Provisional text

delivered on 15 May 2025 (1)

Case C‑327/24 [Lolach] (i)

Telekom Deutschland GmbH

Federal Republic of Germany

(Request for a preliminary ruling from the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany))

( Preliminary ruling procedure – Electronic communications sector – Directive (EU) 2018/1972 – Articles 72 and 73 – Undertaking with significant market power in the market for wholesale local access provided at a fixed location – Imposition of a regulatory obligation to grant access by the regulatory authority )

In 2022, Germany’s electronic communications regulator (2) imposed an obligation on Telekom Deutschland GmbH to grant other operators access to certain civil engineering assets. (3)

The BNetzA based its decision on the national rules adopted to transpose Directive (EU) 2018/1972 into German law. (4)

This reference for a preliminary ruling will enable the Court of Justice to clarify the conditions to which the imposition of the access obligations laid down in Articles 72 and 73 of the EECC are to be subject. In particular, the objectives that can be used to justify such obligations will have to be clarified.

Article 3 (‘General objectives’) states as follows:

‘1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive, the national regulatory and other competent authorities take all reasonable measures which are necessary and proportionate for achieving the objectives set out in paragraph 2. …

(a)promote connectivity and access to, and take-up of, very high capacity networks, including fixed, mobile and wireless networks, by all citizens and businesses of the Union;

(b)promote competition in the provision of electronic communications networks and associated facilities, including efficient infrastructure-based competition, and in the provision of electronic communications services and associated services;

(c)contribute to the development of the internal market by removing remaining obstacles to, and facilitating convergent conditions for, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the Union, by developing common rules and predictable regulatory approaches, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity;

(d)promote the interests of the citizens of the Union, by ensuring connectivity and the widespread availability and take-up of very high capacity networks, including fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities.

…

4. The national regulatory and other competent authorities shall, in pursuit of the policy objectives referred to in paragraph 2 and specified in this paragraph, inter alia:

…

(f)impose ex ante regulatory obligations only to the extent necessary to secure effective and sustainable competition in the interest of end-users and relax or lift such obligations as soon as that condition is fulfilled.

Member States shall ensure that the national regulatory and other competent authorities act impartially, objectively, transparently and in a non-discriminatory and proportionate manner.’

Article 61 (‘Powers and responsibilities of the national regulatory and other competent authorities with regard to access and interconnection’) establishes that:

‘1. National regulatory authorities or other competent authorities in the case of points (b) and (c) of the first subparagraph of paragraph 2 of this Article shall, acting in pursuit of the objectives set out in Article 3, encourage and, where appropriate, ensure, in accordance with this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, the deployment of very high capacity networks, efficient investment and innovation, and gives the maximum benefit to end-users.

…

…’

Article 67 (‘Market analysis procedure’) states:

‘1. National regulatory authorities shall determine whether a relevant market defined in accordance with Article 64(3) is such as to justify the imposition of the regulatory obligations set out in this Directive. …

A market may be considered to justify the imposition of regulatory obligations set out in this Directive if all of the following criteria are met:

(a)high and non-transitory structural, legal or regulatory barriers to entry are present;

(b)there is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry;

(c)competition law alone is insufficient to adequately address the identified market failure(s).

…

3. Where a national regulatory authority concludes that a relevant market does not justify the imposition of regulatory obligations in accordance with the procedure in paragraphs 1 and 2 of this Article, or where the conditions set out in paragraph 4 of this Article are not met, it shall not impose or maintain any specific regulatory obligations in accordance with Article 68. Where there already are sector specific regulatory obligations imposed in accordance with Article 68, it shall withdraw such obligations placed on undertakings in that relevant market.

…

4. Where a national regulatory authority determines that, in a relevant market the imposition of regulatory obligations in accordance with paragraphs 1 and 2 of this Article is justified, it shall identify any undertakings which individually or jointly have a significant market power on that relevant market in accordance with Article 63. The national regulatory authority shall impose on such undertakings appropriate specific regulatory obligations in accordance with Article 68 or maintain or amend such obligations where they already exist if it considers that the outcome for end-users would not be effectively competitive in the absence of those obligations.

…’

Article 68 (‘Imposition, amendment or withdrawal of obligations’) provides:

‘1. Member States shall ensure that national regulatory authorities are empowered to impose the obligations set out in Articles 69 to 74 and Articles 76 to 81.

