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Judgment of the Court (Sixth Chamber) of 12 June 2003.

Commission of the European Communities v Grand Duchy of Luxemburg.

C-97/01 • 62001CJ0097 • ECLI:EU:C:2003:336

  • Inbound citations: 3
  • Cited paragraphs: 0
  • Outbound citations: 4

Judgment of the Court (Sixth Chamber) of 12 June 2003.

Commission of the European Communities v Grand Duchy of Luxemburg.

C-97/01 • 62001CJ0097 • ECLI:EU:C:2003:336

Cited paragraphs only

«(Failure of a Member State to fulfil obligations – Telecommunications – Rights of way – Failure to transpose Directive 90/388/EEC effectively)»

Acts of the institutions – Directives – Implementation by the Member States – Need for clear and precise transposition – Directive 90/388 on competition in the markets for telecommunications services – Member States' obligation to designate clearly the competent authority for the grant of rights of way for the provision of networks and to establish transparent administrative procedures (Art. 249 EC, third para.; Commission Directive 90/388, Art. 4d) In respect of the transposition of a directive into the legal order of a Member State, it is essential that the national legislation in question effectively ensures that the directive is fully applied, that the legal position under national law is sufficiently precise and clear and that individuals are made fully aware of their rights.In particular, in relation to the designation of the authority competent to implement the directive, even if the Member States are free to delegate powers to their domestic authorities as they consider fit and to implement directives by means of measures adopted by various authorities, the fact remains that individuals must be made fully aware of their rights.Thus, as regards the effective transposition of the first subparagraph of Article 4d of Directive 90/388 on competition in the markets for telecommunications services, as amended by Directive 96/19, under which Member States are not to discriminate between providers of public telecommunications networks with regard to the granting of rights of way for the provision of such networks, the competent national authority for the grant of such rights must be clearly designated and transparent administrative procedures must be established to implement them. Lack of transparency is capable of discouraging undertakings wishing to provide public telecommunications networks from making applications for rights of way.see paras 32, 36-37, 39

JUDGMENT OF THE COURT (Sixth Chamber) 12 June 2003 (1)

((Failure of a Member State to fulfil obligations – Telecommunications – Rights of way – Failure to transpose Directive 90/388/EEC effectively))

In Case C-97/01,

applicant,

v

defendant,

APPLICATION for a declaration that, by failing to ensure, in practice, the effective transposition into Luxembourg law of Article 4d of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ 1990 L 192, p. 10), as amended by Commission Directive 96/19/EC of 13 March 1996 (OJ 1996 L 74, p. 13), the Grand Duchy of Luxembourg has failed to fulfil its obligations,

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann, V. Skouris, F. Macken and N. Colneric (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 4 July 2002,

gives the following

Community legislation

Without prejudice to Article 3c and the third paragraph of Article 4, Member States may maintain special and exclusive rights until 1 January 1998 for voice telephony and for the establishment and provision of public telecommunications networks.Member States shall, however, ensure that all remaining restrictions on the provision of telecommunications services other than voice telephony over networks established by the provider of the telecommunications services, over infrastructures provided by 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.As regards the dates set out in the second and third subparagraphs of this paragraph, in Article 3 and in Article 4a(2), Member States with less developed networks shall be granted upon request an additional implementation period of up to five years and Member States with very small networks shall be granted upon request an additional implementation period of up to two years, provided it is needed to achieve the necessary structural adjustments. ...

The provision of telecommunications services other than voice telephony, the establishment and provision of public telecommunications networks and other telecommunications networks involving the use of radio frequencies, may be subjected only to a general authorisation or a declaration procedure....

National legislation

The holder of a licence for the provision of a telecommunications network ... shall also be entitled, free of charge, to a right of way for the cables, overhead lines and associated equipment in the public infrastructure situated on the public land of the State and municipalities.

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Puissochet

Gulmann

Skouris

Macken

Colneric

Delivered in open court in Luxembourg on 12 June 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber

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