Luxemburg gedaagd wegens negeren jurisprudentie in telecommarkt (en)

The European Commission has formally asked Luxembourg to comply with a judgment given by the Court of Justice on 12 June 2003 requiring it to apply correctly a 1990 Directive on competition in the markets for telecommunications services (90/388/CEE). Despite changes to its legislation, Luxembourg still retains a procedure for issuing rights of way which discriminates against competitors of the traditional operator, since they are not always able to obtain the permits they need to construct their own infrastructure alongside roads and railway lines. The formal request is in the form of a reasoned opinion, the second stage of the infringement procedure provided for in Article 228 of the EC Treaty. If Luxembourg continues to fail to comply, the Commission could refer the matter to the Court and ask it to impose a daily fine.

The 1990 "full competition" Directive (90/388/CEE) called on the Member States to introduce objective, non-discriminatory and transparent procedures for granting rights of way. Such procedures mark a key stage in the process of liberalising telecommunications as they make it possible for competitors of the traditional operator to obtain the permits needed for the construction of their own networks alongside roads or railway lines.

Following an initial infringement procedure begun by the Commission, the Court of Justice ruled against Luxembourg on 12 June 2003 (C-97/01), considering that the Luxembourg legal framework was ambiguous and contained insufficient safeguards to ensure non-discrimination. In addition, some operators' applications had been refused without the "applicable essential requirements" being invoked in support of the refusal.

Luxembourg had already amended its legislation even before the Court pronounced judgment, notably in the Grand-Ducal Regulation of 8 June 2001 and the Act of 8 June 2002. However, the Commission feels that these new provisions are not enough to put an end to the infringement. In particular, the current rules do not clearly identify the authority in charge of issuing permits, particularly in the case of the railways. In addition, the Act does not lay down a clear procedure for the granting of access licences alongside the motorway network, and in particular in the 25 metre wide non aedificandi belt from the edge of public land.