C-302/94

* Original language: Italian. 1 — OJ 1990 L 192, p. 1. 1. "telecommunications organizations" 2 — OJ 1992 L 165, p. 27. means public or private bodies, to which a

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THE QUEEN v SECRETARY OF STATE FOR TRADE AND INDUSTRY, EX PARTE BRITISH TELECOMMUNICATIONS

Member State grants special or exclusive leased lines provided to users on public tele­ rights for the provision of a public telecom­ communications networks, and the availabil­ munications network and, where applicable, ity throughout the Community of a mini­ public telecommunications services. mum set of leased lines with harmonized technical characteristics' (Article 1).

For the requirements of this Directive, Mem­ ber States shall notify the Commission of the bodies to which they have granted special or 4. After providing that the definitions given exclusive rights; in the ONP Directive are to apply, where relevant to it, Article 2 of the leased lines Directive defines the other concepts specific to the area in question.

obligations relating to network supply con­ 6. Pursuant to the obligation imposed upon ditions (Articles 3 to 10). it by Article 2(1) of the ONP Directive, which, as I have mentioned, requires Mem­ ber States to notify the Commission of the bodies to which they have granted special or exclusive rights, the United Kingdom noti­ fied the names of over 120 cable companies. Those companies were already in possession of the licence provided for by the relevant 4 statute, which authorized them to operate telecommunications systems in the United These obligations relate in particular to: Kingdom and designated them 'Public Tele­ availability of information on offerings of communications Operators'. These operators leased lines (Article 3); publication of supply included the applicant in the main proceed­ conditions (Article 4); conditions for the ter­ ings, British Telecommunications pic (here­ mination of offerings (Article 5); restrictions inafter 'BT' or 'the applicant'), Mercury on access to leased lines and their usage, Communications Ltd ('Mercury') and City which are permissible only if specific essen­ of Kingston Communications (Hull) plc tial requirements are complied with ('Kingston'). (Article 6); powers of control of the national regulatory authority (Article 8); establish­ ment of common ordering and billing proce­ dures (Article 9), and tariffing principles and cost accounting (Article 10).

7. The leased lines Directive was imple­ mented in the United Kingdom by the Tele­ communications (Leased Lines) Regulations 5 1993, which amended in some respects the licence conditions of the three abovemen- tioned operators, BT, Mercury and Kingston. In addition, Article 7 requires a minimum set of leased lines to be provided in accordance with harmonized technical characteristics. Article 7(1) in fact provides that 'Member States shall ensure that the respective tele­ communications organizations separately or jointly provide a minimum set of leased lines in accordance with Annex II, in order to Those amendments essentially imposed on guarantee a harmonized offering throughout 3 those operators all or some of the obligations the Community'. laid down in Articles 3 to 10 of the leased

8. It is worth dwelling, if only briefly, on the specific features of the UK regulatory regime for the telecommunications sector. As we know, in recent years the UK telecommuni­ cations market has attained a particularly 10. Pursuant to the new legislation, BT was high degree of liberalization on the basis granted in June 1984 a licence for 25 years. of independent domestic economic-policy That licence, whereby the applicant is desig­ choices made in advance of the lime-scale nated as a 'Public Telecommunications laid down by the Community legislation. In Operator', authorizes it to run telecommuni­ the words used by the national court in the cations systems throughout the United order for reference, the UK regime is 'by far Kingdom, with the exception of the area in the most liberal in the European Commu­ which Kingston is licensed to operate. nity, and one of the most liberal in the world'.

