C-97/01

(a) exclusive rights for the provision of telecommunications services, including the establishment and the provision of telecommunications networks required 1. In this case the Commission claims that for the provision of such services; the Court should declare that, by failing to ensure the transposition in practice of Article 4d of Directive 90/388/EEC, as amended by Directive 96/19/EC, the Grand Duchy of Luxembourg has failed to fulfil or its obligations.

2 — OJ 1990 L 192, p. 10. 1 — Original language: Dutch. 3 — OJ 1996 L 74, p. 13.

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(b) special rights which limit to two or Member States shall, however, ensure that more the number of undertakings auth- all remaining restrictions on the provision orised to provide such telecommuni- of telecommunications services other than cations services or to establish or pro- voice telephony over networks established vide such networks, otherwise than by the provider of the telecommunications according to objective, proportional services, over infrastructures provided by and non-discriminatory criteria; or third parties and by means of sharing of networks, other facilities and sites are lifted and the relevant measures notified to the Commission no later than 1 July 1996.

COMMISSION v LUXEMBOURG

cations networks subject to a licensing, 4. Article 4d of Directive 90/388/EEC, as general authorisation or declaration pro- amended by Directive 96/19/EC, provides: cedure aimed at compliance with the essen- tial requirements shall ensure that the relevant conditions are objective, non-dis- criminatory, proportional and transparent, that reasons are given for any refusal, and that there is a procedure for appealing against any refusal. 'Member States shall not discriminate between providers of public telecommuni- cations networks with regards to the grant- ing of rights of way for the provision of such networks. The provision of telecommunications ser- vices other than voice telephony, the estab- lishment and provision of public telecom- munications networks and other telecom- munications networks involving the use of radio frequencies, may be subjected only to a general authorisation or a declaration procedure. Where the granting of additional rights of way to undertakings wishing to provide public telecommunications networks is not possible due to applicable essential require- ments, Member States shall ensure access to existing facilities established under rights ...' of way which may not be duplicated, at reasonable terms.'

3. On 28 June 1996 the Luxembourg authorities requested additional implemen- tation periods pursuant to Article 2(2) of Directive 90/388/EEC. By Decision 5. Article 2(6) of Council Directive 97/568/EC 4 of 14 May 1997 the Commis- 90/387/EEC of 28 June 1990 on the sion allowed Luxembourg to postpone establishment of the internal market for until no later than 1 July 1998 the abolition telecommunications services through the of exclusive rights granted at that time as implementation of open network provi- regards voice telephony (Article 1) and to sion, 5as amended by Directive 97/51/EC postpone until no later than 1 July 1997 the of the European Parliament and of the lifting of restrictions on the provision of Council of 6 October 1997 amending already liberalised telecommunications ser- Council Directives 90/387/EEC and vices (Article 2). 92/44/EEC for the purpose of adaptation

The authorities may not impose on the B — National law licence holder, for the right to use the public land, any kind of tax, fee, toll, charge or payment.

6. Article 7 of the Luxembourg Law on telecommunications of 21 March 1997, published in the Mémorial (Official Journal of the Grand Duchy of Luxembourg) of 27 March 1997, provides for a licensing system for the operation of telecommuni- Furthermore, the licence holder has the cations networks and services relating to right to install the cables, overhead lines telephony, mobile telephony and radio- and related facilities free of charge on the paging. physical infrastructure (roads, bridges, etc.) I - 5802

COMMISSION v LUXEMBOURG

situated on the public land of the State and Luxembourg authorities on 19 September municipalities. 2000 the Commission put further questions regarding the grant of non-discriminatory rights of way. Since no formal response to the letter of formal notice was forthcoming, the Commission brought an action on 27 February 2001.

9. Under Article 35(3) of the Law on telecommunications, the costs incurred in altering the cables, overhead lines and related facilities are to be met by the holder of the licence to operate a telecommuni- cations network. IV — Arguments of the parties

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the Luxembourg Law on telecommuni- cedures to be followed are opaque. Fur- cations of 21 March 1997 are not applied thermore, they vary according to the com- properly, that is to say in a non-discrimi- petent authority and there are no rules on natory manner, or from the fact that the coordination between them. A particular Luxembourg legislature has failed to take obstacle is posed by the fact that the rules the necessary additional measures to enable in the law of 21 March 1997 are not licence holders actually to exercise the coordinated with the procedure which must rights which a licence confers on them. be followed to obtain a licence to use the public highway. An additional practical problem is that the data which are necess- ary to draw up the location plan to be submitted are difficult to obtain without assistance from the authorities responsible 13. The Commission puts forward three for the relevant land. arguments in support of that complaint:

