Provisional text

JUDGMENT OF THE COURT (Fourth Chamber)

17 November 2022 (*)

( References for a preliminary ruling – Telecommunications – Directive 2002/19/EC (the Access Directive) – Article 8(3) – Directive 2014/61/EU – Article 1(3) and (4), and Article 3(5) – Power of the national regulatory authority to impose ex ante regulatory conditions relating to access to the physical infrastructure of a network operator not having significant market power – No dispute relating to access )

In Case C‐243/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Warszawie (Warsaw Regional Court, Poland), made by decision of 6 April 2021, received at the Court on 14 April 2021, in the proceedings

**TOYA sp. z o.o,**

**Polska Izba Informatyki i Telekomunikacji**

v

**Prezes Urzędu Komunikacji Elektronicznej,**

other party to the proceedings

**Polska Izba Komunikacji Elektronicznej,**

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi J.‐C. Bonichot, S. Rodin and O. Spineanu-Matei (Rapporteur), Judges,

Advocate General: A.M. Collins,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        TOYA sp. z o.o., by M. Jankowski, adwokat;

–        the Prezes Urzędu Komunikacji Elektronicznej, by M. Kołtoński, radca prawny;

–        the Polish Government, by B. Majczyna, acting as Agent;

–        the Hellenic Government, by Z. Chatzipavlou, M. Tassopoulou and D. Tsagkaraki, acting as agents;

–        the European Commission, by S.L. Kalėda and L. Malferrari, acting as Agents;

after hearing the Opinion of the Advocate General at the sitting of 9 June 2022,

gives the following

**Judgment**

1        The request for a preliminary ruling concerns the interpretation of Article 8(3) 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) (OJ 2002 L 108, p. 7), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) (‘the Access Directive’), read together with Article 1(3) and (4) and Article 3(5) of Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (OJ 2014 L 155, p. 1).

2        The application was made in proceedings between TOYA sp. z o.o. and Polska Izba Informatyki i Telekomunikacji (Polish Chamber of Information Technology and Telecommunications, Poland) against Prezes Urzędu Komunikacji Elektronicznej (President of the Office of Electronic Communications, Poland) (the ‘President of the UKE’) concerning the latter’s decision of 11 September 2018 imposing *ex ante* regulatory conditions on TOYA governing the terms and conditions of access to its physical infrastructure (the ‘contested decision’).

**Legal framework**

*European Union law*

*Access Directive*

3        Article 1(1) of the Access Directive, entitled ‘Scope and aim’, was worded as follows:

‘Within the framework set out in 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) (OJ 2002 L 108, p. 33)], this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. The aim is to establish a regulatory framework, in accordance with internal market principles, for the relationships between suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits.’

4        Article 5(1) and (3) of the Access Directive, entitled ‘Powers and responsibilities of the national regulatory authorities with regard to access and interconnection’, provided:

‘1.      National regulatory authorities shall, in pursuit of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, as well as the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users.

In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, national regulatory authorities must be able to impose:

(a)      to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case;

(ab)      in justified cases and to the extent that is necessary, obligations on undertakings that control access to end-users to make their services interoperable;

(b)      to the extent that is necessary to ensure accessibility for end-users to digital radio and television broadcasting services specified by the Member State, obligations on operators to provide access to the other facilities referred to in Annex I, Part II on fair, reasonable and non-discriminatory terms.

...

3.      With regard to the access and interconnection referred to in paragraph 1, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6, 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).’

5        Article 8(1) to (3) of the Access Directive, entitled ‘Imposition, amendment or withdrawal of obligations’, provided:

‘1.      Member States shall ensure that national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13a.

2.      Where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), national regulatory authorities shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate.

3.      Without prejudice to:

–        the provisions of Articles 5(1) and 6,

–        the provisions of Articles 12 and 13 of Directive 2002/21/EC (Framework Directive), Condition 7 in Part B of the Annex to Directive 2002/20/EC [of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) [OJ 2002 L 108, p. 21] as applied by virtue of Article 6(1) of that Directive, Articles 27, 28 and 30 of Directive 2002/22/EC [of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) [(OJ 2002 L 108, p. 51)] and the relevant provisions of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the telecommunications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37)] containing obligations on undertakings other than those designated as having significant market power, or

–        the need to comply with international commitments,

national regulatory authorities shall not impose the obligations set out in Articles 9 to 13 on operators that have not been designated in accordance with paragraph 2.

