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Satellite Dish in Luxembourg By Fabio Guglielmi

ABSTRACT

Is Luxembourg fully applying the principles stated under Artt. 28 / 49 of the European

Community Treaty for what concerns the Freedom of Movement of Goods and Services within the

European Union1?

Is Luxembourg fully applying the principles stated under Art. 10 of the ―Convention for the

Protection of Human Rights and Fundamental Freedoms‖2 signed in Rome on 4 November 1950,

which forms integral part of its Constitution3 and was converted into the Law 29 August 1953

4?

It is really difficult to find a definite answer to the above questions in the national law in

case you are a private individual who wishes to install a satellite dish in a co-proprietorship, in cse

you are an owner or a renter, and it’s even more difficult to make other co-owners to grant you

authorisation on the use of common parts of the building if you are not facing towards the South.

Aim of this article is to make people know the difficulties faced by a private individual in

order to have his individual right respected in Luxembourg, to give an idea on the laws and

regulations currently in place in Luxembourg governing this topic and finally, to inform people of

the initiative of a couple of individuals undertook in order to have the European Commission

investigate on how the European rules are enforced in Luxembourg.

This article has been written and is based on publicly available information as of 22 July

2009, and links to the information have been provided as footnotes. Other opinions and views are

those expressed by the Author. A lawyer should be consulted in the event of lawsuit against the co-

properties.

Background on Satellite Communication

Satellite in use for television transmissions are sitting in a point in the sky following a

geostationary orbit.

The concept is simple: in order to avoid to continuously pointing the antenna towards the

satellite, the satellite itself is sitting in a piece of space where it follows the Earth rotation, moving

together with the Earth. By following this principle, from every location on the surface of the Earth,

geostationary objects appear motionless in the sky and the satellite looks always as it had never

moved.

1 European Union: Consolidated versions of the Treaty on the European Union and of the Treaty establishing the

European Community – available on the Internet at the following link: http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331:EN:PDF 2 http://conventions.coe.int/Treaty/en/treaties/html/005.htm#FN1 3 http://www.legilux.public.lu/leg/textescoordonnes/recueils/constitution_droits_de_lhomme/CONST1.pdf 4 http://www.legilux.public.lu/leg/a/archives/1953/0053/a053.pdf

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The idea of a geostationary orbit was first published on a wide scale in a paper entitled

"Extra-Terrestrial Relays — Can Rocket Stations Give Worldwide Radio Coverage?" by Arthur C.

Clarke, published in Wireless World magazine in 1945. In this paper, Clarke described it as a useful

orbit for communications satellites. As a result this is sometimes referred to as the Clarke Orbit.

Similarly, the Clarke Belt is the part of space approximately 36,000 km (22,000 mi) above sea level,

in the plane of the equator, where near-geostationary orbits may be implemented. The Clarke Orbit

is about 265,000 km (165,000 mi) long. Geostationary orbits are useful because they cause a

satellite to appear stationary with respect to a fixed point on the rotating Earth. As a result, an

antenna can point in a fixed direction and maintain a link with the satellite.5

By having said the above, as we are in the Northern Hemisphere, in order to view the

satellites for television broadcasts, we need to face directly to South.

In order to then point a specific constellation of satellites, we just need to move towards East

/ West the antenna: that is why the satellite positions are indicated with Astra 19°E, or Hotbird 13°

E, where several satellites sitting in the specific orbit transmit their signal to Earth.

After digital television transmissions have been boosting over the decade 1990-2000, there

are nowadays thousands of channels available for free on television, in several languages: the only

means to receive them is to have a satellite dish installed.

My personal case

I arrived in Luxembourg in 2004, and after two and half years spent in renting an apartment,

I decided to buy an apartment in 2006.

In November 2006 I found exactly the kind of apartment I was looking for, and so decided

to buy it: the only thing that was ―out‖ of the requirements was the fact that the windows were

exposed to North.

However, this didn’t represent a show-stopper to buy the apartment, as I thought it would

have been easy to get a satellite dish installed on the roof of the building, or in any other common

places facing South, in sight of all European Jurisprudence on this subject.

Since the first co-owners meeting I participated in 2007, I asked for a permission to install a

satellite dish, by having always a negative response.

Below a timeline of the various events leading until the Co-owners meeting of 2009.

