Opinion of the Advocate General — ECLI:EU:C:2025:359
Date: 2025-05-15
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-327/24 – 1 
Case C-327/24 [Lolach] i 
Request for a preliminary ruling 
Date lodged: 
3 May 2024 
Referring court: 
Verwaltungsgericht Köln (Germany) 
Date of the decision to refer: 
2 May 2024 
Applicant: 
Telekom Deutschland GmbH 
Defendant: 
Bundesrepublik Deutschland 
  
Verwaltungsgericht Köln (Administrative Court, Cologne) 
Order 
[…] 
In the administrative proceedings 
Telekom Deutschland GmbH, […] Bonn, 
applicant, 
[…] 
v 
Bundesrepublik Deutschland […], 
defendant, 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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concerning telecommunications legislation, 
the 21st Chamber of the Administrative Court of Cologne 
on 2 May 2024 
[…] 
hereby orders: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 TFEU: 
Must Articles 72 and 73 of Directive (EU) 2018/1972 of the European 
Parliament and of the Council of 11 December 2018 be interpreted as 
meaning that, when considering the question of ‘whether’ to impose an 
obligation to provide access to civil engineering assets that are not part of 
the relevant market in accordance with the market analysis, the national 
regulatory authorities 
must examine solely whether the non–imposition of this obligation would 
hinder the emergence of a sustainable competitive market and would not be 
in the end-user’s interest, 
or 
may, when considering the imposition of an obligation to provide access to 
such assets, take into account not only the conditions mentioned above but 
also, on an equal footing as part of a ‘bundle of objectives’, the other 
objectives of Article 3 of Directive (EU) 2018/1972 of the European 
Parliament and of the Council of 11 December 2018 and, if applicable, 
further objectives. 
 
G r o u n d s 
I. 
The dispute essentially concerns the issue of the legality of imposing access 
obligations on the applicant. 
Directive (EU) 2018/1972 of the European Parliament and of the Council of 
11 December 2018 establishing the European Electronic Communications Code 
(‘the EECC’) regulates the imposition of access obligations in Articles 72 and 73 
according to the German-language version – there being, at least as regards 
Article 73, differing language versions – as follows: 
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Article 72 
Access to civil engineering 
(1) A national regulatory authority may, in accordance with Article 68, 
impose obligations on undertakings to meet reasonable requests for access 
to, and use of, civil engineering including, but not limited to, buildings or 
entries to buildings, building cables, including wiring, antennae, towers and 
other supporting constructions, poles, masts, ducts, conduits, inspection 
chambers, manholes, and cabinets, in situations where, having considered 
the market analysis, the national regulatory authority concludes that denial 
of access or access given under unreasonable terms and conditions having a 
similar effect would hinder the emergence of a sustainable competitive 
market and would not be in the end-user’s interest. 
(2) National regulatory authorities may impose obligations on an 
undertaking to provide access in accordance with this Article, irrespective of 
whether the assets that are affected by the obligation are part of the relevant 
market in accordance with the market analysis, provided that the obligation 
is necessary and proportionate to meet the objectives of Article 3. 
Article 73 
Obligations of access to, and use of, specific network elements and associated 
facilities 
(1) National regulatory authorities may, in accordance with Article 68, 
impose obligations on undertakings to meet reasonable requests for access 
to, and use of, specific network elements and associated facilities, in 
situations where the national regulatory authorities consider that denial of 
access or unreasonable terms and conditions having a similar effect would 
hinder the emergence of a sustainable competitive market at the retail level, 
and would not be in the end-user’s interest. 
National regulatory authorities may require undertakings inter alia: 
(a) to give third parties access to, and use of, specific physical 
network elements and associated facilities, as appropriate, including 
unbundled access to the local loop and sub-loop; 
(b) to give third parties access to specific active or virtual network 
elements and services; 
(c) to negotiate in good faith with undertakings requesting access; 
(d) not to withdraw access to facilities already granted; 
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(e) to provide specific services on a wholesale basis for resale by 
third parties; 
(f) to grant open access to technical interfaces, protocols or other 
key technologies that are indispensable for the interoperability of 
services or virtual network services; 
(g) to provide co-location or other forms of associated facilities 
sharing; 
(h) to provide specific services needed to ensure interoperability of 
end-to-end services to users, or roaming on mobile networks; 
(i) to provide access to operational support systems or similar 
software systems necessary to ensure fair competition in the provision 
of services; 
(j) to interconnect networks or network facilities; 
(k) to provide access to associated services such as identity, location 
and presence service. 
National regulatory authorities may subject those obligations to conditions 
covering fairness, reasonableness and timeliness. 
(2) Where national regulatory authorities consider the appropriateness of 
imposing any of the possible specific obligations referred to in paragraph 1 
of this Article, and in particular where they assess, in accordance with the 
principle of proportionality, whether and how such obligations are to be 
imposed, they shall analyse whether other forms of access to wholesale 
inputs, either on the same or on a related wholesale market, would be 
sufficient to address the identified problem in the end-user’s interest. That 
assessment shall include commercial access offers, regulated access 
pursuant to Article 61, or existing or planned regulated access to other 
wholesale inputs pursuant to this Article. National regulatory authorities 
shall take account in particular of the following factors: 
(a) the technical and economic viability of using or installing 
competing facilities, in light of the rate of market development, taking 
into account the nature and type of interconnection or access involved, 
including the viability of other upstream access products, such as 
access to ducts; 
(b) the expected technological evolution affecting network design 
and management; 
(c) the need to ensure technology neutrality enabling the parties to 
design and manage their own networks; 
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5 
(d) the feasibility of providing the access offered, in relation to the 
capacity available; 
(e) the initial investment by the facility owner, taking account of any 
public investment made and the risks involved in making the 
investment, with particular regard to investments in, and risk levels 
associated with, very high capacity networks; 
(f) the need to safeguard competition in the long term, with 
particular attention to economically efficient infrastructure-based 
competition and innovative business models that support sustainable 
competition, such as those based on co-investment in networks; 
(g) where appropriate, any relevant intellectual property rights; 
(h) the provision of pan-European services. 