...’

*The Framework Directive*

6        Article 8 of Directive 2002/21, as amended by Directive 2009/140 (‘the Framework Directive’), entitled ‘Policy objectives and regulatory principles’, provided:

‘1.      Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.

...

2.      The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services ...

...

3.      The national regulatory authorities shall contribute to the development of the internal market ...

...

4.      The national regulatory authorities shall promote the interests of the citizens of the European Union ...

...

5.      The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles ...

...’

7        Article 12 of the Framework Directive, entitled ‘Co-location and sharing of network elements and associated facilities for providers of electronic communications networks’, stated:

‘1.      Where an undertaking providing electronic communications networks has the right under national legislation to install facilities on, over or under public or private property, or may take advantage of a procedure for the expropriation or use of property, national regulatory authorities shall, taking full account of the principle of proportionality, be able to impose the sharing of such facilities or property, including buildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, ducts, conduits, manholes, cabinets.

2.      Member States may require holders of the rights referred to in paragraph 1 to share facilities or property (including physical co-location) or take measures to facilitate the coordination of public works in order to protect the environment, public health, public security or to meet town and country planning objectives and only after an appropriate period of public consultation, during which all interested parties shall be given an opportunity to express their views. Such sharing or coordination arrangements may include rules for apportioning the costs of facility or property sharing.

3.      Member States shall ensure that national authorities, after an appropriate period of public consultation during which all interested parties are given the opportunity to state their views, also have the power to impose obligations in relation to the sharing of wiring inside buildings or up to the first concentration or distribution point where this is located outside the building, on the holders of the rights referred to in paragraph 1 and/or on the owner of such wiring, where this is justified on the grounds that duplication of such infrastructure would be economically inefficient or physically impracticable. Such sharing or coordination arrangements may include rules for apportioning the costs of facility or property sharing adjusted for risk where appropriate.

4.      Member States shall ensure that competent national authorities may require undertakings to provide the necessary information, if requested by the competent authorities, in order for these authorities, in conjunction with national regulatory authorities, to be able to establish a detailed inventory of the nature, availability and geographical location of the facilities referred to in paragraph 1 and make it available to interested parties.

5.      Measures taken by a national regulatory authority in accordance with this Article shall be objective, transparent, non-discriminatory, and proportionate. Where relevant, these measures shall be carried out in coordination with local authorities.’

*Directive 2014/61*

8        Recitals 9, 11 and 12 of Directive 2014/61 are worded as follows:

‘(9)      Measures aiming at increasing efficiency in the use of existing infrastructures and at reducing costs and obstacles in carrying out new civil engineering works should provide a substantial contribution to ensuring a fast and extensive deployment of high-speed electronic communications networks while maintaining effective competition, without adversely affecting the safety, security and smooth operation of the existing public infrastructure.

...

(11)      This Directive aims at laying down some minimum rights and obligations applicable across the Union in order to facilitate the roll-out of high-speed electronic communications networks and cross-sector coordination. While ensuring a minimum level playing field, this should be without prejudice to existing best practices and measures adopted at national and local level entailing more detailed provisions and conditions as well as additional measures complementing those rights and obligations, in accordance with the subsidiarity principle.

(12)      In the light of the *lex specialis* principle, when more specific regulatory measures in conformity with Union law apply, those should prevail over the minimum rights and obligations provided for in this Directive. Therefore this Directive should be without prejudice to the Union regulatory framework for electronic communications set out in Directive 2002/21/EC ... as well as Directive 2002/19/EC ..., Directive 2002/20/EC ..., Directive 2002/22/EC ... and Commission Directive 2002/77/EC [of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21)], including national measures adopted pursuant to that regulatory framework, such as specific symmetric or asymmetric regulatory measures.’

9        Article 1 of Directive 2014/61, entitled ‘Subject matter and scope’, provides:

‘1.      This Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost.

2.      This Directive establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas.

3.      Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements established by this Directive with a view to better achieving the aim referred to in paragraph 1.