3. National regulatory authorities shall impose the obligations set out in Articles 69 to 74 and Articles 76 and 80 only on undertakings that have been designated as having significant market power in accordance with paragraph 2 of this Article, without prejudice to:

(a)Articles 61 and 62;

(b)Articles 44 and 17 of this Directive, Condition 7 in Part D of Annex I as applied by virtue of Article 13(1) of this Directive, Articles 97 and 106 of this Directive and the relevant provisions of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37) containing obligations on undertakings other than those designated as having significant market power; or

(c)the need to comply with international commitments.

…

4. Obligations imposed in accordance with this Article shall be:

(a)based on the nature of the problem identified by a national regulatory authority in its market analysis, where appropriate taking into account the identification of transnational demand pursuant to Article 66;

(b)proportionate, having regard, where possible, to the costs and benefits;

(c)justified in light of the objectives laid down in Article 3 …

…’

Article 72 (‘Access to civil engineering’) provides:

‘1. A national regulatory authority may, in accordance with Article 68, impose obligations on undertakings to meet reasonable requests for access to, and use of, civil engineering including, but not limited to, buildings or entries to buildings, building cables, including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets, in situations where, having considered the market analysis, the national regulatory authority concludes that denial of access or access given under unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market and [(5)] would not be in the end-user’s interest.

Article 73 (‘Obligations of access to, and use of, specific network elements and associated facilities’) states:

‘1. National regulatory authorities may, in accordance with Article 68, impose obligations on undertakings to meet reasonable requests for access to, and use of, specific network elements and associated facilities, in situations where the national regulatory authorities consider that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, [(6)] and would not be in the end-user’s interest.

…’

Paragraph 26 provides:

‘(1) The [BNetzA] may impose on an undertaking with significant market power obligations to grant other undertakings access if, otherwise, the emergence of a sustainable competitive retail market would be hindered and the end-user’s interest harmed.

(2) In considering whether and which access obligations are justified according to subparagraph (1) and whether these are proportionate and commensurate with the objectives according to Paragraph 2, the [BNetzA] shall examine whether

1.obligations already imposed or likely to be imposed under this Part or commercial access agreements already concluded or offered in the relevant or in a related wholesale market and

2.the imposition alone of obligations pursuant to point 10 of subparagraph (3)

are sufficient to safeguard the objectives referred to in Paragraph 2. In that regard, the [BNetzA] shall take into account in particular

1.the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access products;

2.the feasibility of providing the access proposed, in relation to the capacity available;

3.the initial investment by the facility owner, taking account of any public investment made and the risks involved in making the investment, in particular the risks associated with investments in very high capacity networks;

4.the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition and innovative business models;

5.industrial property rights or intellectual property rights;

6.the provision of services throughout the European Union; and

7.the expected technological evolution affecting network design and management.

(3) The [BNetzA] may, having regard to subparagraph (1), impose, inter alia, the following obligations on undertakings with significant market power:

…

10.to grant access to civil engineering including buildings or entries to buildings, building cables including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets, even if these are not part of the relevant market pursuant to Paragraph 10, provided that the access obligation is necessary and appropriate with regard to the problem identified in the market analysis as defined in Paragraph 11.

…’

II. Facts, proceedings and question referred for a preliminary ruling

According to the referring court, Telekom Deutschland is an undertaking offering telecommunications services and which, in the context of the market definition of 10 October 2019, was designated as an undertaking with significant market power in the market for wholesale local access provided at a fixed location. However, the market for access to civil engineering was not the subject of that market definition. (8)

By decision of 21 July 2022 (‘the decision’), the BNetzA imposed the following obligations on Telekom Deutschland:

1.1.‘1.1. To grant other undertakings access to cable duct systems as well as to masts and carrier systems for overhead lines existing at the time of demand, for the development and operation of very high capacity networks at fixed locations or for access to the local loop or Multi-Service Access Node (MSAN) (point 1.2 or 1.3) within the limits of the available capacity, allowing [Telekom Deutschland] to maintain an adequate operating reserve and to prioritise its own use. In so far as the access is not used to access the local loop, the performance obligation and the further associated obligations under points 2., 4. and 5. shall commence on 1 January 2024.

…’ (9)

The BNetzA based its decision on Paragraph 26(1) of the TKG.

