25 November 2009

Austrian National Railways must not restrain an ISP to use their infrastructure


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Silver Server, an Austrian ISP, approached the National Railways of Austria (ÖBB) and requested access to their infrastructure, particularly their communications lines. Silver Server grounded their request on the joint-use right as outlined in Articles 8 and 9 of the Austrian Telecommunications Act 2003. Upon ÖBB’s refusal Silver Server referred the case to the Telecom-Control Commission (TKK) which regulates the Austrian telecommunications market.

In its recently issued decision, the TKK held ÖBB liable to grant Silver Server access pursuant to their request. In accordance with Austrian administrative law, TKK’s decision serves as a so called “contract substituting ruling”. For this reason the TKK has employed great detail in drafting and has for a first time in a matter of joint-use provided for precise conditions (e.g. definite rental price) and a share of responsibilities (e.g. performance guarantee, maintenance obligations) between the parties.

The decision is noteworthy because it extends the scope of the Telecommunications Act beyond the sector of electronic communication and affirms its applicability also to somewhat unusual market players such as the national railway company.