4.      If any provision of this Directive conflicts with a provision of Directive 2002/21/EC, Directive 2002/19/EC, Directive 2002/20/EC, Directive 2002/22/EC or Directive 2002/77/EC, the relevant provision of those Directives shall prevail.’

10      Article 2(1) of Directive 2014/61, entitled ‘Definitions’, provides:

‘For the purposes of this Directive, the definitions set out in Directive 2002/21/EC apply.

The following definitions also apply:

(1)      “network operator” means an undertaking providing or authorised to provide public communications networks as well as an undertaking providing a physical infrastructure intended to provide:

(a)      a service of production, transport or distribution of:

(i)      gas;

(ii)      electricity, including public lighting;

(iii)      heating;

(iv)      water, including disposal or treatment of waste water and sewage, and drainage systems;

(b)      transport services, including railways, roads, ports and airports’.

11      Article 3 of Directive 2014/61, entitled ‘Access to existing physical infrastructure’, states:

‘1.      Member States shall ensure that every network operator has the right to offer to undertakings providing or authorised to provide electronic communications networks access to its physical infrastructure with a view to deploying elements of high-speed electronic communications networks. Reciprocally, Member States may provide for the right of public communications network operators to offer access to their physical infrastructure for the purpose of deploying networks other than electronic communications networks.

2.      Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator has the obligation to meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.

...

4.      Where access is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the date of receipt of the request for access, Member States shall ensure that either party is entitled to refer the issue to the competent national dispute settlement body.

5.      Member States shall require the national dispute settlement body referred to in paragraph 4 to issue, taking full account of the principle of proportionality, a binding decision to resolve the dispute initiated pursuant to paragraph 4, including the setting of fair and reasonable terms and conditions, including price where appropriate.

The national dispute settlement body shall resolve the dispute, within the shortest possible time frame and in any case within four months from the date of the receipt of the complete request except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

Where the dispute relates to access to the infrastructure of an electronic communications network provider and the national dispute settlement body is the national regulatory authority, it shall, where appropriate, take into account the objectives set out in Article 8 of Directive 2002/21/EC. Any price set by the dispute settlement body shall ensure that the access provider has a fair opportunity to recover its costs and shall take into account the impact of the requested access on the business plan of the access provider, including the investments made by the network operator to whom access is requested, in particular in the physical infrastructures used for the provision of high-speed electronic communications services.

...’

*Directive (EU) 2018/1972*

12      In accordance with Articles 124 and 125 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36), the Access and Framework Directives are repealed with effect from 21 December 2020, the date on which the period for transposition of Directive 2018/1972 expired.

*Polish law*

13      Under Article 17(1) and (2) of the Ustawa o wspieraniu Rozwoju usług i sieci telekomunikacyjnych (Law on support for the development of telecommunications networks and services) of 7 May 2010 (the ‘WRUIST Law’):

‘1.      The network operator shall provide telecommunications undertakings with access to the physical infrastructure, including the sharing thereof, in order to deploy a high-speed telecommunications network.

2.      Access to the physical infrastructure shall be subject to payment, unless the parties to the contract agree otherwise.’

14      Article 18(1) to (3) and (6) of the WRUIST Law is worded as follows:

‘1.      The conditions for access to the physical infrastructure, including technical, operational and financial conditions of cooperation, shall be determined by the parties in a contract for access to the physical infrastructure, concluded in writing, failing which it shall be null and void.

2.      The President of the UKE may ask the network operator to provide information on the conditions of access to the physical infrastructure.

3.      After the network operator has provided information on the conditions of access to the physical infrastructure, the President of the UKE, acting in accordance with the criteria set out in Article 22(1) to (3), may determine by decision the conditions for access to the physical infrastructure. ...

...

6.      A network operator to which a decision on the determination of the conditions for access to the physical infrastructure has been issued shall be required to conclude the contracts referred to in paragraph 1 on conditions that are no less favourable than those laid down in that decision.’

15      Article 22(1) and (2) of the WRUIST Act provide:

‘1.      The President of the UKE shall issue a decision on access to the physical infrastructure within 60 days of the date on which the request was made for that purpose, taking into account in particular the need to ensure non-discriminatory and proportionate conditions of access.