6 — Under the procedure laid down by Article 13oí lhe leased lines Directive, the United Kingdom Applied to the Commis In particular, BT is required to provide voice sion to defer certain obligations imposed by the directive for a fixed period; the relevant applications, lo which the Com­ telephony services to anyone who requires mission had not yet responded at the date of the order for reference, sought, among other things, deferral as regards them, at prices such that they may not neces­ Mercury of the obligation imposed by Article 10 and partial sarily cover the cost of providing them. deferral as regards BT anti Kingston of the obligation imposed by Article 7. Moreover, the applicant, uniquely among

From 1991, according to the published policy of the national regulatory authority, 11. The considerable opening up of the mar­ all applications for fixed-link licences sub­ ket made possible by the 1984 Act has led to mitted by private undertakings satisfying the granting of more than 600 licences objective and transparent criteria have been authorizing various activities in the sector considered against a general presumption in and to the designation of the over 120 Public favour of allowing them unless there are jus­ Telecommunications Operators to which I 7 tified reasons for refusing them. However, have already referred. Generally, in order to the opening-up of the market did not apply perform their functions, those operators may to the sector of international circuits, since be empowered to acquire land compulsorily, still only BT and Mercury have international to enter land for exploratory purposes and to operating licences. acquire land by agreement subject to certain statutory provisions under the 1984 Act.

Facts and questions submitted for a prelimi­ nary ruling

Even as regards international communica­ tions, which, as I have mentioned, may be made only via BT's and Mercury's networks, other operators may take up the possibility 15. BT has challenged the national regula­ afforded by interconnection with those net­ tions purporting to implement the leased works and this enables them to offer an lines Directive in the national court, where it international service to their customers even seeks, as the order for reference states, though they do not have the necessary infra­ 'annulment or declaration of invalidity of the structure. implementing regulations'. The applicant is also claiming damages for the loss which it claims it has sustained owing to the incorrect transposition of the directive; in the alterna­ tive, it contests the validity of the directive itself.

14. However, the virtually complete liberal­ ization of the market carried out over the time-scale and in the ways described above docs not seem to have been accompanied, or at least not yet, by a substantial increase in Kingston and Mercury both intervened in competition in the sector in question. It the main proceedings, the former being in appears unquestionable from the documents complete agreement with BT's arguments before the Court that, overall, BT continues and claims, the latter being in agreement on to be by far and away the most significant certain issues only. operator in terms of turnover and market share in the telecommunications sector.

16. Those arguments and submissions may be briefly summarized as follows. Since, fol­ lowing the complete liberalization of the UK In the specific sector of leased lines, for market in telecommunications services from example, it appears from the information provided by the United Kingdom that, at the time when the directive was implemented, 8 — These figures are challenged by BT, which puis the exact BT had about 800 000 leased lines through­ number of leased lines held by it in 1994 at around 570 000. As lor Kingston, it is common ground thai it has a de facto out the country, whereas Mercury had about monopoly in the area in which it operates under its licence.

In the alternative, BT claims that, if the United Kingdom were authorized or bound to impose the obligations in question upon it, they should also be imposed, by virtue of the principle of non-discrimination, on all the other undertakings licensed to operate in '1 . (a) Are Council Directives 90/3 87/EEC the market in question or at least on those and 92/44/EEC to be construed as actually operating thereon. entitling or requiring Member States to perform the obligations imposed upon them by Articles 3 to 10 of Directive 92/44/EEC by imposing requirements only on public or pri­ vate bodies ("undertakings") within the meaning of Article 2(1) of Next, should the leased lines Directive Council Directive 92/44/EEC, i. e. authorize Member States to transpose it in those to which a Member State has such a manner as to cause the obligations in granted "special or exclusive rights" question to be borne by only one of the in respect of the provision of leased operators on the market, BT argues that the lines? directive itself is invalid for infringing the principle of non-discrimination.

(b) If the answer to Question 1(a) is in 17. The applicant further submits that the the negative, in what circumstances directive is invalid in any event for infringing is a Member State entitled or the principle of proportionality, in so far as it required to perform the said obliga­ imposes the supply of a particular type of tions by imposing requirements line (2 048 kbit/s) for which there is no upon an undertaking which does present or potential demand in the United not have such "special or exclusive Kingdom. rights"?

