Opinion of the Advocate General — ECLI:EU:C:2008:333
Date: 2008-06-10
Language of the case: Polish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Industrial policy
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Poland

Summary of the Judgment 1. Approximation of laws – Electronic communications networks and services – Access to, and interconnection of, electronic communications networks and associated facilities – Directive 2002/19 – Obligation on operators to negotiate interconnection with each other (European Parliament and Council Directive 2002/19, Arts 4(1), 8(2), and 12(1)(b)) 2. Approximation of laws – Electronic communications networks and services – Access to, and interconnection of, electronic communications networks and associated facilities – Directive 2002/19 – Power of the national regulatory authority to encourage and where appropriate ensure adequate access and interconnection (European Parliament and Council Directive 2002/19, Art. 5(1), first subpara.) 1. By imposing on operators of public communications networks a general obligation to negotiate agreements for access to the telecommunications network, a Member State does not correctly transpose Article 4(1) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, which concerns the obligation to negotiate interconnection with each other, and on that basis fails to fulfil its obligations under that directive. The second sentence of Article 4(1) of that directive allows operators to offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority. Those obligations include the obligations which that authority may impose under Article 8(2) of that directive on an operator designated as having significant market power on a specific market following a market analysis. In that regard, it is apparent from reading together Articles 8 and 12(1)(b) of that directive that an obligation to negotiate an agreement with undertakings in good faith may be imposed by national regulatory authorities on operators with significant market power, following an analysis of that market. However, the national law is not based on two sets of rules depending on the market power of the undertakings; rather, it leads to equal treatment of all operators, without allowing the national regulatory authority to take account of the specific context before intervening or in the course of its examination of the request by the undertaking seeking access to a telecommunications network. The consequence of the obligation provided for under national law to negotiate access agreements in good faith is to impose such an obligation without prior evaluation of the degree of effective competition on the market concerned. The national law also does not allow the obligation to be withdrawn or amended where competition in the market intensifies. Moreover, according to recital 19 of that directive, whilst increasing competition, intervention by national regulatory authorities must balance the rights of an infrastructure owner to exploit its infrastructure for its own benefit and the rights of other service providers to access facilities that are essential for the provision of competing services. Furthermore, under Article 12(2) of Directive 2002/19, intervention by national regulatory authorities is circumscribed by the need take account of the factors set out in that provision, including the need to safeguard competition in the long term and to assess the proportionality of obligations which that authority intends to impose as regards access to specific network elements and their use in relation to the objectives set out in Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services. By not providing for intervention by the national regulatory authority prior to imposition of an obligation to negotiate access agreements, the national law does not allow for any assessment of the circumstances in accordance with the factors set out in Article 12(2). (see paras 37-44, 49, operative part 1) 2. The first subparagraph of Article 5(1) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities, which concerns 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, is limited to providing for a general power for the national regulatory authorities for the purpose of achieving the objectives of Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services. (see para. 65)