CELEX: 62008CJ0522
Language: en
Date: 2010-03-11 00:00:00
Title: Judgment of the Court (Third Chamber) of 11 March 2010.#Telekommunikacja Polska SA w Warszawie v Prezes Urzędu Komunikacji Elektronicznej.#Reference for a preliminary ruling: Naczelny Sąd Administracyjny - Poland.#Electronic communications - Telecommunications services - Directive 2002/21/EC - Directive 2002/22/EC - Making the conclusion of a contract for the provision of services contingent on the conclusion of a contract for the supply of other services - Prohibition - Broadband internet.#Case C-522/08.

Case C-522/08
      Telekomunikacja Polska SA w Warszawie
      v
      Prezes Urzędu Komunikacji Elektronicznej
      (Reference for a preliminary ruling from the Naczelny Sąd Administracyjny)
      (Electronic communications – Telecommunications services – Directive 2002/21/EC – Directive 2002/22/EC – Making the conclusion of a contract for the provision of services contingent on the conclusion of a contract for the supply
         of other services – Prohibition – Broadband internet)
      
      Summary of the Judgment
      Approximation of laws – Telecommunications sector – Electronic communications networks and services – Regulatory framework
            – Directive 2002/21 – Universal service and users’ rights – Directive 2002/22 – Unfair business-to-consumer commercial practices
            – Directive 2005/29
      (European Parliament and Council Directives 2002/21, 2002/22 and 2005/29)
      Directive 2002/21, on a common regulatory framework for electronic communications networks and services, and Directive 2002/22,
         on universal service and users’ rights relating to electronic communications networks and services, must be interpreted as
         not precluding national legislation which prohibits making the conclusion of a contract for the provision of services contingent
         on the conclusion, by the end‑user, of a contract for the provision of other services. However, Directive 2005/29, concerning
         unfair business‑to‑consumer commercial practices in the internal market, must be interpreted as precluding national legislation
         which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of
         combined offers made by a vendor to a consumer.
      
      (see para. 33, operative part)
JUDGMENT OF THE COURT (Third Chamber)
      11 March 2010 (*)
      
      (Electronic communications – Telecommunications services – Directive 2002/21/EC – Directive 2002/22/EC – Making the conclusion of a contract for the provision of services contingent on the conclusion of a contract for the supply
         of other services – Prohibition – Broadband internet)
      
      In Case C‑522/08,
      REFERENCE for a preliminary ruling under Article 234 EC from the Naczelny Sąd Administracyjny (Poland), made by decision of
         17 September 2008, received at the Court on 28 November 2008, in the proceedings
      
      Telekomunikacja Polska SA w Warszawie
      v
      Prezes Urzędu Komunikacji Elektronicznej,
      THE COURT (Third Chamber),
      composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, E. Juhász, G. Arestis (Rapporteur) and D. Šváby,
         Judges,
      
      Advocate General: N. Jääskinen,
      Registrar: K. Malacek, Administrator,
      having regard to the written procedure and further to the hearing on 10 December 2009,
      after considering the observations submitted on behalf of:
      –        Telekomunikacja Polska SA w Warszawie, by H. Romańczuk, P. Paśnik and A. Mednis, adwokaci,
      –        Prezes Urzędu Komunikacji Elektronicznej, by D. Dziedzic‑Chojnacka and H. Gruszecka, acting as Agents,
      –        the Polish Government, by M. Dowgielewicz, A. Kraińska and S. Sala, acting as Agents,
      –        the Italian Government, by I. Bruni, acting as Agent, and P. Gentili, avvocato dello Stato,
      –        the European Commission, by W. Wils, A. Nijenhuis and K. Mojzesowicz, acting as Agents,
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        This reference for a preliminary ruling concerns the interpretation 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) (OJ 2002 L 108, p. 33; ‘the Framework Directive’) and 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; ‘the Universal Service Directive’).
      
      2        The reference has been made in the context of proceedings between Telekomunikacja Polska SA w Warszawie (‘TP’) and the Prezes
         Urzędu Komunikacji Elektronicznej (President of the Office for Electronic Communications; ‘the President of the UKE’), concerning
         the prohibition, imposed on TP, on making the conclusion of a contract for the provision of services contingent on the conclusion,
         by the end‑user, of a contract for the provision of other services.
      
       Legal context
       European Union legislation
       The Framework Directive and the Universal Service Directive
      3        In accordance with Article 1(1) of the Framework Directive:
      
      ‘This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications
         networks, associated facilities and associated services. It lays down tasks of national regulatory authorities [‘NRAs’] and
         establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the [Union].’
      
      4        Under Article 2(g) of the Framework Directive, an NRA is ‘the body or bodies charged by a Member State with any of the regulatory
         tasks assigned in this Directive and the Specific Directives’.
      