— the ambiguities of the Luxembourg legal framework; 15. Secondly, the Commission notes that the competent Luxembourg authorities could, under Directive 90/388/EEC, as amended, have lawfully refused the appli- cation for a right of way by invoking the — the failure to state reasons for or to so-called 'essential requirements' related to invoke applicable essential require- non-economic public interests. In the pres- ments in the refusals; ent case the competent Luxembourg auth- orities and institutions have in no way invoked such essential requirements. Under Article 4d of amended Directive 90/388/EEC, only recourse to those requirements could have justified a refusal — possible discrimination. to grant a right of way.

regard to the granting of rights of way for cations networks, as laid down in Article 4d the provision of such networks. However, of Directive 90/388/EEC, as amended, has it is evident from the information available thus been transposed into Luxembourg to the Commission that no telecommuni- law. cations network operator that has put itself forward has yet been granted rights of way over public land. Consequently, the local networks cannot be connected with cross- border networks and licences holders can- not offer any facilities and services which 18. In the view of the Luxembourg Govern- are comparable with those of Lux- ment's representatives, exercise of the right embourg's Post and Telecommunications of way is subject to precise provisions Undertaking (hereinafter: 'the EPT'). The which have been published by the compet- Commission also points out that it was the ent authorities concerned. These rules are EPT which acquired the right to lay cables the same for every party interested in a along certain motorways. Other licence right of way. holders wishing to operate a network have thus far been denied such a right. In this connection the Commission also notes that even if the cables which the EPT had laid along the relevant motorway were intended for traffic control and information for the road operator, it is not obvious that the 19. The rights which the licence holders EPT would have wanted to acquire this have under the Law on telecommunications right if it had had no prospect of being able do not alter the fact that they must comply to lay its own connecting cables in the with other laws and regulations in order to channels laid for traffic signalling. In the exercise them. The general provisions gov- absence of any objective justification for erning the use of public land situated this, in practice, exclusive right of the EPT, alongside roads are applicable to the which could have resulted from possibly acquisition of the necessary licence to use applicable essential requirements in the the public highway. public interest, this constitutes a clear case of discrimination against other interested operators.

23. For the latter purpose, the rights of way over public land are an essential prerequi- site. In the absence of such rights a licence to operate a telecommunications network cannot be implemented. This right means providers of public telecommunications networks gain access to public and private sites to lay cables and place the necessary facilities in order to enable them to reach the end user. In cases where a right of way has to be denied owing to applicable 21. Finally, the Luxembourg Government essential requirements, access must be points out that it amended the procedure to granted to the telecommunications network which this case relates by Grand-Ducal infrastructure already in existence. Regulation of 8 June 2001. That regulation lays down rules governing the approval conditions and the conditions relating to the use of the rail and road network by network operators, operators of electricity networks and gas transportation undertak- 24. As is evident from the foregoing, that ings. The Minister for Public Works right of way is important because in the remains the competent authority for the absence of such a right of way it is difficult issue of licences to use the public highway. or impossible for new operators who have However, the applications were handled by obtained licences to compete with the the operator of the rail infrastructure generally monopolistic national telecom- (CFL), as regards the rail network, and by munications organisation already in exist- the Waterways Service, as regards the road ence. The intended liberalisation of and network. competition on these markets thereby

The directive also provides that the Member States must not discriminate with regard to the granting of rights of way and that if, in the establishment or provision of telecommunications networks, essential requirements in the public interest come into play and if, with those in mind, the Member States operate a licensing system, 25. As the Commission, too, does not then they must lay down objective, non- dispute, the right of way has been incor- discriminatory, proportionate and trans- porated in the Luxembourg Law on tele- parent conditions, with reasons having to communications. It is to be found in be given for any refusal and possibilities Article 34(1) thereof. However, implemen- being provided for appealing against such a tation of the directive involves more than refusal. merely transposing it into national law. As I have already stated in my Opinion in Marks & Spencer, 7the result sought by a directive requires not only proper trans- position but also application of the relevant national law in conformity with the pur- 26. It is clear from the factual situation pose of the directive. In the present case this outlined by the Commission that it is by no supposes that interested parties are also in means a simple matter actually to exercise fact able to exploit the opportunities for the right of way. Although the Luxembourg which the directive makes provision. Being Government contends that a right of way is able to exercise the right of way means inherent in the licence, it would appear in practice that all kinds of obstacles have to be overcome. These obstacles are con- 7 — Opinion in Case C-62/00 [2002] ECR I-6325, at I-6328. Also according to the case-law of the Court, proper nected with opaque procedures which are transposition is not sufficient and the rules thus transposed not coordinated with one another and with must be made to work and actually complied with in practice. This obligation to achieve a result is abundantly an unclear demarcation of administrative illustrated in, for example, the case-law concerning com- pliance with Community rules on the environment. powers.

