# C_2007199EN.01001601.xml

| 25.8.2007 | EN | Official Journal of the European Union | C 199/16 |
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25.8.2007

EN

Official Journal of the European Union

C 199/16

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Action brought on 8 May 2007 — Commission of the European Communities v Republic of Poland

(Case C-227/07)

(2007/C 199/26)

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: M. Shotter and K. Mojzesowicz, Agents)

Applicant:

Defendant: Republic of Poland

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | declare that, by failing to transpose correctly into national law 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 (Access Directive) (1) and, in particular, Article 4(1) thereof relating to an obligation to negotiate interconnection with each other, and the first subparagraph of Article 5(1) thereof relating to the power of the national regulatory authority to encourage and where appropriate ensure, in accordance with the directive's provisions, adequate access and interconnection, and interoperability of services, the Republic of Poland failed to fulfil its obligations under that directive; |
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declare that, by failing to transpose correctly into national law 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 (Access Directive) (1) and, in particular, Article 4(1) thereof relating to an obligation to negotiate interconnection with each other, and the first subparagraph of Article 5(1) thereof relating to the power of the national regulatory authority to encourage and where appropriate ensure, in accordance with the directive's provisions, adequate access and interconnection, and interoperability of services, the Republic of Poland failed to fulfil its obligations under that directive;

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| — | order the Republic of Poland to pay the costs. |
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order the Republic of Poland to pay the costs.

Pleas in law and main arguments

Directive 2002/19/EC of the European Parliament and of the Council (Access Directive) provides that operators of public communications networks are to have a right and obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Community. It also requires that the national regulatory authorities have power to encourage and where appropriate to ensure, in accordance with the directive's provisions, adequate access, interconnection and interoperability of services.

As regards the Republic of Poland, the period for transposing that directive expired, under the combined provisions of Articles 2 and 54 of the Act of Accession, on 30 April 2004.

Under Polish law, all operators of public communications networks are bound to negotiate access and the national regulatory authority may impose a time-limit for such negotiations to be concluded. In addition, if the parties do not reach an agreement, the national regulatory authority may, at the request of one of the parties, adopt a decision which will replace the contract and thus impose obligations on undertakings irrespective of their position on the market. The Commission claims that those provisions of Poland's law on telecommunications do not comply with the requirements of Article 4(1) and the first subparagraph of Article 5(1) of the Access Directive.

As regards the introduction, in general legal provisions, of an obligation to negotiate access contracts in good faith, the effect of that solution is to impose the obligation to negotiate without first establishing a lack of effective competition on the market concerned, and does not enable the national regulatory authority to examine the impact of the obligation to grant access on long term competition on that market and, consequently, to suppress that obligation if competition on the market intensifies.

As regards the national regulatory authority's power to adopt a decision which will replace the parties' contract, it is important to note that the first subparagraph of Article 5(1) of the Access Directive cannot be implemented by a general legal provision because it requires that a national regulatory authority be empowered to act only in certain circumstances. The power conferred on national regulatory authorities by virtue of the above-mentioned provision of the directive is clearly limited, first, by the reference to the ‘objectives set out in Article 8 of Directive 2002/21/EC (2) (Framework Directive)’ and, second, by the requirement laid down in Article 5(3) of the Access Directive. Those limits on the national regulatory authority's power ensure that it will act only in certain well defined circumstances. In addition, the regulatory obligations may be imposed only on undertakings having significant power on the market or, irrespective of the undertaking's power on the market, in the circumstances mentioned in Article 8(3) of the Access Directive. It follows that if the national regulatory authority decides to intervene, such intervention must have the directive's provisions as its legal basis, including when the national regulatory authority decides to impose regulatory obligations.

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(1)  OJ 2002, L 108, p. 7.

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(2)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications and services (Framework Directive) (OJ 2002, L 108, p. 33, and OJ, Polish Special Edition, Chapter 13, Vol. 29, p. 349).

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