1.

By this reference for a preliminary ruling, the Sąd Najwyższy (Supreme Court, Poland) invites the Court to clarify to what extent, and under which conditions, Directive 2002/19/EC (‘the Access Directive’) ( 2 ) empowers national regulatory authorities (‘NRAs’) to control the prices charged by telecommunications operators for the provision of access or interconnection services.

2.

The service at issue in the present case is that of wholesale voice call termination on mobile networks. When a subscriber of a mobile network makes a call to a subscriber of another mobile network, the calling party calls the network of the called party. Wholesale voice call termination is the service required in order to ‘terminate’ that call on the network of the called party. In the EU, the termination charge is set by the called network and paid by the calling network. Therefore, one major competition problem is that of high termination rates, which are then passed on to end-users through high call charges. ( 3 )

3.

This is why Article 13 of the Access Directive empowers NRAs to impose price control measures on interconnection services. Price control measures may, however, be imposed only on an operator which has been designated as having significant market power as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (‘the Framework Directive’), ( 4 ) and only where that operator ‘might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users’. Pursuant to Article 13(1) of the Access Directive, price control measures may in particular take the form of ‘obligations for cost orientation of prices’.

4.

The key question raised by this preliminary reference is whether NRAs may, by imposing an obligation for cost orientation of prices, impose on an operator with significant market power an obligation to set prices below the costs incurred by that operator for the provision of termination services. The Court is also asked, in particular, how often an NRA may, once such cost-oriented prices have been set, require their adjustment, and which procedure must be followed to that end.

5.

According to Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’):

‘The freedom to conduct a business in accordance with Union law and national laws and practices is recognised.’

6.

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 national regulatory authorities 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.

…

2.   The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia:

…

…’

7.

Article 16 of the Framework Directive states:

‘1.   As soon as possible after the adoption of the recommendation or any updating thereof, national regulatory authorities 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 national regulatory authority is required under Articles 16, 17, 18 or 19 of Directive 2002/22/EC (Universal Service Directive), or Articles 7 or 8 of [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.

3.   Where a national regulatory authority concludes that the market is effectively competitive, it shall not impose or maintain any of the specific regulatory obligations referred to in paragraph 2 of this Article. In cases where sector specific regulatory obligations already exist, it shall withdraw such obligations placed on undertakings in that relevant market. An appropriate period of notice shall be given to parties affected by such a withdrawal of obligations.

4.   Where a national regulatory authority 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 the national regulatory authority 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.

Article 8 of the Access Directive provides:

‘1.   Member States shall ensure that national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13.

2.   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], national regulatory authorities shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate.

…

4.   Obligations imposed in accordance with this Article shall 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]. Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of that Directive.

…’

9.

Article 13 of the Access Directive states:

‘1.   A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users. National regulatory authorities shall take into account the investment made by the operator and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved.

2.   National regulatory authorities shall ensure that any cost recovery mechanism or pricing methodology that is mandated serves to promote efficiency and sustainable competition and maximise consumer benefits. In this regard national regulatory authorities may also take account of prices available in comparable competitive markets.

3.   Where an operator has an obligation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs including a reasonable rate of return on investment shall lie with the operator concerned. For the purpose of calculating the cost of efficient provision of services, national regulatory authorities may use cost accounting methods independent of those used by the undertaking. National regulatory authorities may require an operator to provide full justification for its prices, and may, where appropriate, require prices to be adjusted.

...’

10.

Article 40 of the Law on telecommunications of 16 July 2004, ( 5 ) in the version applicable at the material time (‘the PT’), states:

‘1.   The President of the [Office for Electronic Communications] may, in accordance with the conditions referred to in Article 24(2)(a), impose on operators with significant market power, by way of a decision, an obligation to set fees for telecommunications access on the basis of the costs incurred.

2.   An operator on which an obligation as referred to in paragraph 1 is imposed shall submit to the President of the [Office for Electronic Communications] a justification of the amount of the fees set on the basis of the costs incurred.

3.   In order to assess whether or not the amount of the fees set by the operator referred to in paragraph 1 is correct, the President of the [Office for Electronic Communications] may take account of the amount of, or the methods for establishing, the fees on comparable competitive markets or other means of assessing whether those fees are correct.

