C-396/99

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5. Article 2(2), which is also subject to 7. According to the 13th indent of Arti- paragraph 4, prohibits Member States from cle 1(1) of Directive 90/388, 7 'essential refusing 'to allocate licences for public requirements' means 'the non-economic access/Telepoint applications, including reasons in the public interest which may systems operation on the basis of the DECT cause a Member State to impose conditions standard as from the entry into force of this on the establishment and/or operation of Directive'.6 telecommunications networks or the provi- sion of telecommunications services ...'. These reasons include in particular 'the efficient use of the frequency spectrum and the avoidance of harmful interference between radio-based telecommunications systems and other space-based or terrestrial technical systems.' 6. Directive 96/2 inserted several provi- sions into the original text of Directive 90/388, including Article 3a, the second and third paragraphs of which read as follows:

II — The facts

9. On 29 July 1997, the Commission received two complaints regarding the conditions in which both the licences had 12. The Greek Government replied to both been granted and, on 5 September 1997, letters on 31 July 1998. In its replies, the the Commission forwarded the complaints defendant Member State informed the to the Greek authorities so that the latter Commission that Article 2(1) and (2) of could comment upon them. Directive 96/2 had been transposed into Greek law by Presidential Decree No 124/1998, Articles 3 and 7 of which provide that the grant of licences for mobile and personal communications may be lim- ited where the reason for the limitation is the lack of available frequencies, provided that it is justified under the principle of 10. The Greek Government replied by a proportionality, and taking account of the letter dated 28 November. On the matter of need to avoid harmful interference, to the DCS 1800 licence, it stated that only promote investment and to safeguard com- one third of the frequency spectrum had petition. The Greek Government also sta- been assigned to the national telecommu- ted that it was drafting regulations con- nications organisation, leaving 2 x 50 Mhz cerning the procedure and the conditions available for use by other operators. The for awarding DCS 1800 and DECT Greek Government went on to say that, licences, and that these would be approved before granting new DCS 1800 authorisa- within a short period of time. tions, it would ensure that they were not a barrier to free competition in the mobile telephony market. As to the DECT licences, the Greek Government stated that it had not, in fact, refused to grant a licence to the complainant and that it was processing the latter's application. 13. In two subsequent letters, both dated 29 September 1998, the Greek Govern- ment claimed that it was not in a position to call for tenders for new DCS 1800 and DECT mobile telephony licences because, although there were frequencies available, 11. After it had received and considered the it was not possible to allocate them owing replies from the Greek Government, the to the lack of a proper monitoring system Commission sent it two letters of formal to protect against their possible illegal use.

18. The Commission seeks a declaration from the Court of Justice that the Hellenic 15. The defendant replied to both reasoned Republic has failed to fulfil the obligations opinions by two letters dated 23 February incumbent upon it under Article 2(1) (Case 1999. On the matter of the DCS 1800 C-396/99) and Article 2(2) (Case licences, the Greek Government informed C-397/99) of Directive 96/2, in conjunction the Commission that it had engaged in with the second and third paragraphs of discussions with the three mobile telephony Article 3a of Directive 90/388, and it also organisations regarding the amendment, seeks an order for the Hellenic Republic to extension or harmonisation of their exist- pay the costs. ing licences, and regarding the operation of the spectrum available for the GSM-900 and DCS 1800 systems. The defendant added that, in the meantime, it was drafting the necessary regulations and, by way of a new argument, it indicated that implemen- 19. For its part, the defendant is seeking tation of the policy required by the Com- dismissal of the actions and an order for the munity institutions necessitated the avail- Commission to pay the costs. ability of a spectrum which was adequate in qualitative terms. The defendant also explained that it was promoting the estab- lishment of a radio frequency management system. As to the DECT licences, the Greek 20. Following the report of the Judge- Government reiterated its argument that Rapporteur, having heard the views of the the spectrum was not available, owing to Advocate General, and with the express the lack of a proper monitoring system agreement of the parties, the Court of which would enable there to be effective Justice decided to dispense with the oral operation by users. phase of the proceedings, pursuant to Article 44a of the Rules of Procedure.

