16.12.2006

Official Journal of the European Union

C 310/24

Action brought on 19 October 2006 — BASE v Commission

(Case T-295/06)

(2006/C 310/46)

Language of the case: French

Parties

Applicant: BASE NV (Brussels, Belgium) (represented by: A. Verheyden, Y. Desmedt and F. Bimont, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	Declare that the Commission infringed the rules of procedure set out in Article 7(4) of the Framework Directive (1) by wrongly failing to open a detailed investigation procedure into the draft regulatory measures that were communicated to it by the Institut Belge des Services Postaux (IBPT);

—	Declare that the Commission committed a number of manifest errors of assessment in its analysis of the draft measures communicated by the IBPT in finding, wrongly, that BASE had significant power on the market for voice call termination on its own individual mobile network in Belgium;

—

Declare that the Commission acted in breach of the general principles and the fundamental objectives laid down in the New Regulatory Framework by wrongly approving the remedies proposed by the IBPT, when the imposition of each one of those remedies was manifestly disproportionate and excessive. In particular, the Commission infringed both the general principles and the fundamental objectives laid down in the New Regulatory Framework by postulating the application of symmetrical termination charges in the short term, without considering the concrete implications of this symmetry for BASE, the third entrant on the market;

—	Annul, for all of the reasons outlined above, the Commission decision in its entirety;

—	Order the Commission to pay all of the costs.

Pleas in law and main arguments

By the contested decision of 4 August 2006 (Case BE/2006/0433), the Commission approved, at the end of the first phase of enquiry prescribed in Article 7(3) of Directive 2002/21/EC, a draft decision that the national regulatory authority of Belgium, the IBPT, had communicated to it on 7 July 2006 concerning the wholesale market for call termination on individual mobile networks in Belgium and under which the IBPT had provisionally decided that each of the three mobile network operators in Belgium, including the applicant, had significant market power on the wholesale market for voice call termination on their individual mobile networks, and to impose on them, on that basis, certain obligations. The draft decision communicated by the IBPT also contained a decision to put in place a ‘glide path’ mechanism which aims gradually to reduce the levels of termination charges of Belgian mobile operators until 2008.

In support of its action for annulment, the applicant relies on three pleas in law.

In its first plea, the applicant claims that the Commission infringed the rules for the consultation procedure laid down in Article 7 of Directive 2002/21/EC by wrongly failing to open a detailed investigation procedure under Article 7(4) of that directive, when, according to the applicant, the draft measures communicated by the IBPT could not, by reference to the evidence and reasoning contained in the notification file, justify the designation of the applicant as an operator having significant power on the wholesale market for mobile call termination in Belgium.

In its second plea, the applicant claims that the Commission made a number of manifest errors of assessment in its assessment of the significant power held by the applicant on the market for voice call termination in Belgium, as outlined by the Belgian national authority.

In its third plea, the applicant claims that the Commission failed to have regard, in its assessment of the justified and appropriate nature of the remedies proposed by the IBPT, to the principles and objectives of the New Regulatory Framework for electronic communications. In particular, the applicant claims that the fact that the Commission postulated the application of symmetrical termination charges is a manifest infringement of the principles of proportionality and non-discrimination in that the Commission failed to have sufficient regard to the applicant's position and the objective differences that pertained between it and the other mobile operators. Furthermore, the applicant submits that the tariff rules approved by the Commission constitute a misuse of powers and infringe Article 2 of Directive 2002/77/EC. (2)

(1) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002 L 108, p. 33).

(2) Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).