2.      When the President of the UKE makes a decision on access to the physical infrastructure of a telecommunications undertaking, he shall ensure that the charges paid on that basis allow reimbursement of the costs borne by that undertaking, having regard in particular to the objectives set out in Article 8 of Directive [2002/21] and to the impact of access to the physical infrastructure at the business level of that telecommunications undertaking, in particular on its investments in high-speed telecommunications networks.’

**The dispute in the main proceedings and the questions referred for a preliminary ruling**

16      TOYA is a Polish telecommunications company and network operator.

17      Following an administrative procedure in which TOYA was invited to provide information on the conditions for access to its physical infrastructure consisting of cable and telecommunications ducts in buildings, the President of the UKE adopted the contested decision on 11 September 2018.

18      That decision is based, inter alia, on Article 18(3) of the WRUIST Law, read together with Article 17 thereof. It lays down the conditions for access to TOYA’s physical infrastructure with regard to cable and telecommunications ducts in buildings. It also requires TOYA to remain ready to enter into specific framework contracts and contracts and to accept requests for access to its physical infrastructure in accordance with the abovementioned conditions of access.

19      In the contested decision, the President of the UKE states that Articles 18 and 22 of the WRUIST Law enable him to ensure that telecommunications undertakings have access to the physical infrastructure, which includes sharing that infrastructure, in order to establish a high-speed telecommunications network.

20      He emphasises that the contested decision complies with the objectives defined by Directive 2014/61, which concern the benefits linked to infrastructure sharing and the need to remove the obstacles that lead to the inefficient use of existing resources.

21      He notes that the contested decision will contribute to the harmonisation of time limits, procedures and market rates relating to the provision of cable and telecommunications ducts in buildings. Consequently, it will lead to equal treatment for all operators, contribute to limiting the costs of acquiring infrastructure by telecommunications undertakings using access to the physical infrastructure and allow wider access to the ducts.

22      The President of the UKE also states that the universal nature of the approved conditions for access is shown by the fact that those conditions may be implemented by telecommunications undertakings with different commercial profiles and a different scale of operations for cooperation on interconnection. Further, TOYA would not be deprived of the possibility of determining the content of its framework contracts, so that they are adapted to the operating rules adopted within TOYA.

23      As regards its proportionality, the contested decision states that there was no other possibility of determining the conditions for access to TOYA’s physical infrastructure than by an administrative decision. The contested decision also states that, in the view of the President of UKE, the access rules laid down in the decision, while affecting TOYA’s property rights, are not excessively burdensome for TOYA and take due account of its rights and interests.

24      The contested decision also states that the provisions of the WRUIST Law, relating to the conditions enabling the President of the UKE to issue decisions determining the conditions of access to the physical infrastructure, do not refer either to the extent of the infrastructure held or to the number of disputes arising from the question of access to that infrastructure.

25      In that decision, the President of the UKE notes, in that regard, that he took into account that TOYA would be obliged to treat undertakings equally when applying for access under Article 17 of the WRUIST Law and that, having regard to the need to ensure proportionate conditions of access, he chose to determine the conditions of access, adopting sufficient and, at the same time, minimal measures to ensure the objective pursued by such access.

26      It is apparent from the request for a preliminary ruling that, in addition to the contested decision, the President of the UKE adopted broadly similar decisions with regard to six other telecommunications operators.

27      TOYA appealed against the contested decision to the referring court, namely the Sąd Okręgowy w Warszawie (Warsaw Regional Court, Poland). TOYA considers that, under Article 3(2) and (5), as well as Article 1(4) of Directive 2014/61 and recital 12 thereof, together with Article 8(2) and (3) of the Access Directive and Article 8(5)(f) of the Framework Directive, a national regulatory authority may impose an *ex ante* reference offer only on operators with significant market power in the designated market. The contested decision would be contrary to EU law because there has been no market analysis to establish that TOYA had such significant market power, nor has there been any dispute over access to its physical infrastructure within the meaning of Article 3(5) of Directive 2014/61.

28      The referring court has doubts as to the compatibility of the contested decision and the interpretation of Article 18(3) of the WRUIST Law on which it is based, with the relevant provisions of EU law, in particular Article 1(3) and (4) and Article 3(5) of Directive 2014/61, as well as Article 8(3) of the Access Directive, in so far as, by that decision, the President of the UKE imposes *ex ante* regulatory obligations on TOYA concerning access to its physical infrastructure, whereas that access has not given rise to any dispute, and it has not been demonstrated that TOYA had significant market power.