On 19 August 2022, Telekom Deutschland challenged the decision before the Verwaltungsgericht Köln (Administrative Court, Cologne, Germany), requesting in particular that:

1.‘1. The [decision] … be annulled in part in so far as the following obligations are imposed on the applicant:

(a)the obligation, laid down in point 1.1 of the operative part, to give other undertakings access to cable duct systems as well as to masts and carrier systems for overhead lines existing at the time of the request, for the purpose of the development and operation of very high capacity networks at fixed locations;

in the alternative …,

(b)the obligation, laid down in point 1.1 of the operative part, also to give other undertakings access to those cable duct systems as well as to masts and carrier systems for overhead lines for the purpose of the development and operation of very high capacity networks at fixed locations which the applicant has newly erected for the development of its Fibre to the Building (FTTB)/Fibre to the Home (FTTH) network;

in the further alternative to (a) and (b),

(c)the obligation, laid down in point 1.1 of the operative part, to give other undertakings access also to those cable duct systems as well as to masts and carrier systems for overhead lines for the purpose of the development and operation of very high capacity networks at fixed locations which were completed less than seven years ago;

…’

In its application, Telekom Deutschland argued that the BNetzA should have examined whether all of the conditions laid down in Paragraph 26(1) of the TKG (hindering the development of a sustainable competitive retail market and harming the interests of end-users) were met and only then examined the obligations at issue under Paragraph 26(2) of the TKG. (10)

The BNetzA contested the action, arguing that it is not restricted to examining only whether the two conditions established in Paragraph 26(1) of the TKG are met, but may, in the light of Paragraph 26(2) of the TKG, include other aspects in its assessment. (11)

According to the referring court, (12) the outcome of the main proceedings depends on the interpretation of Articles 72 and 73 of the EECC, and Paragraph 26 of the TKG must be construed in line with that interpretation. In its view:

–Telekom Deutschland’s claim will succeed if Articles 72 and 73 of the EECC preclude national legislation (or an interpretation of such legislation) under which, when examining the lawfulness of an obligation to provide access to civil engineering, the BNetzA may refer, in addition to the two conditions laid down in Article 72(1) of the EECC, to the objectives of Article 3 of the EECC or, as the case may be, to other objectives.

–Conversely, Telekom Deutschland’s claim must be rejected if Articles 72 and 73 of the EECC do not conflict with the national rules (or their interpretation) as applied by the BNetzA.

In that context, the Verwaltungsgericht Köln (Administrative Court, Cologne) referred the following question to the Court of Justice for a preliminary ruling:

‘Must Articles 72 and 73 of [the EECC] be interpreted as meaning that, when considering the question of ‘whether’ to impose an obligation to provide access to civil engineering assets that are not part of the relevant market in accordance with the market analysis, the national regulatory authorities

must examine solely whether the non-imposition of this obligation would hinder the emergence of a sustainable competitive market and would not be in the end-user’s interest,

may, when considering the imposition of an obligation to provide access to such assets, take into account not only the conditions mentioned above but also, on an equal footing as part of a ‘bundle of objectives’, the other objectives of Article 3 of [the EECC] and, if applicable, further objectives?’

III. Procedure before the Court of Justice

The request for a preliminary ruling was received at the Court of Justice on 3 May 2024.

Written comments were submitted by Telekom Deutschland, the German Government (represented by the BNetzA), the Greek Government and the European Commission.

With the exception of the Greek Government, all of these parties attended the public hearing held on 20 March 2025.

The EECC allows national regulatory authorities to impose an obligation on undertakings such as Telekom Deutschland to provide other operators in the sector (alternative operators) with access to the civil engineering assets (13) of those undertakings. (14)

This allows new alternative operators to gain access to the existing civil engineering infrastructure needed for their own network roll-outs. If they did not have such access, they would be constrained by more onerous conditions, as they would have to undertake themselves the construction of elements (civil engineering) essential in rolling out their networks. (15)

The objectives underlying the establishment of the obligation of access to civil engineering assets include promoting the development of sustainable competition between electronic communications operators.

The BNetzA imposed an obligation on Telekom Deutschland to provide other undertakings in the sector with access to some of its civil engineering assets, as described in point 12 of the present Opinion. To do so, it referred to Paragraph 26(3)(10) (16) of the TKG as the legal basis for its decision.

To assess whether this measure was justified and proportionate, the BNetzA carried out an ‘examination of the assessment criteria under Paragraph 26 of the TKG’. For that purpose, it verified whether the imposition of the access obligation met a broad set of objectives and, at the same time, respected the principles and criteria laid down in that provision.