4.   Where, according to the assessment referred to in paragraph 3, the amount of the fees set by the operator is incorrect, the President of the [Office for Electronic Communications] shall set the amount of the fees or the maximum or minimum level thereof, applying the methods referred to in paragraph 3, having regard to promoting efficiency and sustainable competition and to ensuring maximum benefits for end-users.’

11.

By decision adopted on 19 July 2006 ( 6 ) pursuant to Article 40 of the PT, Prezes Urzędu Komunikacji Elektronicznej (President of the Office for Electronic Communications, ‘the President of the UKE’) designated telecommunications operator Polkomtel Sp. z o.o. (‘Polkomtel’) as having significant market power on the market for voice call termination services on its mobile public network. Consequently, that decision imposed on Polkomtel the obligation to set its mobile termination rate (‘the MTR’) on the basis of the costs it incurred in supplying those services. That decision is still in force.

12.

In response to a question of the Court at the oral hearing, the President of the UKE explained that in 2007 it adopted a decision setting the MTR for Polkomtel for the following three years, that is until May 2010. According to that decision, Polkomtel’s MTR was set at 0.44 Polish zlotys (PLN) a minute. However, it was to decrease gradually over that three-year period.

13.

At the oral hearing, the President of the UKE further explained that in 2008 it nevertheless adopted another decision setting the MTR for Polkomtel (‘the 2008 MTR decision’). According to that decision, the MTR was set at PLN 0.33 a minute for the third quarter of 2008, at PLN 0.21 a minute for the first semester of 2009, and at PLN 0.1677 a minute from the third quarter of 2009 onwards.

14.

The President of the UKE and Polkomtel both stated at the oral hearing that Polkomtel sought and obtained the annulment of the 2008 MTR decision before the Polish courts.

15.

Finally, following the provision by Polkomtel of elements justifying its costs, on 9 December 2009 the President of the UKE adopted a decision setting the MTR for Polkomtel at PLN 0.1677 a minute ( 7 ) (‘the 2009 MTR decision’). Therefore, the MTR set by that decision corresponds to the MTR set by the 2008 MTR decision for the third quarter of 2009.

16.

In the 2009 MTR decision, the President of the UKE verified the elements provided by Polkomtel to justify its costs. He stressed that, pursuant to Article 40 of the PT, all costs incurred by the operator could be recovered (whereas another provision of the PT, Article 39, only allows for the recovery of costs justified by the operator). He found that the costs incurred by Polkomtel for the provision of the service at issue amounted to PLN 0.1690 a minute.

17.

However, the President of the UKE did not set the MTR for Polkomtel at PLN 0.1690 a minute. This was because, in accordance with Article 40(3) and (4) of the PT, he decided to calculate the MTR for Polkomtel on the basis of the average MTR of the three incumbent operators, namely Polkomtel, Orange and T-Mobile. The MTR for Orange amounted to PLN 0.1676 a minute and the MTR for T-Mobile to PLN 0.1667 a minute. Therefore, in the 2009 MTR decision the President of the UKE set the MTR for Polkomtel at PLN 0.1677 a minute.

18.

Polkomtel lodged an appeal against the 2009 MTR decision before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland). By judgment of 27 May 2013, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) varied the contested decision. It set the amount of the MTR for Polkomtel at PLN 0.1690 a minute, that is, at the level of the costs incurred by Polkomtel for the provision of the termination service at issue. According to the Sąd Okręgowy w Warszawie (Regional Court, Warsaw), where the obligation referred to in Article 40 of the PT is imposed on an operator with significant market power, the President of the UKE cannot modify the MTR submitted by that operator in such a way as to set the amount of the MTR at a level below the costs incurred by that operator for the provision of the service in question.

19.

Polkomtel as well as the President of the UKE appealed against the judgment of the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) before the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw, Poland). By judgment of 7 May 2014, the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw) granted the appeal brought by the President of the UKE and rejected the appeal brought by Polkomtel. According to the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw), where the obligation referred to in Article 40 of the PT is imposed on an operator with significant market power, the President of the UKE may set the MTR at a level below the costs incurred by that operator, provided that this promotes efficiency and sustainable competition and ensures maximum benefits for end-users. In that regard, the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw) relied on Article 13(3) of the Access Directive, which provides that the burden of proving that prices are oriented on costs lies with that operator. Consequently, where the operator does not meet that burden, the relevant NRA may set the MTR by way of decision. Moreover, according to the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw), the President of the UKE may impose on Polkomtel an obligation to provide justification for its MTR on a yearly basis, in order to allow the President of the UKE to exercise his regulatory powers.

