EUROPEAN COURT OF JUSTICE — Court of First Instance — Practice — Action for annulment — EC Commission's refusal to act against member state for alleged anti-competitive measure relating to public undertaking — Whether judicially reviewable — EC Treaty, art 90(3) (art 86(3) EC)

Commission of the European Communities v T-Mobile Austria GmbH (Case C-141/02P)

ECJ: President Skouris, Judges Jann, Timmermans, Rosas, Borg Barthet, Puissochet, Schintgen, Colneric, von Bahr, Ileši , Malenovský, Klu ka and Lõhmus: 22 February 2005

Private individuals and undertakings had no standing to compel the Commission of the European Communities to bring proceedings against a member state under art 90(3) of the EC Treaty, in relation to national measures allegedly permitting anti-competitive behaviour by public undertakings or undertakings with special privileges.

The Grand Chamber of the Court of Justice of the European Communities so held when allowing an appeal by the Commission from part of the judgment of the Court of First Instance of the European Communities in max.mobil Telekommunication Service GmbH v Commission of the European Communities (Case T-54/99) [2002] ECR II-313.

The applicant, a private undertaking which had entered the market for the operation of mobile telephony networks in Austria, complained to the Commission that the Republic of Austria had infringed EC Treaty provisions on competition by charging the applicant the same fee as that charged to its competitor, Mobilkom Austria AG, which had previously held a statutory monopoly over the mobile telephony sector and was still partly owned by the Austrian state, even though Mobilkom enjoyed fee payment advantages. The Commission declined to take action under art 90(3) of the Treaty, on the ground that its policy was not to take Treaty infringement proceedings in such cases unless the new entrant was charged a higher fee. In the applicant's action for annulment, the Court of First Instance in Case T-54/99 held that the action was admissible but dismissed it on the substance. The Commission appealed against the decision as to admissibility.
Art 90 provides: "(1) In the case of public undertakings and undertakings to which member states grant special or exclusive rights, member states shall neither enact nor maintain in force any measure contrary to the … rules [on competition] provided for in … articles 85 to 94 … (3) The Commission shall ensure the application of the provisions of this article and shall, where necessary, address appropriate directives or decisions to member states."

THE COURT, having held that the Commission was entitled to appeal against the admissibility decision despite having been successful as to the substance, said that although individuals could in certain circumstances seek annulment of a decision actually addressed by the Commission to a member state under art 90(3), it followed from the wording of that provision and the scheme of the article as a whole that the Commission was not obliged to bring proceedings. Further, no general principle of Community law gave undertakings locus standi to challenge a refusal by the Commission to take action on the basis of art 90(3). The Court of First Instance had therefore erred in adjudging that the applicant's action was admissible and the appeal would be allowed.

Reported by: Michael Hawkings, barrister