(b) If the answer to Question 3(a)(i) and/or (ii) above is in the affirma­ tive, in which circumstances and by reference to which criteria is Direc­ (iii) several undertakings (including tive 92/44/EEC to be interpreted as the applicant and the interven­ permitting a Member State to ers herein) arc actually provid­ refrain from imposing the said obli­ ing leased lines within the terms gations, or any of them, upon such of such licences? an undertaking?

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OPINION OF MR TESAURO — CASE C-302/94

(c) In particular, but upon no other such undertaking, the obligation to provide a minimum set of leased lines in accordance with Annex II?

(i) is the Directive to be interpreted as permitting a Member State so to refrain on the ground that the actual provision of leased lines by an undertaking is, in the 5. If the answer to any part of Questions 3 estimation of that Member or 4 is in the affirmative, is Directive State, de minimis? 92/44/EEC pro tanto invalid as in breach of, inter alia, the principle of non-discrimination ?

(ii) If so, how is the de minimis exception to be defined? In particular, may a Member State 6. Is Directive 92/44/EEC, and in particu­ confine its assessment to the lar Article 7(1) together with Annex II, market position at the date invalid as infringing the principle of of implementation of the proportionality to the extent that it Directive, or must it have requires the provision within all Mem­ regard also to the potential ber States of 2048 kbit/s digital struc­ development of the market? tured leased lines in accordance with technical characteristics specified in the said Annex?

21. This is evidenced in particular by the (iii) the implementation of the obli­ wording of a number of recitals in the pre­ gations in question in circum­ amble to the directive. The third, for stances where the relevant pro­ instance, which refers to the provisions of visions of the Directive are Commission Directive 90/388/EEC of 28 invalid as infringing the prin­ June 1990 on competition in the markets for ciple of equal treatment and/or telecommunications services, 9 states that the principle of proportionality? "... Member States which maintain special or exclusive rights for the provision and operation of public telecommunications net works shall take the necessary measures to make the conditions governing access to and use of the network objective and (b) If the answers to Question 7(a)(i), non-discriminatory and publish them'. (ii) and iii), or any of them, is in the affirmative, under what conditions does such liability arise?'

Next, the eleventh recital states that '... Member States which maintain special or 20. Before entering into the substance of the exclusive rights for the provision and opera­ national court's questions, a general observa­ tion of public telecommunications networks tion should be made. shall ensure that those who so request can obtain leased lines within a reasonable period'.

It is clear, even on first reading, that the leased lines Directive aims to regulate access to networks in the sector in question by ref­ erence to the de facto situation common to 22. Such statements confirm, if such confir­ most Member States at the time of its adop­ mation is necessary, that the directive at issue tion, that is to say, a market situation still is not intended to interfere with the grant by characterized by undertakings with special Member States of special or exclusive rights or exclusive rights in respect of infrastruc­ ture. It is also clear that, on the contrary, it docs not take account of the special features 9 — OJ 1990 I. 192, p. 10.

'The concept of special and exclusive rights has been used up to the present as the major criteria for applying Open Network Provi­ sion conditions. With the future abolition of special and exclusive rights, the issue of the It follows that, in view of the exceptional entities to be covered by Open Network 10 nature of that situation and the essentially Provision must be re-visited.' transitional nature of the rules laid down, the United Kingdom must qualify for the mar­ gin of discretion necessary in order to attain the aims of harmonization set forth in the directive — while remaining subject to the 24. The Community legislature has recog­ obligation to pursue them — in ways which nized that the leased lines Directive is not an are more consonant with the peculiar fea­ appropriate regulatory framework for tures of its own national market, which are (already) liberalized or shortly to be liberal­ not presumed to exist by the directive. ized markets in the telecommunications sec­ tor. 11Consequently, on 4 January 1996, the Commission submitted a proposal for a European Parliament and Council Directive

More specifically, it must be determined, 10 — Memorandum on the future approach to Open Network Provision, OPN Committee, 23 June 1994 inter alia in the light of the changes put (ONCOM94-29), p. 3. 11 — See, for example, the content of the Council Resolution of 22 December 1994 on the principles and timetable for the liberalization of telecommunications infrastructures (OJ 1994 C 379, p. 4). 12 — OJ 1996 C 62, p. 3.

