EN Official Journal of the European Union C 209/41

Action brought on 14 May 2010 — Prezes Urzędu Komunikacji Elektronicznej v Commission

(Case T-226/10)

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2010/C 209/64

Language of the case: Polish

Parties

Applicant: Prezes Urzędu Komunikacji Elektronicznej (Warsaw, Poland) (represented by: H. Gruszecka and D. Pawłowska, legal advisers)

Defendant: European Commission

Form of order sought

— annul the decision of the European Commission of 3 March 2010 in Case PL/2009/1019, concerning the national wholesale market for IP traffic exchange (IP transit), and in Case PL/2009/1020, concerning the national wholesale market for IP traffic exchange (IP peering) with the network of Telekomunikacja Polska S.A.;

— order the European Commission to pay the costs.

Pleas in law and main arguments

The application seeks the annulment of Decision C(2010) 1234 of the European Commission of 3 March 2010 adopted pursuant to Article 7(4) of Directive 2002/21/EC of the European Parliament and of the Council (Framework Directive), (1) in which the Commission has required the Prezes Urzędu Komunikacji Elektronicznej (President of the Office for Electronic Communications) to withdraw draft decisions concerning the wholesale market for IP traffic exchange (IP transit) and the wholesale market for IP peering with the network of Telekomunikacja Polska S.A, which were notified to the Commission on 27 November 2009 and registered under the numbers PL/2009/1019 and PL/2009/1020.

The applicant sets out three pleas in law in support of his action.

The applicant submits in the first plea that, in adopting the contested decision, the Commission infringed essential procedural requirements, including the principle of good administration, the principle of effective cooperation and the consultation mechanism laid down in Article 7 of the Framework Directive, on the ground that the determination made in the contested decision was based on an incorrect translation of the draft decisions submitted by the applicant in the notification procedure, thereby causing the Commission to make erroneous findings on the factual situation which constitutes the framework for the determination notified. Furthermore, the Commission infringed essential procedural requirements by not stating adequate reasons for the contested decision, by reason of the lack of a detailed and objective analysis of the grounds which led the Commission to make the determination requiring withdrawal of the draft decisions notified.

Second, the applicant pleads that the Commission made a manifest error of assessment in finding that IP peering and IP transit services are mutually substitutable. IP peering and IP transit services are not mutually substitutable because they differ as to the extent of IP traffic exchanged between telecommunications undertakings, as to methods for calculating payments for services provided, as to the very definition of service provider (ISP) and as to service quality.

Third, in the applicant’s submission, the Commission also infringed Article 4(3) TEU and Article 102 TFEU in conjunction with Articles 7(4), 8(2)(b) and (c), 14(2), 15(3) and 16(4) of the Framework Directive in considering that the wholesale markets for IP traffic exchange in Poland (IP transit and IP peering) are not two separate markets, that they are not susceptible to ex ante regulation and that Telekomunikacja Polska S.A does not have significant power on both those markets. The applicant contends that, in accordance with the requirements contained in the recommendation (2) and the guidelines, (3) he carried out a market analysis from the point of view of the justification for ex ante regulation and incontestably examined the three relevant criteria. That examination fully confirmed that the markets for IP peering and IP transit traffic exchange are susceptible to ex ante regulation because they are characterised by high and non-transitory barriers, their structure does not tend towards effective competition within the relevant time horizon and application of competition law alone would not adequately address the market failures concerned.

(1) 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 2008 L 108, p. 33).

(2) Commission Recommendation of 17 December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (notified under document number C(2007) 5406) (OJ 2007 L 344, p. 65).

(3) Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services (OJ 2002 C 165, p. 6).