[1] „Telekommunikationsgesetz" - published in BGBl. I 1996, p. 1120.
[2]Funke, Grundgedanke des neuen Telekommunikationsrechts, Handelsblatt, June 26, 1996.
[3]Lindemann, "Expectations mixed on new telecoms law", Financial Times May 8, 1996. Even the German Commission on Monopolies (Monopolkommission), a panel of academics which advises parliament on industry concentration, expects the German telecommunications industry to reach the economic significance of the car industry. See 10th Report of the Monopolkommission dated July 22, 1994, Bundestags-Drucksache 12/8323, p. 19.
[4]Hefekaeuser, Die Deutsche Telekom AG - Von der öffentlich-rechtlichen zur privatrechtlichen Zielsetzung in Unternehmen der öffentlichen Hand, Zeitschrift fuer Gesellschaftsrecht 1996, p. 385-395 at 385. The biggest company is AT&T followed by the Japanese NTT.
[5]In addition to Deutsche Telekom AG, currently only Mannesmann D 2 Privat (a joint venture of Mannesmann and Airtouch as operative partners) and E-Plus (a joint venture primarily of Vebacom, Thyssen, Bell South and Vodafone) may offer mobile digital voice telephony services to the public.
[6]Motives of the Federal Government on the TA Bill sent to the Bundesrat - dated February 9, 1996 (Bundesrats-Drucksache 80/96) p. 33 (hereinafter "Government Motives ").
[7]Government Motives, supra note 6, at 34.
[8]The most relevant documents are: Government Motives (supra note 6); Statement of the Bundesrat dated April 23,1996 (Exhibit 2 to Bundestags-Drucksache 12/4438); Recommendations of the Committee on Post and Telecommunications dated June 12, 1996; (Bundestags-Drucksache 13/4864); Recommendations of the Vermittlungsausschuss (mediation committee between Bundestag and Bundesrat) dated June 26, 1996 (Bundestags-Drucksache 13/5066).
[9]In particular, in Sec. 100 Subs. 3 TA, the Law on Telegraph Lines, a statute originally adopted during the last century (Telegraphenwegegesetz of December 18, 1899 published in RGBl. 1899, p. 705 as amended from time to time, most recently and for the last time in the statute of September 14, 1994), has been repealed. Moreover, Sec. 99 Subs. 1 TA substantially amended the Law on Telecommunications Equipment (Fernmeldeanlagengesetz), in the version published of July 3, 1989 (BGBl. I 1989, p. 1455) as amended for the last time on October 25, 1994 (BGBl. I 1994, p. 3082); until January 1, 1998, the Fernmeldeanlagengesetz remains the source for Deutsche Telekom AG's right to offer fixed network-based voice telephony services. For more details on the history of the liberalization, see Scheerer, Das neue Telekommunikationsgesetz, NJW 1996, p. 2953-2962 at 2953, 2954.
[10]So-called Postreform I implemented by the Poststrukturgesetz of August 6, 1989 (BGBl. I 1989, p. 1026). The other two entities were Deutsche Post, the mail service, and Deutsche Postbank, a bank which provides current- and savings account services.
[11]See Sec. 2a of the Fernmeldeanlagengesetz dated 3 June 1989 - as amended - (BGBl. I 1994, p. 1455) pertaining to terminal installations. One of the consequences was that until the beginning of the nineties, telephone answering machines were a rarity in Germany, as these were expensive to buy or lease and, in addition, special fees were incurred for operating them.
[12]Postreform II, implemented by the Postneuordnungsgesetz of September 14, 1994 (BGBl. I 1994, p. 2325) with the by-laws of Deutsche Telekom AG attached as Exhibit 3 to Sec. 11 Subs. 2 of the Postumwandlungsgesetz (BGBl. I 1994, p. 2339).
[13]As a government agency, Deutsche Bundespost's ability to act abroad was extremely limited. However, Deutsche Telekom AG, once permitted to join the international parquet, rapidly did so and now seeks to become a global player. On July 17, 1996 the EU Commission consented to "Atlas" (a joint venture of France Télécom S.A. and Deutsche Telekom AG) and "Global One", a joint venture of "Atlas" and Sprint Corp. of the U.S. See Frankfurter Allgemeine Zeitung, Die EU-Kommission genehmigt Telekom-Projekt Atlas, July 18, 1996, p. 1.
