Opinion of the Advocate General — ECLI:EU:C:2022:455
Date: 2022-06-09
Language of the case: Polish
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 April 2021 
Referring court: 
Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) 
Date of the decision to refer: 
6 April 2021 
Applicant: 
TOYA Sp. z o.o. 
Polska Izba Informatyki i Telekomunikacji 
Defendant: 
Prezes Urzędu Komunikacji Elektronicznej 
  
Subject matter of the main proceedings 
The case before the referring court concerns an action lodged by TOYA Sp. z o.o. 
against a decision of the Prezes Urzędu Komunikacji Elektronicznej (President of 
the Office of Electronic Communications) (the Polish national regulatory 
authority, ‘the OEC President’) determining ex ante conditions of access to the 
physical infrastructure of TOYA Sp. z o.o. and requiring the company to ensure 
readiness to enter into both framework and detailed contracts and to accept 
requests for access to its physical infrastructure in accordance with the conditions 
of access set out in that decision. 
Subject matter and legal basis of the reference 
Pursuant to Article 267 TFEU, the referring court wishes to determine whether the 
provisions of EU law regulating the telecommunications market preclude the 
provision of Article 18(3) of the ustawa o wspieraniu rozwoju usług i sieci 
telekomunikacyjnych (Law on support for the development of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-243/21 
 
2  
telecommunications services and networks) from being interpreted in a manner 
that authorises the OEC President to impose on a telecommunications undertaking 
which owns physical infrastructure and is at the same time a provider of publicly 
available electronic communications services or networks, but which does not 
have significant power in the cable duct market, a regulatory obligation consisting 
in the application of conditions established ex ante by the OEC President 
governing the principles of access to the physical infrastructure of that operator, 
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 in the market. 
In deciding this case, the referring court is required to apply the legal and factual 
situation as at the date of the decision, that is to say, 11 September 2018, when the 
following directives were in force: 2002/19/EC and 2002/21/EC, which ceased to 
be in effect as of 21 December 2020 pursuant to Article 125 of the Directive 
establishing the European Electronic Communications Code (‘the EECC 
Directive’), which superseded the provisions of those directives. In addition, the 
EECC Directive has not yet been implemented in the Polish legal system. 
However, if the Court were to find that the provisions of the EECC Directive 
should be the subject of the questions referred, the referring court requests that 
version II of the question be answered. 
Question(s) referred for a preliminary ruling 
1. Must 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, read in conjunction with 
Article 3(5) and Article 1(3) and (4) 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 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 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 in 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 of the European Parliament and of the Council of 
11 December 2018 establishing the European Electronic Communications Code, 
read in conjunction with Article 3(5) and Article 1(3) and (4) of Directive 
TOYA 
 
3 
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 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 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 in the market? 
Provisions of Community law relied on 
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), as amended (‘the Cost 
Directive’) – Article 1(4) and Article 3(1), (2) and (5)  
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), as amended – 
Article 8(5) 
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) (OJ 2002 L 108, p. 7), as amended – 
Article 8(1–5) and Article 9(1) and (2) 
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) – Article 67(1) and (3) and Article 68 
Provisions of national law relied on 
Ustawa z 7 maja 2010 r. o wspieraniu rozwoju usług i sieci telekomunikacyjnych 
(Law of 7 May 2010 on support for the development of telecommunications 
services and networks) (consolidated text: Dziennik Ustaw (Journal of Laws) of 
2017, item 2062, ‘the SDTSN Law’) – Article 17(1) and (2), Article 18(1) to (3) 
and (6) to (8) and Article 22(1) to (3) 
Ustawa z dnia 16 lipca 2004 r. prawo telekomunikacyjne (Telecommunications 
Law of 16 July 2004) (consolidated text: Dziennik Ustaw (Journal of Laws) of 
2019, item 2460, ‘the TL’) – Article 139 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-243/21 
 