20.

Polkomtel lodged an appeal against the judgment of the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw) before the Sąd Najwyższy (Supreme Court).

21.

The Sąd Najwyższy (Supreme Court) stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

22.

Written observations were submitted by Polkomtel, the President of the UKE, the Italian Republic, the Kingdom of the Netherlands, the Republic of Poland and the European Commission. Polkomtel, the President of the UKE, the Republic of Poland and the European Commission also presented oral argument at the hearing on 11 May 2017.

23.

By the first question, the referring court asks whether Article 13 of the Access Directive, read in conjunction with Article 8(4) of that directive, must be interpreted as meaning that an NRA may impose on an operator with significant market power an obligation to set prices below the costs incurred by that operator for the provision of the service in question, as verified by that authority.

24.

I would point out that, in the 2009 MTR decision, the President of the UKE verified the elements provided by Polkomtel as a justification for its MTR and found that the costs incurred by Polkomtel for the provision of voice call termination services on its mobile network amounted to PLN 0.1690 a minute. However, on the ground that efficiency and sustainable competition were to be promoted, that decision set the MTR for Polkomtel at PLN 0.1677 a minute, that is, at a level below the costs incurred by that operator. Since the MTRs of the other two incumbent operators, Orange and T-Mobile, amounted to PLN 0.1676 and PLN 0.1667 a minute respectively, Polkomtel’s MTR was set on the basis of the average MTR set for the three incumbent operators.

25.

Polkomtel submits that an operator with significant market power cannot be obliged to set its prices below the costs incurred for the provision of the service in question. Article 13 of the Access Directive does not state that prices may be set below costs. The obligation for cost orientation of prices laid down in paragraph 1 of that provision simply aims at avoiding excessively high prices. Polkomtel further submits that Article 13(3) of the Access Directive requires the operator to demonstrate causation between specific costs and the service provided. It does not require it to establish that its costs are those of an efficient operator.

26.

The President of the UKE contends that an NRA may impose on an operator with significant market power an obligation to set prices below the costs incurred for the provision of the service in question. Article 13(1) of the Access Directive allows an NRA to impose obligations for cost orientation of prices. Paragraphs 2 and 3 of Article 13 of that directive make reference respectively to the promotion of efficiency and sustainable competition and to the cost of efficient provision of services. Article 8 of the Framework Directive also makes reference to the promotion of competition. Consequently, an operator with significant market power may be obliged to set prices below the costs incurred, where those costs exceed those sustained by an efficient operator for the provision of that service.

27.

The Italian Government, the Polish Government and the Commission agree with the President of the UKE. The Netherlands Government did not submit observations on the first question referred.

28.

In my view, Article 13 of the Access Directive, read in conjunction with Article 8(4) of that directive, must be interpreted as meaning that an NRA may, in order to promote efficiency, impose on an operator designated as having significant market power an obligation to set the price for the provision of a specific service below the costs which that operator incurred for the provision of that service.

29.

Article 13(1) of the Access Directive provides that an NRA may impose on an operator with significant market power ‘obligations relating to cost recovery and price controls, including obligations for cost orientation of prices’.

30.

There is no definition in Article 13(1) of the Access Directive of the notion of ‘cost orientation’. An obligation for ‘cost orientation’ of prices could be an obligation to set prices at a level which is equal to the amount of the costs incurred by the operator concerned for the provision of the service in question (in that case, prices are ‘cost-oriented’ in the sense that they are equal to the amount of the costs incurred). It could also be an obligation to set prices at a level which not only covers all costs incurred, but also allows for a small margin of profit (in that case, prices are ‘cost-oriented’ in the sense that they only slightly exceed the costs incurred). Finally, it could be an obligation to set prices at a level which does not cover all costs incurred by the operator concerned for the provision of the service in question, but which covers the costs sustained by an efficient operator for the provision of that service, with or without a small profit margin (in that case, costs are ‘oriented’ on the costs of an efficient provision of the service in question).

31.

First, I stress that the obligation ‘for cost orientation’ of prices provided for by Article 13(1) of the Access Directive cannot be seen as an obligation to set prices at a level which allows for recovery of all the costs incurred by the operator concerned for the provision of the service in question.