[14]A statement also strongly supported by Scherer, supa note 9, at 2953, with more references in footnote 5.
[15]The most important being: Greenbook "on the development of the Common Market for telecommunications services and telecommunications equipment", June 6, 1987, COM (87) 290; Commission Directive of June 28, 1990 "on the establishment of the internal market for telecommunications services through the implementation of open network provision" (90/387/EEC), OJ 1990, No. L 192/1 (the "ONP-Directive") as amended by Commission Directive of March 13, 1996 (96/19/EC), OJ 1996, No. L 74/13); Commission Directive of June 28, 1990 "on the competition in the markets for telecommunications services" (90/388/EEC), OJ 1990, No. L 192/10; Council Resolution of July 22, 1993 "on the review of the situation in the telecommunications sector and the need for further development in that market" (93/C/213/01), OJ 1993, No. C 213/1; Council Resolution of December 22, 1994 "on the principles and timetable for the liberalization of telecommunications infrastructure" (94/C 379/03), OJ 1994, p. 443.
[16]The clause reads: "The Commission shall ensure the application of the provision of this Article and shall, where necessary, address appropriate directives or decisions to Members States."
[17]See the 1995 Report of the Commission on the competition policy within the EC (DG IV, Luxembourg 1996, p. 45 and 46) ("DG IV Report"): "Omnitel Pronto Italia", "Mobistar", "Vebacom SDH-network".
[18]See DG IV Report, supra note 17, p. 46.
[19]Article 1 Subs. 2 of the Commission Directive 96/19/96 of March 13, 1996 (OJ No. L 74/13) amending Directive 90/388/EEC with regard to the implementation of full competition in the telecommunications market.
[20]This explains why the TA refers in several paragraphs directly to the Open-Network-Provision (ONP) Directive 90/387/EEC dated June 28, 1990. See e.g. Sec. 5 TA (duties to report to the Regulator).
[21]Scherer, supra note 9, at 2954. In particular, the EC plans to amend the ONP-Directive - see proposal COM (95) 543 final, dated March 1, 1996, OJ 1996, No. C 62/3.
[22]For a more elaborate discussion of the history of the TA see: Twickel, Die neue deutsche Telekommunikationsordnung, NJW-CoR 1996, p. 226 - 230 at 227.
[23]See 6.2.1 (infra).
[24]For more details see Twickel, supra note 22, at. 229; Frankfurter Allgemeine Zeitung, Bötsch erwartet sinkende Telefongebühren, July 6, 1996, p. 12; Financial Times, Expectations mixed on new telecoms law, August 5, 1996, p. 4.
[25]The cities of Gera and Dortmund have already passed a resolution to file a constitutional complaint (Verfassungsbeschwerde): Der Spiegel, Klage gegen Nulltarif, October 7, 1996, p. 124.
[26]Sec. 97 Subs. 2 TA; Sec. 1 Subs. 4 Fernmeldeanlagengesetz.
[27]Sec. 3 item 16 TA.
[28]Sec. 3 item 17 TA.
[29]Rowe, Telecommunications for Managers (3rd ed.), 1995, p. 4.
[30]Government Motives, p. 37, supra note 6 (comments on Sec. 6).
[31]Government Motives, p. 37 (comments on Sec. 3).
[32]See Sec. 184 of the German Penal Code (governing pornographic material).
[33]See Sec. 86 Subs. 1, No. 4 of the German Penal Code (governing nazi propaganda).
[34]Such transmission will in most instances require a "Class 2" telecommunications license. Sec. 6 Subs. 2 No. 1b TA. For further details see infra Chapter 5.2.
[35]BGBl. II 1996, p. 1306. The task of this Union is mainly to harmonize to the use of frequencies on the international level (Art. 12) and to elaborate standards for the international telecommunications sector (Art. 17).
