Opinion of the Advocate General — ECLI:EU:C:2009:309
Date: 2009-05-14
Language of the case: Finnish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 1. Approximation of laws – Electronic communications networks and services – Access to and interconnection of communications networks and associated facilities – Directive 2002/19 (European Parliament and Council Directives 2002/19, Arts 2, 4(1), 5 and 8, and 2002/21, Art. 2) 2. Approximation of laws – Electronic communications networks and services – Access to and interconnection of communications networks and associated facilities – Directive 2002/19 (European Parliament and Council Directive 2002/19, Arts 4(1), 8(2), and 12(1)) 3. Approximation of laws – Electronic communications networks and services – Access to and interconnection of communications networks and associated facilities – Directive 2002/19 (European Parliament and Council Directive 2002/19, Arts 4(1), and 5(1), first subpara. and second subpara., point (a), and (4), and 2002/21, Art. 8) 1. Article 4(1) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities read in conjunction with recitals 5, 6, 8 and 19 in its preamble and with Articles 5 and 8 thereof, precludes national legislation which does not restrict the possibility of relying on the obligation to negotiate on the interconnection of networks solely to operators of public communications networks. The reciprocity of the interconnection provided for in Article 4(1) of that directive implies that the two parties to the negotiations are public network operators. Therefore, the obligation to negotiate laid down in Article 4(1) concerns only the interconnection of networks, to the exclusion of other forms of network access, and applies only to operators of public communications networks with respect to other operators of public communications networks. It is for the national court, taking into account the definitions given in Article 2 of Directives 2002/19 and 2002/21, to determine whether, having regard to the status and the nature of the operators concerned they may be classified as operators of public communications networks. (see paras 33-34, 47-48, operative part 1) 2. A national regulatory authority may take the view that the obligation to negotiate an interconnection, provided for under Article 4(1) of Directive 2002/19 (on access to and interconnection of electronic communications networks and associated facilities), has been breached where an undertaking which does not have significant market power offers another undertaking interconnection under unilateral conditions which are likely to hinder the emergence of a competitive market at the retail level where those conditions prevent the clients of the other undertaking from benefiting from its services. (see para. 55, operative part 2) 3. The relevant provisions of Directive 2002/21 on a common regulatory framework for electronic communications networks and services and of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities enable a national regulatory authority to order an undertaking which does not have significant market power but which controls access to end-users to negotiate in good faith with another undertaking either an interconnection of the two networks concerned if the undertaking requesting such access must be classified as an operator of public communications networks, or interoperability of text and multimedia message services if the undertaking which makes the request is not covered by that classification. (see paras 61-62, operative part 3)