Year Demand Response Final result

2007 During the meeting I asked

how to proceed to have a

satellite dish installed, either

individual or collective.

In order to discuss the

matter, a notice should

have been given to co-

owners and the topic

should have been added in

the Agenda of the Meeting

The request would

have needed to be

added in the Agenda

for the following year

(2008 meeting)

ONE YEAR DELAY

5 Source: Wikipedia: http://en.wikipedia.org/wiki/Geostationary_orbit

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2008 I sent by registered mail on

the 1 March 2008 the letter,

asking to add in the agenda

the request of permission of

an antenna (individual /

collective) in any of the

common parts of the building

(roof, garden, and so on),

attaching the Declaration of

Human Rights

See: Appendix I

During the meeting held on

1 July 2008, several options

were discussed:

- 2 people were in favour

of giving a permission

for individual antenna

- 6 people were in favour

for a collective antenna

however, not on the roof, as

there was the warranty

expiring, nor in the other

parts of the building.

Impossibility to install

antenna, because of

the warranty on the

roof.

Impossibility to install

the antenna on the

other common parts.

(quorum attained was

596.80/1000)

ONE YEAR DELAY

2009 I sent by registered mail on

the 8 May 2009 the letter,

asking to add in the agenda

the request of permission of

an antenna (individual /

collective), bringing the

European Commission

documents with respect the

following:

- the right to antenna,

- charter of European Rights,

- communication of the

Commission concerning the

free movements of goods and

services

I requested as well copy of

the warranty with respect the

roof, and menaced the

recourse to Court in case of

denial of approval

See: Appendix II

During the meeting held on

6 July 2009, I was simply

said that the co-owners are

not impeding me to install

an antenna:

I can install an antenna, but

I shall not use the common

parts of the co-property.

Basically it’s simply my

problem that I do not face

South, and therefore the co-

owners suggested me to

change apartment.

PS. Granting a special

permission to use a

common part of the co-

property needs a quorum of

750/1000, as this is

considered as something

extraordinary.

NO decision could

have been taken, as the

quorum was not

attained (circa

586/1000).

I am currently waiting

to receive the minutes

of the General

Meeting.

ONE YEAR DELAY?

Since 2006 I have been struggling with the other co-owners in order to have my individual

right on Freedom of Information respected. Just to understand how this matter is treated in other

countries, I made a comparison with Italy (my country of origin), and spotted that in Italy the co-

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owners cannot avoid the individuals to install their individual satellite dishes: in case of objective

impeachment (not exposure to South) the individuals can find alternative solutions in order to have

their right respected (eg. by installing it on the roof, or in the other common parts), and the other co-

owners cannot deny this right, as it is constitutionally protected. Moreover, installations of a

common satellite dish is seen as a necessary improvement and by way of derogation lower quota are

requested to approve the works.

I have been asking at each single General Meeting the permission to install the satellite dish

on the roof, or asked for suggestions on how to have my individual right on information respected:

they basically stated that it is my problem not to face South, and that if I want, I can install an

antenna without using the common parts of the building (eg. garden, roof, any other common part):

of course this is limiting the individual right of accessing the information.

How can people see their right respected if they are not facing South in any manner?

Is it possible that the only solution is not to have their right respected at all, or sell their

apartment as suggested by other co-owners?

Is there any possibility to find a solution that could satisfy all parties?

Law review

As anticipated in the timeline, and as pointed out at the beginning of this document, I am

enclosing some of the findings with respect the topic of satellite antenna, and how the individual

freedoms are guaranteed in Luxembourg.

Luxembourg Constitutional Charter6

By reading the Luxembourg Constitutional Charter I could not find anything specific to

protect the Right of Information as such.

In Art. 12, there is statement on individual freedom, a wide, generic concept, respectful of

the fact that people cannot be jailed unless as it is specified in the law.

In articles leading up to Art. 24 there are indicated other freedoms, like property, religion,

studies, and so on.

The only article speaking about freedom of expression (specifically by words), and freedom

of press is Art. 24, where it states as well that censorship cannot be established.

However, what is interesting in the reading of the Luxembourg Charter is the Art. 49bis,

where it’s given authority to International Treaties to temporarily substitute the executive and

legislative power to local Luxembourg powers.

