Case C‑397/14

Polkomtel sp. z o.o.

Prezes Urzędu Komunikacji Elektronicznej

(Request for a preliminary ruling from the Sąd Najwyższy)

‛Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/22/EC — Article 28 — Non-geographic numbers — Access by end-users residing in the Member State for operators to services using non-geographic numbers — Directive 2002/19/EC — Articles 5, 8 and 13 — Powers and responsibilities of the national regulatory authorities with regard to access and interconnection — Imposition, amendment or withdrawal of obligations — Imposition of obligations on undertakings that control access to end-users — Price control — Undertaking not having significant market power on the market — Directive 2002/21/EC — Resolution of disputes between undertakings — Decision of the national regulatory authority laying down the conditions of cooperation and the pricing procedures for services between undertakings’

Summary — Judgment of the Court (Second Chamber), 14 April 2016

Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Access to numbers and electronic communications services — Non-geographic numbers — National rules providing for the obligation for operators to ensure access to non-geographic numbers on national territory for all end-users of its network, not only those of other Member States — Lawfulness

(European Parliament and Council Directive 2002/22, Art. 28)
Questions referred for a preliminary ruling — Admissibility — Need for a preliminary ruling and relevance of the questions referred — Assessment by the national court — Presumption of relevance of the questions referred

(Art. 267 TFEU)
Approximation of laws — Electronic communications networks and services — Universal service and users’ rights — Directive 2002/22 — Powers and responsibilities of the national regulatory authorities — Directive 2002/19 — Resolution of disputes between undertakings — Directive 2002/21 — Powers of the national regulatory authorities to impose on an operator both the obligation to ensure that end-users are able to access services using non-geographic numbers provided on the other’s network and other tariff obligations — Observance of the principle of proportionality — To be determined by the national court

(European Parliament and Council Directives 2002/19, Arts 5(1), 8(3) and (4) and 13, 2002/21, Art. 6 to 8 and 2002/22, Art. 28)

Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as meaning that a Member State may provide that an operator of a public electronic communications network must ensure that all end-users are able to access non-geographic numbers on its network in that State and not only those of other Member States.

(see para. 35, operative part 1)
See the text of the decision.

(see paras 37, 38)
Articles 5(1) and 8(3) of Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), read in conjunction with Article 28 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), must be interpreted as allowing a national regulatory authority (NRA), in resolving a dispute between two operators, to impose on one of them the obligation to ensure that end-users are able to access services using non-geographic numbers provided on the other’s network and to set, on the basis of Article 13 of Directive 2002/19, pricing procedures for that access between those operators, provided that those obligations are objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives laid down in Article 8 of Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive), and the procedures provided for in Articles 6 and 7 of that directive have, where applicable, been observed, which it is for the national court to verify.

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 the Access Directive, on an operator which does not have significant market power on the relevant market, provided that the obligation constitutes a necessary and proportionate measure to ensure that end-users can access services using non-geographic numbers in the European Union.

Since Article 13 of the Access Directive does not regulate pricing procedures, it is for the NRA to set those detailed rules whilst ensuring that they fulfil the conditions laid down in Article 8(4) of that directive.

The possibility for an NRA to adopt a decision which would take the place of a contract concluded by the operators concerned does not disregard the freedom to conduct a business, provided that the obligations imposed in the course of resolving a dispute between the operators concerned were necessary and proportionate. Restrictions may be imposed on the exercise of the freedom to pursue a trade or profession, as on the exercise of the right to property, provided that the restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of the rights guaranteed.

(see paras 51, 52, 55-62, operative part 2)