To ensure that there is a general geographical coverage of telecommunication services for users throughout Germany, operators of networks must have access over public ways and private property in order to construct a network infrastructure.
USE OF PUBLIC WAYS
Section 50 ff. TKG awards the Federal Republic the right to use public traffic ways (public ways, squares, bridges, public water) for telecommunication lines serving public purposes free of charge. This right is assigned to licensed network operators. Even though the state-owned Deutsche Bundespost always had the right to use public ways for its telecommunication lines free of charge, the fact that, in the future, private licensed operators are also to be granted this right, was one of the most disputed issues that arose in connection with the Act. The municipalities, who own a large share of these public ways, were of the opinion that granting easements free of charge was unconstitutional, because in their view this interfered with their constitutional right of self-administration. They intend to have this issue clarified before the Federal Constitutional Court.
This issue is of utmost economic importance. It is estimated that municipalities could have charged Deutsche Telekom AG alone DM 4 billion per annum for the right to use these public ways for its network of telecommunication lines. Most academic legal writers do, however, consider the granting of easements free of charge as constitutional. They argue that the municipalities' constitutional right of administration is not granted without restriction. Restricting this right is legal, if the restriction does not interfer with the essential issues of self-administration, or is considered appropriate in the circumstances. This is likely to be the case here as, municipalities do not incur any costs as a result of the public ways being used for telecommunications lines. The municipalities do, however, have to agree to new telecommunication lines being laid or if existing telecommunication lines have to be modified. This approval can only be denied for technical reasons.
Owners of private property must also tolerate the construction and operation of telecommunication lines over their property free of charge, provided that such property is already used for existing installations (i.e. power lines etc.), which are secured by a right, provided that the usability of the property is not restricted additionally on a lasting basis. New lines also have to be tolerated, if such use does not substiantially impair the enjoyment of the property (Section 57 TKG). The owner, however, may claim financial compensation, if the use of his property or the income therefrom is affected to a certain degree. The same applies, if lines, which previously could not be used for telecommunication purposes, are now modified for this purpose. As to whether this regulation is constitutional is also to be discussed. At the heart of the matter is whether an owner of private property should be under a duty to make his property available to a private third party - here a telecommunication undertaking - so that this undertaking can use such private property for commercial purposes and reap any benefits therefrom. The possibility of legal action before the Constitutional Court can, therefore, not be excluded.
For further information please contact Dr. Markus Deutsch, Gleiss Lutz Hootz Hirsch, Rechtsanwalte, Gartnerweg 2, 60322 Frankfurt, Germany, Tel: +49 69 955 141, Fax: +49 69 955 14 198.
The article is correct to the best of our knowledge at the time of publication. However, it is written as a general guide. Therefore specialist advice should be sought as regards your specific circumstances.