amended. As of 1 July 2000 the Verwaltungsgerichtshof has had jurisdiction to hear and determine appeals against decisions of the Telekom-Control-Kommission. This was also the reason why the Commission did not pursue an action for infringement against the Republic of Austria, as the Commission let it be known during the hearing in the present case. 14. Article 125(3) of the Telekommunikationsgesetz is relevant for the purpose of answering the second question put by the referring court. That provision reads as follows:The authority may, if necessary, allocate to existing holders of a licence for the provision of reserved mobile telecommunications services...