      5        Article 8 of the Framework Directive provides:
      
      ‘1.      Member States shall ensure that, in carrying out the regulatory tasks specified in this Directive and the Specific Directives,
         the [NRAs] 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.
      
      …
      4.      The [NRAs] shall promote the interests of the citizens of the European Union by inter alia:
      ...
      (b)      ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability
         of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;
      
      …’
      6        Article 15 of the Framework Directive concerns the market definition procedure. Article 15(3) provides:
      
      ‘[NRAs] shall, taking the utmost account of the recommendation and the guidelines, define relevant markets appropriate to
         national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles
         of competition law. [NRAs] shall follow the procedures referred to in Articles 6 and 7 before defining the markets that differ
         from those defined in the recommendation.’
      
      7        Article 16 of the Framework Directive, referring to the market analysis procedure, provides:
      
      ‘1.      As soon as possible after the adoption of the recommendation or any updating thereof, [NRAs] shall carry out an analysis of
         the relevant markets, taking the utmost account of the guidelines. Member States shall ensure that this analysis is carried
         out, where appropriate, in collaboration with the national competition authorities.
      
      2.      Where a [NRA] is required under Articles 16, 17, 18 or 19 of [the Universal Service Directive], or Articles 7 or 8 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) (OJ 2002 L 108, p. 7; “the Access Directive”)], to determine
         whether to impose, maintain, amend or withdraw obligations on undertakings, it shall determine on the basis of its market
         analysis referred to in paragraph 1 of this Article whether a relevant market is effectively competitive.
      
      …
      4.      Where a [NRA] determines that a relevant market is not effectively competitive, it shall identify undertakings with significant
         market power on that market in accordance with Article 14 and … shall on such undertakings impose appropriate specific regulatory
         obligations referred to in paragraph 2 of this Article or maintain or amend such obligations where they already exist.
      
      …’
      8        Under Article 10(1) of the Universal Service Directive:
      
      ‘Member States shall ensure that designated undertakings, in providing facilities and services additional to those referred
         to in Articles 4, 5, 6, 7 and 9(2), establish terms and conditions in such a way that the subscriber is not obliged to pay
         for facilities or services which are not necessary or not required for the service requested.’
      
      9        Article 17 of the Universal Service Directive, entitled ‘Regulatory controls on retail services’, provides in paragraphs (1)
         and (2):
      
      ‘1.      Member States shall ensure that, where:
      (a)      as a result of a market analysis carried out in accordance with Article 16(3) a [NRA] determines that a given retail market
         identified in accordance with Article 15 of [the Framework Directive] is not effectively competitive, and
      
      (b)      the [NRA] concludes that obligations imposed under [the Access Directive], or Article 19 of this Directive would not result
         in the achievement of the objectives set out in Article 8 of [the Framework Directive],
      
      [NRAs] shall impose appropriate regulatory obligations on undertakings identified as having significant market power on a
         given retail market in accordance with Article 14 of [the Framework Directive].
      
      2.      Obligations imposed under paragraph 1 shall be based on the nature of the problem identified and be proportionate and justified
         in the light of the objectives laid down in Article 8 of [the Framework Directive]. The obligations imposed may include requirements
         that the identified undertakings do not charge excessive prices, inhibit market entry or restrict competition by setting predatory
         prices, show undue preference to specific end‑users or unreasonably bundle services. [NRAs] may apply to such undertakings
         appropriate retail price cap measures, measures to control individual tariffs, or measures to orient tariffs towards costs
         or prices on comparable markets, in order to protect end‑user interests whilst promoting effective competition.’
      
      10      Article 20(1) of the Universal Service Directive states, with regard to contracts, that it is to apply without prejudice to
         European Union rules on consumer protection and to national rules in conformity with European Union law.
      
       Directive 2005/29/EC
      11      Article 2 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business‑to‑consumer
         commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
         of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council
         (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) provides:
      
      ‘For the purposes of this Directive:
      ...
      (d)      “business‑to‑consumer commercial practices” ... means any act, omission, course of conduct or representation, commercial communication
         including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;
      
      ...’
      12      According to Article 4 of that directive:
      
      ‘Member States shall neither restrict the freedom to provide services nor restrict the free movement of goods for reasons
         falling within the field approximated by this Directive.’
      