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THE QUEEN v SECRETARY OF STATE FOR TRADE AND INDUSTRY, EX PARTE BRITISH TELECOMMUNICATIONS

26. By its first question, the national court essentially asks whether, in order to satisfy the requirements of Articles 3 to 10 of the That fact cannot be ignored; it seems to me, leased lines Directive, a Member State may therefore, to be beyond question that the or must impose the requirements laid down obligations set forth in Articles 3 to 10 of the therein only on those undertakings which, in leased lines Directive can only be deemed to so far as they have special or exclusive rights refer to telecommunications organizations as within the meaning of the ONP Directive, defined by that directive and the ONP may be classed as 'telecommunications orga­ Directive, that is to say, all public and private nizations' within the meaning of the direc­ bodies to which a Member State grants spe­ tives in question. cial or exclusive rights for the installation and operation of a public telecommunica­ tions network or for the provision of public telecommunications services.

Articles 3 to 10 of the leased lines Directive lay down a series of obligations which the Member States are under a duty to impose 28. By contrast, Article 2 of the proposal for on operators of public telecommunications amendment to which I have already referred networks in order to ensure open and effi­ provides, in order to adapt the leased lines cient access to and use of the leased lines Directive to suit the competitive environ­ provided to users on those networks. ment, that throughout the text of the directive the expression 'telecommunications

13 — See, for example. Articles 3 and 4. 14 — The form of words most frequently used in the provisions in question is as follows: 'Member Stales shall ensure that 27. The answer to the first question seems to [their] telecommunications organizations ..." (see, (or instance, the third subparagraph of Article 6(4); Article 7(1) me to be all too obvious and, in fact, the (cited earlier) and Article 10(2)).

More specifically, the national court asks the 29. The fact remains, however, that as they Court whether the numerous undertakings are worded at present, the provisions of operating in the market in public telecom­ Articles 3 to 10 and hence the obligations set munications services in a Member State by out therein can only be regarded as being virtue of a compulsory licence granted by directed at the telecommunications organiza­ the public authorities pursuant to a policy tions. under which all applications arc granted unless there arc specific reasons for refusing them may on that very account all be regarded as organizations with special or exclusive rights within the meaning of the ONP and leased lines Directives. If this fact is irrefutable, then the question arises of establishing on which undertakings that obligation must fall where the reference market is no longer characterized by under­ takings with special or exclusive rights in respect of infrastructure, but instead by 31. In that connection, BT argues, in sup­ numerous undertakings operating under a port of its view that, at least ever since liber­ system of free competition. This is precisely alization in 1991, no operator of public

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THE QUEEN v SECRETARY OF STATE FOR TRADE AND INDUSTRY , EX PARTE BRITISH TELECOMMUNICATIONS

32. I must admit that this argument is well founded .

34. Article 2(a)(ii) of Directive 94 / 46 / EC provides that special rights are rights that arc granted by a Member State to a limited num­ ber of undertakings through any legislative,

First of all, there is textual evidence. As I 15 — Commission Directive 94/46/EC of 13 October 1994 have already mentioned , under Article 2(1) amending Directive 88/301/EEC and Directive of the leased lines Directive and Article 2(2) 90/388/EFC in particular with regard to satellite communi­ cations (OJ 1994 1. 268. p. 15). of the ONP Directive, special or exclusive 16 — Joined Cases C-271/90, C-281/90 and C-289/90 Spam v rights means, for the purposes of the leased Commission [1992] ECR I-5833. In that judgment, whilst the Court did uphold the validity of Directive 90/388/EEC, lines Directive, the rights granted by a Mem­ it annulled it to the extent to which it purported to govern special rights on the ground that it was not possible to ber State or a public authority to one or determine from either the relevant article or the preamble more public or private bodies through any to the measure what types of rights were actually involved or in what respect the existence of those rights was contrary legal, regulatory or administrative instrument to the Treaty.