Where a national regulatory authority considers, in accordance with 
Article 68, imposing obligations on the basis of Articles 72 or of this Article, 
it shall examine whether the imposition of obligations in accordance with 
Article 72 alone would be a proportionate means by which to promote 
competition and the end-user’s interest. 
(3) When imposing obligations on an undertaking to provide access in 
accordance with this Article, national regulatory authorities may lay down 
technical or operational conditions to be met by the provider or the 
beneficiaries of such access, where necessary to ensure normal operation of 
the network. Obligations to follow specific technical standards or 
specifications shall comply with the standards and specifications laid down 
in accordance with Article 39. 
The German legislature has implemented those two provisions in a single 
provision, Paragraph 26 of the Telekommunikationsgesetz (Law on 
telecommunications) of 23 June 2021, in the version of 10 September 2021, last 
amended at the material time in the present case by the Law of 20 July 2022 
(BGBl. I, p. 1166), (‘the TKG’), as follows: 
Paragraph 26 Access obligations 
(1) The Federal Network Agency may impose on an undertaking with 
significant market power obligations to grant other undertakings access if, 
otherwise, the emergence of a sustainable competitive retail market would 
be hindered and the end-user’s interest harmed. 
(2) In considering whether and which access obligations are justified 
according to subparagraph (1) and whether these are proportionate and 
commensurate with the objectives according to Paragraph 2, the Federal 
Network Agency shall examine whether 
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1. obligations already imposed or likely to be imposed under this 
Part or commercial access agreements already concluded or offered in 
the relevant or in a related wholesale market and 
2. the imposition alone of obligations pursuant to point 10 of 
subparagraph (3) 
are sufficient to safeguard the objectives referred to in Paragraph 2. In that 
regard, the Federal Network Agency shall take into account in particular 
1. the technical and economic viability of using or installing 
competing facilities, in the light of the rate of market development, 
taking into account the nature and type of interconnection and access 
involved, including the viability of other upstream access products; 
2. the feasibility of providing the access proposed, in relation to the 
capacity available; 
3. the initial investment by the facility owner, taking account of any 
public investment made and the risks involved in making the 
investment, in particular the risks associated with investments in very 
high capacity networks; 
4. the need to safeguard competition in the long term, with 
particular attention to economically efficient infrastructure-based 
competition and innovative business models; 
5. industrial property rights or intellectual property rights; 
6. the provision of services throughout the Union; and 
7. the expected technological evolution affecting network design 
and management. 
(3) The Federal Network Agency may, having regard to subparagraph (1), 
impose, inter alia, the following obligations on undertakings with significant 
market power: 
1. to grant access to specific physical network elements and 
associated facilities, including physically unbundled access to the local 
loop; 
2. not to withdraw access to facilities already granted; 
3. to grant access to specific active or virtual network elements and 
services, including virtual unbundled broadband access; 
4. to provide specific services needed to ensure interoperability of 
end-to-end services to users, or roaming on mobile networks; 
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7 
5. to provide access to operational support systems or similar 
software systems necessary to ensure fair competition in the provision 
of services, while ensuring the efficiency of existing facilities; 
6. to provide access to associated services such as identity, location 
and presence service; 
7. to allow the interconnection of public telecommunications 
networks; 
8. to grant open access to technical interfaces, protocols or other 
key technologies that are indispensable for the interoperability of 
services or for virtual telecommunications network services; 
9. to provide co-location or other forms of associated facilities 
sharing and to grant access seekers or their agents access to these 
facilities at any time; 
10. to grant access to civil engineering including buildings or entries 
to buildings, building cables including wiring, antennae, towers and 
other supporting constructions, poles, masts, ducts, conduits, 
inspection chambers, manholes, and cabinets, even if these are not part 
of the relevant market pursuant to Paragraph 10, provided that the 
access obligation is necessary and appropriate with regard to the 
problem identified in the market analysis as defined in Paragraph 11. 
(4) If an undertaking demonstrates that using the service would jeopardise 
the maintenance of network integrity or the security of network operation, 
the Federal Network Agency shall not impose the access obligation 
concerned or shall impose it in a different form. The maintenance of 
network integrity and security of network operation must be assessed 
according to objective criteria. 
(5) When imposing an obligation on an undertaking to provide access, the 
Federal Network Agency may lay down technical or operational conditions 
to be met by the operator or the beneficiaries of such access, where 
necessary to ensure normal operation of the telecommunications network. 
Obligations to follow specific technical standards or specifications shall 
comply with the standards and specifications laid down in accordance with 
Article 39 of Directive (EU) 2018/1972. 
(6) In the context of compliance with access obligations, the use of access 
services and cooperation between undertakings entitled to access should be 
permitted, unless an undertaking demonstrates in an individual case that a 
use or cooperation is not possible or is possible only to a limited extent for 
technical reasons. 
II. 
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The applicant is an undertaking offering telecommunications services and which, 
in the context of the market definition of 10 October 2019, was designated as an 
undertaking with significant market power in the single relevant market as regards 
access to the local loop at a fixed location. However, a market relating to access to 
civil engineering was not the object of the market definition. 
Subsequently, by decision dated 21 July 2022, the Bundesnetzagentur für 
Elektrizität, Gas, Telekommunikation, Post und Eisenbahnen (Federal Agency for 
Electricity, Gas, Telecommunications, Post and Rail Networks (‘Federal Network 
Agency’)) required the defendant, inter alia; 
‘1.1.: to grant other undertakings access to cable duct systems as well as to 
masts and carrier systems for overhead lines existing at the time of demand, 
for the development and operation of very high capacity networks at fixed 
locations or for access to the local loop at the cabinet or Multi-Service 
Access Node (MSAN) (point 1.2 or 1.3) within the limits of the available 
capacity, allowing the (applicant) to maintain an adequate operating reserve 
and to prioritise its own use. In so far as the access is not used to access the 
local loop, the performance obligation and the further associated obligations 
under points 2., 4. and 5. shall commence on 1 January 2024. 