29      Furthermore, given that the Access Directive and the Framework Directive have been repealed and replaced by Directive 2018/1972, the referring court wonders which EU directives are applicable in this case.

30      In those circumstances, the Sąd Okręgowy w Warszawie (Warsaw Regional Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Must Article 8(3) of [the Access Directive], read in conjunction with Article 3(5) and Article 1(3) and (4) of Directive [2014/61], be interpreted as precluding the national regulatory authority from imposing on an operator which owns physical infrastructure and is at the same time a provider of publicly available electronic communications services or networks, but has not been designated as having significant market power, the obligation to apply the conditions for access to that operator’s physical infrastructure determined *ex ante* by that authority, including the rules and procedures for entering into contracts and the applicable access fees, irrespective of the existence of a dispute over access to that operator’s physical infrastructure and the existence of effective competition [on] the market?

Alternatively (version II)

(2)      Must Article 67(1) and (3) read in conjunction with Article 68(2) and (3) of Directive [2018/1972], [as well as] with Article 3(5) and Article 1(3) and (4) of Directive [2014/61], be interpreted as precluding a national regulatory authority from imposing on an operator which owns physical infrastructure and is at the same time a provider of publicly available electronic communications services or networks, but has not been designated as having significant market power, the obligation to apply the conditions for access to that operator’s physical infrastructure as determined *ex ante* by that authority, including the rules and procedures for entering into contracts and the applicable access fees, irrespective of the existence of a dispute over access to that operator’s physical infrastructure and the existence of effective competition [on] the market?’

**Consideration of the questions referred**

*Preliminary observations*

31      As a preliminary point, it must be observed that the two questions referred for a preliminary ruling by the national court are identical in substance and differ simply as regards the legal framework in the light of which the Court is asked to answer them. Whereas, by its first question, the referring court asks the Court about the interpretation to be given to Article 1(3) and (4) and Article 3(5) of Directive 2014/61 and Article 8(3) of the Access Directive, the second question refers to the same provisions of Directive 2014/61 and, in the alternative, to Article 67(1) and (3), as well as Article 68(2) and (3) of Directive 2018/1972.

32      In that regard, it should be noted that the contested decision was adopted on 11 September 2018. As noted in paragraph 12 of this judgment, at that time the Access and Framework Directives were fully in force, and Directive 2018/1972 had not yet been adopted.

33      Therefore, only interpretation of the relevant provisions of the Access and Framework Directives, to the exclusion of those of Directive 2018/1972, which is not applicable ratione temporis, is relevant in determining whether those provisions preclude the practice of a national regulatory authority such as that of the President of the UKE in the main proceedings.

34      In those circumstances, there is no need to answer the second question referred for a preliminary ruling.

*The first question*

35      By its first question, the referring court asks, in essence, whether Article 1(3) and (4) and Article 3(5) of Directive 2014/61, read together with Article 8(3) of the Access Directive, must be interpreted as precluding a competent national regulatory authority in the field of electronic communications from requiring a network operator, which has not been designated as having significant market power, to apply conditions, as determined *ex ante* by that authority, governing access by other undertakings active in that field to that operator’s physical infrastructure, including the rules and procedures for entering into contracts and the applicable access fees, irrespective of the existence of any dispute relating to that access and to effective competition.

36      According to settled case-law of the Court, it is necessary, in order to interpret a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part (judgment of 26 February 2019, *Rimšēvičs and ECB* v *Latvia*, C‐202/18 and C‐238/18, EU:C:2019:139, paragraph 45 and the case-law cited).

37      To begin with, as regards the wording and context of those provisions, it must be observed, as the Advocate General points out in paragraph 37 of his Opinion, that it is clear from the provisions of Directive 2014/61 that it has a broad scope, covering all network operators, whether or not they have been designated as having significant market power.

38      Thus, Article 2(1) of that Directive defines a ‘network operator’ as an undertaking providing or authorised to provide public communications networks as well as an undertaking providing a physical infrastructure intended to provide a service of production, transport or distribution of gas, electricity, heating or water, as well as transport services. It must be observed that this definition does not include any reference to the market power of the undertaking, the size of its market share or the competitive nature of the market on which it operates.