32.

This is because Article 13(1) of the Access Directive lays down an obligation ‘for cost orientation’ of prices. It does not lay down an obligation ‘to recover’ all costs incurred.

33.

It is true that Article 13(1) makes reference to obligations ‘relating to cost recovery’, of which the obligation ‘for cost orientation’ of prices may be seen as an example. However, the obligation ‘for cost orientation’ of prices may also be seen as an example of ‘price control’ measures, also referred to in Article 13(1) (since that provision states that an NRA may ‘impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices’). ( 8 )

34.

Second, even if the obligation ‘for cost orientation’ of prices provided for by Article 13(1) of the Access Directive were to be seen as an obligation to recover all costs incurred by the operator concerned for the provision of the service in question, this would still be an obligation that NRAs may impose on operators with significant market power. It could not be an obligation that NRAs are required to impose on such operators under certain circumstances, namely where excessively high prices are charged or where there is a price squeeze.

35.

This is because Article 13(1) of the Access Directive expressly states that an NRA ‘may’ impose obligations for cost orientation of prices.

36.

Where a market analysis conducted in accordance with Article 16 of the Framework Directive reveals that a particular market is not effectively competitive, the relevant NRA enjoys a broad discretion in order to choose the remedy to be imposed on the operator designated as having significant market power. ( 9 ) According to Article 16(4) of the Framework Directive and to Article 8(2) of the Access Directive, the relevant NRA ‘shall’ impose an obligation on such operator. It may, however, choose any obligation among those listed, in particular, in Articles 9 to 13 of the Access Directive. It may even, ‘in exceptional circumstances’, choose to impose a remedy not listed in the Access Directive, provided that the Commission authorises such remedy. ( 10 )

37.

As regards price control measures, recital 20 of the Access Directive states that regulatory intervention ‘may be relatively light, such as an obligation that prices for carrier selection are reasonable …, or much heavier such as an obligation that prices are cost oriented’, thereby acknowledging that NRAs enjoy a broad discretion as regards the price control measures to be imposed in a specific case. That discretion in the choice of price control measures has been recognised by the Court. ( 11 )

38.

Consequently, I consider that Article 13(1) of the Access Directive does not preclude the imposition of an obligation to set prices below costs on an operator designated as having significant market power.

39.

Third, I consider that, although NRAs have broad discretion as to the price control measures to be imposed, they should, as a rule, set prices on the basis of the costs of an efficient operator, not on the costs incurred by the operator concerned. This means that regulatory prices may be below the costs incurred by the operator concerned.

40.

I note that there is no definition in Article 13(1) of the Access Directive of the ‘costs’ on which prices should be oriented.

41.

However, Article 13(3) of that directive, which pertains to the obligation to charge cost-oriented prices, states that one ‘purpose’ pursued by NRAs in that situation is to ‘calculat[e] the cost of efficient provision of services’. ( 12 )

42.

Moreover, point 1 of the Termination Rates Recommendation provides that ‘NRAs should set termination rates based on the costs incurred by an efficient operator’. ( 13 ) In that regard, I stress that, although, as mentioned above, NRAs have a broad discretion as regards remedies, Article 19(1) of the Framework Directive provides that NRAs should ‘take the utmost account’ of recommendations issued by the Commission, and, should an NRA choose not to follow a recommendation, it should ‘inform the Commission giving the reasoning for its position’. Therefore, in Koninklijke KPN, the Court held that ‘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 [the Termination Rates Recommendation]. It is only where it appears to the NRA, in its assessment of a given situation, that the … model advocated by this recommendation is not appropriate to the circumstances that it may depart from it, giving reasons for its position’. ( 14 )

43.

The reason why the Termination Rates Recommendation states that termination rates should be based on the costs incurred by an efficient operator is that, as mentioned above, ‘excessive pricing is the main competition concern of regulatory authorities’, all the more since high termination prices may be passed on to end-users and be ‘ultimately recovered through higher call charges’. ( 15 )

44.

This is in accordance with Article 13(2) of the Access Directive, which provides that ‘any cost recovery mechanism or pricing methodology that is mandated serves to promote efficiency and sustainable competition and maximise consumer benefits’. ( 16 ) This is also in accordance with Article 8(4) of the Access Directive, which states that obligations imposed on the basis of, in particular, Article 13 of that directive, are to be ‘justified in the light of the objectives laid down in Article 8 of [the Framework Directive]’. Among those objectives are the lack of ‘distortion or restriction of competition’ and the promotion of ‘efficient investment in infrastructure’. ( 17 )

45.

