19. 10. 94 Official Journal of the European Communities No L 268/15 COMMISSION DIRECTIVE 94/46/EC of 13 October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular Article 90 (3) thereof, Whereas : 1. The Green Paper on a common approach in the field of satellite communications in the European Community, adopted by the Commission in November 1990, set out the major changes in the regulatory environment necessary to exploit the potential of this means of communications. This Satellite Green Paper called for, inter alia, full libera- lization of the satellite services and equipment sectors, including the abolition of all exclusive or special nights in this area, subject to licensing proce- dures, as well as for the free (unrestricted access to space segment capacity. 2. The Council Resolution of 19 December 1991 on the development of the common market for satellite communications services and equipment ('), gave general support to the positions set out in the Commission’s Satellite Green Paper, and considered as major goals : the harmonization and liberalization of the market for appropriate satellite earth stations, including where applicable the abolition of exclusive or special rights in this field, subject in particular to the conditions necessary for compliance with essen- tial requirements. 3. The European Parliament, in its Resolution on the development of the common market for satellite communications services and equipment(?) calls upon the Commission to enact the necessary legisla- tion in order to create the environment to enable existing constraints to be removed and new activities developed in the field of satellite communications, while stressing the need to harmonize and liberalize the markets in satellite equipment and services. 4. Several Member States have already opened up certain satellite communications services to competition and have introduced licensing schemes. Nevertheless, the granting of licences in some Member States still does () OJ No C 8, 14. 1. 1992, p. 1. () OJ No C 42, 15. 2. 1993, p. 30. not follow objective, proportional and non-discrimi- natory criteria or, in the case of operators competing with the telecommunications organizations, is subject to technical restrictions such as a ban on connecting their equipment to be switched network operated by the telecommunications organization. Other Member States have maintained the exclusive rights granted to the national public undertakings. . Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunica- tions terminal equipment(}), as amended by the Agreement on the European Economic Area, provides for the abolition of special or exclusive rights to import, market, connect, bring into service and maintain telecommunications terminal equip- ment. It does not cover all types of satellite earth station equipment. . In its judgment in Case C-202/88, Francev. Commis- sion(*), the Court of Justice of the European Communities  upheld  Commission  Directive 88/301/EEC. However, in so far as it relates to special rights, the Directive was declared void on the grounds that neither the provisions of the Directive nor the preamble thereto specify the type of rights which are actually involved and in what respect the existence of such rights is contrary to the various provisions of the Treatry. As far as importation, marketing, connection, bringing into service and maintenance of telecommu- nications equipment are concerned, special rights are in practice rights that are granted by a Member State to a limited number of undertakings, through any legislative, regulatory or administrative instrument which, within a given geographical area, — limits to two or more the number of such under- taking, otherwise than according to objective, proportional and non-discriminatory criteria, or — designates, otherwise than according to such criteria, several competing undertakings, or — confers on any undertaking or undertakings, otherwise than according to such criteria, legal or regulatory advantages which substantially affect () OJ No L 131, 27. 5. 1988, p. 73. () [1991] ECR I-1223.