This article is meant to give authority to International Treaties in order to enforce in the

national right the statements coming from the Treaties the country signs off: it would be impossible

otherwise to be a Member State of the European Union in case of lack of this kind of provisions.

That is the ratio behind the application of the Treaty on the European Community in all the

Member States.

6 http://www.legilux.public.lu/leg/textescoordonnes/recueils/constitution_droits_de_lhomme/CONST1.pdf

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To this extent it should find application the Convention for the Protection of Human Rights

and Fundamental Freedom, which forms part of the Constitution of Luxembourg as annex, and was

converted into national law in Luxembourg by the Law of 29 August 1953.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to

hold opinions and to receive and impart information and ideas without

interference by public authority and regardless of frontiers. This article shall not

prevent States from requiring the licensing of broadcasting, television or cinema

enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities,

may be subject to such formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the protection of the reputation

or rights of others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of the judiciary

The art.10 point 1 clearly states that ―...freedom of expression... shall include freedom to

hold opinions and to receive and impart information and ideas without interference by public

authority and regardless of frontiers…‖

It seems to me that this article is not fully applied in the specific case, nor extensively

applied in the course of normal activities undertaken by individuals in Luxembourg. The reader will

understand then why.

European Law

By introducing the concept of free movement of goods and services within EU, through the

Treaty establishing the European Community, a move forward was made.

The European Commission sees the satellite dish as being a means to ensure the possibility

to obtain this freedom realised. On 28 June 2001 It issued the ―Communication on the Application

of the General Principles of Free Movements of Goods and Services - Art. 28 and 49 EC –

Concerning the Use of Satellite Dishes‖7

COM (2001) 351, and made on 2 July 2001 the

Communication ―Services: Commission sets out right to use a satellite dish in the Internal Market‖

IP/01/913‖8 where it states that private individuals should be free to use satellite dishes without

undue technical, administrative, urban planning or tax obstacles.

Now, apart that I do understand that this kind of communication cannot be enforced as

―laws‖ as such in the Member State legal system, however I guess that they are meant to be a guide

on how the matters should be treated in Member States.

Please note the extract of the ―Communication on Art. 28 and 49‖:

7 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0351:FIN:EN:PDF 8

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/01/913&format=HTML&aged=0&language=EN&guiLang

uage=en

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In accordance with the responsibilities granted it under Article 211 EC with regard to its

mission to ensure the proper functioning and development of the Single Market, the Commission’s

aim in this communication is to contribute, in the light of existing principles, to legal certainty and

provide a useful reference source for users, economic players and national governments. In

particular, it wishes to eliminate real or potential obstacles to the use of satellite dishes for

receiving cross-border services, and thus put a stop to the increasing number of infringement

proceedings.

Although each Member State is responsible for setting the conditions which must be met

within its internal legal system for installing and using satellite dishes, some national regulations

may nonetheless affect what can be received. Thus, indirectly, they affect distribution of the wide

range of services transmitted by satellite – which, by their very nature, cross borders – such as

television and radio broadcasts, together with interactive services (“information society services”).

Such national measures must therefore comply with the fundamental principles of the Treaty,

such as the free movement of goods and the freedom to provide services within the Single Market,

enshrined in Articles 28 to 30 and Articles 49 et seq. of the EC Treaty.

The large number of complaints, petitions and requests for information received by the

Commission both from individuals and from other institutions proves that there is increasing

interest in this subject. The Commission does not, for the moment, intend to initiate any specific

legislation. However, it does feel that it would be useful to provide, through this document, its own

analysis of the scope and the effect of the fundamental principles of free movement of goods and

services, as set out in the Treaty and interpreted by the case law of the Court of Justice, on national

rules governing the conditions of use of satellite dishes.

Luxembourg Law

From the reading of the above, it might be useful to see the reference to national regulations:

in case of Luxembourg, I think we could directly refer to Law of 16 May 1975 on the Co-

Proprietorship of Real Estates9 and the Law of 21 September 2006 on Rent of Apartments

10.

Law 16 May 1975 – Co-Proprietorhip of Real Estate

In this Law there are set the general rules for the co-property, and what is interesting to note

is that in case of certain numbers of improvements or usage of common parts of the building by

individual owners, the quorum to be attained to grant permission is three quarters of the owners

(750/1000).