[36]See Hiltl/Grossmann, Grundfragen des neuen deutschen Telekommunikationsrechts, Betriebsberater 1995, p. 169-176 at 172.
[37]Also some of the member states of the EU are considering to introduce limitations on foreign ownership. Due to EU laws, such limitations can apply only to nationals of outside of the EU.
[38]The Federal Cartel Office currently watches the antitrust implications of the development of the telecommunications market and is often regarded as the most efficient German Government authority with a track record of not bowing to political pressures.
[39]Secs. 44 to 49 TA.
[40]So-called Netzbetreiberportabilität. Sec. 43 Subs.5 TA. The Regulator may, however, grant exceptions due to technical reasons or in case that such an exceptions does not "infringe" with the competition in this market.
[41]Sec. 43 Subs. 3 TA.
[42]Sec. 62 Subs. 1 TA.
[43]In particular: Council Directive of April 29, 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment (91/263/EEC), OJ 1991, L 144/45, as amended.
[44]Sec. 59 Subs. 4 TA. The telephone sets etc. which are used within the EU must be compatible, capable to interconnect with each other and provide a sufficient reliability. The transmitting installation must not pretend or be disguised in "an object of daily use" (Sec. 65 Sec. 1 TA). Thus, James Bond's famous cellular phone in his shoe is illegal in Germany unless it has been approved as equipment elsewhere in the EU.
[45]Sec. 71 TA.
[46]Sec. 72 Subs. 1 No.1 TA.
[47]Sec. 72 Subs. 1 No. 2 TA.
[48]Sec. 72 Subs. 5 TA.
[49]Secs. 5, 8, 19, 43, 44, 59, 71 TA.
[50]Secs. 24, 25, 27 TA.
[51]See supra note 15.
[52]Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen dated December 9, 1976, BGBl. I 1976, p. 3317, as amended from time to time, for the last time on September 2, 1994, BGBl. I 1991, p. 2325.
[53]Gesetz gegen Wettbewerbsbeschränkungen - as amended from time to time, for the last time on October 10, 1994, BGBI I 1994, p. 3210.
[54]Sec. 26 TA.
[55]Sec. 24 Subs. 2 TA.
[56]Sec. 4 TA.
[57]Sec. 6 Subs. 1 TA.
[58]Government Motives, supra note 6, p. 37 (comments on Sec. 3).
[59]The motives expressly refer to the constitutionally guaranteed freedom of commerce in the telecommunications sector (Secs. 12, 14 German Basic Law). See Government Motives, supra note 6. For a more elaborate discussion of the term "commercial" see Jarrass/Pieroth, Grundgesetzkommentar, 3rd. ed. (1995) Art. 12, note 4, Art. 14 note 8.
[60]Scherer, supra note 9, at 2955.
[61]Government Motives, supra note 6, p. 37 (comments on Sec. 6 Sec. 1).
[62]In accordance with Art. 2 of the ONP-Directive of the EU, Art. 3 item 15 TA now defines "voice telephony" as "the commercial provision for the public or direct transport of real-time speech to and from the termination points of a public switches network whereas every user can use the equipment connected to a network termination point to communicate with another network termination point."
[63]Sec. 3 item 21 TA. It is defined as "the technical equipment as a whole (transmission lines, telephone exchange facilities and other equipment indispensable for a proper functioning of the telecommunications network) which serves to render telecommunications services or non-commercial telecommunications services.
[64]Sec. 3 Item 20 TA: "telecommunications cable facilities above and under ground including the attached switches and branches, masts and supports, cable shafts and cable pipes".
[65]Government Motives, supra note 6, p. 37 (comments on Sec. 6 Sec. 1).
[66]Hiltl/Grossmann, supra note 37, p. 171; Scherer, supra note 9, at 2955.
[67]Government Motives, supra note 6, p. 37 (comments on Sec. 6 Sec. 1).
[68]Government Motives, p. 37 (comments on Sec. 6 Sec. 2).
[69]Scherer, supra note 9, at 2956.