The ‘set of objectives’ assessed by the BNetzA was broken down into four basic objectives:

–Ensuring connectivity and promoting access to and use of very high capacity networks by all citizens and undertakings.

–Promoting competition. In particular, competition on the retail market.

–Protecting users in the telecommunications field, maximising benefits for them in terms of price and service quality resulting from the connectivity, widespread availability and accelerated deployment of very high capacity networks.

–Promoting the development of the internal market of the European Union, including the provision of pan-European services.

As regards the regulatory principles (objective, transparent, non-discriminatory and proportionate) required in achieving the objectives pursued and the criteria to be taken into account for the assessment of the measure under the second sentence of Paragraph 26(2) of the TKG, the BNetzA stated that it had assessed these factors. (17)

The dispute giving rise to the reference for a preliminary ruling is essentially limited to the question as to whether the BNetzA was correct in its assessment of all the objectives it pursued (BNetzA’s argument) or whether, on the contrary, it should have examined only the two objectives referred to in Paragraph 26(1) of the TKG (Telekom Deutschland’s argument).

The complexity of the matter derives, first, from the difficulties associated with interpreting Paragraph 26 of the TKG, which incorporates the content of Articles 72 and 73 of the EECC into a single provision. Second, the same difficulties arise with regard to Articles 72 and 73 of the EECC.

According to the referring court, the interpretation of Paragraph 26 of the TKG in order to bring it into compliance with EU law is hindered by the fact that the national rule lends itself to contradictory interpretations. (18)

The Court of Justice cannot intervene in the debate on the interpretation of Paragraph 26 of the TKG. Given the question referred for a preliminary ruling, the task of the Court is solely to determine how Article 72 or, as the case may be, Article 73 of the EECC is to be interpreted. To do so, it may provide the referring court with evidence to establish the compatibility of the national rule with EU law.

The referring court contends that ‘Article 72 of the EECC alone is relevant for the imposition of access to civil engineering’. (19) It then adds that ‘sedes materiae for resolving the problem might be Article 72(2) of the EECC’. (20)

In reality, both parties to the dispute take the same position. Telekom Deutschland (21) and the BNetzA (expressing the opinion of the German Government) (22) confirm that the answer to the question referred for a preliminary ruling depends on the interpretation of Article 72 of the EECC.

I share the view of the referring court and of the two parties to the dispute, and I will therefore address the difficulties of interpretation raised by Article 72(2) of the EECC. I will deal with these issues in the following sections of this document. At the end of the present Opinion, I will also comment on the (lack of) relevance of Article 73 of the EECC in resolving the dispute.

In my view, the observations of some of the parties involved in the preliminary ruling procedure go beyond the specific questions at issue in the case because they are abstract.

In particular, I believe that insufficient attention has been paid to two relevant circumstances in this case: first, Telekom Deutschland is an undertaking with significant market power in a particular regulated market for electronic communications; (23) and second, the civil engineering assets to which access is granted do not form part of the ‘relevant market’. (24)

Against this background, the answer to the question referred for a preliminary ruling can be found in Article 72(2) of the EECC and, according to the German Government, (25) in Article 68(4)(c) of the EECC.

Article 72 of the EECC – entitled ‘Access to civil engineering’ – establishes in paragraph 2 that ‘national regulatory authorities may impose obligations on an undertaking to provide access in accordance with this Article, irrespective of whether the assets that are affected by the obligation are part of the relevant market’ (my emphasis).

This rule is supported by Recommendation 2020/2245, which reads: ‘Article 72 of the [EECC] allows national regulatory authorities to impose access to civil engineering as a stand-alone remedy on any relevant wholesale market. Such obligation to provide access to civil engineering may be justified irrespective of whether the physical infrastructure to which access is granted is part of the regulated relevant market …’. (26)

So, as I have just pointed out:

–The reference for a preliminary ruling concerns specifically ‘an obligation to provide access to civil engineering assets that are not part of the relevant market’ (question referred for a preliminary ruling, first paragraph, my emphasis).

–The operator on which such an access obligation is imposed enjoys significant market power in the market for wholesale local access provided at a fixed location. As such, the obligations laid down in Chapter IV (‘Access remedies imposed on undertakings with significant market power’) of Title II (‘Access’) of Part II (‘Networks’) of the EECC, comprising Articles 68 to 82, may be imposed on that operator.