1.2. to grant other undertakings physically unbundled access to the copper 
local loop at the main distribution frame or at a point situated closer to the 
local loop unit than the main distribution frame (in particular cable or 
subscriber distribution interface/termination point) unless, under the 
provisions of Annex 1 hereto – Refusal of access to the local loop outside 
the immediate vicinity of the main distribution frame; and Annex 2 – 
Refusal of access to the local loop within the immediate vicinity of the main 
distribution frame, it may or is required to refuse access …’ 
In the grounds for its decision, the Federal Network Agency states, inter alia, the 
following: 
‘Access obligations 
The Ruling Chamber […] has maintained or amended the access obligations 
imposed on the (applicant) on the market at issue by regulatory order BK3g-
09/085 of 21 March 2011 (in the version of regulatory order BK3g-15/004 
of 1 September 2016) as follows: 
1. Review programme under Paragraph 26 of the TKG 
The imposition of access obligations follows from Paragraph 26 of the TKG. 
Pursuant to the first sentence of Paragraph 26(1) of the TKG, the Federal 
Network Agency may require operators of public telecommunications 
networks with significant market power to provide other undertakings with 
access, including demand-side unbundling, in particular if, otherwise, the 
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emergence of a sustainable competitive downstream retail market would be 
hindered or the end-user’s interest harmed. In considering whether and 
which access obligations are justified and whether they are proportionate 
and commensurate with the regulatory objectives under Paragraph 2 of the 
TKG, the Federal Network Agency is to take into consideration in particular 
the criteria set out in points 1 to 7 of the second sentence of Paragraph 26(2) 
of the TKG. It is apparent from the provision cited and its reference to the 
regulatory objectives (and principles) defined in Paragraph 2 of the TKG 
that the measures imposed must meet an extensive bundle of objectives and 
are simultaneously subject to certain constraints (with regard to 
Paragraph 21 of the TKG 2004, BVerwG, see judgment of 21 September 
2018 – 6 C 50/16 – paragraph 48, BVerwG, judgment of 21 September 
2018 – 6 C 8/17 – BVerwGE 163, 181-232, paragraph 51). The relevant 
bundle of objectives in the present context consists of four basic objectives 
which, in part, have various further nuances. 
The first basic objective is to ensure connectivity and the promotion of 
access to and use of very high capacity networks by all citizens and 
undertakings (first sentence of Paragraph 26(2), read in conjunction with 
point 1 of Paragraph 2(2) of the TKG). The second basic objective is the 
promotion of competition. Competition on the retail market in particular is 
of interest here (Paragraph 26(1) of the TKG). Sustainable competitive 
telecommunications markets and the associated investment in infrastructure 
and innovation are to be promoted (Paragraph 26(1); point 4 of the second 
sentence of Paragraph 26(2); first sentence of Paragraph 26(2), read in 
conjunction with points 2 and 3(e) of Paragraph 2(2) and point 4 of 
Paragraph 2(3) of the TKG). Competition is also required to be fair (first 
sentence of Paragraph 26(2) in conjunction with point 2 of Paragraph 2(2) 
and point 2 of Paragraph 2(3) of the TKG). In the context of promoting 
competition, due account must be taken both of the interests in the area (first 
sentence of Paragraph 26(2) in conjunction with point 2, in fine, of 
Paragraph 2(2) of the TKG) and of the diverse conditions in connection with 
competition prevailing in the various geographical areas of the Federal 
Republic of Germany (first sentence of Paragraph 26(2) in conjunction with 
the second alternative in point 5 of Paragraph 2(3) of the TKG). According 
to the third basic objective, users, in particular the interests of consumers in 
the telecommunications field, must be protected (Paragraph 26(1), in fine; 
first sentence of Paragraph 26(2) in conjunction with point 3 of 
Paragraph 2(2) of the TKG). Maximum benefits are to be sought for users in 
terms of choice, price and quality (first sentence of Paragraph 26(2), read in 
conjunction with point 3(b) of Paragraph 2(2) of the TKG). In particular, the 
interests of users and consumers are to be promoted by again ensuring the 
connectivity, widespread availability and accelerated development of very 
high capacity networks and promoting their use (first sentence of 
Paragraph 26(2), in conjunction with points 1 and 3(a) of Paragraph 2(2) of 
the TKG). In addition, equivalent standards of living must be ensured in 
urban and rural areas (first sentence of Paragraph 26(2), in conjunction with 
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point 3(b) of Paragraph 2(2) of the TKG). Here too, due account must be 
taken of the diverse conditions relating to consumers that prevail in the 
various geographical areas of the Federal Republic of Germany (first 
sentence of Paragraph 26(2), in conjunction with the third alternative in 
point 5 of Paragraph 2(3) of the TKG). Fourthly, the development of the 
internal market of the European Union is to be promoted (first sentence of 
Paragraph 26(2), in conjunction with point 4 of Paragraph 2(2) of the TKG). 
This also includes the provision of pan-European services (point 6 of the 
second sentence of Paragraph 26(2) of the TKG). 
The attainment of this bundle of objectives is subject to various constraints. 
In general, Paragraph 2(3) of the TKG provides that, in pursuing the 
objectives set out in subparagraph (2), the Federal Network Agency is to 
apply objective, transparent, non-discriminatory and proportionate 
regulatory principles. Those principles are further defined in Paragraph 2(3) 
and the second sentence of Paragraph 26(2) of the TKG. As part of the 
necessity test, in particular the technical and economic viability of using or 
installing competing facilities must be assessed in the light of the rate of 
market development (point 1 of the second sentence of Paragraph 26(2) of 
the TKG) and it is necessary to consider whether obligations already 
imposed under Part 2 of the TKG or commercial access agreements already 
concluded or offered in the relevant or in a related wholesale market (point 1 
of the first sentence of Paragraph 26(2) of the TKG) and the imposition 
alone of access obligations regarding cable duct systems and masts and 
carriers for overhead lines (point 2 of the first sentence of Paragraph 26(2) 
of the TKG) are sufficient to safeguard the regulatory objectives referred to 
in Paragraph 2 of the TKG (first sentence of Paragraph 26(2) of the TKG). 
