Court Of Justice Holds Competitor Has Standing To Challenge National Spectrum Allocation Decision Implementing Merger Commitments

On 22 January 2015, the Court of Justice of the European Union ("ECJ") issued its judgment in Case C-282/13, T-Mobile Austria v. Telekom-Control-Kommission, concerning whether competitors have a right under Directive 2002/21 on a common regulatory framework for electronic communications networks and services (the "Framework Directive") to appeal national level decisions implementing the allocation of wireless spectrum pursuant to merger control commitments.

In December 2012, the European Commission conditionally approved Hutchison Whampoa's purchase of Orange Austria, subject to the parties' commitments to divest parts of Orange's wireless spectrum (see VBB on Competition Law, Volume 2013 No. 1, available at www.vbb.com). The spectrum divestiture occurred through an auction managed by the Austrian Telekom-Control-Kommission ("TCK"), which ultimately granted the bulk of the spectrum to Telekom Austria and some to Hutchison's own Austrian subsidiary.