I should reiterate that Article 72(2) of the EECC covers the legal treatment of the obligation to provide access to civil engineering assets that are not part of the relevant market, but belong to an undertaking with significant market power. If both circumstances are present, that article authorises the national regulatory authority to impose the access obligation.

In the absence of a rule such as Article 72(2) of the EECC, the civil engineering assets at issue in this dispute would be outside the scope of the access obligations, as they do not form part of the relevant market. Electronic communications undertakings owning such civil engineering assets could decide whether to provide third parties with access to those assets, guided solely by their commercial policy.

Article 72(2) of the EECC thus makes it possible to impose the obligation to provide access to civil engineering (laid down in Article 72(1)) on assets that are not part of the relevant market. This is precisely the situation in this dispute.

Having established that premiss, the next step is to elucidate why Article 72(2) of the EECC provides that the access obligation imposed must be ‘necessary and proportionate to meet the objectives of Article 3’ of the EECC. Is this merely a redundancy or does this provision have a meaning of its own?

In regulating, in general terms, the imposition of the obligations that will later be described in detail, inter alia, in Articles 72 and 73 of the EECC, Article 68(4)(c) of the same code establishes that these obligations are to be ‘justified in light of the objectives laid down in Article 3’.

Thus, as expressly stated in Article 68 of the EECC, national regulatory authorities are empowered to impose all the obligations ‘set out in Articles 69 to 74 and Articles 76 to 81’, if the imposition of those obligations can be justified in light of the objectives listed in Article 3 of the EECC. In that article, moreover, those objectives are ‘not listed in order of priority’. (27)

It follows from this postulate, in my view, without any need for further discussion, that the access obligations referred to in Article 72(2) of the EECC could, in themselves, be justified by the objectives of Article 3. (28)

In other words, the (exceptional) inclusion – by virtue of Article 72(2) – within the scope of the EECC of access to a civil engineering asset that is not part of the relevant market would be sufficient to (also exceptionally) subject access to such civil engineering assets to the same conditions governing access to civil engineering falling within the scope of the EECC.

While Article 72(2) of the EECC specifically states that the obligation is to be ‘necessary and proportionate to meet the objectives of Article 3’, it is, in my view, because it is sufficient to comply with this double requirement (necessity and proportionality) when the civil engineering for which access is imposed does not form part of the relevant market.

This is not, therefore, a redundant wording (compliance with the objectives of Article 3 of the EECC is, I would insist, applicable to all access obligations), but a restrictive wording: the possibility of imposing an obligation for access to civil engineering outside the scope of the EECC depends on that obligation being covered by a specific provision, such as Article 72(2) of the EECC.

The difference between the two paragraphs in Article 72 of the EECC is merely one of degree: the two conditions stated in paragraph 1 also seek to achieve some of the objectives stated in Article 3 of the EECC:

–Avoiding hindering ‘the emergence of a sustainable competitive market’ (Article 72(1) of the EECC) corresponds to the objective of promoting competition [Article 3(2)(b) of the EECC] or of contributing to the development of the internal market [Article 3(2)(c) of the EECC].

–Defending the ‘end-user’s interest’ (Article 72(1) of the EECC) coincides with the objective of promoting ‘the interests of the citizens of the Union’ [Article 3(2)(d) of the EECC].

This is, in my view, the reason why the discrepancies between the German version of Article 72(1) of the EECC and the other language versions as regards the conjunction (‘and’/‘or’) coordinating the two objectives indicated in its last line is, in the final analysis, inconsequential. (29)

Although, as the Commission notes, everything seems to point to a drafting error, (30) the fact is that the objectives are so closely intertwined that they practically become confused. It is ultimately in the end-user's interest to prevent the emergence of a sustainable competitive market from being hindered.

In any case, even if – for the sake of argument – the two objectives are worded as alternatives in Article 72(1) of the EECC, in terms of their substance they are combined cumulatively in the list of general objectives in Article 3 of the EECC (development of the internal market and promotion of the interests of citizens).

Crucially, Article 72(2) of the EECC allows the national regulatory authority to impose the obligation to provide access to civil engineering assets where this is ‘necessary and proportionate to meet the objectives of Article 3’.

Moreover, as the Commission underlined at the hearing, when assessing the necessity and proportionality of the measure represented by the imposition of the obligation to provide access, the BNetzA already took into account the fact that the absence of such a measure would result in harm to end-users and would hinder the emergence of a sustainable competitive market. (31) It is irrelevant that its assessment of these two objectives was made in a positive wording, instead of using the wording of Paragraph 26(1) of the TKG (which corresponds, with some slight variations, to Article 72(1) of the EECC).

