Legal defeat for Deutsche Telekom: The Bonn-based group must initially continue to grant competitors access to the cable ducts between the exchanges and cable distributors as well as to radio masts and carrier systems. The Cologne Administrative Court decided this with an emergency decision dated March 1st, as it announced on Monday (Az.: 21 L 2013/22). The authority thus provisionally confirmed a requirement from the Federal Network Agency from July 2022. The aim of this agency is to accelerate fiber optic expansion in Germany. In practice, telecom challengers can install their own hardware in their systems and connect it to the exchange via fiber optic cable.
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Telekom has been obliged to give competitors access to its subscriber lines (“TAL”) for many years. This is essentially the mother of all advance services on which competitors can build their own offerings. TALs connect end customers to the “last mile” of the Telekom network. In 2007, the Federal Network Agency ruled for the first time that competitors also had a right to access to cable channels. It was mainly about VDSL offers. In 2022, the regulator relaunched the measure with regard to fiber optics, including masts and support systems for the purpose of building and operating very high capacity networks at fixed locations or for access to the valley.
ECJ is to be involved in the main proceedings
Telekom took legal action and expedited proceedings against the Federal Network Agency's new decision. As justification, she claimed, among other things, that the regulator had not carefully considered its decision. Rather, errors have crept in. The Federal Network Agency wrongly did not examine whether, without the requirement, the development of a sustainably competitive end customer market would actually be hindered and the interests of end users would be impaired.
The administrative judges initially did not follow this argument in the urgent matter, but consider the prospects of success of the lawsuit in the main proceedings to be open. According to them, the disputed obligation and the balancing on which it is based raises sometimes difficult questions of European law, which would have to be clarified in the actual process by appealing to the European Court of Justice (ECJ). The authority therefore wants to address questions to its Luxembourg colleagues soon.
The balancing of interests, which is only affordable against this background, “falls to the detriment of Telekom,” writes the administrative court: “If the urgent application were successful, the accelerated expansion of broadband networks based on existing infrastructure would be stopped with immediate effect. The delay in network expansion that has occurred could even be caused by… a later dismissal of Telekom's lawsuit can no longer be made good.” Conversely, the consequences of a rejection of the urgent application are reversible: if the Bonn-based group later wins in court, the competitors would have to remove any cables – which they had purchased and brought in with their own funds – at their own expense. The emergency decision of the administrative court itself is incontestable. Telekom will therefore have to wait for the outcome of the main proceedings, which could take a few years due to the planned involvement of the ECJ.
(mki)