Case C-238/04: Action brought on 7 June 2004 by the Commission of the European Communities against the French Republic
Date: 2004-07-24
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, competition law, restriction on competition, telecommunications industry, telephone

C 190/12

EN

Official Journal of the European Union

24.7.2004

— Directive 2002/20/EC of the European Parliament and
of the Council of 7 March 2002 on the authorisation of
electronic
services
(‘Authorisation Directive’); (2)

communications networks

and

— Directive 2002/21/EC of the European Parliament and
of the Council of 7 March 2002 on a common regula-
tory framework for electronic communications networks
and services (‘Framework Directive’); (3)

— Directive 2002/22/EC of the European Parliament and
of the Council of 7 March 2002 on universal service
and users' rights relating to electronic communications
networks and services (‘Universal Service Directive’); (4)

or, in any event, by not communicating those provisions to
the Commission,
the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 18 of the Access
Directive, Article 18 of the Authorisation Directive, Article
28 of
the
Universal Service Directive.

the Framework Directive and Article 38 of

2. Order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and principal arguments:

The time-limit given for transposition of the directives was 24
July 2003.

(1) OJ L 108 of 24.4.2002, p. 7.
(2) OJ L 108 of 24.4.2002, p. 21.
(3) OJ L 108 of 24.4.2002, p. 33.
(4) OJ L 108 of 24.4.2002, p. 51.

Action brought on 7 June 2004 by the Commission of the
European Communities against the French Republic

(Case C-238/04)

(2004/C 190/20)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 7 June 2004
by the Commission of the European Communities, represented
by O. Beynet and A. Whelan, acting as Agents, with an address
for service in Luxembourg.

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to transpose correctly Articles 1 and
2(3) of Directive 90/388/EEC on competition in the markets
for telecommunications services, (1) as amended by Direc-
tives 95/51/EC (2) and 96/19/EC, (3) the French Republic has
failed to fulfil its obligations under that directive and under
the third paragraph of Article 249 EC;

2. order the French Republic to pay the costs.

Pleas in law and main arguments:

French legal rules entail a problem of compatibility with Com-
munity law on the conditions for licensing the provision of
telecommunications services by cable providers.

As regards the provision of telephony services, French legisla-
tion imposes an obligation to consult communes, or associa-
tions of communes, before the issue of a licence for the provi-
sion of a telephone service on cable networks. That obligation
gives rise to a number of problems from the point of view of
Article 2(3) of Directive 90/388, as amended by Directive
96/19/EC, namely lack of
transparency in the consultation
procedure, the disproportionate degree of discretion afforded to
town councils when coming to their decisions, uncertainty as
to whether the procedure is objective on account of the links
between certain town councils and providers, the discrimina-
tory aspect of a procedure which does not apply to other
providers of telecommunications services and risk of discrimi-
nation as between the various cable providers.

The rules by virtue of which cable providers must systemati-
cally inform all communes
in which their networks are
installed impose on those providers an additional obligation in
contrast to the general freedom to provide services applicable
to other providers of telecommunications services. Since there
are no objective factors such as to justify this differential treat-
ment, the French rules are discriminatory in this respect and
infringe the provisions of Article 1 in conjunction with Article
2(3) of Directive 90/388/EEC, as amended by Directives
95/51/EC and 96/19/EC.

(1) OJ L 192 of 24.7.1990, p. 10.
(2) Commission Directive 95/51/EC of 18 October 1995 amending
Directive 90/388/EEC with regard to the abolition of the restrictions
on the use of cable television networks for the provision of already
liberalised telecommunications services (OJ L 256 of 26.10.1995, p.
49).

(3) 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 73 of 13.3.1996,
p. 13).