RIGHTS AND OBLIGATIONS FOR INFRASTRUCTURE OPERATOR UNDER THE " RIGHTS OF WAY " INSTITUTE

1. RIGHTS AND OBLIGATIONS FOR INFRASTRUCTURE OPERATOR UNDER THE "RIGHTS OF WAY"INSTITUTE HRVOJE PERICA, LL.M. SEPTEMBER2012

2. Content • Basic definitions • Implementation of the right of way in the Republic of Croatia • Using the property and right of way acquisition • Way fees • Calculation of the amount of fee • Relocation or protection of electronic communications infrastructure • Problems • Solutions • Infrastructure operators • Conclusion

3. Basic definitions The meaning of essential terms of the Electronic Communications Act: • infrastructure operator; • right of way; • electronic communications infrastructure and associated facilities (ECI).

4. Implementation of the right of way in the Republic of Croatia • At the end of 2000, the Republic of Croatia began stabilisation and association negotiations with the EU, which resulted in the signing of the Stabilisation and Association Agreement on 29 October 2001; • Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002; • The above Directive stipulates that the right of way is granted by the national authority in a public and transparent procedure, where the submitted application for the right of way has to be considered without discrimination and without delay.

5. Using the property and right of way acquisition It shall be regarded that the infrastructure operator has the right of way if it has constructed an electronic communications infrastructure and associated facilities on: • publicproperty, • property owned by the Republic of Croatia, • propertyintheownershipoflocal and regional self-government units, • property owned by other legal entities and natural persons; and if any of the following conditions have been met: • the operator has acquired a utilisationpermit issued in its name or in the name of its universal or individual legal predecessors; • the operator has used electronic communications infrastructure and associated facilities without a court dispute with the manager of public property or owner of private property, on which the infrastructure was built, for at least three years since it was first used.

6. Using the property and right of way acquisition • If all conditions have been met, within 30 days HAKOM shall issue the right of way certificate; • For those properties to which the right of way certificates apply, for which it is not possible to determine the owner or manager of a public property by inspection of the public records, the infrastructure operator shall, within 30 days of the receipt of the right of way certificates, issue a public call to all owners and property managers through its website and bulletin boards of the concerned local government on the right of way and the obligation to pay the fee; • The manager of public property or the owner of private property shall endure the right of way and refrain from any action that might in any way interfere with the realisation of the right of way of the infrastructure operator.

7. Types of property • The types of property (land) are determined in accordance with the usage of the land plot or its parts: • agricultural land: ungraded agricultural land, arable land, arable land-greenhouse, arable land-plastic house, garden, garden-greenhouse, garden-plastic house, orchard, orchard-nursery, olive grove, olive grove-nursery, vineyard, vineyard-nursery, meadow, pasture, reed-patch and fish farm, (A) • woodland: forest and other woodland, (B) • waters:river, stream, channel, lake, pond, swamp, fish-farm and maritime culture, (C) • natural unproductive land: unproductive land, rocky land, cliffs, dry stone wall, sand, land-slide, gully, bank, rock coast, gravel coast and sand coast, (D) • land used as: developed area, land parcel under the buildings, yard, park, sport and recreation fields, playground, market, fairground, graveyard, attended beach, port, marina, airport, stone-pit, gravel-pit, sandstone, open-pit, cutting, lock, depot, street, square, road, pathway, highway and railroad, (E) • type of property (land) for which special legal regime has been established on the cadastral land plot: maritime property, water property, cultural property, strict reserve, national park, special reserve, nature park, regional park, natural monument, important landscape, park forest, monument of garden architecture, protected area. (F)

8. Way fees

9. Calculation of the amount of fee • The area of ​​land for which a fee is determined in duct system is the width of one meter multiplied by the length of the pit; • The area of electronic communication lines that are placed outside the duct system is the width of 0.5 meters multiplied by the length of the pit; • The area of ​​land for which the fee for masts is determined is 4 square metres. A one-off fee in the amount of HRK 250.00 per acceptance is determined for acceptance of overhead communication network on buildings; • The area of ​​land for which a fee is determined in stand-alone outdoor cabinets and public telephone booths is 4 square metres.

10. Electronic communications infrastructure

11. Electronic communications infrastructure

13. Electronic communications infrastructure

14. Relocation or protection of electronic communications infrastructure • If the relocation or protection of the existing electronic communications infrastructure and associated facilities (ECI), or electronic communication line (ECL) is necessary, at the request of the investor (owner or user of the facility or property on which the concerned ECI or ECL is located) for the purpose of construction of new utility infrastructure, different types of buildings or works on the existing utilities or existing facility, and: (a) infrastructure operator has the utilisation permit for the ECI / ECL concerned: • all expenses shall be borne by the investor; (b) infrastructure operator does not have the utilisation permit for the ECI / ECL concerned: • all expenses shall be borne by the infrastrukture operator.

15. Problems • Social system at the time of the most intense building of the network, infrastructure and associated facilities; • Years of neglect of regulations regarding the construction of networks infrastructure and associated facilities; • Unregulated land registry in the Republic of Croatia; • Absence of a comprehensive public registry of electronic communications infrastructure; • Absence of a cadastre of lines in a sufficient measure by counties; • Property owner’s awareness of the value of the property; • Inadequate level of fees which the infrastructure operator is obliged to pay to a property owner; • Lack of infrastructure operators’ willingness to leaglise the existing situation;

16. Solutions • The Republic of Croatia must finally and more decisively involve in resolving the issue of ownership over the distribution telecommunications ducts; • Regulation of land registries in the Republic of Croatia; • Physical identification and screening of the existing distribution ducts on the basis of all currently available technical documents; • Willingness of infrastructure operators and property owner’s to legalise the existing situation; • Compliance with regulations regarding the construction of networks, infrastructure and associated facilities; • Define adequate fee for the use of property through regulations; • Raise public awareness of the importance of the activity of electronic communications networks and services, and benefits arising from this activity.

17. Infrastructure operators • Infrastructure operators: - Hrvatski Telekom d.d.; - Zagrebački Holding d.o.o. - Podružnica Zagrebački digitalni grad; - B.net Hrvatska d.o.o.; - Plinacro d.o.o.; - Jadranski naftovod d.d.; - Hrvatske autoceste d.o.o.; - Autoceste Rijeka – Zagreb d.o.o.; - Hrvatska elektroprivreda d.d.; - HŽ Infrastruktura d.o.o.; - Odašiljači i Veze d.d.; - Industrija nafte d.d., - Hrvatske ceste d.o.o.;

18. Conclusion • Electronic communications infrastructure, provision of activities of electronic communications networks and services, construction, maintenance, development and use of electronic communications networks and electronic communications infrastructure and associated facilities shall be of interest for the Republic of Croatia; • By introducing the right of way institute, the legislator has tried to resolve propety rights relations between the infrastructure operator and the owner or property manager; • Right of way institute, as a burden on property, limits the right of ownership, guaranteed under the Constitution and law; • The answer to the question of whether the right of way institute is the best solution will have to be provided by the Constitutional Court of the Republic of Croatia, as a proposal to institute the procedure for evaluating the compliance of the Electronic Communications Act with the Constitution of the Republic of Croatia has been presented.

19. Thank you! hrvoje.perica@hakom.hr