Consequently, if the costs incurred by the operator concerned exceed those of an efficient operator, the price set on the basis of the latter may be below the former. In my view, this is not inconsistent with Article 13 of the Access Directive since, as explained above, the costs of an efficient operator should, ‘as a rule’, be used to set cost-oriented prices pursuant to that provision. As the Court held in Koninklijke KPN, this is, however, without prejudice to the NRA’s freedom to depart, in a given situation, from the method advocated in the Termination Rates Recommendation, where it considers it appropriate and gives reasons for doing so. ( 18 )

46.

I would stress, however, that, in my opinion, cost-oriented prices imposed pursuant to Article 13 of the Access Directive cannot be below the costs incurred by an efficient operator for the provision of the interconnection service in question. ( 19 ) This is because imposing prices below the costs of an efficient provision of the service in question may deter the operator concerned from maintaining its network and developing the next-generation infrastructure. It may also deter competing operators from building their own network infrastructure, which is among the objectives listed in Article 8(2) of the Framework Directive. This is also because, according to Article 13(1) and (3) of the Access Directive, the operator concerned should be allowed a ‘reasonable rate of return’ on adequate capital or investment.

47.

In the present case, I note that, according to the order for reference, it has not been established that the costs incurred by Polkomtel exceeded those of an efficient operator. Thus, Polkomtel’s MTR was set on the basis of the average MTR of the three incumbent operators, namely Polkomtel itself and competitors Orange and T‑Mobile, which were used as benchmarks. ( 20 ) No information was provided to the Court as to how Orange’s and T‑Mobile’s MTRs were calculated. In particular, no information was provided as to whether Orange’s and T‑Mobile’s MTRs were fixed freely or by the President of the UKE. ( 21 ) If they were set by the President of the UKE, they may have themselves been calculated on the basis of the costs of an efficient operator.

48.

Therefore, it will be for the referring court to verify whether Polkomtel’s MTR is based on the costs incurred by an efficient operator for the provision of wholesale voice call termination services on a mobile network. Should this not be the case, the referring court should then verify whether it was appropriate to depart from the model advocated in the Termination Rates Recommendation, and whether reasons were given for such an approach in the 2009 MTR decision. In that regard, I note that, at the oral hearing, the representative of the President of the UKE argued that a benchmarking method was used in the 2009 MTR decision because the Termination Rates Recommendation allows NRAs a transitional period in order to implement termination rates based on efficient costs, and that the 2009 MTR decision was adopted during that transitional period, which ran until 31 December 2012. ( 22 )

49.

Consequently, the answer to the first question should be that Article 13 of the Access Directive, read in conjunction with Article 8(4) of that directive, is to be interpreted as meaning that, where an NRA imposes on an operator designated as having significant market power an obligation for cost orientation of prices, those prices may, as a rule, be set below the costs incurred by the operator concerned for the provision of the service in question, provided that they are not set below the costs incurred by an efficient operator for the provision of that service. However, this is without prejudice to the NRA’s discretion, in a given situation, to set prices above the costs incurred by an efficient operator for the provision of the service in question, where it considers such methodology appropriate and gives reasons for using that methodology.

50.

By the second question, the referring court asks whether Article 13(3) of the Access Directive, read in conjunction with Article 8(4) of that directive and Article 16 of the Charter, must be interpreted as meaning that, where an NRA imposes on an operator designated as having significant market power an obligation to set cost-oriented prices, it may impose on that operator an obligation to adjust those prices once a year on the basis of updated cost information and to submit such updated prices to the NRA before they are applied.

51.

Polkomtel submits that, where an operator with significant market power has been obliged to set cost-oriented prices, it cannot be required to adjust those prices on a yearly basis and to submit the adjusted prices to the relevant NRA, which verifies them before they are applied. The obligation for cost-oriented prices may only be imposed following a complex procedure, which includes a market analysis within the meaning of Article 16 of the Framework Directive. Such market analysis must be conducted once every three years, according to Article 16(6) of the Framework Directive as amended by Directive 2009/140/EC ( 23 ) (which Polkomtel acknowledges was not applicable at the material time), and once every two years, according to national law. Nothing prevents, however, the relevant NRA from conducting market analyses more frequently. Quite the contrary, the relevant NRA cannot require the operator concerned to adjust cost-oriented prices previously set without carrying out a fresh market analysis. Otherwise, regulated prices could be maintained where the market has become competitive. In particular, Article 13(3) of the Access Directive cannot be read as imposing on the operator concerned an obligation to adjust cost-oriented prices on a yearly basis.