[70]"Reliability" in this context means that the applicant will ensure that it will fully comply with the law when exploiting its license; "operating capacity" means that the applicant will always have at its disposal sufficient "means of production" (capital, staff etc.) for the establishment and the operation of the business covered by the license, in other words, the licensee has to be able to make sure that the system will operate trouble-free; "expertise" is given if the applicant will ensure that the persons who are involved in the business covered by the license possess the necessary knowledge, experience and skills. See Sec. 6 Subs. 3 TA.
[71]Rowe, supra note 29, at 418.
[72]This has been the case for the cellular phone networks in Germany. Still, the broad discretion of the Regulator in this matter is problematic (cf. Scherer, supra note 9, at 2958).
[73]Art. 2 Sec. 3 ONP-Directive, as amended by Commission Directive 96/19/EC of March 13, 1996 (OJ 1996, No. L 74/13). If the Regulator does not comply with these rules, any competitor of the licensee may challenge the procedure by a law suit: Scherer, supra note 9, at 2957.
[74]Government Motives, supra note 6, p. 39 (comments on Sec. 11 Subs. 3).
[75]With regard to license already issued, Secs. 6 to 11 which govern the grant of a telecommunications license do not apply. No new application for a license is necessary.
[76]Rheinische Post, Telekom-Lizenzen teurer, October 26, 1996.
[77]Sec. 36 Verwaltungsverfahrensgesetz (Law on Administrative Procedures).
[78]Government Motives, supra note 6, p. 38 (comments on Sec. 8 Sec. 2).
[79]Government Motives, p. 38 (comments on Sec. 8 Sec. 4).
[80]This notion can be traced back to the "Kingsbury Commitment" of AT&T in 1913 - cf. Rowe, supra note 29, p. 46, 47.
[81]Inserted 1994 by Constitutional Amendment, BGBl. I 1994, p. 2245.
[82]BT-Drucksache. 12/7269, p. 5; BT-Drucksache. 12/8108, p. 6.
[83]Jarass/Pieroth, supra note 59, Art. 87 f, note 3.
[84]Government Motives, supra note 6, p. 41 (comments on Sec. 16).
[85]Handelsblatt, Netzzugang zu fairen Bedingungen, September 3, 1996.
[86]Handelsblatt, Private sehen Gefahr fuer den Wettbewerb, May 9, 1996; Twickel, supra note 22, at 229.
[87]In particular, the ONP-Directive (supra note 15).
[88]One should note that the rule also applies to all companies which form a group with the carrier (Sec. 35 Subs. 4 TA).
[89]Sec. 35 Subs. 1 TA.
[90]Art. 3.2 ONP-Directive.
[91]See Art. 3.1 ONP-Directive.
[92]Annex II 3 on the ONP-Directive ("Harmonized tariff principles") provides some guidelines: "There may be different tariffs, in particular to take account of excess traffic during peak periods and lack of traffic during off-periods, provided that the tariff differentials are commercially justifiable and do not conflict with the above principles."
[93]Handelsblatt May 9, 1996 (supra note 86). Deutsche Telekom AG counters this argument stating that it is not a "supermarket" and with increased costs for such as special access 'made-to-order' of each individual carrier.
[94]Sec. 90 TA lists the authorities which may raise this request (e.g. the courts, the prosecutors, the customs police, the office responsible for the defense of the constitution and the German Intelligence Agency).
[95]NJW - Wochenspiegel 1996, p. XXXI.
[96]This is why the announcement of a 49.8% participation of the German Mannesmann Group in DB Kom, the telecommunications subsidiary of Deutsche Bahn AG, on July 17, 1996 met a huge repercussion in the German media.
[97]Most recently, RWE linked-up with the rival team VEBA/Cable & Wireless for this purpose, while VIAG is still standing aside. See for instance Financial Times, Big contenders regroup for telecoms battle, October 10, 1996.
[98]Scherer, supra note 9, at 2961/2962. There are strong arguments that the described provisions of the TA are constitutional as listed by Schuetz, Wegerechte fuer Telekommunikationsnetze, NVwZ 1996, p.1053-1061.
[99]E.g. Lindemann, supra note 3.
[100]Lindemann, supra note 3.
[101]This view is shared by Scherer, supra note 9, at 2962.