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OPINION OF MR TESAURO — CASE C-302/94

regulatory or administrative instrument 35. Accordingly, bearing in mind also the which, within a given geographical area, facts set forth in detail in the order for refer­ ence and, for that very reason, incapable of being called in question here, no conclusion other than that argued for by the applicant can be reached: the numerous public service operators licensed in the United Kingdom to '— limits to two or more the number of provide public telecommunications services such undertakings authorized to pro­ cannot be regarded as holding special or vide a service or undertake an activity, exclusive rights simply because they are otherwise than according to objective, under an obligation to obtain a licence. proportional and non discriminatory cri- teria,

After providing that 'Member States shall — confers on any undertaking or under­ withdraw all special or exclusive rights for takings, otherwise than according to the supply of telecommunications services such criteria, legal or regulatory advan­ ...', the second paragraph of that provision tages which substantially affect the abil­ states that 'Member States which make the ity of any other undertaking to provide supply of such services subject to a licensing the same telecommunications service or or declaration procedure aimed at compli­ to undertake the same activity in the ance with the essential requirements shall same geographical area under substan­ 17 ensure that the conditions for the grant of tially equivalent conditions.' licences are objective, non-discriminatory and transparent'. Consequently, the with­ drawal of special or exclusive rights in a par­ 17 — Emphasis added. ticular sector continues to be an objective

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THE QUEEN v SECRETARY OF STATE FOR TRADE AND INDUSTRY, EX PARTE BRITISH TELECOMMUNICATIONS

which can be reconciled perfectly with main­ 1991, the scrutiny to which applications for taining the obligation that a licence or autho­ licences arc subject could theoretically lead rization should first be obtained for the pur­ to their being refused only where specific poses of exercising an activity in that sector. reasons exist for refusing them; and the num­ ber of licences which may be awarded by the competent authorities is unlimited.

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OPINION OF MR TESAURO — CASE C-302/94

The national court asks the Court whether, 42. The applicant argues that all the obliga­ and, if so , on what terms , the directive tions under Articles 3 to 10 of the leased authorizes a Member State to impose those lines Directive, including the obligation to obligations only on some of the telecommu­ provide a minimum set of leased lines, nications organizations operating in its terri­ should be imposed proportionately on all the tory. In particular, it asks whether such a undertakings operating in the reference mar­ power can be based on the fact that the ket in compliance with the principle of non­ actual supply of leased lines by an undertak­ discrimination. ing is, in the State's view, minimal; if this is the case, the national court asks whether the State may confine its assessment to the mar­ ket situation at the time when the directive was implemented or whether it must also consider the potential development of the market , possibly by ensuring that a de mini- mis threshold is expressly indicated in the measure implementing the directive. The United Kingdom , supported by France and the Commission , claims, by contrast, that the Member States have a broad margin of discretion in order to determine the undertaking or undertakings among those present on the national territory which are to be subject to those obligations. Accordingly, the UK authority legimately imposed those obligations on BT and, in part , on Mercury and Kingston on account of BT's uncon­ 41 . The fourth question refers in particular tested dominant position on the reference to Article 7 and deals with the specific issue market , Mercury's position of considerable of universal service; the national court asks strength on the market and Kingston's de whether that provision should be interpreted facto monopoly in the defined geographical as allowing Member States to impose the area in which it operates. obligation to provide a minimum set of leased lines only on two of the numerous undertakings licensed to provide the service in question in the reference market .

