# C_2004190EN.01001201.xml

| 24.7.2004 | EN | Official Journal of the European Union | C 190/12 |
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24.7.2004

EN

Official Journal of the European Union

C 190/12

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Action brought on 7 June 2004 by the Commission of the European Communities against the French Republic

(Case C-238/04)

(2004/C 190/20)

An action against the French Republic was brought before the Court of Justice of the European Communities on 7 June 2004 by the Commission of the European Communities, represented by O. Beynet and A. Whelan, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by failing to transpose correctly Articles 1 and 2(3) of Directive 90/388/EEC on competition in the markets for telecommunications services, (1) as amended by Directives 95/51/EC (2) and 96/19/EC, (3) the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC; |
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1.

declare that, by failing to transpose correctly Articles 1 and 2(3) of Directive 90/388/EEC on competition in the markets for telecommunications services, (1) as amended by Directives 95/51/EC (2) and 96/19/EC, (3) the French Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 249 EC;

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| 2. | order the French Republic to pay the costs. |
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2.

order the French Republic to pay the costs.

Pleas in law and main arguments:

French legal rules entail a problem of compatibility with Community law on the conditions for licensing the provision of telecommunications services by cable providers.

As regards the provision of telephony services, French legislation imposes an obligation to consult communes, or associations of communes, before the issue of a licence for the provision of a telephone service on cable networks. That obligation gives rise to a number of problems from the point of view of Article 2(3) of Directive 90/388, as amended by Directive 96/19/EC, namely lack of transparency in the consultation procedure, the disproportionate degree of discretion afforded to town councils when coming to their decisions, uncertainty as to whether the procedure is objective on account of the links between certain town councils and providers, the discriminatory aspect of a procedure which does not apply to other providers of telecommunications services and risk of discrimination as between the various cable providers.

The rules by virtue of which cable providers must systematically inform all communes in which their networks are installed impose on those providers an additional obligation in contrast to the general freedom to provide services applicable to other providers of telecommunications services. Since there are no objective factors such as to justify this differential treatment, the French rules are discriminatory in this respect and infringe the provisions of Article 1 in conjunction with Article 2(3) of Directive 90/388/EEC, as amended by Directives 95/51/EC and 96/19/EC.

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(1)  OJ L 192 of 24.7.1990, p. 10.

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(2)  Commission Directive 95/51/EC of 18 October 1995 amending Directive 90/388/EEC with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalised telecommunications services (OJ L 256 of 26.10.1995, p. 49).

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(3)  Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets (OJ L 73 of 13.3.1996, p. 13).

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