Case C-100/01: Reference for a preliminary ruling by the French Conseil d'État, Section du Contentieux, 2ème et 1ère sous-sections réunies, by decision of that court of 29 December 2000 in the case of Ministre de l'intérieur against Aitor Oteiza Olazabal
Date: 2001-04-07
Institutions: Court of Justice
Subjects: EU Member State, EU law - national law, EU national, interpretation of the law, public order, residence permit

7.4.2001

EN

Official Journal of the European Communities

C 108/13

Pleas in law and main arguments

The Commission complains that the Grand Duchy has failed
to ensure that rights of way are not discriminatory in
nature; that failure may result either in the provisions of the
Luxembourg Law on telecommunications of 27 March 1997
being incorrectly applied or in the need for additional measures
to be incorporated into the Luxembourg legal order so as to
ensure that Article 4d of the directive is properly transposed.

The rules applicable to the approval procedure laid down in
Article 35(1) of the Law are imprecise, especially as regards
the connection between those rules and the traditional pro-
cedures for the grant of rights of way. The Luxembourg
Government has still not determined or published those rules,
the various administrative
them,
and,
authorities competent to grant rights of way over public land
have not granted such rights to new operators entering the
market, even though the Law in question provides for this.

in the absence of

As regards rights of way along the motorway network, the
Luxembourg authorities have pointed out certain difficulties
resulting from the legislation relating to the creation of a large-
scale road communication system, whereas, according to the
information available to the Commission, the work involved
in laying supply and distribution cables along motorways has
been undertaken since that legislation entered into force.

As far as the Commission is aware, the complainant Coditel
has been provided with no cogent justification for the refusals
which it has met with from the various organisations and
administrative authorities in response to its applications for
the grant of rights of way. In particular, those refusals make
no reference whatever to the applicable essential requirements
provided for in Article 4d of Directive 90/388 as amended.

According to the information available to the Commission, no
network operator seeking, as a new entrant, to enter the
market has yet been granted any rights of way over public
land enabling that operator to provide a connection between
local networks and networks stretching from frontier to
frontier and over the border, such as to place that operator in
the position of being able to offer telecommunications services
in competition with the traditional operator EPT.

By failing to take all the measures necessary in order to ensure
the effective and non-discriminatory exercise of rights of
way, and by thereby deviating from Article 4d of Directive
90/388/EEC as amended by Directive 96/19/EC, the Grand
Duchy of Luxembourg has, at the very least, granted itself an
the regulatory
additional period in which to implement
framework underlying the liberalisation; it has thus infringed

the above-mentioned provision,
traditional operator.

to the advantage of

the

(1) Commission Directive 90/388/EEC of 28 June 1990 on compe-
tition in the markets for telecommunications services (OJ L 192
of 24.7.1990, p. 10).

(2) 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 74, 22.3.1996,
p. 13).

Reference for a preliminary ruling by the French Conseil
d’E´ tat, Section du Contentieux, 2ème et 1ère sous-sections
réunies, by decision of that court of 29 December 2000
in the case of Ministre de l’intérieur against Aitor Oteiza
Olazabal

(Case C-100/01)

(2001/C 108/21)

Reference has been made to the Court of Justice of the
European Communities by decision of 29 December of the
French Conseil d’E´ tat, Section du Contentieux, 2ème et 1ère
sous-sections réunies (Council of State, sitting in judicial
formation, 2nd and 1st sub-divisions combined), received at
the Court Registry on 28 February 2001, for a preliminary
ruling in the case of Ministre de 1’intérieur against Aitor Oteiza
Olazabal on the following question:

Do Articles 6, 8a and 48 of the Treaty of Rome, now Articles
12 EC, [18] EC and 48 EC, the principle of proportionality
applicable in Community law and the provisions of secondary
law adopted to implement the Treaty, in particular Directive
62/221/EEC of 25 February 1964 (1), preclude a Member State
from adopting, as against a national of another Member State
to which the provisions of the Treaty apply, a measure for the
maintenance of public order which, subject to judicial review,
restricts that national’s residence to a part of the national
territory when interests of public order preclude him from
residing in the remainder of the territory, or in such circum-
stances is the only measure restricting residence that can
lawfully be taken as against that national a measure excluding
him from the whole territory and adopted in accordance with
national law?

(1) Directive 64/221/EEC of the Council of 25 February 1964 on the
coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of
public policy, public security or public health (OJ, English Special
Edition 1964, p. 117).