When considering appropriateness, the fundamental rights of the persons 
concerned as regards freedom to pursue a professional activity, and 
protection of property (Article 12(1) and Article 14(1), respectively, of the 
Grundgesetz (German Basic Law)) must be borne in mind. That applies in 
particular to the feasibility of providing access, in relation to the capacity 
available (point 2 of the second sentence of Paragraph 26(2) of the TKG) 
and also as regards the initial investment by the facility owner, taking 
account of any public investment made and the risks involved in making the 
investment (point 3 of the second sentence of Paragraph 26(2) of the TKG) 
and, in general, as regards the risks associated with the investment by the 
investing undertaking and in the context of cooperation between investors 
and their access seekers (first sentence of Paragraph 26(1), in fine; point 4 of 
the second sentence of Paragraph 26(2); first sentence of Paragraph 26(2) 
read in conjunction with the first sentence of point 2 of Paragraph 2(2) and 
point 4 of Paragraph 2(3) of the TKG). The principles of legitimate 
expectations and legal certainty may also be relevant. For example, 
regulatory predictability is to be promoted as a result of the Federal Network 
Agency maintaining a standardised regulatory approach for reasonable 
periods (first sentence of Paragraph 26(2) in conjunction with point 1 of 
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Paragraph 2(3) of the TKG). The effects on other legal interests, such as 
industrial property rights, intellectual property rights and the provision of 
pan-European services (points 5 and 6 of the second sentence of 
Paragraph 26(2) of the TKG), as well as the interest in maintaining network 
integrity and ensuring the security of network operation (Paragraph 26(4) 
and (5) of the TKG) may also be relevant in specific cases.’ 
On that basis, the Federal Network Agency went on to examine the imposition of 
the abovementioned access obligations, including the obligation to provide access 
to civil engineering. 
On 19 August 2022 the applicant brought an action against the Federal Network 
Agency decision of 21 July 2022 before the referring court, seeking, inter alia, the 
following: 
‘1. the defendant’s decision of 21 July 2022 (BK3i-19/020) to be annulled in 
part in so far as the following obligations are imposed on the applicant: 
(a) the obligation, laid down in point 1.1 of the operative part, to 
give other undertakings access to cable duct systems as well as to 
masts and carrier systems for overhead lines for the purpose of the 
development and operation of very high capacity networks at fixed 
locations; 
in the alternative to point (a), 
(b) the obligation, laid down in point 1.1 of the operative part, also to 
give other undertakings access to those cable duct systems as well as to 
masts and carrier systems for overhead lines for the purpose of the 
development and operation of very high capacity networks at fixed 
locations which the applicant has newly erected for the development of 
its Fibre to the Building (FTTB)/Fibre to the Home (FTTH) network; 
in the further alternative to (a) and (b), 
(c) the obligation, laid down in point 1.1 of the operative part, to 
give other undertakings access also to those cable duct systems as well 
as to masts and carrier systems for overhead lines for the purpose of 
the development and operation of very high capacity networks at fixed 
locations which were completed less than seven years ago; 
(d) the obligation, laid down in point 4 of the operative part, to 
publish a reference offer for access services for cable duct systems as 
well as to masts and carrier systems for overhead lines for the purpose 
of the development and operation of very high capacity networks at 
fixed locations; 
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(e) the obligation, laid down in point 5.1 of the operative part, to 
have the charges for granting access to cable duct systems as well as to 
masts and carrier systems for overhead lines for the purpose of the 
development and operation of very high capacity networks at fixed 
locations approved in accordance with Paragraph 39 of the TKG; 
(f) the obligation, laid down in point 4 of the operative part, to 
publish a reference offer for access services for virtual unbundled 
access in the form of a layer 2 access product at the switch/Broadband 
Network Gateway (BNG) for mass marketable FTTB/H 
infrastructures; 
2. in the alternative to the applications under point 1 above, the 
defendant’s decision of 21 July 2022 (BK3i-19/020) to be annulled in its 
entirety if the court does not deem the decision to be severable’. 
As regards the relevant question in the present case, it was stated that the Federal 
Network Agency had based the imposition of access obligations under 
Paragraph 26(1) of the TKG on a misunderstanding of the provision. In the 
presentation of the review programme, it was contended, the reasons for the 
regulatory order reflected the superseded wording of the first sentence of 
Paragraph 21(1) of the TKG 2004, when in fact there had been changes in 
Paragraph 26(1) of the TKG, now in force. Notably, the words ‘in particular’ had 
been deleted from the text and the conditions as to ‘hindering competition in the 
retail market’ and ‘harm to the end-user’s interest’ were now linked by the word 
‘and’ instead of the word ‘or’. The Federal Network Agency had, it was argued, 
disregarded both factors as a result and based its decision on an erroneous review 
programme. Those amendments were not only of an editorial nature, but, as was 
evident from the explanatory memorandum, had been deliberate legislative 
decisions. An interpretation in conformity with the directive was out of the 
question. First, that would founder on the intention of the German legislature as 
expressly laid down in the legislative texts. Secondly, there was ultimately no 
difference between the law of the directive and national law. Consequently, it 
should have been established first of all in the context of Paragraph 26(1) of the 
TKG that the conditions set out therein were cumulative, before a review of 
Paragraph 26(2) of the TKG and the exercise of discretion could proceed. Due to 
the different approach taken by the Federal Network Agency, the primary 
regulatory objectives regarding access expressly highlighted by the legislature 
had, it was contended, been improperly qualified, creating an imbalance in the 
assessment. Ultimately, the regulatory order refrains from carrying out any 
cumulative examination of the conditions laid down in Paragraph 26(1) of the 
TKG. 