       National legislation
      13      Article 46(2) of the Law on Telecommunications (ustawa – Prawo telekomunikacyjne) of 16 July 2004 (Dz. U. No 171, item 1800),
         in the version applicable to the facts in the main proceedings (‘the Law on Telecommunications’), provides:
      
      ‘2.      For the purpose of protecting the end‑user, the President of the [UKE] may, by way of a decision, impose on a telecommunications
         undertaking with significant market power in the retail market the following obligations:
      
      …
      (5)      not to oblige an end‑user to subscribe to services which that end‑user does not require.
      …’
      14      Article 57(1) of the Law on Telecommunications provides:
      
      ‘1.      A service provider may not make the conclusion of a contract for the provision of publicly available telecommunications services,
         including connection to a public telecommunications network, contingent on:
      
      (1)      the conclusion, by the end‑user, of a contract for the provision of other services or the purchase of equipment from a specific
         provider;
      
      ...’
       The dispute in the main proceedings and the questions referred for a preliminary ruling
      15      By decision of 28 December 2006, the President of the UKE called on TP to put an end to irregularities which had been identified,
         consisting in making the conclusion of a contract for the provision of ‘neostrada tp’ broadband internet access services contingent
         on the conclusion of a contract for telephone services. Following the application for re-examination of the matter lodged
         by TP, the President of the UKE, by decision of 14 March 2007, upheld the decision of 28 December 2006.
      
      16      By an action brought on 13 April 2007 before the Wojewódzki Sąd Administracyjny w Warszawie (Regional Administrative Court,
         Warsaw), TP sought annulment of the two decisions of the President of the UKE, claiming that Article 57(1)(1) of the Law on
         Telecommunications had been applied, wrongly, in spite of its incompatibility with the Universal Service Directive. The Wojewódzki
         Sąd Administracyjny w Warszawie dismissed that action and held that the President of the UKE had correctly applied that article.
      
      17      On 8 January 2007, TP brought an appeal in cassation against that last decision before the Naczelny Sąd Administracyjny (Supreme
         Administrative Court), which decided to stay the proceedings and to refer the following questions to the Court for a preliminary
         ruling:
      
      ‘1.      Does Community law permit the Member States to introduce a prohibition, directed at all undertakings providing telecommunication
         services, on making the conclusion of a service-provision contract contingent on the purchase of another service (combined
         sale) and, in particular, does a measure of this kind go beyond what is necessary to attain the objectives of the directives
         contained in the telecommunications package [the Access Directive; 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 (the Authorisation Directive)
         (OJ 2002 L 108, p. 21); the Framework Directive; and the Universal Service Directive]?
      
      2.      If the first question is answered in the affirmative, is the [NRA] competent, in the light of Community law, to monitor compliance
         with the prohibition laid down in Article 57(1)(1) of [the Law on Telecommunications]?’
      
       Consideration of the questions referred
       The first question
      18      By its first question, the national court asks, in essence, whether the directives on the common regulatory framework for
         electronic communications must be interpreted as precluding national legislation, such as that at issue in the main proceedings,
         which prohibits the making of the conclusion of a contract for the provision of services contingent on the conclusion, by
         the end‑user, of a contract for the provision of other services.
      
      19      It is apparent from the order for reference that the dispute in the main proceedings originates in TP’s allegations that Article
         57(1)(1) of the Law on Telecommunications is, inter alia, incompatible with Articles 15 and 16 of the Framework Directive
         and with Articles 10 and 17 of the Universal Service Directive. TP claims that those provisions preclude national legislation
         which requires all operators to refrain from linking provision of their services without an assessment of the degree of competition
         on the market and independently of their position thereon.
      
      20      It follows that, in order to reply to the question referred, it is necessary to interpret the relevant provisions of the Framework
         Directive and the Universal Service Directive.
      
      21      Pursuant to Article 1(1) of the Framework Directive, the objective of that directive is to establish a harmonised framework
         for the regulation of electronic communications services, electronic communications networks, associated facilities and associated
         services. The directive lays down the tasks of the NRAs and establishes a set of procedures designed to ensure the harmonised
         application of the regulatory framework throughout the Union. The Framework Directive thus confers on the NRAs specific tasks
         in regulating the electronic communications markets.
      
      22      Under Article 15 of the Framework Directive, and in particular Article 15(3), the NRAs are required to define, in close collaboration
         with the European Commission, the relevant markets in the electronic communications sector. In accordance with Article 16
         of that directive, the NRAs are required to carry out an analysis of the relevant markets thus defined and to assess whether
         those markets are effectively competitive. If a market is not effectively competitive, the NRA concerned is required to impose
         regulatory obligations ex ante on undertakings with significant market power on that market.
      
      23      With regard to the Universal Service Directive, Article 1(1) thereof provides that, within the framework of the Framework
         Directive, the Universal Service Directive concerns the provision of electronic communications networks and services to end‑users.
         It is designed to ensure the availability throughout the Union of good-quality publicly available services through effective
         competition and choice and to deal with circumstances in which the needs of end‑users are not satisfactorily met by the market.
         The Universal Service Directive establishes the rights of end‑users and the corresponding obligations on undertakings providing
         publicly available electronic communications networks and services.
      
      24      Pursuant to Article 10(1) of the Universal Service Directive, Member States are required to ensure that designated undertakings,
         in providing facilities and services additional to those referred to in Articles 4, 5, 6, 7 and 9(2) of that directive, establish
         terms and conditions in such a way that the subscriber is not obliged to pay for facilities or services which are not necessary
         or not required for the service requested.
      