This is setting a discrepancy on the way matters are treated within the co-properties: no

quorum is required to declare valid an assembly, while decisions to deliberate with respect

improvements / works on common parts requires high quorum, sometimes impossible to reach.

Under Art. 16 b), there are provisions with respect the majority (simple = majority of co-owners)

needed to do the following:

Grant authorisation to some co-owners to do at their expenses works concerning the

common parts of the building, and in line with the destination of the parts

9 http://www.legilux.public.lu/leg/a/archives/1975/0028/a028.pdf#page=2

10 http://www.legilux.public.lu/leg/a/archives/2006/0175/a175.pdf#page=2

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Under Art. 17 c), the majority of three quarters is required to do the following:

Works concerning transformation, addition or improvement

Under these circumstances, how should be treated the topic of a satellite dish within a co-property?

If we talk about a collective antenna, it should be seen as an improvement, requiring the

750/1000: over the last three general meetings I participated, an average of 580/1000 took part at

the decisions, and therefore the topic could not even be discussed.

As I specifically asked for permission for an individual antenna, and requested the use of the

roof (or any other common part) as ―base‖ to install it, I think that Art. 16 b) could have its

application:

The installation of an antenna remains under the destination of the roof (where else should

an antenna stand?),

it’s one of the common parts that could not cause any injuries in the sight or appearance of

the building (minimising the visual impact of satellite dish), and

It’s a work that one of the co-owners would do at his charge concerning the common parts

of the building.

In case of use of other parts (eg. the common garden), it might appear more difficult not to

affect the destination, and so to identify the "final" destination: it might even be the case that

building a ―base‖ for an antenna in the common garden would require 1000/1000 of owners

approving the work as it might be seen as ―accessory right to common parts‖ under Art. 3 point 3.

In case of the use of the roof, some issues might arise in my specific case, as some works

relating to the part had been made years before. The co-owners speak about a ten-year warranty in

existence to protect roof works, and it might expire in case other works are done. A specific

paragraph relating to Warranty can be found in the next pages.

However, I do not think that a satellite antenna could cause issues in the protection of

infiltration due bad weather conditions (rain / snow) and cause an expiration of a warranty protected

by law: it might exist as well the possibility to subscribe an extra-warranty, or an insurance

protecting potential issues and documented damages that can be directly linked to installation itself.

Moreover, they exist many possibilities in the market where there is not need to do an ―invasive‖

work on the roof, such as the use of steel belts keeping the antenna attached to the exhaust pipes of

the building.

The Art. 27 grants a protection when the General Meeting refuse the authorisation under Art.

16 b), and states that every co-owner, or group of co-owners, can be authorised by the Court to

execute, at the conditions set forth by the Tribunal, all the improvement works needed, and the

Tribunal will fix as well under which circumstances and conditions the other co-owners can make

use of the installations.

Law 21 September 2006 – Rent of Apartments

The contract of rent is regulated by Civil Code11

in general terms (art 1713-1831), and then

more specifically by the Law 21 September 2006 on Rent of Apartments.

11 http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T8_contrat_de_louage.pdf

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By the combined reading of the two, we get the discipline.

By way of simplification, we can say that both parties (owner and renter) have some

contractual obligations:

- The owners must give the apartment in good and healthy conditions

- The renters must pay the rent to enjoy the use of the apartment

The renters have the obligations to well maintain the apartment (by doing as well the normal

expenditures such as reparations of lights / lamps, keep the apartment and the installations clean,

and so on), and have as well the obligation to respect the rules of the co-properties (cross referenced

with Law 1975 Art. 10, point 3: the rules are applicable to owners and "ayant droits").

On the website of the Union Luxembourgeoise des Consommateurs nouvelle a.s.b.l.12

there

is a link to the "New Right of Rent – Comments on the Law 21 September 2006"13

, wrote by Marc

Thewes, Avocat à la Cour, and published in 2007.

From the reading of the comments, in page 61 (63 on pdf) we can find something interesting:

- under Section 2 - Obligations of the renter - point 123, the Author notes that some

contracts impede renters to install satellite dishes. To the Author's knowledge, the

jurisprudence still has not stated about the validity of this rules (as of 1 January 2007). If we

consider the access to information as an essential right within our society, this clause could

be considered as an abuse, unless the renter has alternatives at his disposal.