The defendant contends, with regard to the relevant questions in the present case, 
that the Federal Network Agency did not base the regulatory decision on a 
misinterpretation of the relevant provisions; in particular, it did not take as a basis 
the conditions of the first sentence of the former Paragraph 21(1) of the 
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TKG 2004. Paragraph 26(1) of the TKG should be interpreted in line with the 
directive to the effect that the word ‘and’ between the conditions was not intended 
to serve as a cumulative link but to indicate a list. Furthermore, it was not the key 
position of the presentation of the review programme that was relevant to the 
lawfulness of the assessment decision, but the actual assessment decision itself: 
both of the conditions of Paragraph 26(1) of the TKG had been taken into account 
in the assessment decision. The wording of Paragraph 26(1) of the TKG did not, it 
was argued, lead to the conclusion that the Federal Network Agency was limited 
in the context of its review of the two conditions. Rather, with respect to 
Paragraph 26(2) of the TKG, it could include further aspects in the assessment; the 
case-law of the Federal Administrative Court relating to the ‘review of the bundle 
of objectives’ as regards the first sentence of Paragraph 21(1) of the TKG 2004 
should be applied to Paragraph 26 of the TKG. 
[…] [additional request for interim measures] 
III. 
The question of Community law submitted to the Court of Justice is decisive for 
the outcome of the dispute. The principle of interpretation in conformity with 
directives applies here (1). The results of the dispute vary depending on the 
interpretation of Articles 72 and 73 of the EECC (2). 
1. The principle of interpretation in conformity with directives applies here. 
Admittedly such an interpretation can be ruled out where there are unequivocal 
national provisions. However, that is not the case here. In national law, there are 
aspects that militate in favour of interpreting Paragraph 26 of the TKG as meaning 
that the defendant should have undertaken a review ‘at the outset’ based solely on 
the constituent elements of Paragraph 26(1) of the TKG (a), and also aspects that 
militate in favour of the defendant having – as before – to decide on the 
imposition of access obligations having regard to a ‘bundle of objectives’ (b). 
(a) First of all, the wording of the provision appears to militate in favour of 
Paragraph 26 of the TKG needing to be interpreted as meaning that the defendant 
should have undertaken a review ‘at the outset’ based only on the constituent 
elements of Paragraph 21(1) of the TKG (‘…if, otherwise, the emergence of a 
sustainable competitive retail market would be hindered and the end-user’s 
interest harmed’). In Paragraph 26(1) of the TKG, in a departure from the first 
sentence of Paragraph 21(1) of the TKG of 22 June 2004, repealed by Article 61 
of the Law of 23 June 2021 (BGBl. I, p. 1858), the words ‘in particular’ have been 
deleted. In support of that interpretation of Paragraph 26(1) of the TKG, it can 
also be argued that the legislature deleted the words ‘in particular’ deliberately in 
order to illustrate ‘the focus of access regulation at wholesale level on eliminating 
the competition problem in the retail market’ (see BT-Drs. 19/26108, p. 263). It 
may perhaps be inferred from this that the legislature intended the feasibility of 
the imposition of access obligations (expressed in terms of ‘whether’ to impose) to 
be restricted to specific regulatory grounds, unlike the previous procedure. It may 
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also be mentioned in that regard that, from a systematic perspective, the 
legislature divided the former Paragraph 21(1) of TKG 2004 into two 
subparagraphs in Paragraph 26 of the TKG. The following also militates in favour 
of the autonomy of Paragraph 26(1) of the TKG: from a systematic perspective, 
Paragraph 26(1) of the TKG, which exhaustively sets out individual regulatory 
grounds, would not be necessary if, through Paragraph 26(2) of the TKG, a broad-
based combined examination ultimately had to or might take place. The 
autonomous scope of Paragraph 26(1) of the TKG can only be identified using a 
step-by-step examination. 
(b) However, there are also strong factors that militate in favour of the 
defendant having to take the decision on imposing access obligations in the 
context of a ‘bundle of objectives’. While, according to the drafting history, the 
reason for the deletion of the words ‘in particular’ was to highlight ‘the focus of 
access regulation at wholesale level on eliminating the competition problem in the 
retail market’, at the same time, the reason for the deletion of the words ‘in 
particular’ was also that account was taken, in that regard, of the corresponding 
deletion in the first subparagraph of Article 73(1) of the EECC. That reference is 
incomprehensible. The first subparagraph of Article 73(1) of the EECC does not 
contain the words ‘in particular’ (insbesondere), but the enumerated list of 
regulatory grounds is, also in the version in force, introduced by the words ‘unter 
anderem wenn’. This introduction also appears in other language versions: Dutch 
(‘onder andere wanneer’), French (‘notamment lorsqu’elles’), Italian (‘in 
particolare qualora’). However, in the English version (‘in situations where’) there 
does not appear to be an introduction to the enumerated list. It can only be 
speculated whether the English version was regarded as the ‘correct version’ in 
the German explanatory memorandum to the TKG. Thus the only conclusion to be 
drawn from the drafting history of Paragraph 26(1) of the TKG is that the drafting 
history raises more questions than it answers. Above all, however, that second 
argument is supported by the fact that the case-law of the Federal Administrative 
Court relating to the possibility of forming a ‘bundle of objectives’ in the context 
of the review of Paragraph 21(1) of the TKG 2004 was not attributed to the first 
sentence of Paragraph 21(1) of the TKG 2004 and the words ‘in particular’, which 
at that time were still included as an introductory point, but derived directly from 
the second sentence of Paragraph 21(1) of the TKG 2004, which, through the 
words ‘in considering whether’, established a link to the first sentence (BVerwG, 
judgment of 21 September 2018 – 6 C 8.17 – juris paragraph 43 and 6 C 50.16 
paragraphs 41 and 47). On that basis, Paragraph 26(2) of the TKG, which is 
introduced by the same wording as the second sentence of Paragraph 21(1) of the 
TKG 2004, may possibly still be interpreted as the provision imposing the 
(uniform and combined) review programme. On the other hand, however, it may 
be contended that the first sentence of Paragraph 26(2) of the TKG goes beyond 
the first sentence of the former Paragraph 21(1) of the TKG 2004 (according to 
the wording) in containing first and foremost what is known as the ‘sufficiency 
test’ in the first sentence of Paragraph 26(2) of the TKG, and the examination 
initiated by reference to the objectives of Paragraph 2 of the TKG apparently 
relates only to that test. However, the second sentence of Paragraph 26(2) of the 
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TKG mentions further aspects for consideration, whose link to the ‘sufficiency 
test’ is not entirely clear and, moreover, whose autonomous meaning (without the 
second part of the first sentence being read in conjunction with it) is not 
comprehensible. 
