C-59/98
ECLI:EU:C:1998:561
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- Súdny dvor Európskej únie
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- 61998CC0059
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- eur-lex.europa.eu ↗
COMMISSION v LUXEMBOURG
OPINION OF ADVOCATE GENERAL ALBER delivered on 19 November 1998 *
A — Introduction ticular, the allocation of licences and frequen cies, including the related costs. However, it is claimed that Luxembourg has failed to do precisely that within the prescribed time-limit so that the Commission has been compelled to bring this action.
1. In these infringement proceedings the Commission alleges that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Commission Directive 94/46/EC of 13 B — Facts October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communica tions. 1 It considers that Luxembourg has failed to adopt all the laws, regulations and administrative provisions necessary to trans pose the Directive, or at least failed to com 3. In accordance with Article 4 of the Direc municate them to the Commission. tive, Member States are to supply 'to the Commission, not later than nine months after this Directive has entered into force, such information as will allow the Commission to confirm that Articles 1 and 2 have been com plied with'. The Directive entered into force 2 on 8 November 1994 and consequently the 2. The major aim of the Directive is to har time-limit for communicating the measures monise and liberalise the market for satellite taken expired on 8 August 1995. equipment and services. Therefore, the Direc tive requires Member States to abolish existing exclusive and special rights for operators of satellite communications and to grant any operator the right to provide telecommunica tions services. Member States are also required to adopt rules governing the licensing and 4. Since the Commission had received no declaration procedures necessary for the oper communication from the Luxembourg Gov ation of satellite earth stations and, in par ernment regarding the measures adopted, the Commission called on it, by a letter 27 October
* Original language: German. 1 — OJ 1994 L 268, p. 15. 2 — See Article 5 of the Directive.
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1995, to submit its observations pursuant to the reasoned opinion within two months of Article 169 of the EC Treaty. its notification.
5. In reply to that formal notice the Luxem bourg Government informed the Commis sion, by a letter of 20 December 1995, of the 8. With reference to the transposition, inter existence of a draft Law on Telecommunica alia, of Directive 94/96, the Luxembourg Gov tions which was to cover, inter alia, the aboli ernment again communicated to the Com tion of special and exclusive rights and the mission, by a letter of 14 July 1997, the procedure for allocating licences. Further Grand-Ducal Regulation of 25 April 1997 and more, with reference to the transposition, the Law of 21 March 1997 on telecommuni inter alia, of Directive 94/46, Luxembourg cations. With regard to the letters submitted communicated, by a letter of 27 May 1997, by Luxembourg, the Commission considers the Grand-Ducal Regulation of 25 April 1997 that they are not such as to bring about trans laying down the minimum requirements of position of the Directive. It considers firstly, the contract documents for the establishment that the Regulation of 25 April 1997 does not 3 4 and operation of GSM and GSM/DCS 1800 apply to satellite communications, and sec networks. ondly, that the Law of 21 March 1997 must be supplemented by implementing measures with regard to the criteria and procedures for allocating licences to provide satellite services.
6. However, the Commission considered that that Regulation specifically did not cover sat ellite communications and related solely to terrestrial mobile communications.
9. Other documents were communicated to the Commission, informally, on 28 and 30 July 1997. Firsdy, there were the drafts of two Grand-Ducal regulations laying down the requirements of the contract documents 7. Finally, on 7 July 1997 the Commission for the establishment and operation of fixed sent the Luxembourg Government a reasoned telecommunications networks adopted pur opinion. In it the Commission alleged that suant to Paragraph 7(2)(a) and (b) of the Law the Grand Duchy of Luxembourg had failed of 21 March 1997. Those drafts were com to comply with its obligation correctly to municated to the Commission officially on 8 transpose the Directive. The Commission September 1997 as measures to transpose called on the Luxembourg Government to Directives 92/44/EC, 95/62/EC, 97/13/EC take the necessary measures to comply with
4 — Since the Luxembourg Government no longer relies on this 3 — Global System for Mobile Communications (GSM). Regulation in its defence, it need not be examined further.
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and 97/33/EC. The two Grand-Ducal regula 12. Consequently, it has brought an action tions were adopted on 22 December 1997 and before the Court of Justice and claims that finally published in the Official Journal of the the Court should: Grand Duchy of Luxembourg on 29 December 1997. According to the Commission, it received no reply to its question of whether the scope of those regulations also extended to satellite services. — declare that, by failing to adopt the laws, regulations or administrative provisions necessary to comply with Commission Directive (94/46/EC) of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Direc tive;
10. Secondly, another regulation — the Grand-Ducal Regulation of 23 April 1997 concerning transmitting earth stations and satellite earth stations, including the mutual recognition of conformity — was communi cated unofficially to the Commission. How — order the Grand Duchy of Luxembourg ever, according to the Commission, that Regu to pay the costs. lation transposed only Article 1 of Directive 94/46 and, moreover, was not communicated officially.