The above is a "free translation" in English, of the original text in French hereto enclosed:

"Certains baux interdisent au locataire l'installation d'antennes de reception pour satellites. A notre

connaissance, la jurisprudence ne s'est jusqu'ici pas prononcee sur la legalite de telles clauses. Si

on considere l'acces a l'information comme un droit essentiel dans notre societe, une telle clause

pourrait etre declaree abusive du moins s'il est etabli que le locataire n'a pas d'autre alternative a

sa disposition (p.ex. teledistribution par le cable)."

Law 28 December 1976 14 – Sale of Estate to be built and obligation of Warranty

As I anticipated, I am struggling with the co-property who made works some years ago on

the roof, and claim for the 10-years warranty. I found the principles of the warranty in the Law 28

December 1976, which basically modifies the Civil Code15

by adding a whole section Book 3, Title

6, Chapter 3 with the title of "Sale of Estate to be built" and modifying / adding some provisions to

the Contract of "Rent of activity" in the Book 3, Title 8, Chapter 3 and in the "Right of Prescription"

in the Book 3, Title 20, Chapter 5.

In Art.1646-1, the Civil Code states:

12 www.ulc.lu

13 http://www.ulc.lu/Uploads/Publications/Doc/65_1_Nouveau%20Bail%20medium.pdf 14 http://www.legilux.public.lu/leg/a/archives/1976/0082/a082.pdf#page=2 15 http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T6_vente.pdf

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T8_contrat_de_louage.pdf and

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T20_prescription.pdf

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"The seller of an estate to be built is liable for ten years starting from the reception of the

good by the buyer, of hidden vices and architects, entrepreneurs, and others linked by a contract of

"rent of activity" are as well obliged by art.1792 and 2270 of the Civil Code"

This is an absolute warranty, and even if the first owner of this newly built apartment sell it

after 3 years, the effects of warranty against vices passes to new buyer against the "first" seller.

The "rent of activity", called by Art. 1646-1, is disciplined by Book 3, Title 8 (Contrat du

Louage - where Chapter2 contains general provisions applicable to rent of apartments, ruled as well

by the other law 2006) - Chapter 3.

The Art.1779 states under that "rent of activity" covers three kind of rent:

- People working at someone's service

- Vehicles (land / water) to transport people / goods

- Architects / enterprises / technicians further to studies / "devis= setting of prices for an

hypothetical work" /"marche = I don't have the translation available"

From Art.1787 to Art.1799 there are the provisions for the kind of works relating to "rent of

works", and state that if the workers give only the work, they are liable of the works: when they

provide as well material, their liability is extended (Art.1788-1790).

In Art.1792: if the building falls as a whole or in part, even for vices of the "land", the

architects, the entrepreneurs and all people linked to "master" are liable for a period of 10 years.

This concept of warranty is expressed again in Art. 2270, where "the architects,

entrepreneurs and all people linked to "master" are no longer liable after 10 years, for big works,

and after 2 years for normal".

The 10-year warranty then applies when "big" works have been done to buildings: in the

comments to Art.1792 of the Civil Code, under point 9, it is stated how to identify a work as ―big‖.

In order to determine the notion of ―big work‖, it is better to think not only about the function itself

of the work for the stability of the building, but to consider as well the utility of the work… the

extension of the work for parts that in case there were vices would impede the use of the building..

"Pour déterminer la notion de gros ouvrage, il convient de s'attacher non seulement à la

fonction de l'ouvrage pour la stabilité et la sécurité de l'édifice, mais prendre aussi en

considération l'utilité de l'ouvrage de manière à considérer comme affectant un gros ouvrage les

malfaçons qui rendent une chose immobilière impropre à sa destination. Il faut, de plus, examiner

l'ampleur de la réparation que le vice rend nécessaire, ainsi que le coût et le caractère

d'investissement durable que représente l'ouvrage. Ne sauraient donc ranger parmi les ouvrages

dits «menus» que ceux qui ne sont conçus et réalisés qu'à titre de liaison, de décoration des gros

ouvrages, ceux qui ne participent pas à l'investissement immobilier et dont le renouvellement serait

admissible au titre de l'entretien ou de la simple remise à neuf sans destruction."