2. In the context of the possibility of an interpretation in conformity with the 
directive, the outcome of the dispute depends on the reply to the questions raised. 
If Article 72 or Article 73 of the EECC precludes a provision in national law or its 
interpretation according to which, when considering ex officio the question of 
‘whether’ an obligation to provide access to civil engineering is to be imposed by 
the regulatory authority, in addition to the conditions set out in Article 72(1) 
(hindering the emergence of a sustainable competitive market and not being in the 
end-user’s interest), the objectives of Article 3 of the EECC and, if applicable, 
further objectives may also be taken into account in a bundled examination, the 
applicant’s action would succeed (a). If, however, Article 72 or Article 73 of the 
EECC does not preclude a provision in national law or its interpretation according 
to which, when considering ex officio the question of ‘whether’ an obligation to 
provide access to civil engineering is to be imposed by the regulatory authority, in 
addition to the conditions set out in Article 72(1) of the EECC (hindering the 
emergence of a sustainable competitive market and not being in the end-user’s 
interest), the objectives of Article 3 of the EECC and, if applicable, further 
objectives may also be taken into account in a bundled examination, the 
applicant’s action would not succeed (b). 
(a) If Article 72(1) or Article 72(2) of the EECC, each read in conjunction with 
Article 68(1) of the EECC, precludes a provision in national law or its 
interpretation according to which, when considering ex officio the question of 
‘whether’ an obligation to provide access to civil engineering is to be imposed by 
the regulatory authority, in addition to the conditions set out in Article 72(1) of the 
EECC (hindering the emergence of a sustainable competitive market and not 
being in the end-user’s interest), the objectives of Article 3 of the EECC and, if 
applicable, further objectives may also be taken into account in a bundled 
examination, the action would succeed. In that case, Paragraph 26(1) and (2) of 
the TKG would have to be interpreted as meaning that the defendant would have 
had to undertake the review ‘at the outset’ based solely on the constituent 
elements of Paragraph 21(1) of the TKG (‘if, otherwise, the emergence of a 
sustainable competitive retail market would be hindered and the end-user’s 
interest harmed’). That would mean that the contested decision would probably be 
unlawful; this applies regardless of whether the examination of ‘whether’ to 
impose an access obligation is initially to be carried out ‘globally’, in the sense of 
‘any’ access obligation as defined in point 74 of Paragraph 3 of the TKG, or 
‘specifically’ with regard to one of the access options referred to in 
Paragraph 26(3) of the TKG. That is already clear from the fact that, as regards 
the substance, the defendant did not cite the provision of Paragraph 26(1) of the 
new version of the TKG, but that of Paragraph 21 in the old version of the TKG, 
although there are relevant amendments; this alone is indicative of an error. Also 
as regards the substance, at no point did the defendant consider independently 
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whether a refusal to grant access generally would hinder the emergence of a 
sustainable competitive retail market and harm the end-user’s interest. The 
defendant’s ‘sporadic’ examinations of those characteristics cannot remedy those 
deficiencies: in so far as promotion of competition and protection of consumer 
interests are mentioned in the context of a ‘bundle of objectives’ on pages 106 and 
107 of the contested measure (public version), that is clearly not sufficient to 
satisfy the requirements as thus understood of Paragraph 26(1) of the TKG. First, 
the question as to whether the emergence of a sustainable competitive retail 
market would be hindered and the end-user’s interest harmed if no access were 
granted is not considered; ‘promotion’ or ‘protection’ of specific interests and 
‘hindering’ or ‘harming’ are different criteria. Secondly, further interests were 
taken into account in addition to the two interests referred to. The same applies to 
the statements on pages 117, 119, 129, 134 and 135 of the contested measure 
(public version). The position is the same even if the word ‘and’ in 
Paragraph 26(1) of the TKG were to be replaced by the word ‘or’ (as in 
Paragraph 21(1) of the old version of the TKG) on the basis of an interpretation 
that is consistent with Community law. The defendant did not sufficiently 
consider either whether, if no access were granted, the emergence of a sustainable 
competitive retail market would be hindered or whether the end-user’s interest 
would be harmed (see above). 
(b) If, however, Article 72(1) or Article 73 of the EECC does not preclude a 
provision in national law or its interpretation according to which, when 
considering ex officio the question of ‘whether’ an obligation to provide access to 
civil engineering is to be imposed by the regulatory authority, in addition to the 
conditions set out in Article 72(1) of the EECC (hindering the emergence of a 
sustainable competitive market and not being in the end-user’s interest), the 
objectives of Article 3 of the EECC and, if applicable, further objectives may also 
be taken into account in a bundled examination, the applicant’s action would not 
succeed. In that case, Paragraph 26(1) and (2) of the TKG would not have to be 
interpreted as meaning that the defendant would have had to undertake a review 
‘at the outset’ based solely on the constituent elements of Paragraph 21(1) of the 
TKG (‘if, otherwise, the emergence of a sustainable competitive retail market 
would be hindered and the end-user’s interest harmed’). The contested decision 
would probably be lawful, since the defendant would have been able – as in fact 
happened – to undertake a ‘review of a bundle of objectives’. 
