General Court (Fourth Chamber) 2 May 2006, T-328/03 (O2 (Germany) GmbH & Co. OHG v Commission of the European Communities.)

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In Case T‑328/03, the Court of First Instance annulled Articles 2 and 3(a) of Commission Decision 2004/207/EC, which had granted a time-limited exemption under Article 81(3) EC to a 3G national roaming agreement between O2 (Germany) and T‑Mobile, on the ground that the Commission failed to conduct the requisite objective analysis under Article 81(1) EC of the competitive situation that would have existed in the absence of the agreement. The Court held that the Commission's finding that national roaming 'by definition restricts competition' was not supported by concrete evidence specific to the notified agreement and that the Commission improperly assumed O2's presence on the 3G market without examining whether that presence was contingent on the agreement, thereby vitiating its assessment of actual and potential restrictive effects. The partial annulment was limited to the extent that the contested articles implied the relevant roaming clauses fell within the scope of Article 81 EC and Article 53 of the EEA Agreement, and the Commission was ordered to pay costs.AI