(2) The licences which are awarded must not be subject to unjustified restric- 23. The aim of Directive 96/2 is, therefore, freedom of competition in the mobile and 10 — Or with effect from the date on which the European personal communications market. In accor- Radiocommunications. Committee adopted a decision on the allocation of DCS 1800 frequencies. dance with that aim, Article 2 prohibits 11 — The date on which the directive entered into force. Member States from refusing authorisa- 1 2— See the third paragraph of Article 3a and the 13th indent of Article 1(1) of Directive 90/388, which were inserted by tions for DCS 1800 mobile systems with Directive 96/2.

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25. The final consequence assumes rele- 27. That is the situation which exists in vance in the cases which I must consider these cases, where, since the dates indicated now. The Commission claims its applica- above, 15 no new licences for mobile and tions that Presidential Decree No 124/1998 personal communications using DCS 1800 cannot be regarded as sufficient to imple- and DECT technology have been put out to ment fully Directive 96/2, since it does not tender in public, transparent procedures. In lay down either the conditions or the fact, that could not have happened because procedure for granting licences. Those Greek law does not contain any provisions who wish to obtain mobile and personal regulating the procedure and the criteria for communications licences are unable to granting such authorisations. submit either applications or tenders because they have no knowledge of the conditions for operation or the selection criteria. Free competition in this market is thus impeded.

13 — See subparagraph (iii) of the first paragraph of Article 3a, 28. Presidential Decree No 124/1998, Article 3c (both of which were inserted by Directive 96/2) referred to above, merely provides for the and the first paragraph of Article 2 of Directive 90/388. Article 1(2) originally excluded mobile telephony from the possibility of limiting licences for mobile scope of the directive. The new wording of this provision, inserted by Directive 96/2, widens the scope of Directive and personal communications systems 90/388 to include that communication system. 14 — See the second paragraph of Article 2, and Articles 3a and 3b of Directive 90/388 (the latter two of which were inserted by Directive 96/2). 15 — See point 23 of this Opinion.

3. The defence submitted by the Greek Government 30. The structure of the mobile and perso- nal communications market in Greece at the time when Directive 96/2 entered into 29. The defendant, abandoning the line of force, and on the dates with effect from defence which it had pursued in the admin- which Member States were no longer istrative phase of the proceedings, 19 has entitled to refuse DCS 1800 and DECT redirected the debate towards an area licences,21 is immaterial to the resolution which appears to be safer for its own of these proceedings, the object of which is interests but which is more difficult for the to ascertain whether the Hellenic Republic Court of Justice, in that it is supported by failed to grant new licences in accordance facts which are difficult to evaluate. The with the provisions cited. Greek Government now claims that, when Directive 96/2 was adopted, freedom of competition existed in the national mobile and personal communications market 20 and that this situation should be taken into account when implementing Directives 90/388 and 96/2. The defendant adds that 31. Ihave noted that Directive 96/2 aims to the actions brought by the Commission establish an open market in the mobile and have been devoid of any purpose since the personal communications sector; that, in order to achieve that aim, the directive prohibits Member States, with effect from 16 — See Article 3(1). specified dates, from refusing to grant 17 — See Article 3(2). licences for the DCS 1800 and DECT 18 — See Article 3(2), m fine, and Article 7. systems; and that a prerequisite for the 19 — This concerned the Lick of a proper system to monitor the use of the existing frequency spectrum (for both DCS 1800 effectiveness of this prohibition is the and DECT technology) in order to prevent possible illegal existence of procedures for the granting of use. This plea in law, which the defendant has abandoned, is outside the scope of the legal debate and, accordingly, authorisations. should not receive a response from the Court of Justice. I will therefore refrain from making any observations on the matter. 20 — For both DCS 1800 and DECT technology. 21 — See point 23 above.