In case of an explicit or silent renounce, however, the validity of 10 years could be

shortened and then expire. The Art.2221 states that the renounce to right of prescription is "silent"

when it implies one fact abandoning the right: if the assembly authorise someone to do works on the

roof, the warranty should then expire.

Further the above, a few considerations might still come:

- is it still possible to subscribe insurance on the roof covering for issues that might arise?

- by going for installing an antenna on the roof, should then the warranty lapse two years (as

per Art.2270 "menus works")

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- if the co-owners grant authorization to the use of other common parts, the matter would be

resolved

- there are technical solutions avoiding to make ―invasive works‖ to the common part

subject to ―big works‖ years before

On the basis of my personal experience with the co-property, and seen the objective

difficulties in getting a positive response to my queries, I started some investigations in

Luxembourg to see whether there were other people having the same issues and problems.

The Petition to the European Parliament16

In December 2008 I got in contact with Callisto Genco, an Italian living in Luxembourg and

having the same issues as mine in order to install a satellite dish.

I would say that his case is even worse than mine, as he installed an antenna on his window

sill (the cheapest solution with a really low aesthetic impact), and the co-property, brought him on

Court to have it dismounted. Me, instead, I am still waiting to get permission to install it.

Callisto contacted the main distributors of satellite television in Europe, in order to

understand whether they knew about the difficulties met in Luxembourg by individuals, and got a

positive approach from SES Astra.

In February 2009, he posted a petition to the European Parliament informing them of the

difficulties in Luxembourg of having these rights respected, and after an initial recording of the

Petition under protocol 0261-09, in June 2009 the Committee on Petitions declared it admissible.

The Committee on Petitions decided to ask to European Commission to conduct a

preliminary investigation of the various aspects of the problem, and in three to six months the

Commission should give an answer to Committee on Petitions.

By the time I am writing this memo, the European Commission should have started their

investigations on how the European rules are applied in Luxembourg.

During the same lapse of time, at the beginning of May 2009, myself and Callisto went to

Place d’Armes in Luxembourg City, and gathered signatories on an official petition that was

submitted to European Parliament, SES Astra and Callisto’s lawyer: 38 people signed the petition,

as they are facing the same issues, and cannot have access to information freely.

The feedback received from people in Place d’Armes was astonishing: plenty of people are

angry against their co-properties, as they are limited in their fundamental right to information, they

pay cable television provider to receive channels can be freely accessed on satellite. We will

continuously collect signatories until this matter will be solved.

This is a situation affecting both owners and renters, and to this extent a lot of people are

impacted by this problem.

One issue that we can easily identify is that in Luxembourg there are various Cable

distributors that sell access to a selection of television channels from around the World. As the same

16 information available on Internet: http://www.genco.org/Right2Information.htm and on Right of Information in

Luxembourg – cause on facebook website http://apps.facebook.com/causes/208110/46171527?m=9dc74a6e

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channels and many others more are available for free on satellites, the following question should

rise: why paying for a cable TV distributor, if you could have the same for free?

Is there by chance any hidden interest in impeding an easy access to free satellite channels?

I would be interested in getting the signal from Hotbird 13°E, as they broadcast Italian

channels (more than 200 channels free-to-air), but I cannot do it as the co-property is ―forcing‖ me

to subscribe to the cable providers or suggesting me to sell the apartment buying a new one that

have access to the South. As a result of that, I have access to 4 Italian channels, and not to 200.

Do you think I see my individual right of information respected?

What really sounds strange is that in Luxembourg roughly 37% of the resident population is

composed by foreigners (source STATEC - Population total par sex et group d'âge selon la

nationalité au 15 février 200117

): there should be a means for them to easily get access to

Information coming from their home countries, without having barriers and constraints.

Unfortunately I am not able to find any statistics on the usage of satellite dishes in

Luxembourg, as the only information I found on STATEC on Information and Communications

Technologies is relating to use of Personal Computer and Internet access, and not satellite

communications18

, while the information available on section Social Life – Culture is relating to

production of films and radio / television programmes19

.

As soon as Luxembourg hosts people from different countries, and people from all over

Europe (and the World) are residing the country, it sounds really strange that they feel obliged to

recur to Courts in order to see their rights respected:

Shouldn’t it be the case that the EU rules and regulations are automatically applied without

forcing people to recur to Courts?

