Keywords
Summary

Keywords

1. Approximation of laws — Telecommunications sector — Open network provision — Directive 90/387 — Provision requiring Member States to establish bodies to hear appeals — Failure to transpose the Directive — Consequences — National courts required to determine whether appeals are possible on the basis of national law to be disapplied — National provision excluding the competence of a court which would otherwise be competent — (Art. 10 EC; Council Directive 90/387, Art. 5a(3))

2. Competition — Public undertakings and undertakings to which Member States grant special or exclusive rights — Telecommunications sector — National legislation under which additional frequencies in a frequency band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas a new operator pays a fee to use the same frequency band — Measure creating conditions for abuse of a dominant position — Not permissible unless the fee previously imposed on the public undertaking which also covers additional frequencies is equivalent in economic terms to that paid by its competitor to enter the market — (Arts 82 EC and 86(1) EC)

3. Competition — Public undertakings and undertakings to which Member States grant special or exclusive rights — Telecommunications sector — Directive 96/2 — Mobile and personal communications — National legislation under which additional frequencies in a frequency band may be allocated to a public undertaking in a dominant position without the imposition of a separate fee whereas a new operator pays a fee to use the same frequency band — Not permissible unless the fee previously imposed on the public undertaking which also covers additional frequencies is equivalent in economic terms to that paid by its competitor to enter the market or unless the frequencies initially allocated have reached saturation point — Legislation allowing such allocation after a specified period has elapsed or where the frequencies initially allocated have reached saturation point — Whether permissible — (Commission Directive 92/2, Art. 2(3) and (4))

4. Approximation of laws — Telecommunications sector — Common framework for general authorisations and individual licences — Directive 97/13 — Procedures for granting — Prohibition of discrimination — (Directive 97/13/EC of the European Parliament and of the Council, Arts 9(2) and 11(2))

Summary

1. In order to ensure that national law is interpreted in compliance with Directive 90/387 on the establishment of the internal market for telecommunications services through the implementation of open network provision, and that the rights of individuals are effectively protected, national courts must determine whether the relevant provisions of their national law provide individuals with a right of appeal which satisfies the criteria laid down in Article 5a(3) of that directive against decisions of the national regulatory authority responsible for authorising the provision of telecommunication services. If national law cannot be applied so as to comply with the requirements of that article, a national court or tribunal which satisfies those requirements and which would be competent to hear appeals against decisions of the national regulatory authority if it was not prevented from doing so by a provision of national law which explicitly excludes its competence, has the obligation to disapply that provision.

Where a provision of a directive conferring rights on individuals has not been transposed into the national legal system, the obligation arising from a directive for the Member States to achieve the result envisaged therein and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure compliance with that obligation is binding on all the authorities of Member States, including, for matters within their jurisdiction, the courts. It follows that, when applying national law, whether adopted before or after the directive, the national court which has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 249 EC.

Where application of national law in accordance with the requirements of the directive is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in the measure the application of which would, in the circumstances of the case, lead to a result contrary to that directive, whereas national law would comply with the directive if that provision was not applied.

see paras 38, 40, 42, operative part 1

2. A Member State breaches the prohibitions laid down by Article 86(1) EC in conjunction with Article 82 EC if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights cannot avoid abusing its dominant position. That is the case where an undertaking in a dominant position adopts conduct which, by distorting competition, that is to say by competing in a way that does not ensure that the various economic operators have equal opportunities, reinforces that position or extends it to a neighbouring but separate market.

Accordingly, Articles 82 EC and 86(1) EC in principle preclude national legislation under which additional frequencies in a frequency band may be allocated to a public undertaking in a dominant position which already holds a licence to provide the same telecommunications services in another band without the imposition of a separate fee, whereas a new entrant to the market at issue has had to pay a fee to obtain a licence to provide services in the former band. However, those provisions do not preclude such national legislation if the fee imposed on the public undertaking for its licence, including the subsequent allocation without additional payment of additional frequencies, appears to be equivalent in economic terms to the fee imposed on the new entrant.

see paras 80- 83, 95, operative part 2

3. It follows from Article 2(2) and (4) of Directive 96/2, amending Directive 90/388 on competition in the markets for telecommunications services, with regard to mobile and personal communications, that Member States are to extend existing licences to provide digital mobile telecommunications services to combined digital mobile telecommunications systems complying with the GSM 900 standard and the DCS 1800 standard respectively only where that extension is justified by the need to ensure effective competition between operators competing in the relevant markets.

Accordingly those provisions in principle preclude national legislation under which additional frequencies in the frequency band reserved for the DCS 1800 standard may be allocated to a public undertaking in a dominant position which already holds a licence to provide digital mobile telecommunications services according to the GSM 900 standard without the imposition of a separate fee, whereas a new entrant to the market at issue has had to pay a fee to obtain a licence to provide digital mobile telecommunications services according to the DCS 1800 standard. However, those provisions do not preclude such national legislation if the fee imposed on the public undertaking in a dominant position for its GSM 900 licence, including the subsequent allocation without additional payment of additional frequencies in the frequency band reserved for the DCS 1800 standard, appears to be equivalent in economic terms to the fee imposed on the competitor which was granted the DCS 1800 licence. Similarly, they do not preclude national legislation allowing such allocation of a limited number of additional frequencies, after at least three years have elapsed since grant of the DCS 1800 licence or before that period has elapsed if the user capacity of the public undertaking holding a GSM 900 licence has been exhausted despite the use of all commercially viable technical possibilities.

see paras 98, 105, 112, operative part 3-4

4. The prohibition on discrimination between operators laid down in Articles 9(2) and 11(2) of Directive 97/13 on a common framework for general authorisations and individual licences in the field of telecommunications services does not preclude national legislation under which additional frequencies in a frequency band may be allocated to existing holders of a licence in another frequency band without the imposition of a separate fee, whereas an operator which was granted a licence to provide digital mobile telecommunications services in the former frequency band has had to pay a fee, if the fee charged to existing operators for their licence, including the subsequent allocation without additional payment of additional frequencies appears to be equivalent in economic terms to the fee imposed on the new entrant.

see para. 118, operative part 5