Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej.
Date: 2016-04-14
32


As regards the objectives of the regulatory framework of which the Universal Service Directive forms a part, the Court observed, in paragraph 29 of the judgment in Telekomunikacja Polska (C‑522/08, EU:C:2010:135), that 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.
37


It should be borne in mind in that regard that, according to the Court’s settled case-law, questions on the interpretation of European Union law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer, C‑485/12, EU:C:2014:250, paragraph 31 and the case-law cited).
38


That presumption of relevance cannot be rebutted by the simple fact that one of the parties to the main proceedings contests certain facts, the accuracy of which is not a matter for the Court to determine and on which the delimitation of the subject-matter of those proceedings depends (judgment in Maatschap T. van Oosterom en A. van Oosterom-Boelhouwer, C‑485/12, EU:C:2014:250, paragraph 32 and the case-law cited).
44


The Court has already held in this regard that it follows from the wording of the first subparagraph of Article 5(1) of the Access Directive that the NRAs are responsible for ensuring adequate access and interconnection and also interoperability of services by means which are not exhaustively listed there (see, in relation to that directive, as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37), judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 36 and the case-law cited).
45


In that context, in accordance with point (a) of the second subparagraph of Article 5(1) of the Access Directive, and without prejudice to the steps which may be taken with regard to undertakings having significant market power under Article 8 thereof, those authorities must be able to impose ‘obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks’ solely in order to ensure end-to-end connectivity (see, in relation to that directive, as amended by Directive 2009/140, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 37 and the case-law cited).
49


Regarding the question whether such measures, when adopted under Article 28 of the Universal Service Directive, may entail tariff obligations, it should be noted that, under Article 8(1) of the Access Directive, Member States must ensure that NRAs are empowered to impose the obligations identified in Articles 9 to 13 of that directive, including the obligations related to price control under Article 13 of that directive. Under Article 8(2) of that directive, where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of the Framework Directive, NRAs are required to impose those obligations on that operator (see, in relation to the Universal Service Directive, as amended by Directive 2009/136, and in relation to the Framework Directive and the Access Directive, as amended by Directive 2009/140, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 40).
50


Under Article 8(3) of the Access Directive, without prejudice to certain provisions, including Article 28 of the Universal Service Directive, containing obligations on undertakings other than those designated as having significant market power, the NRAs may impose obligations relating to price control, as defined in particular in Article 13 of the Access Directive, only on operators designated as having significant power, in accordance with Article 8(2) of that directive (see, in relation to the Access Directive, as amended by Directive 2009/140, and the Universal Service Directive, as amended by Directive 2009/136, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 41).
51


Consequently, Article 8(3) of the Access Directive should be interpreted as meaning that, except under certain provisions, including in particular Article 28 of the Universal Service Directive, NRAs may not impose obligations related to price control such as those laid down in Article 13 of the Access Directive on operators which are not designated as having significant power on a given market. Accordingly, in the context of the application of Article 28 of the Universal Service Directive, Article 8(3) of the Access Directive does not preclude the imposition of obligations related to price controls, such as those referred to in Article 13(1) of that directive, on an operator which does not have significant market power on the relevant market under Article 28 of the Universal Service Directive, provided that the conditions for the application of that provision are met (see, to that effect, in relation to the Access Directive, as amended by Directive 2009/140, and the Universal Service Directive, as amended by Directive 2009/136, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 42).
52


It follows that NRAs may, under Article 28 of the Universal Service Directive, impose tariff obligations comparable to those referred to in Article 13(1) of the Access Directive on an operator which does not have significant market power but which controls access to end-users, if such an obligation constitutes a necessary and proportionate measure to ensure that end-users can access services using non-geographic numbers in the European Union (see, in relation to the Access Directive, as amended by Directive 2009/140, and the Universal Service Directive, as amended by Directive 2009/136, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 43).
54


Furthermore, Article 5(1) and (3) and Article 8(4) of the Access Directive set out the conditions which must be satisfied by the obligations imposed by NRAs on operators providing networks or electronic communication services in accordance with Articles 5(1) and 8 of that directive (see, in relation to that directive, as amended by Directive 2009/140, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 45).
55


Article 5(3) of the Access Directive provides that the obligations and conditions imposed under Article 5(1) must be objective, transparent, proportionate and non-discriminatory, and must be implemented in accordance with the procedures referred to in Articles 6 and 7 of the Framework Directive (see, in relation to the Access Directive and the Framework Directive, as amended by Directive 2009/140, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 46).
56


According to Article 8(4) of the Access Directive, obligations imposed in accordance with that article must be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive, and those obligations may be imposed only following consultation in accordance with Articles 6 and 7 of the Framework Directive (see, in relation to the Access Directive and the Framework Directive, as amended by Directive 2009/140, judgment in KPN, C‑85/14, EU:C:2015:610, paragraph 47).
60


According to settled case-law, however, the freedom to pursue a trade or profession, and likewise the right to property, form part of the general principles of European Union law. Those principles are however not absolute, but must be viewed in relation to their societal function. Consequently, the exercise of the right to property and the freedom to pursue a trade or profession may be restricted, provided that any restrictions in fact correspond to objectives of general interest pursued by the European Union and do not constitute in relation to the aim pursued a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed (see, to that effect, judgment in Di Lenardo and Dilexport, C‑37/02 and C‑38/02, EU:C:2004:443, paragraph 82 and the case-law cited).