The fact that the outcome of the dispute depends on the answer to that question 
applies irrespective of whether the contested decision should be annulled on other 
grounds. In so far as the applicant contested the Federal Network Agency decision 
using arguments other than those referred to above, those arguments are unlikely 
to succeed (see the decision in the expedited proceedings). 
IV. 
The question raised cannot be answered by the referring court on the basis of an 
‘acte clair’. In the opinion of the referring court, the question raised is not directly 
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answered by the first subparagraph of Article 73(1) of the EECC (1.) nor by 
Article 72(1) of the EECC (2.). However, it is not clear how Article 73(2) of the 
EECC should be applied (3.). 
1. In the opinion of the referring court, the question raised is not directly 
answered by the first subparagraph of Article 73(1) of the EECC. This is because, 
according to the referring court, first of all, Article 72 of the EECC alone is 
relevant for the imposition of access to civil engineering (lex specialis). However, 
should that not be the case, Article 73 of the EECC raises three issues with regard 
to the question raised: first, the language versions of the provision differ (a); 
secondly, the content of Article 73(2) of the EECC is unclear (b). Lastly, the 
relationship with point (c) of Article 68(4) of the EECC is problematic (c). 
(a) First, the language versions of the first subparagraph of Article 73(1) of the 
EECC differ with regard to the question raised: the German version of the first 
subparagraph of Article 73(1) of the EECC does not contain the words ‘in 
particular’ (insbesondere), but the enumerated list of regulatory grounds is, also in 
the version in force, introduced by the words ‘unter anderem wenn’. That 
introduction also appears in other language versions: Dutch (‘onder andere 
wanneer’), French (‘notamment lorsqu’elles’), Italian (‘in particolare qualora’). 
However, in the English version (‘in situations when’) there does not appear to be 
an introduction to the enumerated list. The position is different, however, in 
Article 72(1) of the EECC. In all the language versions understood by the 
members of the Chamber, the content of that provision is the same. 
(b) Secondly, Article 73(2) of the EECC raises the question as to whether it is 
apparent from that provision that, in addition to the aspects mentioned in the first 
subparagraph of Article 73(1) of the EECC, further aspects should be taken into 
account. In that regard, that provision raises, first of all, the question as to whether 
it contains more than the so-called ‘sufficiency test’. The express wording of 
Article 73(2) of the EECC militates in favour of its being limited to a ‘sufficiency 
test’, however the contrary is indicated by the criteria listed in points (d), (e), (f) 
and (h) of the third sentence of Article 73(2) of the EECC, in which the link to a 
‘sufficiency test’ is not particularly clear. Recital 188 et seq. of the directive 
seems rather to militate in favour of the content of the provision not being limited 
to the ‘sufficiency test’ (see, effectively, also Broemel, in: Geppert/Schütz, 
Beck’scher TKG-Kommentar, 5th edition 2023, introduction B, paragraph 30). If 
it is assumed that the conditions set out in Article 73(2) of the EECC must not 
only be taken into account in the context of the sufficiency test, the provision also 
raises the question of whether the objectives listed in Article 3 of the EECC also 
need to be considered in addition to the criteria set out in points (a) to (h) of the 
third sentence of Article 73(2) of the EECC. 
(c) Finally, the relationship with point (c) of Article 68(4) of the EECC is 
problematic. Under that provision, obligations imposed in accordance with 
Article 68 must be justified in light of the objectives laid down in Article 3 of the 
EECC; that provision must also be complied with when imposing obligations 
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under Article 73 of the EECC (Article 68(2); Article 68(3), first subparagraph; 
Article 73(1), first subparagraph). Now the first subparagraph of Article 73(1), 
just like Article 72(1) of the EECC but unlike Article 72(2) of the EECC, contains 
no reference to the objectives under Article 3 of the EECC. Irrespective of that 
scheme, must the objectives under Article 3 of the EECC be taken into account 
even when considering the question of ‘whether’ an access obligation is to be 
imposed? Or is the scheme under the first subparagraph of Article 73(1) or 
Article 72(1) of the EECC to Article 72(2) of the EECC to be interpreted as 
meaning that, in the context of the first two provisions referred to above, the 
objectives under Article 3 of the EECC should not be taken into consideration 
when considering the question of ‘whether’ an access obligation is to be imposed? 
Only when the question of ‘whether’ an access obligation is to be imposed is 
answered in the affirmative in this first step should reference be made back to 
point (c) of Article 68(4) of the EECC in a second step when considering the 
specific measures. 
2. The referring court takes the view that the question raised is also not 
answered directly by Article 72(1) of the EECC. That provision would appear to 
require that the civil engineering assets be part of the relevant market according to 
the market analysis. This is indicated by the reference in the provision to 
Article 68 of the EECC (see also Neumann, N&R 2019, 152 <158>) and 
Article 72(2) of the EECC (argumentum e contrario). This is not the case here. It 
is therefore irrelevant first of all that, according to the wording of the provision, 
Article 72(1) of the EECC – in all the aforementioned language versions 
understood by the members of the Chamber – provides for a closed or exhaustive 
list of regulatory grounds, which militates against the lawfulness of a ‘review of a 
bundle of objectives’. Nor does any consideration need to be given to the fact that 
the relationship between Article 72(1) of the EECC and point (c) of 
Article 68(4) – as well as the first subparagraph of Article 73(1) of the EECC – is 
unclear (IV 1 c). 