52.

The Netherlands Government agrees with Polkomtel. It stresses, in particular, that NRAs must conduct a market analysis of the voice call termination markets on mobile networks once every three years. Therefore, NRAs should set maximum prices for the three years to come. Were NRAs to require the adjustment of those prices annually, they would infringe the proportionality requirement laid down in Article 8(4) of the Access Directive and deprive operators of legal certainty, thereby jeopardizing investment.

53.

The President of the UKE contends that an operator on which an obligation for cost orientation of prices has been imposed may be required to adjust and submit those prices annually for verification by the relevant NRA before they are applied. This is because Article 13(3) of the Access Directive empowers the NRA to require the operator concerned to provide justification for its prices at any time and, if necessary, adjust them. The PT only authorises the President of the UKE to require justification of prices and, where necessary, require their adjustment once a year. Therefore, the PT is consistent with Article 13(3) of the Access Directive, and it provides operators with legal certainty. It is also in accordance with the proportionality requirement laid down in Article 8(4) of the Access Directive.

54.

The Italian Government, the Polish Government and the Commission agree with the President of the UKE.

55.

In my opinion, Article 13(3) of the Access Directive, read in conjunction with Article 8(4) of that directive, must be interpreted as meaning that, where an obligation for cost orientation of prices has been imposed on an operator, that operator may be obliged to adjust its prices once a year on the basis of updated cost information and to submit such prices to the relevant NRA for verification.

56.

Article 13(3) of the Access Directive states that, ‘where an operator has an obligation regarding the cost orientation of its prices’, ( 24 ) that is, when that obligation has already been imposed on an operator, ‘[NRAs] may require [that] operator to provide full justification for its prices and may, where appropriate, require prices to be adjusted’.

57.

I note that, as argued by the Commission, there is no indication in Article 13(3) of the Access Directive as to the frequency with which the relevant NRA may require justification and may, where necessary, require the adjustment of previously set prices. ( 25 )

58.

Consequently, reference must be made to Article 8(4) of the Access Directive, which states that obligations such as that for cost orientation of prices ‘shall 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]’. It seems to me that Article 8(4) of the Access Directive should apply, not only to the initial imposition of the obligation for cost orientation of prices, but also to the adjustment of such prices pursuant to Article 13(3) of the Access Directive. Therefore, the frequency with which the justification and the adjustment of previously imposed cost-oriented prices may be requested must be appropriate in the case at hand (‘based on the nature of the problem identified’), proportionate and aim at achieving the objectives laid down in the Framework Directive.

59.

I note that one feature of electronic communications markets is their rapid evolution due to technological developments. At the oral hearing, the Commission explained that such markets are ‘characterised by rapid evolution and technological progress’, while the President of the UKE stressed that ‘technological developments suddenly appear which fundamentally alter the functioning of the relevant market’. ( 26 ) In the light of such market features, I consider that an obligation for adjustment of previously set prices on a yearly basis cannot be regarded as excessive or disproportionate.

60.

Moreover, I stress that the lack of timely adjustment of cost-oriented prices may result in distortions or restrictions of competition, which, according to Article 8(2)(b) of the Framework Directive, is to be avoided. Indeed, should costs decrease significantly after cost-oriented prices have been set, the operator concerned could, failing timely adjustment, charge excessively high prices. Conversely, should costs increase after cost-oriented prices have been set, the operator concerned could face difficulties in maintaining the infrastructure or investing in new technologies.

61.

Consequently, in my view, an operator on which an obligation for cost orientation of prices has previously been imposed may be required to provide justification for its prices and, where necessary, to adjust them on a yearly basis.

62.

I will now turn to examine whether NRAs are required to conduct a market analysis within the meaning of Article 16 of the Framework Directive before they proceed to such yearly adjustment of cost-oriented prices.

63.