In short, an answer in line with the referring court’s question would have to assert that: (a) the imposition of the disputed obligation falls within the scope of Article 72(2) of the EECC, and (b) under that provision, the imposition of such an obligation can be justified if it is necessary and proportionate to meet the objectives of Article 3 of the EECC.

It is for the referring court to verify whether, on the basis of the information in its possession, the BNetzA’s assessment was correct in imposing on Telekom Deutschland the obligation to provide access to the civil engineering assets on the grounds that it was necessary and proportionate in the light of the overall objectives of Article 3 of the EECC.

After stressing that, in its view, Article 72 of the EECC ‘alone is relevant’, the referring court discusses the possible scenario whereby Article 73 of the same code would be applicable.

If so, it adds, three ‘issues’ would arise: (a) the disparity between the language versions of the provision, as regards the inclusion or deletion of the expression ‘in particular’ in paragraph 1; (b) the ‘sufficiency test’ for weighing the interests referred to in paragraph 2; and (c) the relationship of Article 73 with Article 68, both of the EECC.

It seems to me unnecessary to address these ‘issues’ when, given the circumstances of the case, Article 73 of the EECC simply does not apply. Both Telekom Deutschland and the German Government, represented by the BNetzA, confirmed at the hearing that Article 73 of the EECC is not applicable to the dispute. The Commission, for its part, also argued at the hearing that the key provision for resolving the dispute is Article 72, not Article 73, of the EECC.

In the light of the foregoing considerations, I propose that the Court of Justice reply to the Verwaltungsgericht Köln (Administrative Court, Cologne) as follows:

‘Article 72(2) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code,

should be interpreted as meaning that it includes the imposition of obligations to provide access to civil engineering that is not part of the relevant market, provided that such obligations are necessary and proportionate to meet the general objectives referred to in Article 3 of the same directive.’

—

1Original language: Spanish.

iThe name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2Bundesnetzagentur für Elektrizität, Gas, Telekommunikation, Post und Eisenbahn (Federal Agency for Electricity, Gas, Telecommunications, Postal and Railway Networks, Germany; ‘the BNetzA’).

3On the concept of ‘civil engineering’ or ‘civil engineering assets’, see footnote 13 of the present Opinion.

4Directive of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast) (OJ 2018 L 321, p. 36; corrigendum in OJ 2019 L 334, p. 164); ‘the EECC’. That code recast, inter alia, Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ 2002 L 108, p. 7), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37).

5In the German version of this provision, unlike the other language versions, the cumulative conjunction ‘and’ is not used, but rather the disjunctive conjunction ‘or’ (‘oder’).

6In the German version of this provision, unlike in the other language versions, the cumulative conjunction ‘and’ is not used, but rather the disjunctive conjunction ‘or’ (‘oder’).

7Telecommunications Law of 23 June 2021 (BGBl. I 2021, p. 1858), in the version of 10 September 2021, as amended by the Law of 20 July 2022 (BGBl. I 2022, p. 1166) (‘the TKG’).

8Page 5 of the German original of the order for reference.

9The operative part of the decision contains a point 1.2 which, as confirmed by Telekom Deutschland at the hearing, was not contested before the referring court.

10Page 9 of the German original of the order for reference.

11Page 10 of the German original of the order for reference.

12Page 12 of the German original of the order for reference.

13The EECC does not define ‘civil engineering’ or ‘civil engineering assets’. Article 72 of the EECC lists, in a non-exhaustive manner, the elements which form part of ‘civil engineering’, for the purpose of facilitating access. Some language versions use the terms ‘obra civil’ (Spanish), ‘génie civil’ (French), ‘civil engineering’ (English), ‘bauliche Anlagen’ (German) in the title of Article 72, while others use the expressions ‘ativos de engenheria civil’ (Portuguese) or ‘infrastrutture di ingenieria civile’ (Italian). With regard to the civil engineering assets referred to in recital 187 of the EECC, the expression appears in some versions of that recital (‘activos de obra civil’ (Spanish), ‘actifs du génie civil’ (French), ‘civil engineering assets’ (English), ‘ativos de engenharia civil’ (Portuguese)), but not in others (‘infrastrutture civili’ (Italian), ‘bauliche Anlagen’ (German)).

