«(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)»

1.. Approximation of laws – Telecommunications sector – Open network provision – Directive 90/387 – Provision requiring Member States to establish bodies to hear appeals – Failure to transpose the Directive – Consequences – National courts required to determine whether appeals are possible on the basis of national law to be disapplied – National provision excluding the competence of a court which would otherwise be competent (Art. 10 EC; Council Directive 90/387, Art. 5a(3))

2.. Competition – Public undertakings and undertakings to which Member States grant special or exclusive rights – Telecommunications sector – National legislation under which additional frequencies in a frequency band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas a new operator pays a fee to use the same frequency band – Measure creating conditions for abuse of a dominant position – Not permissible unless the fee previously imposed on the public undertaking which also covers additional frequencies is equivalent in economic terms to that paid by its competitor to enter the market (Arts 82 EC and 86(1) EC)

3.. Competition – Public undertakings and undertakings to which Member States grant special or exclusive rights – Telecommunications sector – Directive 96/2 – Mobile and personal communications – National legislation under which additional frequencies in a frequency band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas a new operator pays a fee to use the same frequency band – Not permissible unless the fee previously imposed on the public undertaking which also covers additional frequencies is equivalent in economic terms to that paid by its competitor to enter the market or unless the frequencies initially allocated have reached saturation point – Legislation allowing such allocation after a specified period has elapsed or where the frequencies initially allocated have reached saturation point – Whether permissible (Commission Directive 92/2, Art. 2(3) and (4))

4.. Approximation of laws – Telecommunications sector – Common framework for general authorisations and individual licences – Directive 97/13 – Procedures for granting – Prohibition of discrimination (Directive 97/13/EC of the European Parliament and of the Council, Arts 9(2) and 11(2))

JUDGMENT OF THE COURT (Fifth Chamber) 22 May 2003 (1)

((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))

In Case C-462/99,

REFERENCE to the Court under Article 234 EC by the Verwaltungsgerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between

and

on 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 (OJ 1990 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 Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications (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 authorisations and individual licences in the field of telecommunications services (OJ 1997 L 117, p. 15); and of Articles 82 EC and 86(1) EC,

THE COURT (Fifth Chamber),,

composed of: D.A.O. Edward, acting for the President of the Fifth Chamber, A. La Pergola (Rapporteur) and P. Jann, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Connect Austria Gesellschaft für Telekommunikation GmbH, represented by A. Foglar-Deinhardstein, Rechtsanwalt, and P. Hoffmann; of Telekom-Control-Kommission, represented by W. Schramm; of Mobilkom Austria AG, represented by P. Lewisch; of the Austrian Government, represented by T. Kramler, acting as Agent; and of the Commission, represented by C. Schmidt, at the hearing on 11 October 2001,

after hearing the Opinion of the Advocate General at the sitting on 13 December 2001,

gives the following

Community legislation

.

National legislation

Observations submitted to the Court

Findings of the Court

Observations submitted to the Court

Findings of the Court

Interpretation of Articles 82 EC and 86(1) EC

Infringement of Article 2(3) and (4) of Directive 96/2

Interpretation of Articles 9(2) and 11(2) of Directive 97/13

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Verwaltungsgerichtshof by order of 24 November 1999, hereby rules:

Edward

La Pergola

Jann

Delivered in open court in Luxembourg on 22 May 2003.

R. Grass

M. Wathelet

Registrar

President of the Fifth Chamber