At the outset, I should point out that an obligation for cost orientation of prices may only be imposed as the last of a three-step process. ( 27 )

64.

As a first step, markets susceptible to ex ante regulation, that is, markets which may justify the imposition of regulatory obligations, must be identified and defined. At the EU level, the Commission issues a recommendation on the basis of Article 15(1) of the Framework Directive. That recommendation lists the markets susceptible to ex ante regulation. ( 28 ) It is then for the NRAs to identify and define the relevant markets within their national territories. According to Article 15(3) of the Framework Directive, they should do so by ‘taking the utmost account’ of the recommendation issued by the Commission.

65.

As a second step, according to Article 16(1) and (2) of the Framework Directive, an analysis of the relevant market is carried out by the relevant NRA in order to determine whether that market is effectively competitive, that is, whether an operator (individually or jointly with others) has significant market power on that market. ( 29 )

66.

As a third step, where an NRA finds that an operator has significant market power on a relevant market, it is to impose appropriate obligations on that operator pursuant to Article 16(2) and (4) of the Framework Directive. One such obligation is the obligation for cost orientation of prices provided for by Article 13(1) of the Access Directive.

67.

In my view, NRAs may require the adjustment of cost-oriented prices on a yearly basis without conducting a market analysis within the meaning of Article 16 of the Framework Directive.

68.

First, Article 16(2) of the Framework Directive provides that ‘where [an NRA] is required under … Article 8 of [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’. Paragraph 1 of Article 16 of the Framework Directive states that, as soon as possible after the Commission adopts a recommendation on relevant product and service markets susceptible to ex ante regulation (which the Commission has done three times so far), ( 30 ) NRAs should carry out an analysis of the markets identified by the Commission in that recommendation. Therefore, it seems to me that Article 16(2) of the Framework Directive does not require NRAs to conduct a fresh market analysis when they seek to determine whether to ‘amend’ an obligation previously imposed. Rather, Article 16(2) only requires NRAs to refer to the initial market analysis which led to the imposition of, for instance, an obligation for cost orientation of prices and to verify whether, in the light of updated cost information, that obligation is still appropriate.

69.

Second, recital 15 of the Access Directive specifies that, in order to impose a specific obligation on an operator whose significant market power has already been established on the basis of a market analysis, no ‘additional market analysis’ is required, only ‘a justification that the obligation in question is appropriate and proportionate in relation to the nature of the problem identified’. Therefore, the only purpose of the market analysis conducted pursuant to Article 16 of the Framework Directive is to determine whether a market is effectively competitive. A lack of effective competition may have different meanings, for instance, as stated in Article 13(1) of the Access Directive, that ‘the operator concerned might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users’. Once this is established, no additional market analysis is required in order to impose regulatory obligations. In other words, the purpose of the market analysis within the meaning of Article 16 of the Framework Directive is not to determine whether a specific remedy is appropriate. Consequently, if no market analysis is required in order to determine whether cost-oriented prices should be imposed, no market analysis can be required in order to determine whether those prices should, one year later, be adjusted (or maintained, or withdrawn).

70.

Obviously, this does not mean that cost-oriented prices previously imposed may be amended without any assessment of their appropriateness and proportionality. The ‘justification’ of appropriateness and proportionality which recital 15 of the Access Directive requires for the initial imposition of an obligation also applies, in my view, to the amendment of that obligation. This is in accordance with Article 8(4) of the Access Directive, which requires obligations to be ‘proportionate’.

71.

In that regard, I note that, while Article 13(3) of the Access Directive places on the operator concerned the ‘burden of proof that charges are derived from costs’, that provision nonetheless refers to the calculation of the ‘cost of efficient provision of services’, with which it entrusts NRAs. This implies, in my opinion, that NRAs should verify the information provided by the operator concerned and examine whether the costs, as calculated on the basis of the initial market analysis, ( 31 ) have evolved and whether, consequently, the prices should be adjusted.

72.

In my opinion, this is consistent with the freedom to conduct a business enshrined in Article 16 of the Charter.

73.

The protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition. The freedom of contract includes the freedom to determine the price of a service. ( 32 ) In my opinion, the obligation to set cost-oriented prices undoubtedly constitutes an interference in the freedom to conduct a business. Therefore, the obligation to adjust such prices on a yearly basis without the NRA conducting a market analysis also constitutes an interference in that freedom.

74.

However, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of the rights and freedoms enshrined by the Charter as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, in accordance with the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. ( 33 ) I note, first, that the obligation to set cost-oriented prices and the obligation to adjust those prices on a yearly basis without the NRA conducting a market analysis are provided for by national law, namely the PT. Second, those obligations respect the essence of the freedom to conduct a business since operators may still provide the interconnection service in question (given that the NRA cannot set prices at a level below the costs of an efficient operator). Third, Articles 39 and 40 of the PT, which transpose Article 13 of the Access Directive, pursue objectives of general interest recognised by the European Union, such as the promotion of competition referred to in Article 8(2) of the Framework Directive. In particular, the obligation to set cost-oriented prices and to adjust those prices on a yearly basis should, according to Article 13(1) of the Access Directive, prevent operators from charging excessively high prices or applying a price squeeze. Fourth, the obligation to adjust prices annually and on the basis of a verification by the relevant NRA of the appropriateness of such adjustment in the light of the evolution of costs is in accordance with the proportionality requirement laid down in Article 8(4) of the Access Directive.

75.

Therefore, the answer to the second question referred should be that Article 13(3) of the Access Directive, read in conjunction with Article 8(4) of that directive and Article 16 of the Charter, must be interpreted as meaning that, where an NRA imposes on an operator designated as having significant market power an obligation for cost orientation of prices, that NRA may require the operator concerned to provide full justification for its prices and, where necessary, to adjust them on a yearly basis. In order to require such price adjustment, NRAs are not obliged to carry out a market analysis within the meaning of Article 16 of the Framework Directive. However, they are required to ensure that the adjustment of prices is appropriate and proportionate in the light of the evolution of costs.

76.

By the third question, the referring court essentially asks whether an operator on which an obligation for cost orientation of prices has been imposed on the basis of Article 13(1) of the Access Directive may be required to adjust its prices on the basis of Article 13(3) of that directive only after it has started to apply the cost-oriented prices, or also before it starts to apply them. ( 34 )

77.

The referring court notes that the Polish version of Article 13(3) of the Access Directive provides that ‘[NRAs] may require an undertaking to provide full justification of the prices applied, and may, where appropriate, require those prices to be adjusted accordingly’. ( 35 ) According to the referring court, the Polish version of that provision suggests that NRAs may require an operator on which an obligation for cost orientation of prices has been imposed to adjust those prices only after it has started to apply the cost-oriented prices set on the basis of Article 13(1). However, the referring court notes that, unlike the Polish version, the English, German and French versions of the last sentence of Article 13(3) make no reference to prices already ‘applied’. Therefore, the referring court considers that NRAs may require an operator on which an obligation for cost orientation of prices has been imposed to adjust those prices on the basis of Article 13(3) not only when that operator has started to apply those cost-oriented prices, but also before it starts to apply them.

78.

I note that, for instance, the Danish, German, French, Hungarian, Italian and Swedish versions ( 36 ) of the last sentence of Article 13(3) of the Access Directive all provide that NRAs may require an operator to provide full justification ‘for its prices’. Those versions make no reference to prices ‘applied’. The Spanish version, however, makes reference to prices ‘applied’. ( 37 )

79.

According to settled case-law, 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. ( 38 ) In the present case, Article 13(3) of the Access Directive ensures that the operator on which an obligation for cost orientation of prices has been imposed on the basis of Article 13(1) in fact charges cost-oriented prices. Article 13(3) ensures that the obligation imposed on the basis of Article 13(1) is actually implemented. It seems to me that that obligation could not be actually implemented if the relevant NRA could not require the operator concerned to adjust its prices before it starts to apply them as well as after it has started to apply them. In that regard, I stress that Article 8(1) of the Framework Directive authorises NRAs to take ‘all reasonable measures’ in order to achieve the objectives laid down in paragraph 2 of that provision, in particular the promotion of competition, provided that those measures are proportionate. ( 39 )

80.

Therefore, the answer to the third question should be that Article 13(3) of the Access Directive must be interpreted as meaning that, where an obligation for cost orientation of prices has been imposed on an operator on the basis of Article 13(1) of that directive, that operator may be required to adjust its prices before it starts to apply them or after it has started to apply them.

81.

In the light of the foregoing, I propose that the Court give the following reply to the questions referred by the Sąd Najwyższy (Supreme Court, Poland):