B. Ministerial Order No 78574 32. Directive 96/2 aims to establish free- dom of competition in the mobile and personal communications sector and to peseve that situation where it already exists. Consequently, despite the fact that there was already an open market for such communications in Greece, the defendant 34. The defendant, in its second plea in still had a duty to fulfil its obligations defence of the actions, asserts that the under Directive 96/2. As the Commission Commission's claims have been devoid of points out in its reply, the existence of any object since the enactment of Minister- competition in the market is not a reason ial Order No 78574 of 24 November which justifies restricting the number of 1999, approving the regulations concerning authorisations. If that were not the case, the criteria and the procedure for the there would be a risk that an economic granting, renewal, amendment, suspension sector apparently fulfilling the stated aim of and revocation of special licences. the Community legislature would, over time and as a result of few new competitors gaining access to it, become closed and remain the preseve of only a few operators, namely those who held licences when Directive 96/2 entered into force. 35. First, even if it were possible to regard the regulations in question as having satis- fied the requirements imposed under Direc- tive 96/2, the breach complained of would still exist. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be 33. It is true that the obligation to award determined by reference to the situation new authorisations falls currently before prevailing in that Member State at the end me if there are no frequencies available, but of the period laid down in the reasoned that is not the situation in the case which I opinion, and that the Court of Justice am considering now. The Greek Govern-

38. Member States cannot simply 'not refuse' the applications made to them for licences, and instead they must establish a complete legal framework which enables them to grant licences 'according to open, 36. The debate could have ended here, but non-discriminatory, and transparent proce- the Commission has gone a stage further, dures'. 27 To my mind, the Greek regula- analysing the contents of the regulations tions in question are incomplete and, in and concluding that the default of which it order to be fully effective and applicable, complains did not cease with their entry they require accompanying provisions. In into force. I concur with that view. other words, the legislation in force in the defendant Member State does not fulfil the obligations imposed by Directive 96/2, according to which, with effect from spe- cified dates, applications received from operators for DCS 1800 and DECT licences are not to be refused, to which end it is essential that the Member State is in a position to grant such licences. 37. The obligations imposed under Direc- tive 96/2, which the Commission claims that Greece has failed to fulfil, are very precise. They are expressed as a negative in Article 2 (the Member States 'shall not refuse' DCS 1800 and DECT licences) but, 39. Article 2(1) of the regulations provides in fact, the directive is concerned with that the number of licences may be limited positive obligations: the Member States in the situations defined in the relevant must be in a position to authorise the legislation. This provision is later reiterated DCS 1800 and DECT services for which at the beginning of Article 2(5), which adds they receive applications, provided that that, following the report of the National there are frequencies available and that Telecommunications Commission, any lim- itation is to be approved, by the Minister of Transport and Communications in a rea- 24 — See, inter alia, Case-C-200/88 Commission v Greece [1990] ECU I-4299, paragraph I 1; Case C-96/98 Com- soned order which also has to specify the mission v France [1999| LCR I-85.51, paragraph 19; and procedure for tendering for licences in Case C-147/00 Commission v France [2001] ECR l-2387. 25 — The Greek Government replied to the reasoned opinions accordance with the rules and the criteria on 23 February 1999, meaning that this was the latest laid down in Article 2(5). Licences are possible date on which it could have received them, and, consequently, the two-month period granted by the Commission started to run on the following day, in other words, 24 February 1999. It is clear that, by the time the Ministerial Order was adopted (24 November 1999), the 26 — See Article .la, inserted by Directive 96/2. period had already expired (24 April 1999). 27 — See the second paragraph or Article 3a, cited above.

40. On the face of it, Ministerial Order No 78574 contains a complete set of 42. In short, I believe that, by failing to lay regulations but, in reality, that is not the down the conditions and the procedures for case. That is borne out by the fact that it is granting licences according to the DCS sufficient to note that it does not provide 1800 and DECT standards, the Hellenic for the granting of DCS 1800 and DECT Republic has failed to fulfil its obligations licences, which is a requirement of Article 2 in the personal and mobile communications of Directive 96/2. If, on the day after the sector under Article 2 of Directive 96/2, in order entered into force, an operator in the conjunction with Article 3a of Directive mobile and personal communications mar- 90/388. ket had applied for an authorisation to operate according to those standards, it would have received a negative response because, despite the existence of available frequency bands for both systems, no decision had been adopted to determine the number of licences available, the ten- dering procedure or the methods of evalu- V — Costs ating tenders.

43. Since the Commission's claims are well founded, the defendant must be ordered to pay the costs, in accordance with Arti- cle 69(2) of the Rules of Procedure. 41. I have already pointed out that a prerequisite for freedom of access to the 29 — In its reply, the Commission states that it is not surprising in those circumstances that no licences to use DCS 1800 frequencies have been applied for and that the only application relating to the DECT system was very rudi- 28 — See Article 2(5)(D) of the Ministerial Order. mentary.