Notice for the OJ

 

Action brought on 25 September 2003 by O2 (Germany) GmbH & Co. OHG against Commission of the European Communities

    (Case T-328/03)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 September 2003 by O2 (Germany) GmbH & Co. OHG, Munich, Germany, represented by Mr N. Green QC, Mr K. Bacon, Barrister, Mr B. Amory, lawyer and Ms Francesca Marchini Camia, lawyer.

The applicant claims that the Court should:

-annul articles 2 and 3(a) of the Commission Decision of 16 July 2003 in case COMP/38.369;

-order the Commission to pay the applicant's costs;

-make any such further order as the Court deems appropriate.

Pleas in law and main arguments:

The contested decision concerns an agreement between the applicant, O2, and T-Mobile Deutschland GmbH. The agreement provides for infrastructure sharing and national roaming for the third generation of mobile telecommunications in the German market.

The agreement was notified to the Commission and O2 and T-Mobile requested negative clearance under Article 81(1) EC and Article 53(1) EEA, or in the alternative for an exemption under Article 81(3) EC and Article 53(3) EEA. Negative clearance was granted in respect of the infrastructure sharing provisions. The Commission found however that the national roaming provisions restricted competition, but granted individual exemptions for these provisions under Article 81(3) Ec and Article 53(3) EEA for specified periods of time.

The applicant seeks the annulment of the specific provisions of the decision that address the restrictions of competition alleged to flow from national roaming, namely article 2 and 3(a) of the contested decision. The applicant submits that the Commission's reasoning errs in law and is insufficient.

Firstly, the applicant claims that there is no restriction on competition within the meaning of Article 81(1) EC or Article 53(1) EEA. According to the applicant, the decision does not rest on an analysis of the actual effects of the agreement on competition. The Commission would simply rely on the assumption that the purchase by one network operator of network services from another operator will restrict competition between the two on coverage, quality, transmission rates or wholesale prices. The applicant submits furthermore that this assumption is contradicted by the Commission's own factual findings and by the case-law of the Court and the practice of the Commission.

The applicant claims secondly that the alleged restrictions of competition do not flow from an agreement within the meaning of Article 81(1) EC or Article 53(1) EEA, but rather result from the unilateral actions of the applicant. According to the applicant, the agreement does not contain any provision restricting the competition by the applicant on coverage, quality, transmission rates and wholesale prices, and any restriction that could arise from the agreement, would be the result of the unilateral commercial decisions of the applicant. The applicant therefore submits that the agreement is not the cause of the alleged restriction on competition.

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