27. In practice two procedures are necess- competent authorities can be requested ary in order to exercise a right of way. from it and are generally also available on Firstly, a location plan must be submitted the internet. To my mind, this explanation for approval and, secondly, a licence to use is unconvincing. Licence holders wishing to the public highway must be held. exercise the rights conferred on them by a licence must apply not only to the auth- orities of the State of Luxembourg but also to the municipal authorities, depending on the location of the network. This body of rules with which licence holders can be confronted is undeniably opaque. They have insufficient understanding of the pro- 28. The laying of a network generally cedural conditions which must be satisfied involves several plots and sections of land, in order to obtain the necessary access which means that an operator wishing to authorisation. The recognition by the Lux- exercise his right of way must consult embourg authorities that this constitutes a various authorities such as the Department serious obstacle is evident from the fact for Registration and Land, the Waterways that they have since set up a working party Department and the relevant municipal charged with coordinating the rules on corporations. Quite apart from the fact gaining access to State land with the rules that this can constitute a barrier per se in which apply in the municipal sphere to terms of administrative costs, it most municipal land. definitely does so where the procedural provisions differ depending on the auth- ority which is being dealt with. During the pre-litigation procedure the Luxembourg authorities also conceded that the rules applicable to the approval procedure set out in Article 35 of the Law on tele- communications are unclear, in particular as regards their connection with the pro- cedure for acquiring a licence to use the public highway. At that time they also 30. As is evident from the foregoing, acknowledged that they had never laid location plans must be submitted in order down and published any implementing to obtain the necessary authorisations and rules, with the result that the various licences to lay telecommunications net- authorities with the relevant powers had works. It is complained that the data never in fact granted a right of way. necessary for such a plan are often difficult to obtain. Those data are generally held by the competent lands administrator. I am somewhat surprised at the Luxembourg Government's argument that all that is involved is a topographic plan for which the data can be obtained from the land register. It is precisely where networks are 29. During the litigation procedure the being laid that exhaustive knowledge of Luxembourg Government indicated that other facilities located in the ground, such the procedures operated by the various as pipelines, other networks (electricity) I - 5808

and sewer systems, is necessary. In general less, the Commission points out that new the technical data in relation to these are supply and distribution cables have been held by the administrators of the relevant laid along the motorways since this law sections of the public land. Therefore, the came into force. Consequently, what is cooperation of these administrators is probably involved is unclear wording of the necessary in order to draw up technically law, in the light of the implementation reliable location plans. Since this consti- practice which is contrary to the letter tutes a potential obstacle which could thereof. It should be clear that this legis- thwart the laying of the networks required lation provides insufficient legal certainty by the licence holder, I consider that the for individuals and that it leaves scope for active cooperation of the Luxembourg de facto discriminatory implementation authorities is necessary in order to obtain practice. the desired data. Otherwise, it would be more difficult to attain the objectives pur- sued by the directive, namely a market on which licence holders can compete using their own networks. 32. The Luxembourg Government has pointed to the fact that new legislation has since been enacted, 8which regulates the problems to which this case relates. That legislation appears to streamline the procedures as regards the acquisition of rights of way and the necessary licences to use land along and on public highways and railways, in both cases in accordance with the principles of transparency and non- discrimination. Be that as it may, that 31. In addition to the required approval of legislation was enacted after the end of the location plan, a licence to use the public the period laid down in the reasoned highway must also be held before a right of opinion and therefore cannot, according way is granted. Only then can the necessary to the established case-law of the Court, be channels and associated facilities be taken into account. 9 installed on the public land. During talks with the Commission the Luxembourg authorities pointed to the difficulties arising from the legislation on the construction of major roads. For example, the Law of 26 May 1998 provides that the necessary maintenance work on existing construc- 33. It can be concluded from the foregoing tions within 25 metres of the motorways is that the practice which has existed thus far to be subject to the express written appro- val of the Minister for Public Works and 8 — Règlement grand-ducal du 8 juin 2001 déterminant les that other construction, reconstruction or conditions d'utilisation du domaine routier et ferroviaire de alteration work is prohibited. This essen- l'État par les opérateurs de télécommunications, les ges- tionnaires de réseaux de transport d'électricité et les tially means that no rights of way relating entreprises de transport de gaz naturel, Mémorial of 13 June 2001. to new networks can be exercised on this 9 — See, most recently, also judgment of 6 June 2002 in Case section of the land as a whole. Neverthe- C-177/01 Commission v france [2002] ECR I-5137.

— order the Grand Duchy of Luxembourg to pay the costs.

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