39      Article 3(1) of Directive 2014/61 on access to existing physical infrastructure establishes the right of any network operator to offer undertakings providing or authorised to provide electronic communications networks with access to its physical infrastructure. Paragraph 2 of this provision also imposes an obligation on any network operator, whether or not designated as having significant market power, to meet all reasonable requests by such an undertaking for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks.

40      If access is refused or if no agreement has been reached between the network operator owning the physical infrastructure and the undertaking seeking access to it, regarding the specific rules and conditions, Article 3(4) of that directive requires Member States to ensure that each party is entitled to bring the case before the competent national dispute resolution body. That body must then, in accordance with Article 3(5) of that Directive, adopt a binding decision in order to resolve the dispute, establishing, in the event of access being granted, fair and reasonable terms and conditions, including, where applicable, the price.

41      Consequently, as regards the intervention of national authorities in matters of access, for undertakings providing or authorised to provide electronic communications networks, to existing physical network infrastructure in the European Union, Article 3 of Directive 2014/61 concerns the *ex post* resolution of disputes. That provision does not expressly provide for the possibility of establishing, as a precautionary measure and without any specific dispute, *ex ante* regulatory obligations relating to access to the physical infrastructure of a network operator, such as those imposed on TOYA by the President of the UKE in the main proceedings.

42      However, neither Article 3 nor any other provision of Directive 2014/61 expressly prohibits the establishment of such *ex ante* regulatory obligations relating to access to a network operator’s physical infrastructure.

43      In that regard, it follows from Article 1(2) and (3) of Directive 2014/61, read in the light of recital 11 thereof, that that directive only lays down minimum requirements, and that Member States may maintain or introduce measures consistent with EU law that go beyond those requirements in order to achieve the founding objective of that Directive, as set out in Article 1(1) thereof.

44      However, it is apparent from Article 1(4) of that directive, read in the light of recital 12 thereof, that, in the event of conflict between a provision of that directive and a provision of the other directives mentioned in Article 1(4), including the Framework Directive and the Access Directive, the relevant provisions of those other directives prevail.

45      It follows from that conflict rule that, in order to answer the first question, it is also necessary to examine whether those same directives, and more particularly the Framework and Access Directives, preclude measures laid down by a national regulatory authority concerning access to the physical infrastructure of a network operator, such as those adopted by the President of the UKE in the main proceedings.

46      In that regard, it must be observed that Article 8(3) of the Access Directive provides that, in principle, national regulatory authorities shall not impose the obligations of transparency, non-discrimination, accounting separation, access to and use of specific network facilities, and price control and cost accounting, as set out in Articles 9 to 13 of that directive, on network operators that have not been designated as a result of a market analysis as having significant market power.

47      However, it must be observed, as observed by the Advocate General in paragraph 33 of his Opinion, that there are several exceptions to this prohibition of principle arising from Article 8(3) of the Access Directive. In respect of some of them, national regulatory authorities may, inter alia, impose *ex ante* regulatory obligations relating to access to the physical infrastructure on network operators that do not necessarily have significant power on the relevant market.

48      Thus, Article 5(1) of the Access Directive provides that, in order to achieve the objectives set out in Article 8 of the Framework Directive, national regulatory authorities are to encourage, and where appropriate ensure, adequate access and interconnection, and interoperability of services, exercising their responsibility in a way, inter alia, that promotes efficiency, sustainable competition and gives the maximum benefit to end-users. To that end, that provision permits national regulatory authorities, inter alia, to impose obligations – to the extent necessary to ensure end-to-end connectivity or to render interoperable services – on undertakings that control access to end-users, irrespective of whether those undertakings have significant market power (see, to that effect, judgment of 17 September 2015, *KPN*, C‐85/14, EU:C:2015:610, paragraph 39 and the case-law cited).