A lot of instances suggest that people prefer to have a paying access to Cable distributors

instead of protecting their individual rights in Court, renouncing immediately to judgements that

would allow them to have their individual right recognised.

Conclusion

After having brought to attention the laws governing the co-properties, the rents and what is the

view of European Commission on the right of using the antenna, here it really becomes a matter on

17 Available on the Internet

http://www.statistiques.public.lu/stat/TableViewer/tableView.aspx?ReportId=637&IF_Language=fra&MainTheme=2&

FldrName=2&RFPath=79 18 Available on the Internet

http://www.statistiques.public.lu/stat/ReportFolders/ReportFolder.aspx?IF_Language=fra&MainTheme=4&FldrName=

9&RFPath=104

19 Available on the Internet

http://www.statistiques.public.lu/stat/ReportFolders/ReportFolder.aspx?IF_Language=fra&MainTheme=5&FldrName=

7&RFPath=27

Page 12 of 18

how this individual right recognised by European Union is sitting within a co-property and in the

contract of rents.

I guess that it is important to underline how scale of laws / regulation should be seen in order of

importance:

1. EC Treaty (and then the ―Right to Antenna‖ as seen and described by European Commission

in their Communications on the Treaty of European Community)

2. Freedom of Expression protected by the Luxembourg Constitution as annex and by Art. 10

of Law of 29 August 1953

3. National law on co-property / National law on rent

4. Internal rules of the co-properties

As the internal rules of co-properties sometimes impose the owners not to install individual

antennas, this is clearly a limitation on the freedoms expressed by the Constitutional Charter and by

the ordinary law: in many countries there is a clear principle stating that when private pacts are

limiting individual rights, those pacts are not applicable, and when the rules set in private

agreements are against national laws and the Constitution, they are like if they had never been

provisioned.

The principles expressed in the Constitution, or the Law, are always higher than the pacts

between individuals, when those are clear against the Law and/or the Constitution, and

therefore the Law and/or the Constitution shall apply.

In Luxembourg the current situation is more than often as follows:

There are clauses limiting the installation of individual antennas in co-property

regulations / rental agreements (= agreements between individuals, lower level)

THE ABOVE CLAUSES ARE TO BE CONSIDERED

Against art. 10 on the Freedom of Expression of the law 29 August 1953 approving the

Convention for the Protection of Human Rights and Fundamental Freedom

(Constitutional level, or if it is not the case, ordinary law on the Legal system in

Luxembourg, and then set in an higher level than the co-property regulations)

These ILLEGAL pacts limit the individual Right of Information and the Freedom of

Movement of Services within European Union (as protected by art. 49 of Treaty of

European Community, and as explained by European Commission through their

Communications)

The Law on Co-Proprietorship of Real Estates never mentions that individual rights of

single owners shall be limited by the fact of making part of the Co-proprietorship: the

Law is intended to govern the relation between parties, and when there is an issue

arising between them to allow the Court to dispose how these rights need to be treated.

The Law on Rents impose the renter to respect the co-property rules, and if these rules

impede the installation of individual antennas, the renter can never see his right

respected.

Page 13 of 18

In terms of priorities, normally individual rights should be considered higher than rights of co-

proprietorship, and various countries use this approach to allow people in getting the right of

information without interference by public authority and regardless of frontiers.

It really seems to me impossible that there is not a judgement in Luxembourg in this sense, or

no-one until now spotted the huge discrepancy between the clauses governing the agreements

between private individuals and impeding installation of satellite dishes and the Convention for the

Protection of Human Rights and Fundamental Freedoms, as converted into Law 29 August 1953:

On one hand the Luxembourg Law says ―we grant you access to information without

boundaries‖

And

On the other hand private agreements say: “You can have access to information without

boundaries, but you do not install the satellite dish”, which is by its nature THE mean

to get information without boundaries…

We live in a World where information plays an important rule in our lives, and we build our

own opinions up by having information freely accessible.

The European Union clearly states about the importance of information, and the freedom in

getting access to it. It sees the satellite antenna as the mean to ensure the freedom of circulation of

services within the Union, under Art. 49 EC.

The laws change over the time, because of the needs of people change over the time, and what

used to be in the past might no longer apply in the World we live: technology improvements allow

all the people to be equal and access the information.

