Rights of way: Court condemns Cyprus
By Manon Malhère | Friday 27 April 2012
The EU Court of Justice has ruled that Cyprus has breached EU law on the granting of rights of way for companies providing communications networks. By not ensuring that rights of way on, over or under public property were granted in good time, transparently and without discrimination, to a mobile telephony operator, Cyprus did not meet its obligations under EU law, the ECJ said in a judgement, on 26 April (Case C-125/09). The European Commission brought the case against Cyprus in April 2009.
The Commission welcomed the court’s judgement, saying: “Simple, efficient, transparent and non-discriminatory procedures for the granting of rights of way for installing masts and antennae are critical for the deployment of high-speed internet”.
The case began in 2006 when the second Cypriot mobile telephony operator lodged a complaint with the Commission because Cyprus had refused to grant it rights of way (construction authorisation and town planning). In 2007, the Commission launched an infraction procedure against Nicosia for non-respect of Article 11 of Framework Directive 2009/21/EC, and of Article 4 of the Authorisation Directive 2002/20/EC, both of which were amended in 2009. The Commission said that Cypriot legislation did not guarantee transparent procedures, applied without discrimination and without delay, for the granting of rights of way due to the overlapping of competencies between the different services in charge of providing town-planning and construction authorisation. Furthermore, when treating requests, Cypriot authorities carried out environmental impact assessments for electromagnetic fields, which were not foreseen under national legislation and which created a situation of legal uncertainty for mobile telephony operators - as well as delays.
In its judgement, the court said that the authorisation system for rights of way lacked transparency for the reasons given by the Commission and consequently by not guaranteeing the granting of rights of passage on, over or under public property on the basis of transparent procedures applied without discrimination or delay, Cyprus had not met its obligations under the two directives. n
According to Framework Directive 2009/21/EC, when national authorities grant rights of way for the installation of equipment (such as antennae and masts) on, over or under public or private property to a company providing public or non-public communications networks, they must 1. act on the basis of transparent and public availably procedures, applied without dirscrimination or delay; and 2. respect the principles of transparency and non-discrimination when rights of way are accompanied by certain conditions.