13. In its defence the Grand Duchy of Lux embourg submits that Directive 94/46 was transposed by the Law of 21 March 1997 as regards the abolition of exclusive or special rights relating to satellite communications. It claims that that Law also applies specifically to satellite communications since it covers 11. Therefore, the Commission concludes that telecommunications in general. Although a the Grand Duchy of Luxembourg has failed licence is required to provide satellite services, fully to transpose Directive 94/96, or at least it is issued almost automatically since a simple failed to communicate to the Commission the declaration is sufficient. The use of frequen measures taken to transpose it. It considers cies is covered by a general licence, this being that the measures cover only parts of the necessary to take account of the particular Directive or require more detailed imple features of certain geographical sites in order menting provisions which, however, have not to safeguard the proper operation of satellite been adopted or communicated. services in general. However, that is merely a
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formality. Furthermore, the Law of 10 April 16. The parties' other arguments will, where 1997 implemented the agreements concluded necessary, be examined during the legal anal within the framework of Intelsat. As for the ysis which follows. Eurosat 6agreement, a draft Law has already been submitted.
C — Legal analysis
14. As far as transmitting earth stations and satellite earth stations and the mutual recog nition of conformity are concerned, it con siders that those requirements were trans 17. The Grand Duchy of Luxembourg denies posed by the Grand-Ducal Regulation of 23 that it has failed to comply with its obliga April 1997. tions under the Treaty as the Commission alleges. It considers that the Directive was transposed with regard to the abolition of exclusive or special rights by the Law of 21 March 1997 and with regard to transmitting earth stations and satellite earth stations by the Grand-Ducal Regulation of 23 April 1997.
15. For that reason the Grand Duchy of Luxembourg claims that the Court should:
18. The aim of Directive 94/46 is to create the legal framework necessary to remove con straints and develop new activities in the field — dismiss the action; of satellite communications and thus harmo nise and liberalise the market in satellite equip ment and satellite services by abolishing the exclusive and special rights in that field which run counter to liberalisation. In order to achieve that aim, the Directive requires the Member States to take all necessary measures — order the applicant to pay the costs. to ensure that any operator has the right to 7 supply telecommunication services. In that context, the Member States are required to
5 — International Telecommunications Satellite Organisation (Intelsat). 6 — European Telecommunications Satellite Organisation (Eutcl- sat). 7 — See the final sentence of Article 2(2)(a) of the Directive.
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abolish or withdraw any exclusive and special 22. In accordance with Paragraph 14(3) of rights which run counter to it. the Law of 21 March 1997, it is for the min ister responsible to lay down the declaration procedure. The amount of charges payable by the operator of the satellite communications was to be set by a Grand-Ducal regulation, pursuant to Paragraph 14(4) of the Law of the 21 March 1997. However, the Commis sion rightly points out that none of those 19. Furthermore, in accordance with Article rules have yet been adopted or published. 2(2)(b), the Member States must communi cate 'the criteria on which authorisations are granted, together with the conditions attached to such authorisations and to the declaration procedures for the operation of transmitting earth stations'.
23. As regards the allocation and use of fre quencies, Paragraphs 29 et seq. of the Lux embourg Law of 21 March 1997 contain the outline provisions and general principles which apply to that procedure. However, the 20. With regard to this case, that means that details relating to the procedure for allocating the Grand Duchy of Luxembourg was frequencies and the amount of charges pay required, for the purposes of full transposi able by operators were to be set out in detail tion of Directive 94/46, to take measures to by the minister or by Grand-Ducal regula enable and safeguard the establishment and tions. operation of satellite services. Furthermore, the appropriate laws, regulations and admin istrative provisions covering the procedure for obtaining authorisation to operate satel lite services must be adopted. They must include, in particular, the procedures for granting such authorisation, the requirements for allocating licences and frequencies and lay 24. The Luxembourg Government points out down the related charges and costs. that, although authorisation is necessary to establish and operate satellite communica tions, it is granted almost automatically and, in particular, points out that a simple notifica tion to the competent authorities is sufficient. More precisely, within the framework of the procedure for allocating frequencies and 21. Therefore, the Commission also points licences, operators are coordinated in order to out that the Grand Duchy of Luxembourg safeguard the operation in parallel of commu was required to create a legal framework pre nications services. Consequently, Paragraph cisely setting out the procedure, from the 29 et seq. of the Law of 21 March 1997 also declaration to the allocation of licences and provides that that procedure requires more frequencies. detailed implementing provisions.