4  
Succinct presentation of the facts and procedure in the main proceedings 
1 TOYA Sp. z o.o. is a telecommunications undertaking and is also a network 
operator within the meaning of the Law of 7 May 2010 on support for the 
development of telecommunications services and networks (‘the SDTSN Law’). 
2 The OEC President initiated ex officio administrative proceedings and requested 
that TOYA Sp. z o.o. provide information on the conditions for providing access 
to its physical infrastructure. In response, TOYA Sp. z o.o. provided the requested 
information. 
3 On 11 September 2018, the OEC President issued a decision establishing the 
conditions of access to the physical infrastructure owned by TOYA Sp. z o.o. with 
respect to cable ducts and with respect to telecommunication ducts in buildings 
and obliged TOYA Sp. z o.o. to ensure readiness to enter into both framework and 
detailed contracts as well as to accept requests for access to its physical 
infrastructure in accordance with the conditions of access set out in that decision.  
4 TOYA Sp. z o.o. brought an action against the decision of the OEC President to 
the Sąd Okręgowy w Warszawie Sąd Ochrony Konkurencji i Konsumentów 
(Regional Court in Warsaw, Poland, Competition and Consumer Protection 
Court – the referring court). 
Essential arguments of the parties in the main proceedings 
5 In the grounds of the decision, the OEC President referred to Article 18(3) of the 
SDTSN Law, pursuant to which, after the network operator has presented 
information on the conditions for providing access to its physical infrastructure, 
the OEC President, following the criteria set out in Article 22 (1) to (3), may by 
way of a decision establish the conditions for providing access to that physical 
infrastructure. Pursuant to Article 22(1) of the SDTSN Law, the OEC President 
issues a decision on access to physical infrastructure, taking into account, in 
particular, the need to ensure non-discriminatory and proportionate access 
conditions. 
6 The OEC President stressed that those principles are enshrined in EU legislation, 
including, in particular, the Treaty on European Union. Consequently, they should 
be applied taking into account EU legal doctrine and case-law. The principle of 
proportionality means that the conditions of access to the physical infrastructure 
established by the administrative decision must be necessary and appropriate, 
while at the same time the measures applied must be the least restrictive. From 
this principle follows the prohibition on sovereign action beyond that which is 
necessary. Therefore, when assessing the need for the application of a particular 
measure by the Member States, it must first be assessed whether or not a less 
restrictive measure is available in the situation in question. The assessment of the 
necessity for, and scope of, the measure is the responsibility of the authority, 
which verifies the existence of the grounds provided for in the legislation. The 
TOYA 
 
5 
principle of proportionality is always linked to specific and competing interests. 
As regards that principle, the OEC President decided that there was no other 
manner of determining the conditions for access to the physical infrastructure 
owned by TOYA Sp. z o.o. than by way of an administrative decision. In the 
opinion of the OEC President, the rules of access determined in the decision, 
although they affect the property rights of TOYA Sp. z o.o., are not excessively 
restrictive for the company and take due account of its rights and interests. In 
particular, the company is still capable of determining the content of the 
framework contract in order to make it compatible with its own operating rules, 
provided that the provisions of such a framework contract do not conflict with the 
access conditions laid down in the decision and are not less favourable to the 
undertakings benefiting from that access. 
7 The OEC President also pointed out that the provisions of the SDTSN Law 
concerning the grounds that authorise the OEC President to issue decisions 
establishing conditions for access to physical infrastructure do not refer to either 
the scale of the infrastructure owned or the number of disputes over access to that 
infrastructure. Therefore, when issuing the decision, the OEC President took into 
account the fact that TOYA Sp. z o.o. would be obliged to give equal treatment to 
undertakings applying for access under Article 17 of the SDTSN Law. Having 
regard to the need to ensure proportionate access conditions, the OEC President 
set the relevant access conditions, adopting a sufficient, but at the same time 
minimal set of measures to ensure that the objective of that access is achieved. 
8 The OEC President clarified that the decision was in line with the objectives set 
out in the Cost Directive, whose provisions were implemented in the SDTSN 
Law. In particular, it took into account recitals 4, 5, 7, 8 and 9 of the Directive, 
which point to the benefits of sharing infrastructure and the need to remove 
barriers that result in the inefficient use of existing resources. According to the 
OEC President, the universal procedure adopted in the operative part of the 
decision, which determines the conditions for access to physical infrastructure, 
will contribute to aligning the time limits, procedures, and market rates related to 
making cable ducts available. As a consequence, it will result in the equal 
treatment of all operators, contribute to reducing the costs of acquiring 
infrastructure for telecommunications undertakings which benefit from access to 
physical infrastructure, and allow wider access to cable ducts. 
9 The OEC President is of the opinion that the provision of Article 18(3) of the 
SDTSN Law authorises the OEC President to establish the conditions for access to 
physical infrastructure in any situation, even where there is no dispute between the 
parties and also where the operator does not have significant market power in the 
relevant market. 
10 In the view of TOYA Sp. z o.o., the decision, which imposes on it ex ante the 
obligation to enter into framework contracts, grossly infringes Article 3(2) and (5) 
of the Cost Directive, and also recital 12 and Article 1(4) of the Cost Directive, 
read in conjunction with Article 8(2) and (3) of the Access Directive and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-243/21 
 
