# C_2018072EN.01001301.xml

| 26.2.2018 | EN | Official Journal of the European Union | C 72/13 |
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26.2.2018

EN

Official Journal of the European Union

C 72/13

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Judgment of the Court (Second Chamber) of 20 December 2017 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej

(Case C-277/16) (1)

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((Reference for a preliminary ruling - Common regulatory framework for electronic communications networks and services - Directive 2002/21/EC - Articles 8 and 16 - Directive 2002/19/EC - Articles 8 and 13 - Operator designated as having significant market power - Price control - Obligations imposed by national regulatory authorities - Obligation to ensure cost orientation of prices - Prices set below the costs incurred by the operator concerned for the provision of voice call termination services on mobile networks - Charter of Fundamental Rights of the European Union - Article 16 - Freedom to conduct a business - Proportionality))

(2018/C 072/16)

Language of the case: Polish

Referring court

Referring court

Sąd Najwyższy

Parties to the main proceedings

Parties to the main proceedings

Applicant: Polkomtel sp. z o.o.

Applicant:

Defendant: Prezes Urzędu Komunikacji Elektronicznej

Defendant:

Intervener in support of the defendant: Krajowa Izba Gospodarcza Elektroniki i Telekomunikacji

Intervener in support of the defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 8(4) and Article 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘the Access Directive’) must be interpreted as meaning that, where an obligation in regard to cost orientation of prices is imposed by a national regulatory authority on an operator, designated as having significant market power on a specific market, that national regulatory authority may, in order to promote efficiency and sustainable competition, set the prices of the services covered by such an obligation below the level of the costs incurred by that operator to provide them, if those costs are higher than the costs of an efficient operator, which is for the referring court to verify. |
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1.

Article 8(4) and Article 13 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (‘the Access Directive’) must be interpreted as meaning that, where an obligation in regard to cost orientation of prices is imposed by a national regulatory authority on an operator, designated as having significant market power on a specific market, that national regulatory authority may, in order to promote efficiency and sustainable competition, set the prices of the services covered by such an obligation below the level of the costs incurred by that operator to provide them, if those costs are higher than the costs of an efficient operator, which is for the referring court to verify.

| 2. | Article 8(4) and Article 13(3) of Directive 2002/19, read in combination with Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national regulatory authority may require an operator, designated as having significant market power on a specific market and under an obligation in regard to cost orientation of prices, to set its prices annually on the basis of the most up-to-date data and to submit those prices to it for verification together with justification before they become applicable, provided that such obligations are based on the nature of the problem identified, are proportionate and are justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), which is for the referring court to verify. |
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2.

Article 8(4) and Article 13(3) of Directive 2002/19, read in combination with Article 16 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a national regulatory authority may require an operator, designated as having significant market power on a specific market and under an obligation in regard to cost orientation of prices, to set its prices annually on the basis of the most up-to-date data and to submit those prices to it for verification together with justification before they become applicable, provided that such obligations are based on the nature of the problem identified, are proportionate and are justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), which is for the referring court to verify.

| 3. | Article 13(3) of Directive 2002/19 must be interpreted as meaning that, where an obligation in regard to cost orientation of prices has been imposed on an operator on the basis of Article 13(1) of that directive, that operator may be required to adjust its prices before or after it has started to apply them. |
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3.

Article 13(3) of Directive 2002/19 must be interpreted as meaning that, where an obligation in regard to cost orientation of prices has been imposed on an operator on the basis of Article 13(1) of that directive, that operator may be required to adjust its prices before or after it has started to apply them.

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(1)  OJ C 335, 12.9.2016.

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