Case C-141/02 P

Commission of the European Communities

v

T-Mobile Austria GmbH, formerly max-mobil Telekommunikation Service GmbH

(Appeal – Article 90(3) of the EC Treaty (now Article 86(3) EC) – Amount of the fees imposed by the Republic of Austria on operators of GSM networks – Partial rejection of the complaint – Admissibility)

Opinion of Advocate General Poiares Maduro delivered on 21 October 2004

Judgment of the Court (Grand Chamber), 22 February 2005

Summary of the Judgment

1. Appeals – Admissibility – Decisions against which an appeal may be brought – Part of a judgment of the Court of First Instance expressly rejecting an objection of inadmissibility prior to dismissing the action as unfounded

(EC Statute of the Court of Justice, Art. 49, first para.)

2. Actions for annulment – Actionable measures – Refusal of the Commission to pursue the examination of a complaint calling on it to act pursuant to Article 90(3) of the Treaty (now Article 86(3) EC) – Excluded

(Art. 90(1) and (3) of the EC Treaty (now Article 86(1) and (3) EC) and Art. 173, fourth para. of the EC Treaty (now, after amendment, Art. 230, fourth para. EC))

1. Decisions which dispose of a procedural issue concerning an objection of inadmissibility, within the terms of the first paragraph of Article 49 of the EC Statute of the Court of Justice, adversely affect one of the parties where they uphold or reject that objection of inadmissibility. An appeal brought by the Commission against that part of a judgment of the Court of First Instance expressly rejecting the objection of inadmissibility which the Commission had raised against the action brought against the refusal to act on a complaint addressed to it is therefore admissible, even though the Court of First Instance ultimately dismissed that action as being unfounded.

(see para. 50)

2. Article 90(3) of the Treaty (now Article 86(3) EC) requires the Commission to ensure that the Member States comply with the obligations imposed on them, in regard to the undertakings covered by Article 90(1) of that Treaty, and expressly confers on it the power to take action for that purpose by way of directives and decisions. The Commission is empowered to determine that a given State measure is incompatible with the rules of the Treaty and to indicate what measures the State to which a decision is addressed must adopt in order to comply with its obligations under Community law.

Individuals may, in certain circumstances, be entitled to bring an action for annulment against a decision which the Commission addresses to a Member State on the basis of Article 90(3) of the Treaty if the conditions laid down in the fourth paragraph of Article 173 of the Treaty (now, following amendment, the fourth paragraph of Article 230 EC) are satisfied. It follows, however, from the wording of Article 90(3) of the Treaty and from the scheme of that article as a whole that the Commission is not obliged to bring proceedings within the terms of those provisions, as individuals cannot require the Commission to take a position in a specific sense. The fact that an applicant has a direct and individual interest in annulment of the Commission’s decision to refuse to act on its complaint is not such as to confer on it a right to challenge that decision. Nor can that applicant claim a right to bring an action pursuant to Regulation No 17, which is not applicable to Article 90 of the Treaty. That finding is not at variance with the principle of sound administration or with any other general principle of Community law. No general principle of Community law requires that an undertaking be recognised as having standing before the Community Courts to challenge a refusal by the Commission to bring proceedings against a Member State on the basis of Article 90(3) of the Treaty.

(see paras 66, 68-72)

JUDGMENT OF THE COURT (Grand Chamber) 22 February 2005 (1)

(Appeal – Article 90(3) of the EC Treaty (now Article 86(3) EC) – Amount of the fees imposed by the Republic of Austria on operators of GSM networks – Partial rejection of the complaint – Admissibility)

In Case C-141/02 P, APPEAL under Article 49 of the EC Statute of the Court of Justice, brought on 15 April 2002

appellant, supported by:

intervener in the appeal,

the other parties to the proceedings being:

applicant at first instance,

intervener at first instance,

THE COURT (Grand Chamber),,

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and A. Borg Barthet, Presidents of Chambers, J.-P. Puissochet (Rapporteur), R. Schintgen, N. Colneric, S. von Bahr, M. Ilešič, J. Malenovský, J. Klučka and U. Lõhmus, Judges,

Advocate General: M. Poiares Maduro,

having regard to the written procedure and following the hearing on

after hearing the Opinion of the Advocate General at the sitting on 21 October 2004,

gives the following

‘As regards [the fact that a higher fee was not charged to Mobilkom than was charged to max.mobil], the Commission considers … that you have not produced sufficient evidence of the existence of a State measure which induced Mobilkom to abuse its dominant position. In accordance with the policy which it has followed to date, the Commission has not commenced Treaty-infringement proceedings in such cases unless a Member State has imposed a higher fee on a new entrant to the market than on an undertaking already active there (see the Commission Decision of 4 October 1995 concerning the conditions imposed on the second operator of GSM radiotelephony services in Italy (OJ L 280 of 23 November 1995)).’

– dismiss the action as inadmissible and, in the alternative, as unfounded;

– order max.mobil to pay the costs.

and by way of the cross-appeal:

Arguments of the parties

Findings of the Court

‘An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the Court of First Instance and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility.’

Arguments of the parties

Findings of the Court

On those grounds, the Court (Grand Chamber) hereby:

[Signatures]