14There is no discussion in this reference for a preliminary ruling as to whether the obligation imposed on Telekom Deutschland to provide access to its civil engineering assets includes only the passive infrastructure it owns or also the infrastructure it is permitted to use, under various titles, whether in the public or private domain. The BNetzA stated at the hearing that the civil engineering assets to which the obligation to provide access extends are those used by Telekom Deutschland.

15Recital 187 of the EECC underlines the importance of this form of access: ‘Civil engineering assets that can host an electronic communications network are crucial for the successful roll-out of new networks because of the high cost of duplicating them, and the significant savings that can be made when they can be reused. Therefore, … a specific remedy is necessary in those circumstances where civil engineering assets are owned by an undertaking designated as having significant market power …’.

16At the hearing, in response to a question from the Court of Justice, the BNetzA stated that it had applied, in particular, Paragraph 26(3)(10) of the TKG.

17In particular, it referred to the following factors as being sufficient to ensure the objectives laid down in Paragraph 2 of the TKG: the technical and economic viability of using or installing competing facilities, in the light of the rate of market development; the obligations already imposed under the TKG or commercial access agreements already concluded or offered in the relevant or related wholesale market; and the mere imposition of access obligations in relation to cable duct systems and masts and carrier systems for overhead lines. It added that it had not lost sight of the fundamental rights to free choice of profession and protection of property of the persons concerned.

18The order for reference goes on to consider the content of Paragraph 26 of the TKG and its drafting history in Germany, which ‘raises more questions than it answers’.

19Page 14 of the German original of the order for reference.

20Page 16 of the German original of the order for reference.

21In its written observations (paragraph 17), Telekom Deutschland states that the answer to the question referred for a preliminary ruling depends on whether the condition laid down in Article 72(1) of the ECSC constitutes a ‘stand-alone condition’, additional to the assessment of all the objectives required by Article 68 of the EECC.

22Paragraph 13 of the written observations of the German Government. That Government explicitly maintained the same position at the hearing.

23This is a market for wholesale local access provided at a fixed location. Its qualification as a regulated market (‘Market 1’) is set out in the annex to Commission Recommendation (EU) 2020/2245 of 18 December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive [2018/1972] (OJ 2020 L 439, p. 23).

24Both circumstances are addressed in the order for reference. The second, in particular, is described in the very wording of the question referred for a preliminary ruling.

25Paragraph 13, in fine, of the written observations of the German Government.

26Recital 28 of Recommendation 2020/2245. Recital 27 explains that the Commission had ‘… considered the appropriateness of including a separate market for access to physical infrastructure in this Recommendation. However, as there are significant differences in network topologies, availability of ubiquitous ducts and level of demand for access to ducts and poles across the Union, the Commission concluded that a separate market for access to physical infrastructure cannot, at present, be identified at Union level and should therefore not be included in the list of markets susceptible to ex ante regulation’.

27I should note that, in addition to the three general objectives of promoting competition, contributing to the development of the internal market and promoting the interests of end-users, Article 3 of the EECC includes, on an equal footing, the objectives of promoting connectivity and access to very high capacity networks, for the benefit of all citizens and businesses of the European Union.

28In its judgment of 17 November 2022, TOYA (C‑243/21, EU:C:2022:889), the Court of Justice held that ‘a practice … consisting in setting minimum ex ante conditions for access to the physical infrastructure of a network operator, without any specific dispute and without it having first been established that that operator has significant market power – will tend to contribute to the general objective of [Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (OJ 2014 L 155, p. 1),] in that it promotes and facilitates the joint use of existing physical infrastructure’ (paragraph 55). It adds that ‘… such a practice also contributes to the pursuit of the main objectives defined by the Access and Framework Directives. In so far as it promotes and facilitates the joint use of existing physical infrastructure, that practice contributes to establishing sustainable competition, strengthening the interoperability of electronic communications services, developing the internal market in that sector and promoting the interests of EU citizens and consumers, objectives that are notably enshrined in Article 8(2) to (4) of the Framework Directive and Article 1(1) of the Access Directive’ (paragraph 56).

29The discrepancy (which is repeated in the German wording of Article 73(1) of the EECC) disappears, however, in the wording of Paragraph 26(1) of the TKG, where the conjunction used is the cumulative ‘and’.

30In most of the versions I have been able to check, the cumulative conjunction is used.

31See point 27 of the present Opinion.