# C_2013252EN.01002302.xml

| 31.8.2013 | EN | Official Journal of the European Union | C 252/23 |
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31.8.2013

EN

Official Journal of the European Union

C 252/23

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Action brought on 2 July 2013 — European Commission v Republic of Bulgaria

(Case C-376/13)

2013/C 252/39

Language of the case: Bulgarian

Parties

Parties

Applicant: European Commission (represented by: G. Braun, G. Koleva, L. Malferrari)

Applicant:

Defendant: Republic of Bulgaria

Defendant:

Form of order sought

Form of order sought

| — | Declare that by restricting, under Paragraph 5a(1) and (2) of the transitional and concluding provisions of the ZES (Law on electronic communication) to two in number (whereas potentially up to five undertakings could be considered in that regard) the undertakings to which radio frequencies could be assigned for digital terrestrial broadcasting and which can be authorised to provide the corresponding electronic communication service, the Republic of Bulgaria has failed to comply with its obligations under Article 2(1) of the Competition Directive; |
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Declare that by restricting, under Paragraph 5a(1) and (2) of the transitional and concluding provisions of the ZES (Law on electronic communication) to two in number (whereas potentially up to five undertakings could be considered in that regard) the undertakings to which radio frequencies could be assigned for digital terrestrial broadcasting and which can be authorised to provide the corresponding electronic communication service, the Republic of Bulgaria has failed to comply with its obligations under Article 2(1) of the Competition Directive;

| — | Declare that by prohibiting, under Paragraph 47a(1) and (2) and 48(3) of the ZES, undertakings which offer television content and the programmes of which are not broadcast in the Republic of Bulgaria, and persons connected with those undertakings, from taking part in tenders for the assignment of radio frequencies for digital terrestrial broadcasting and the corresponding [services], the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive; |
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Declare that by prohibiting, under Paragraph 47a(1) and (2) and 48(3) of the ZES, undertakings which offer television content and the programmes of which are not broadcast in the Republic of Bulgaria, and persons connected with those undertakings, from taking part in tenders for the assignment of radio frequencies for digital terrestrial broadcasting and the corresponding [services], the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive;

| — | Declare that by prohibiting, under Paragraph 48(5) of the ZES, holders of radio frequencies for digital terrestrial broadcasting from establishing electronic communication services for the broadcasting of radio and television programmes, the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive; |
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Declare that by prohibiting, under Paragraph 48(5) of the ZES, holders of radio frequencies for digital terrestrial broadcasting from establishing electronic communication services for the broadcasting of radio and television programmes, the Republic of Bulgaria has failed to comply with its obligations under Article 2(2) and 4(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive;

| — | Order the Republic of Bulgaria to pay the costs. |
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Order the Republic of Bulgaria to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The European Commission claims that the Republic of Bulgaria has failed to comply with its obligations under Article 2(1) and (2) and 4(2) of Directive 2002/77/EC (1) of 16 September 2002 on competition in the markets for electronic communications networks and services (‘the Competition Directive’), Article 7(3) of Directive 2002/20/EC (2) of 7 March 2002 on the authorisation of electronic communications networks and services (‘the Authorisation Directive’) and Article 9(1) of Directive 2002/21/EC (3) of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘the Framework Directive’).

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| — | The Republic of Bulgaria has failed to comply with the requirement of Article 2(1) of the Competition Directive, according to which Member States are not to grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services. By legislation the Republic of Bulgaria restricted to two in number the undertakings authorised to use radio frequencies for digital terrestrial broadcasting and which provide services as multiplex providers in its territory (whereas potentially up to five undertakings could be considered in that regard). Disproportionate criteria which lacked objectivity were employed in that regard. By that means Bulgaria established special rights for the provision of those electronic communication services. |
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The Republic of Bulgaria has failed to comply with the requirement of Article 2(1) of the Competition Directive, according to which Member States are not to grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services. By legislation the Republic of Bulgaria restricted to two in number the undertakings authorised to use radio frequencies for digital terrestrial broadcasting and which provide services as multiplex providers in its territory (whereas potentially up to five undertakings could be considered in that regard). Disproportionate criteria which lacked objectivity were employed in that regard. By that means Bulgaria established special rights for the provision of those electronic communication services.

| — | The Republic of Bulgaria has failed to comply with the requirements of Article 2(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, according to which the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria. The Republic of Bulgaria applied criteria for the participation in tenders for the assignment of radio frequencies for digital terrestrial broadcasting which were not proportionate to the purposes pursued; by establishing criteria for the assignment of radio frequencies for digital terrestrial broadcasting which were disproportionate and thus by precluding a number of undertakings from taking part in those tenders, the Republic of Bulgaria failed to comply with its obligation under Article 2(2) of the Competition Directive to ensure that any undertaking is entitled to provide electronic communications services. |
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The Republic of Bulgaria has failed to comply with the requirements of Article 2(2) of the Competition Directive, Article 7(3) of the Authorisation Directive and Article 9(1) of the Framework Directive, according to which the assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria. The Republic of Bulgaria applied criteria for the participation in tenders for the assignment of radio frequencies for digital terrestrial broadcasting which were not proportionate to the purposes pursued; by establishing criteria for the assignment of radio frequencies for digital terrestrial broadcasting which were disproportionate and thus by precluding a number of undertakings from taking part in those tenders, the Republic of Bulgaria failed to comply with its obligation under Article 2(2) of the Competition Directive to ensure that any undertaking is entitled to provide electronic communications services.

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(1)  OJ 2002 L 249, p. 21.

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(2)  OJ 2002 L 108, p. 21.

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(3)  OJ 2002 L 108, p. 33.

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