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25. In order for Directive 94/46 to be trans 28. If, as the Commission has correctly stated, posed, the further implementing provisions it is assumed that a licence is necessary to referred to in the Law of 21 March 1997 had establish and operate a satellite network, it to be adopted and communicated to the Com must be noted in any event that the regula mission in accordance with Article 2(2)(b). tions laying down detailed rules for the pro However, that has not been done. cedure for allocating licences, required under Paragraphs 10(2) and 65 of the Law of 21 March 1997, have not been adopted.
26. Furthermore, the Commission alleges that, if at any rate one considers their wording, the 29. It follows from the foregoing that the Luxembourg rules in question concern only Law of 21 March 1997 laid down the outline satellite communications services and not also provisions and general rules concerning the the satellite network services referred to in establishment and operation of satellite com the second indent of Article 2(1)(a)(iv). Since munications, from the making of the declara the Law of 21 March 1997 refers in general to tion until the allocation of frequencies and the operation of telecommunications net licences, but lacks provisions governing each works and the Grand-Ducal regulations — of those procedures in greater detail. In par adopted on the basis of that Law — laying ticular, the Law of 21 March 1997 does not down the requirements of the contract docu make clear how authorisations, frequencies or ments use only the generic term 'telecommu licences are to be obtained in each case or nications', the Commission considers that what related costs and charges are entailed for their scope may indeed also cover satellite the applicant. network services, but that this is not specifi cally apparent from the wording. The Com mission claims that it has addressed questions to the Grand Duchy of Luxembourg many times on this point but it has never received any reply.
30. However, in order to achieve the aim of the Directive, namely the harmonisation and liberalisation of the market for satellite equip ment and satellite services, the Grand Duchy of Luxembourg was required to take all nec essary measures to ensure that all operators were granted the right to provide telecommu 27. It should be borne in mind that the above- nications services. Therefore, Luxembourg mentioned Grand-Ducal Regulation of 22 should have also communicated the criteria December 1997 laying down the requirements on which authorisations are granted, the con of the contract documents was not commu ditions to be attached to such authorisations nicated to the Commission with reference to and the detailed declaration procedure for the the transposition of Directive 94/46. operation of satellite earth stations.
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31. Furthermore, the Grand Duchy of Lux terminal equipment stations and satellite earth embourg denies that it failed to comply with stations where they are to be connected to a its obligations under the Treaty by referring publicly accessible telecommunications net to the Law of 10 April 1997. It claims that work. that Law reproduced the agreements of the International Telecommunications Satellite Organisation (Intelsat). As for the Eutelsat agreement, the legislative procedure has not yet been completed.
36. However, that does not relieve the oper ator of satellite services of the need to obtain a licence for the establishment and operation of satellite services.
32. Firstly, it must be noted that that Law was not communicated to the Commission and, secondly, that the argument that a draft Law concerning the implementation of the Eutelsat agreement has been submitted cannot remedy a failure to transpose the Directive. 37. Consequently, in that respect too, the Luxembourg Government could not claim that detailed provisions and rules had been adopted and communicated to the Commis sion.
33. As for the terminal equipment and satel lite earth station equipment, the Luxembourg Government relies on the Grand-Ducal Regu lation of 23 April 1997. 38. It follows from the foregoing that, by failing to adopt and communicate to the Com mission all the laws, regulations or adminis trative provisions necessary to transpose Directive 94/46, in particular those relating to the procedure starting from the declaration to 34. The Commission asserts that that docu the allocation of licences and frequencies and ment was never officially communicated to it. to the related costs and charges, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Directive.
35. That Regulation was adopted pursuant to Paragraph 28(2) of the Law of 21 March 1997. It lays down the conditions for the allocation 39. In accordance with the first paragraph of of authorisations to use telecommunications Article 69(2) of the Rules of Procedure of the
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Court of Justice, the unsuccessful party must for costs, the Grand Duchy of Luxembourg be ordered to pay the costs if they have been must therefore be ordered to pay them. applied for. Since the Commission has applied
D — Conclusion
40. As a result of the foregoing considerations, I propose that the Court should:
(1) declare that, by failing to adopt all the laws, regulations or administrative provi sions necessary to comply with Commission Directive 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications, in particular those relating to the pro cedure starting from the declaration to the allocation of licences and frequen cies and to the related costs and charges, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Directive;
(2) order the Grand Duchy of Luxembourg to pay the costs.
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