Refusal of shared use; grounds for refusal

(1) Where the owner or operator of the public utility network does not submit an offer for shared use, it must, within the period referred to in section 138(2), first sentence, demonstrate to the applicant that objective, transparent, and proportionate reasons preclude shared use.
(2) The application for shared use may be refused only where one of the following grounds exists: 1. the passive network infrastructure lacks the technical suitability for the intended accommodation of the components of very high capacity networks; 2. there is a lack of space, at the time of receipt of the application or in the future, in the public utility network for the intended accommodation of the components of very high capacity networks; the owner or operator of the public utility network must specifically demonstrate a future lack of space by reference to its investment planning for the next five years from the date of application; 3. concrete indications that the shared use applied for endangers public safety or public health, whereby concrete indications of a danger to public safety are to be assumed insofar as parts of public utility networks are affected that are used by the Federation to achieve secure communication by public authorities; 4. concrete indications that the shared use applied for endangers the integrity or security of already existing public utility networks, in particular national critical facilities; in the case of critical facilities, concrete indications of such a danger exist insofar as the application concerns parts of a critical facility, in particular the information technology of critical facilities, that is demonstrably particularly sensitive and material to the functioning of critical facilities, and the operator cannot enable the shared use, by proportionate measures, within the protective duties imposed on it by or under a law; 5. indications of an expected significant disruption of the supply service by the planned telecommunications services; 6. the availability of viable alternatives to the shared use of passive network infrastructure applied for, insofar as the owner or operator of the public utility network offers these alternatives, they are suitable for the provision of very high capacity networks, and the shared use is granted on fair and reasonable terms; suitable wholesale products for telecommunications services, access to existing telecommunications networks, or shared use of passive network infrastructure other than that applied for may be offered as alternatives; or 7. the overbuilding of existing fibre-optic networks that provide non-discriminatory, open network access.