6  
Article 8(5)(f) of the Framework Directive, pursuant to which such an obligation 
may only be imposed on an operator which has significant market power in the 
relevant market, which market must be duly analysed by the national regulatory 
authority. 
Succinct presentation of the reasons for the reference 
11 The key matter for the resolution of the case at issue is the interpretation of 
Article 18(3) of the SDTSN Law in the light of the provisions of EU law 
regulating the telecommunications market. 
12 Article 18 was introduced into Polish law in order to implement the assumptions 
and solutions arising from the Cost Directive, whose purpose was to lower the 
costs of providing broadband internet access. 
13 Article 3(2) of the Cost Directive provides for the network operator’s obligation to 
meet all reasonable requests for access to its physical infrastructure under fair and 
reasonable terms and conditions. Where access is refused or a dispute arises over 
the specific terms and conditions of such access, the national regulatory authority 
should, pursuant to Article 3(5) of the Cost Directive, issue a decision to resolve 
the dispute. Therefore, the Cost Directive only provides for intervention by the 
national regulatory authority in the event of a dispute in a specific case and does 
not contain provisions allowing that authority to impose an obligation to enter into 
framework contracts in that regard or to interfere with such contracts. 
14 In the light of the provisions of the Cost Directive, there is doubt as to whether the 
OEC President has the authority to take sovereign action in the form of issuing an 
administrative decision that establishes the conditions for access to physical 
infrastructure and obliges TOYA Sp. z o.o. to apply those conditions vis-à-vis any 
operator who requests access. Indeed, in order to achieve the objectives of the 
Cost Directive, it would be sufficient to use administrative decisions only where 
there is a dispute or where competition in the relevant market is distorted. 
15 In addition, the decision imposes ex ante obligations on TOYA Sp. z o.o., whereas 
it follows from the provisions of the Access Directive and the Framework 
Directive, and now the EECC Directive, that such obligations may only be 
imposed where there is no effective and sustainable competition in the market in 
question, and on operators which have significant power in that market. However, 
before issuing the decision in question, the OEC President did not carry out any 
analysis as to the existence of effective competition in the cable duct market, and 
there is no doubt that TOYA Sp. z o.o. does not have significant power in that 
market. The referring court also points out that under Article 1(4) of the Cost 
Directive, if any provision of that Directive conflicts with a provision of the 
Directives referred to therein, in particular the Framework Directive and the 
Access Directive, the relevant provisions of the latter Directives are to prevail. 
TOYA 
 
7 
16 It should be noted that, under Polish law, the OEC President’s authority to impose 
ex ante obligations regarding telecommunications access on a telecommunications 
undertaking is also dependent on whether such action is necessary to ensure 
effective competition. It follows from Article 139(1b) of the TL, read in 
conjunction with Article 139(1) of the TL, that the obligation to provide access to 
buildings and telecommunications infrastructure is imposed on all 
telecommunications undertakings by law, irrespective of whether they have 
significant market power, but the adoption of a decision imposing ex ante 
obligations must be justified by the lack of effective competition. 
17 Apart from the decision concerning TOYA Sp. z o.o., the OEC President issued 
six similar decisions concerning six other operators, who have also brought 
actions against them. The preliminary ruling in this case will also affect the 
manner in which the cases resulting from the other actions are resolved and will 
therefore have a significant impact on the functioning of the national 
telecommunications market.