Keywords

Summary



Keywords

1 Approximation of laws - Telecommunications services - Open network provision to leased lines - Directive 92/44 - Scope - `Telecommunications organizations' defined as bodies holding special or exclusive rights - Concept

(Council Directives 90/387, Arts 1(1) and 2(1), and 92/44, Art. 2(1); Commission Directives 90/388 and 94/46, Art. 2)

2 Approximation of laws - Telecommunications services - Open network provision to leased lines - Directive 92/44 - Bodies holding special or exclusive rights - Identification - Fact of having been the subject of a notification made pursuant to the second subparagraph of Article 2(1) of Directive 90/387 - Holding of an operating licence required by national law but granted on a non-discriminatory basis - Enjoyment of special prerogatives granted on a non-discriminatory basis permitting telecommunications networks to be set up - Irrelevant

(Council Directives 90/387, Art. 2(1), second subpara., and 92/44)

3 Approximation of laws - Telecommunications services - Open network provision to leased lines - Directive 92/44 - Bodies holding special or exclusive rights - Concept - Undertakings with exclusive responsibility for operating international lines - Undertaking responsible for the exclusive operation of a public telecommunications network covering part of the country - Included

(Council Directives 90/387, Art. 2(1) and 92/44)

4 Approximation of laws - Telecommunications services - Open network provision to leased lines - Directive 92/44 - Obligation to provide a minimum set of leased lines imposed by a Member State only on certain telecommunications organizations - Whether permissible - Conditions

(Council Directive 92/44, Art. 7)

5 Community law - Principles - Proportionality - Obligation referred to in Directive 92/44 to provide, irrespective of whether there is an actual demand, a certain number of lines complying with certain technical characteristics - Breach - None

Summary

6 Directive 92/44 on the application of open network provision to leased lines applies, as a result of the reference in Article 2(1), to `telecommunications organizations' as defined in Article 2(1) of Directive 90/387 on the establishment of the internal market for telecommunications services through the implementation of open network provision, that is to say, to public or private bodies to which Member States have granted exclusive or special rights for the provision of public telecommunications networks and, where applicable, of public telecommunications services.

In that regard, it is apparent from Article 2 of Directive 94/46 which amends the definitions set out in Directive 90/388 and repeated in Article 2(1) and (2) of Directive 90/387, from the factual context in which Directives 90/387, 90/388 and 92/44 were adopted and from their intended objectives, that the exclusive or special rights referred to must generally be taken to be rights which are granted by the authorities of a Member State to an undertaking or a limited number of undertakings otherwise than according to objective, proportional and non-discriminatory criteria, and which substantially affect the ability of other undertakings to provide or operate telecommunications networks or to provide telecommunications services in the same geographical area under substantially equivalent conditions.

7 Exclusive or special rights for the provision of a public telecommunications network and, where applicable, public telecommunications services within the meaning of Article 2 of Directive 90/387 cannot be characterized by:

- the mere notification by a Member State to the Commission, pursuant to the second subparagraph of Article 2(1) of the abovementioned directive of the name of an undertaking to which that Member State has granted special or exclusive rights, even though such notification may raise a strong presumption to that effect, since the application of directives in that field to particular bodies cannot turn on statements made by the Member State concerned;

- the fact that, under the law of a Member State, the operation of telecommunications networks on the national market is only possible by means of a licence, where it appears that the rights which such a licence confers are granted according to criteria which are objective, proportional and non-discriminatory and do not have the effect of limiting the number of undertakings which operate public telecommunications networks or services;

- the possibility for the authorized telecommunications organizations to enjoy certain prerogatives, in particular the right to acquire land compulsorily, to enter land for exploratory purposes and to acquire land by agreement or to place network equipment in, over or under the public highway and to place apparatus on private land with the consent of the persons having an interest in that land, which consent can be dispensed with by the court, inasmuch as such rights, which are merely intended to facilitate the provision of networks by the operators concerned and are or may be conferred upon all those operators, do not give their holders any substantial advantage over their potential competitors.

8 The fact that a Member State reserves to two undertakings the operation of international links, in particular intra-Community links, is sufficient to constitute the grant for their benefit of exclusive or special rights in respect of public telecommunications networks or public telecommunications services.

Accordingly, those two undertakings have been granted, according to criteria which appear to be neither objective nor proportional nor free from discrimination, a substantial competitive advantage over other network operators and other providers of telecommunications services. First, they alone may operate international lines, which are essential to the provision of telecommunications services between Member States. Second, they may easily interconnect their own domestic lines, which cover virtually the entire country, with those international lines and thus offer a wider range of telecommunications services on those lines.

The fact that those undertakings are obliged to accept, in return, other operators' being connected to their networks at tariffs fixed by the public authority does not constitute a constraint such as to deprive them of the advantages available to them inasmuch as, first, since they are the only undertakings to have direct access to foreign networks, they may negotiate tariffs for access to those networks and, second, the tariffs which the public authority imposes on them are intended in particular to prevent them from abusing their position vis-à-vis other operators.

It follows that such undertakings are `telecommunications organizations' within the meaning of Article 2(1) of Directive 90/387 and thus of Directive 92/44.

That is so also in the case of an undertaking to which a Member State reserves, under the same conditions, that is on the basis of criteria which are neither objective nor proportional nor free from discrimination, the operation of a public telecommunications network covering part of its territory.

9 In order to ensure the development throughout the Community of telecommunications services using leased lines, the Community legislature considered that it was necessary to make available to users throughout the Community a minimum set of leased lines complying with harmonized technical specifications. Article 7 of Directive 92/44 provides that that minimum set of leased lines, whose technical characteristics are defined in Annex II to the directive, must be provided by one or more telecommunications organizations in each of the Member States.

It is therefore for the authorities in the Member States to determine which telecommunications organizations must be required to provide leased lines complying with the technical characteristics defined in Annex II so as to ensure that a minimum set of lines of that type is available throughout their territory.

It follows that a Member State is entitled to impose the obligations laid down in Article 7 of the directive on only some of those `telecommunications organizations', since the imposition of those obligations is sufficient to make available to users throughout the national territory a minimum number of leased lines complying with the specifications laid down by the directive. In particular, a Member State is entitled to impose the obligations laid down by Article 7 on only the `telecommunications organizations' which are the principal operators of telecommunications lines in each of the geographical areas comprising its territory.$

10 Article 7 of Directive 92/44 on the application of open network provision to leased lines is intended to guarantee a harmonized offering throughout the Community of a minimum set of leased lines in accordance with the specifications laid down in Annex II to that directive, for communications both within a given Member State and between Member States.

It follows that the aim of the directive is both to harmonize the conditions of offer in the various Member States and to remove technical barriers to cross-border telecommunications services.

In those circumstances, the directive cannot be considered to be in breach of the principle of proportionality on the ground that, at the time when it was adopted or transposed into national law, there was no demand on the domestic market of a Member State for the type of services which the directive requires to be offered.