44. Articles 3 to 10 (excluding Article 7) of 45. These thoughts bring me to the conclu­ the leased lines Directive require the Mem­ sion that, where there is a liberalized market ber States, as I have already said, to ensure as there is the United Kingdom , it may not that their telecommunications organizations be necessary to impose the obligations in provide leased lines in accordance with par­ question on all the undertakings operating in ticular conditions and requirements . In gen­ the market , whereas it may prove appropri­ eral, those provisions lay down obligations ate to impose them only on those bodies with regard to publication of and access to which , for the aforementioned reasons, arc in technical and commercial information on the a de facto situation which is so privileged as lines offered, technical access to lines and the to enable them to have an adverse effect on contractual terms of offerings (termination of the market , for example by impeding access offerings, ordering and billing procedures , to the public network . cost-orientated tariffs, etc.).

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OPINION OF MR TESAURO — CASE C-302/94

Consistently with the withdrawal of special satisfy demand irrespective as to whether the and exclusive rights in respect of infrastruc­ undertaking covers its costs; consequently, in ture pursued by various other Community a liberalized market in which the obligation instruments, the proposed rules therefore to provide a universal service is no longer the expressly authorize Member States to impose quid pro quo for a special or exclusive right the obligations set out in Articles 3 to 10 of vested in one or a few particular undertak­ the leased lines Directive only on some of ings, there is the risk that the obligation in the various operators in the sector in ques­ question will affect the undertaking (or tion, provided that they are identified on the undertakings) on which it is imposed in an basis of their market power. unduly costly, unjustified or, simply, dis­ criminatory manner. On the other hand, where there is a de facto monopoly operator or one or more undertakings with a domi­ nant position in a particular, already liberal­ ized, market, it might be inconsistent to dis­ 47. As regards Article 7, which, as I have tribute that obligation amongst all operators already said, requires Member States to by imposing it also on those without ensure that their telecommunications organi­ adequate strength on the market. zations separately or jointly provide a mini­ mum set of leased lines in order to guarantee a harmonized offering throughout the Com­ munity, the terms of the problem are not dis­ similar.

49. In the first place, as we have seen, the a fair distribution of the burdens of that ser­ proposal for amendment provides that the vice (see Articles 4 and 5). obligation to provide a universal service in the leased lines sector should be imposed on at least one of the bodies operating in each Member State and that that body should be identified and selected essentially on the basis of its strength on the market. 50. On the other hand, the present version of Article 7 of the leased lines Directive sim­ ply requires each Member State to ensure that a service is provided in the sector in question to every potential user who requests it. As it is worded at present, Article 7 requires nothing else. Commission Directive 96/19/EC, which has just been adopted in order to achieve full competition in telecommunications mar­ 18 kets, requires Member States to notify the measures which they propose to adopt in order to ensure a universal service to the In those circumstances, it seems reasonable Commission, which is required to check that to me to state, once again consistently with they arc transparent and proportionate. the development of the relevant Community legislation, that, in order for that require­ ment to be complied with, it is sufficient for the legislature of a Member State whose tele­ communications market has already been liberalized to impose the obligation in ques­ tion on at least one of the telecommunica­ In addition, the proposal for a European Par­ tions organizations operating in its territory. liament and Council Directive on intercon­ nection in telecommunications, submitted by the Commission on 31 August 1995, which aims precisely at ensuring, not only network interoperability, but also the provision of a 9 universal service, 1 regulates this area in 51. In the final analysis, Articles 3 to 10 of detail. The proposal provides that that obli­ the leased lines Directive should be inter­ gation has to be imposed on telecommunica­ preted as meaning that Member States whose tions organizations which have 'significant telecommunications market, in particular the market power' on the basis of dynamic leased lines sector, is no longer characterized mechanisms designed to ensure, where nec­ by the presence of special or exclusive rights essary and under the supervision of the com­ in respect of infrastructure arc in any event petent national and Community authorities, bound to impose the obligation to provide a universal service on at least one of the tele­ communications organizations licensed to operate in the sector in question; whereas 18 — Commission Directive 96/19/EC ol 13 March 1996 amend ing Directive 90/388/EEC with regard to the implementa they arc under a duty to impose the remain­ lion of full competition in telecommunications markets ing obligations (laid down by Articles 3, 4, 5, (OJ 1996 L 74, p. 13). 19 COM(95) 379 final, OJ 1995 C 313, p. 7 6, 8, 9 and 10) on at least one of those