49      In that regard, the Court has had occasion to clarify that, in order to achieve the objectives listed in Article 8 of the Framework Directive in the specific context of access and interconnection, the national regulatory authorities have autonomy of intervention and means of action that are not exhaustively listed (see, to that effect, judgments of 13 November 2008, *Commission* v *Poland*, C‐227/07, EU:C:2008:620, paragraph 65; of 12 November 2009, *TeliaSonera Finland*, C‐192/08, EU:C:2009:696, paragraphs 58 to 60; and of 17 September 2015, *KPN*, C‐85/14, EU:C:2015:610, paragraph 36).

50      Article 12 of the Framework Directive also empowers national regulatory authorities to impose obligations relating to the co-location and sharing of network elements and associated facilities without first establishing that the operator concerned has significant market power.

51      Finally, it must also be observed that no provision of the Access and Framework Directives makes the imposition on a network operator, by a national regulatory authority, of *ex ante* regulatory obligations in relation to access to the physical infrastructure, subject to the existence of specific disputes between that operator and the undertakings seeking access to it.

52      In the light of the foregoing considerations, it follows from the wording and context of Article 1(3) and (4) and Article 3(5) of Directive 2014/61, read together with Article 1(1), Article 5(1) and Article 8(3) of the Access Directive, as well as Articles 8 and 12 of the Framework Directive, that neither the absence of specific disputes between the network operator having physical infrastructure and an undertaking seeking access thereto, nor the fact that it has not previously been established that that operator has significant power on the market in question or that that market lacks effective competition, can present an obstacle to the imposition by the competent national authority of *ex ante* regulatory obligations regarding access to the physical infrastructure of that operator.

53      Second, such a literal and contextual interpretation is fully supported by purposive interpretation of the relevant provisions of Directive 2014/61 and of the Access and Framework Directives.

54      In that regard, it must be observed, on the one hand, that Directive 2014/61 aims, in accordance with Article 1(1) thereof, to facilitate and encourage the deployment of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost.

55      It must be observed that a practice such as that at issue in the main proceedings – consisting in setting minimum *ex ante* conditions for access to the physical infrastructure of a network operator, without any specific dispute and without it having first been established that that operator has significant market power – will tend to contribute to the general objective of Directive 2014/61, in that it promotes and facilitates the joint use of existing physical infrastructure. More specifically, it also contributes – as the Polish Government and the Commission state in their written observations and as the Advocate General observes in paragraph 43 of his Opinion – to preventing disputes relating to access to the network operator’s physical infrastructure, thereby contributing to the objective of resolving disputes under Article 3 of that Directive, as recalled in paragraph 41 above.

56      Second, it must be observed that such a practice also contributes to the pursuit of the main objectives defined by the Access and Framework Directives. In so far as it promotes and facilitates the joint use of existing physical infrastructure, said practice contributes to establishing sustainable competition, strengthening the interoperability of electronic communications services, developing the internal market in that sector and promoting the interests of EU citizens and consumers, objectives that are notably enshrined in Article 8(2) to (4) of the Framework Directive and Article 1(1) of the Access Directive.

57      In the light of the foregoing considerations, the answer to the first question is that Article 1(3) and (4) and Article 3(5) of Directive 2014/61, read together with Article 1(1), Article 5(1) and Article 8(3) of the Access Directive and with Articles 8 and 12 of the Framework Directive, must be interpreted as not precluding a competent national regulatory authority in the field of electronic communications from requiring a network operator, which has not been designated as having significant market power, to apply conditions, as determined *ex ante* by that authority, governing access by other undertakings active in that field to that operator’s physical infrastructure, including the rules and procedures for entering into contracts and the applicable access fees, irrespective of the existence of any dispute relating to that access and to effective competition.

**Concerning costs**

58      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On these grounds, the Court (Fourth Chamber) hereby rules:

**Article 1(3) and (4) and Article 3(5) of Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks, read together with Article 1(1), Article 5(1) and Article 8(3) 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 (Access Directive), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, and with Articles 8 and 12 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), as amended by Directive 2009/140,**

**must be interpreted as not precluding a competent national regulatory authority in the field of electronic communications from requiring a network operator, which has not been designated as having significant market power, to apply conditions, as determined** *ex ante* **by that authority, governing access by undertakings active in that field to that operator’s physical infrastructure, including the rules and procedures for entering into contracts and the applicable access fees, irrespective of the existence of any dispute relating to that access and to effective competition.**

[Signatures]

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*      Language of the case: Polish.