Is it still the case in the Grand-Duchy of Luxembourg, Member State of the European Union?

I think that by the means of all instances brought describing the rules enforced in

Luxembourg, there might even room for the European Commission to act as guarantor of

application of EU rules, and apply the provisions of the Art. 226 of the EC Treaty:

“If the Commission considers that a Member State has failed to fulfil an obligation under this

Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the

opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the

Commission, the latter may bring the matter before the Court of Justice.”

© Fabio Guglielmi

Page 14 of 18

Appendix I – letter to co-property for addition to Agenda for General Meeting 2008

Page 15 of 18

Appendix II – letter to co-owners for addition to Agenda for General Meeting 2009

Page 16 of 18

Page 17 of 18

Index of references

1. European Union: Consolidated versions of the Treaty on the European Union and of the

Treaty establishing the European Community

http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:321E:0001:0331:EN:PDF

2. Convention for the Protection of Human Rights and Fundamental Freedoms

http://conventions.coe.int/Treaty/en/treaties/html/005.htm#FN1

3. Luxembourg Constitution Charter

http://www.legilux.public.lu/leg/textescoordonnes/recueils/constitution_droits_de_lhomme/

CONST1.pdf

4. Law on 29 August 1953 approving Convention for the Protection of Human Rights and

Fundamental Freedoms

http://www.legilux.public.lu/leg/a/archives/1953/0053/a053.pdf

5. Geostationary orbit - Wikipedia

http://en.wikipedia.org/wiki/Geostationary_orbit

6. Luxembourg Constitution Charter

http://www.legilux.public.lu/leg/textescoordonnes/recueils/constitution_droits_de_lhomme/

CONST1.pdf

7. European Commission - Communication on the Application of the General Principles of

Free Movements of Goods and Services - Art. 28 and 49 EC – Concerning the Use of

Satellite Dishes

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2001:0351:FIN:EN:PDF

8. European Commission - Communication ―IP/01/913"

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/01/913&format=HTML&aged

=0&language=EN&guiLanguage=en

9. Law 16 May 1975 – Co-Proprietorhip of Real Estate

http://www.legilux.public.lu/leg/a/archives/1975/0028/a028.pdf#page=2

10. Law 21 September 2006 – Rent of Apartments

http://www.legilux.public.lu/leg/a/archives/2006/0175/a175.pdf#page=2

11. Luxembourg Civil Code - Rent

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T8_contrat_de_loua

ge.pdf

12. Union Luxembourgeoise des Consommateurs nouvelle a.s.b.l. website

www.ulc.lu

13. New Right of Rent – Comments on the Law 21 September 2006, Marc Thewes,

Luxembourg 2007

http://www.ulc.lu/Uploads/Publications/Doc/65_1_Nouveau%20Bail%20medium.pdf

Page 18 of 18

14. Law 28 December 1976 – Sale of Estate to be built and obligation of Warranty

http://www.legilux.public.lu/leg/a/archives/1976/0082/a082.pdf#page=2

15. Luxembourg Civil Code – Sale / Rent / Prescription

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T6_vente.pdf

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T8_contrat_de_loua

ge.pdf and

http://www.legilux.public.lu/leg/textescoordonnes/codes/code_civil/L3_T20_prescription.pd

f

16. Petition of Right to Information in Luxembourg

information available on Internet: http://www.genco.org/Right2Information.htm and on

Right of Information in Luxembourg – cause on facebook website

http://apps.facebook.com/causes/208110/46171527?m=9dc74a6e

17. STATEC – Population et emploi – Recensement de la Population – Caracteristique

Personnelles

Population total par sex et group d'âge selon la nationalité au 15 février 2001

http://www.statistiques.public.lu/stat/TableViewer/tableView.aspx?ReportId=637&IF_Lang

uage=fra&MainTheme=2&FldrName=2&RFPath=79

18. STATEC – Société de l'Information – Ménages

http://www.statistiques.public.lu/stat/ReportFolders/ReportFolder.aspx?IF_Language=fra&

MainTheme=4&FldrName=9&RFPath=104

19. STATEC – Vie Sociale – Culture et Cultes – Audiovisuel

http://www.statistiques.public.lu/stat/ReportFolders/ReportFolder.aspx?IF_Language=fra&

MainTheme=5&FldrName=7&RFPath=27