It is obvious in fact that, in so far as, as we have seen, the directive itself does not require the Member States to implement it in such a way as to infringe the principle of non-discrimination, there is no question as to the validity of the directive itself on that score. There might, however, possibly have been a question mark hanging over at most the validity of the national implementing 54. The requirement that the leased lines provisions. But this, too, is ruled out by my offered in the various Member States should earlier remarks. have harmonized technical characteristics is also set out in the 12th recital in the pre­ amble, which declares as follows: 'Whereas, in order to make leased lines available to a sufficient extent to users for their own use, for shared use or for the provision of ser­ The sixth question vices to third parties, it is necessary that Member States ensure that a harmonized set of leased lines with defined network termi­ nation points is made available in all Mem­ ber States both for communications within 53. In its sixth question, the national court a Member State and between Member asks the Court to rule on the validity of the States; ...'.

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TUE QUEEN v SECRETARY OF- STATE FOR TRADE AND INDUSTRY, EX PARTE BRITISH TELECOMMUNICATIONS

It is therefore clear that, by means of the har­ final analysis, this confirms that the criti­ monization of technical specifications, the cisms of the validity of the directive from directive seeks, inter alia, to abolish obstacles this point of view are unjustified. to trade in transfrontier technical services owing to the different regulations applicable in the Member States.

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OPINION OF MR TESAURO — CASE C-302/94

respect to an incorrect, albeit timcous, trans­ That case-law has recently been confirmed position of the provisions of a directive into by reference to facts not dissimilar to those national law. before the Court in this case by the judg­ ment of 26 March 1996 in British Telecom- munications, which was concerned with the 24 incorrect transposition of a directive.

58. That question has been amply dealt with and discussed in my Opinions in Brasserie 2 59. In this case, it is unnecessary to dwell on du Pêcheur and Factortame III, 0 Dillen- 21 whether the other conditions mentioned kofer and Others and, more specifically, 22 above are present, it being sufficient to point British Telecommunications, which I deliv­ ered on 28 November 1995 and to which I out that, quite clearly, the transposition car­ would refer for any further clarification of ried out by the UK legislature cannot be this point. classed as a serious and manifest breach of the provisions of the directive as required by 25 the Court's case-law.

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THE QUEEN v SECRETARY OF STATE FOR TRADE AND INDUSTRY, EX PARTE BRITISH TELECOMMUNICATIONS

Conclusions

60. In the light of the foregoing, I therefore suggest that the Court should answer the national court's questions in the following terms:

(1) Article 2(1) of Directive 92/44/EEC and Article 2(1) and (2) of Directive 90/387/EEC should be interpreted as requiring Member States to fulfil their obligations under Articles 3 to 10 of Directive 92/44/EEC by imposing obli­ gations on telecommunications organizations within the meaning of Article 2(1) of Directive 90/387/EEC, that is to say, public or private bodies, to which a Member State has granted special or exclusive rights for the provi­ sion of a public telecommunications network and, where applicable, public telecommunications services.

(2) Article 2(1) of Directive 92/44/EEC and Article 2(1) and (2) of Directive 90/387/EEC should be interpreted as meaning that, for the purposes of the application of Directive 92/44/EEC, the numerous undertakings operating in a Member State's market in public telecommunications services by virtue of a compulsory licence which gives them particular prerogatives and is awarded by the competent authority after considering the merits of the application by reference to the applicable national legislation on the basis of a presumption that applications will be accepted, without limitations as to their number, unless there are specific reasons for refusing them, arc not bodies with special or exclusive rights within the meaning of Directive 90/387/EEC.

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