      25      Article 17 of the Universal Service Directive concerns regulatory controls on retail services. Pursuant to Article 17(1),
         NRAs are required to impose appropriate regulatory obligations on undertakings identified as having significant market power
         on the market where, as a result of analysis of that market, a NRA determines that that market is not effectively competitive
         and the NRA concludes that the obligations imposed under the Access Directive or Article 19 of the Universal Service Directive
         would not result in the achievement of the objectives set out in Article 8 of the Framework Directive.
      
      26      In that regard, Article 17(2) of the Universal Service Directive provides, inter alia, that the obligations imposed under
         Article 17(1) may include requirements that the identified undertakings do not unreasonably bundle services. Thus, such a
         provision permits NRAs which have established that a market is not competitive to impose on undertakings having significant
         market power on that market the regulatory obligation not to link provision of their services unreasonably.
      
      27      It is therefore necessary to examine whether national legislation, such as that at issue in the main proceedings, affects
         the powers that the NRA concerned derives from the abovementioned provisions of the Framework Directive and the Universal
         Service Directive.
      
      28      In that regard, it must be stated, first, that such legislation, which, generally and without discrimination, prohibits linked
         sales, does not affect the powers of the NRA concerned to define and analyse the different electronic communications markets,
         in accordance with the respective provisions of Articles 15 and 16 of the Framework Directive. Nor does it affect the power
         of that NRA to impose, after carrying out an analysis of a market, regulatory obligations ex ante on undertakings which have been identified as having significant market power on that market in accordance with Article 16
         of the Framework Directive and Article 17 of the Universal Service Directive.
      
      29      Second, as the President of the UKE and the Polish Government have emphasised, the prohibition laid down in Article 57(1)(1)
         of the Law on Telecommunications seeks to guarantee enhanced protection of consumers in their relations with operators of
         telecommunications services. Although, in carrying out their tasks, the NRAs are, in accordance with Article 8(4)(b) of the
         Framework Directive, required to promote the interests of citizens of the Union by ensuring a high level of protection for
         consumers, the fact remains that the Framework Directive and the Universal Service Directive do not provide for full harmonisation
         of consumer-protection aspects. Article 20 of the Universal Service Directive, which relates to contracts concluded between
         consumers and providers of electronic communications services, states that it applies without prejudice to European Union
         rules on consumer protection and national rules in conformity with European Union law.
      
      30      It follows that the Framework Directive and the Universal Service Directive cannot preclude national legislation, such as
         that at issue in the main proceedings, which, for the purpose of protecting end‑users, prohibits an undertaking from making
         the conclusion of a contract for the provision of telecommunications services contingent on the conclusion, by the end‑user,
         of a contract for the provision of other services.
      
      31      As to the compliance of national legislation, such as that at issue in the main proceedings, with European Union legislation
         on consumer protection, the Court has already held that Directive 2005/29 is to be interpreted as precluding national legislation
         which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of
         combined offers made by a vendor to a consumer (Joined Cases C‑261/07 and C‑299/07 VTB‑VAB andGalatea [2009] ECR I‑0000, paragraph 68).
      
      32      In the present case, in view of the fact that the decisions under challenge in the main proceedings were adopted before the
         date on which the period for the transposition of Directive 2005/29 expired, that directive applies to the case in the main
         proceedings only with effect from that date, that is, from 12 December 2007.
      
      33      It follows that the answer to the first question is that the Framework Directive and the Universal Service Directive must
         be interpreted as not precluding national legislation, such as Article 57(1)(1) of the Law on Telecommunications, which prohibits
         making the conclusion of a contract for the provision of services contingent on the conclusion, by the end‑user, of a contract
         for the provision of other services. However, Directive 2005/29 must be interpreted as precluding national legislation which,
         with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of combined
         offers made by a vendor to a consumer.
      
       The second question
      34      In the light of the answer to the first question, it is not necessary to answer the second question.
      
       Costs
      35      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 those grounds, the Court (Third Chamber) hereby rules:
      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) and 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) must be interpreted as not precluding national legislation, such as Article 57(1)(1) of the
            Polish Law on Telecommunications (ustawa – Prawo telekomunikacyjne) of 16 July 2004, in the version applicable to the facts
            in the main proceedings, which prohibits making the conclusion of a contract for the provision of services contingent on the
            conclusion, by the end‑user, of a contract for the provision of other services.
      However, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business‑to‑consumer
            commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
            of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council
            (‘Unfair Commercial Practices Directive’) must be interpreted as precluding national legislation which, with certain exceptions,
            and without taking account of the specific circumstances, imposes a general prohibition of combined offers made by a vendor
            to a consumer.
      [Signatures]
      * Language of the case: Polish.