Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej.
Date: 2011-05-12
17. The Sąd Najwyższy observes that the Court has held that Article 58 of the 2003 Act of Accession precludes obligations contained in Community legislation which has not been published in the Official Journal of the European Union  in the language of a new Member State, where that language is an official language of the European Union, from being imposed on individuals in that State, even though those persons could have become acquainted with that legislation by other means (Case C‑161/06 Skoma-Lux  [2007] ECR I‑10841, paragraphs 57 to 59, and Case C‑560/07 Balbiino  [2009] ECR I‑4447, paragraph 30).
23. In order to answer this question, it is necessary to bear in mind that a fundamental principle of the EU legal order requires that a measure adopted by the public authorities should not be enforceable against those concerned before they have had an opportunity to make themselves acquainted with it (Case C-98/78 Racke [1979] ECR 69, paragraph 15).
24. Furthermore, under Article 2 of the 2003 Act of Accession, measures taken by the institutions before the accession are binding on the new Member States and are applicable in those States with effect from the accession. On the other hand, their enforceability against natural and legal persons in those States is subject to the general conditions governing the implementation of Community law in the Member States, as laid down in the original Treaties and, in the case of the new Member States, by the 2003 Act of Accession itself ( Skoma-Lux , paragraph 32).
25. As regards regulations of the Council or the Commission and directives of those institutions, which are addressed to all the Member States, it follows from Article 254(2) EC that those measures cannot produce legal effects unless they have been published in the Official Journal of the European Union (see, to that effect, Skoma-Lux , paragraph 33).
26. Moreover, those measures cannot be enforced against natural and legal persons in a Member State before those persons have had an opportunity to make themselves acquainted with them through their proper publication in the Official Journal of the European Union  ( Racke , paragraph 15, and Skoma-Lux , paragraph 37).
27. Those principles must also be observed and have the same consequences where, for its implementation, EU legislation obliges Member States to adopt measures imposing obligations on individuals. Accordingly, national measures which, for the purposes of implementing EU legislation, impose obligations on individuals must be published in order for the individuals concerned to be able to ascertain those obligations (see, to that effect, Case C-313/99 Mulligan and Others  [2002] ECR I-5719, paragraphs 51 and 52). In such circumstances, it must also be possible for the individuals to determine the source of the national measures imposing obligations upon them. Accordingly, not only must the national legislation be published but also the measure of EU law which, in some circumstances, obliges the Member States to take the measures imposing obligations on individuals (see, to that effect, Heinrich , paragraphs 45 to 47).
28. Furthermore, it follows from Article 58 of the 2003 Act of Accession, read in conjunction with Articles 4, 5 and 8 of Regulation No 1/58, that the proper publication of an EU regulation, in the case of a Member State whose language is an official language of the European Union, must include the publication of that measure, in that language, in the Official Journal of the European Union ( Skoma-Lux , paragraph 34).
29. The Court has thus held that, where the language of a new Member State is an official language of the European Union, Article 58 of the 2003 Act of Accession precludes obligations laid down in EU legislation which has not been published, in that language, in the Official Journal of the European Union from being imposed on individuals in that State, even though those persons could have acquainted themselves with that legislation by other means (see, to that effect, Skoma-Lux , paragraph 51, and Balbiino , paragraph 30).
31. Articles 15 and 16 of Directive 2002/21, which are expressly addressed to the NRAs, constitute the legal basis for the 2002 Guidelines. Those provisions serve as a guide for the NRAs for the purposes of defining and analysing the relevant markets in order to determine whether those markets must be made subject to ex ante  regulation. According to point 1 thereof, the 2002 Guidelines set out the principles for use by NRAs in the analysis of markets and effective competition under the regulatory framework for electronic communications. Point 6 of those guidelines also states that they are intended to guide NRAs in the exercise of their new responsibilities for defining markets and assessing significant market power (Case C‑424/07 Commission  v Germany  [2009] ECR I‑11431, paragraphs 75 and 76).
35. Moreover, those guidelines were published in 2002 in the ‘C’ series of the Official Journal of the European Union . By contrast with the ‘L’ series of the Official Journal, the ‘C’ series is not intended for the publication of legally binding measures, but only of information, recommendations and opinions concerning the European Union.
38. It should be noted, moreover, that the Court has already rejected the existence of a general principle of EU law under which anything that might affect the interests of an EU citizen must be drawn up in his language in all circumstances (see, to that effect, Case C‑361/01 P Kik v OHIM  [2003] ECR I‑8283, paragraphs 82 and 83).