Opinion of the Advocate General — ECLI:EU:C:2005:342
Date: 2005-06-02
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Approximation of laws — Measures for the establishment of a competitive market in the telecommunications sector — Directive 90/388 — Prohibition on Member States discriminating between the providers of public telecommunications networks in the grant of rights of way for the provision of those networks — Differences in circumstances irrelevant with regard to a finding of discrimination (Commission Directive 90/388, as amended by Directive 96/19, Art. 4d) 2. Approximation of laws — Telecommunications sector — Directive 90/388 — Discrimination between operators in the grant of rights of way — Justification — None (Commission Directives 90/388, as amended by Directive 96/19, and 97/33, Art. 5(3) and Annex III) 1. Article 4d of Directive 90/388 on competition in the markets for telecommunications services, as amended by Directive 96/19, which requires that Member States do not discriminate between the providers of public telecommunications networks in the grant of rights of way for the provision of those networks, is a specific application of the general principle of equality. The prohibition of discrimination, which is one of the fundamental principles of Community law, requires that comparable situations should not be treated in a different manner unless such a distinction can be objectively justified. It is not conclusive in this regard whether the exemption from payment of the taxes and charges connected with the installation of the telecommunications infrastructure, the access to the various parts of the installation and the apparatus necessary for the operation of the transferred network stems from legislation or whether, instead, it follows from case‑law. In both cases, the existence of the exemption is attributable to the domestic legal position in the Member State concerned. In addition, the comparison between the circumstances of undertakings in the telecommunications sector should not be confined to a comparison between only those undertakings with public service obligations. The position of the provider of a public telecommunications network must be compared with that of all its competitors, which also carry out their activities in the telecommunications market and intend to put in place alternative networks. Failing this, the objective of the Community legislation, namely the establishment of a competitive market in the telecommunications sector, would be seriously jeopardised. (see paras 23-26, 28-29) 2. Compensation for the costs resulting from the obligation on the existing telecommunications operator for maintaining the infrastructure in good condition with regard to its functioning, its security and its maintenance, as well as for expanding the network, both qualitatively and quantitatively, so as to ensure the provision of telecommunications services for general use, as a universal service, throughout the national territory, is not capable of justifying, having regard to Directive 90/388 on competition in the markets for telecommunications services, as amended by Directive 96/19, discrimination between operators as regards the grant of rights of way. Where such compensation falls to be granted, it is the net cost of implementing a universal service which should be taken into consideration, in accordance with Article 5(3) of Directive 97/33/EC on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), read in conjunction with Annex III thereto. The fact that the existing operator is required to give competing operators access to the basic telecommunications network in a transparent and non-discriminatory manner also cannot provide justification for such a difference in treatment. (see paras 30-34)