Luxembourg, 25/02/2005 (Agence Europe) - The European Court of Justice states in a press release on the T-Mobile Austria case that the European Commission is not obliged to act on a complaint by an individual or a company by bringing proceedings against a state measure relating to public undertakings or undertakings enjoying special or exclusive rights. So doing, it annuls a ruling of the European Court of First Instance of 30 January 2002 declaring that a case brought by max-mobil (it was called T-Mobile at the time) was admissible. T-Mobile wanted the Commission to take action against Austria for allegedly flouting competition rules.
The Court pointed out that the EC Treaty requires the Commission to ensure that Member States comply with the obligations imposed on them in regard to public undertakings or undertakings enjoying special or exclusive rights 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 Treaty rules, particularly in the area of competition, and to indicate the measures which the addressee State must adopt in order to comply with its obligations under Community. The Court, however, ruled that the Commission is not under an obligation to bring proceedings in this context, inasmuch as individuals cannot require it 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 refusal to act on its complaint is not such as to entitle it to challenge that decision. The Court stressed in that regard that there is no general principle of Community law which requires that an individual must be recognised as having standing before the Community courts to challenge a refusal by the Commission to bring proceedings against a Member State. The Court accordingly set aside the judgment of the Court of First Instance.
max.mobil was the second GSM network operator in Austria after Mobilkom Austria AG, shares in which are still held in part by the Austrian State through Post und Telekom Austria AG. The former State monopoly over the entire mobile telephony sector had been entrusted to Mobilkom some months before max.mobil entered that market in 1996. In 1997 max.mobil requested the European Commission to find that the Republic of Austria had infringed the provisions of the EC Treaty concerning State measures for the benefit of public undertakings or undertakings enjoying special or exclusive rights and the prohibition of abuse of a dominant position. It submitted that the Austrian authorities had unlawfully conferred advantages on its competitor, Mobilkom, in the allocation of frequencies, in particular by not drawing any distinction between the amount of the concession fee charged to max.mobil itself and the amount of that charged to Mobilkom.