Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej.
Date: 2017-12-20
37


Article 19(1) of the Framework Directive, however, requires that NRAs, in carrying out their tasks, ‘take the utmost account’ of the recommendations of the Commission and that, where a NRA chooses not to follow a recommendation, it is to inform the Commission giving the reasoning for its position. Therefore, it is for the NRA, when imposing obligations concerning price control and cost accounting in accordance with Article 13 of the Access Directive, to follow, as a rule, the guidance contained in Recommendation 2009/396. It is only where it appears to the NRA, in its assessment of a given situation, that the model advocated by that recommendation is not appropriate to the circumstances that it may depart from it, giving reasons for its position (see, to that effect, judgment of 15 September 2016, Koninklijke KPN and Others, C‑28/15, EU:C:2016:692, paragraphs 37 and 38).
45


Furthermore, it must be noted that Article 8(4) of the Access Directive provides that obligations imposed by the NRA, including those provided for in Article 13 of that directive, 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 that the obligations may only be imposed following consultation in accordance with Articles 6 and 7 of the Framework Directive (see, to that effect, judgment of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 56).
50


With regard to the question whether Article 16 of the Charter precludes the possibility, for a NRA, to require an operator to update its prices on an annual basis and to submit them for periodic monitoring, it is appropriate to recall that, according to the settled case-law of the Court, the protection afforded by that provision covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition. In addition, freedom of contract includes, in particular, the freedom to choose with whom to do business and the freedom to determine the price of a service. However, the freedom to conduct a business does not constitute an absolute prerogative, but must be viewed in relation to its function in society (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 42, 43, 45 and the case-law cited, and of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraphs 25 and 28).
51


The possibility for the NRA to require an operator to update its rates on an annual basis and to submit them for periodic monitoring constitutes an interference in the exercise of the right guaranteed by Article 16 of the Charter. Therefore, it must, pursuant to Article 52(1) of the Charter, be provided for by law and respect the essence of those rights and freedoms and, in compliance with the principle of proportionality, must be necessary and actually meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 46 to 48, and of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 70 and the case-law cited).
59


According to the settled case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraph 27 and the case-law cited).