3. According to the referring court, sedes materiae for resolving the problem 
might be Article 72(2) of the EECC. According to the wording of the provision – 
which refers to the objectives of Article 3 of the EECC – the question raised 
seems to be answered clearly to the effect that, when considering the question of 
‘whether’ to impose an obligation to provide access to civil engineering assets that 
are not part of the relevant market according to the market analysis, the national 
regulatory authorities could, in any event, also examine whether the obligation is 
necessary and proportionate with regard to achieving the objectives of Article 3; 
to that extent, there is also parity with point (c) of Article 68(4) of the EECC. 
However, the provision is to that extent also only seemingly clear, because both 
the relationship with Article 72(1) of the EECC (a) and the relationship with 
Article 73 of the EECC (b) are unclear: 
(a) First, it is unclear how the relationship between Article 72(1) and (2) of the 
EECC is to be understood: on the one hand, according to the wording of the 
provision, Article 72(1) of the EECC, in the light of Article 68 of the EECC, can 
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only be understood in relation to an undertaking with significant market power on 
a possible market for civil engineering assets (see above). That would mean that 
Article 72(2) of the EECC could be conceived as a separate regulatory instrument 
with separate conditions where, as in the present case, such a market was not 
specifically taken as a basis. That would mean, however, that access obligations 
relating to civil engineering assets could be imposed on the undertaking with 
significant market power on a civil engineering assets market only under more 
stringent conditions than would be the case under Article 72(2) of the EECC; in 
any event, the purpose of any such differentiation is not particularly clear. On the 
other hand, Article 72(1) of the EECC may, if appropriate, also be read as a basic 
rule, to which Article 72(2) of the EECC gives concrete expression only in 
specific cases. Such an interpretation is supported by the fact that, according to the 
wording of the provision, Article 72(2) of the EECC refers to ‘access in 
accordance with this Article’, thus obviously assuming that access is provided 
under uniform basic conditions, and that, if interpreted in this way, Article 72(1) 
and (2) of the EECC could be regarded as unitary in terms of substance. 
(b) Secondly, it is unclear how the relationship between Article 72(2) and 
Article 73 of the EECC is to be understood. It is difficult to clarify whether the 
conditions of the first subparagraph of Article 73(1) of the EECC can also be 
applied to measures pursuant to Article 72(2) of the EECC when deciding as part 
of a ‘package of measures’ (aa). Further problems arise when a ‘unitary’ 
interpretation of Article 72(1) and (2) of the EECC, as mentioned under IV 3(a) 
above, is presumed (bb). 
(aa) It is unclear whether the conditions of the first subparagraph of Article 73(1) 
of the EECC can also be applied to measures pursuant to Article 72(2) of the 
EECC when deciding, as is the situation here, as part of a ‘package of measures’. 
Admittedly, also as regards Article 72(1) of the EECC, the absence of the 
assessment criteria (hindering the emergence of a sustainable competitive market 
and not being in the end-user’s interest) in Article 72(2) of the EECC may, in 
principle, be explained by the fact that the Community legislature assumed that 
the measures provided for in Article 73 and Article 72 of the EECC would be 
imposed in a ‘package of measures’, in which case the restrictions defined in the 
first subparagraph of Article 73(1) of the EECC also apply to the imposition of 
obligations under Article 72(2) of the EECC; that would mean ‘parity’ of the 
conditions defined in the first subparagraph of Article 73(1) and Article 72(2) of 
the EECC. The second subparagraph of Article 73(2) of the EECC may militate in 
favour of that proposition, and that also seems to have been the understanding of 
the German legislature. That would mean that the difficulties in interpreting the 
first subparagraph of Article 73(1) of the EECC (IV 1.) also ‘apply’ to 
Article 72(2) of the EECC. 
However, the wording of the provisions does not support that interpretation of an 
action in a ‘package of measures’ – resulting in the conditions laid down in the 
first subparagraph of Article 73(1) being applied to action pursuant to 
Article 72(2) of the EECC. Rather, the notion of any ‘synchronicity’ of the 
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conditions for action pursuant to Article 72(2) and action pursuant to Article 73 of 
the EECC is countered by the fact that the second subparagraph of Article 73(2) of 
the EECC and in particular the expression ‘bloße Auferlegung’ (imposition alone) 
used in the German version would indicate that the EU legislature considers the 
obligation to provide access to civil engineering assets to be, in principle, less 
intrusive; recital 187 of the EECC also points in that direction (see Neumann, 
N&R 2016, 262 <267> and N&R 2018, 204, <206 and 207>; Scherer/Heinickel, 
MMR 2017, 71 <75>). Should that be the case, this would militate in favour of 
action being taken pursuant to Article 72(2) of the EECC to impose lesser – not 
parallel – conditions. 
(bb) Further problems arise when a ‘unitary’ understanding of Article 72(1) and 
(2) of the EECC, as mentioned above under IV 3(a), is presumed. If one considers 
the relationship between Article 72(1) and Article 73 of the EECC then – possibly 
depending on the language versions of Article 73 of the EECC – compared to the 
first subparagraph of Article 73(1) of the EECC, Article 72(1) of the EECC 
represents a narrower review programme. On the other hand, the existence of the 
second subparagraph of Article 73(2) of the EECC suggests, however, that the EU 
legislature regards the obligation to provide access to civil engineering assets, in 
principle, as less intrusive (see above). This, in turn, conflicts to a certain degree 
with Article 72(1) of the EECC, which defines the regulatory grounds introduced 
in that regard more narrowly compared to the first subparagraph of Article 73(1) 
of the EECC – in the German version, see above – and, in particular, may not 
allow for further concerns to be taken into consideration. Significantly, in the 
context of the second subparagraph of Article 73(2) of the EECC, the question is 
not raised as to whether the imposition alone of obligations under Article 72 of the 
EECC is a proportionate means of avoiding any ‘[hindering of] the emergence of 
a sustainable competitive market’, but whether the obligation in accordance with 
Article 72 of the EECC would be a proportionate means by which to ‘promote 
competition and the end-user’s interest’. Whether something is hindered or is 
simply promoted are two different criteria. 
[…]