20.5.2006

Official Journal of the European Union

C 121/2

Reference for a preliminary ruling from the Obvodní soud pro Prahu 3 lodged on 7 February 2006 — Český Telecom a.s. v Czech On Line a.s.

(Case C-64/06)

(2006/C 121/03)

Language of the case: Czech

Referring court

Obvodní soud pro Prahu 3 (Prague 3 District Court)

Parties to the main proceedings

Applicant: Český Telecom a.s.

Defendant: Czech On Line a.s.

Questions referred

Was the national telecommunications regulator (Czech Telecommunications Office) entitled, in the form of an administrative decision after 1 May 2004, and thus after the day of the Czech Republic's accession to the European Communities, to impose on a telecommunications company with significant (dominant) market power in the telecommunications market an obligation to conclude a contract on the interconnection of its network with another operator?

If the answer to Question 1 is in the affirmative:

Was the national regulator entitled to act in that way only under the conditions laid down in Article 8(2) of Directive 2002/19/EC of the European Parliament and of the Council (Access Directive), i.e. on the strength of a previous market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (Framework Directive) and on the basis of the previous procedure described in Articles 6 and 7 of the Framework Directive 2002/21/EC

or could it (for example in accordance with recital 15, Article 3, Article 4(1), Article 5(1)(a) and (4), Article 10(1) and (2) of the Access Directive) act in that way even without a previous market analysis?

Can it have an impact on the answer to Question 2 that the application of a particular operator for the issuing of a decision on the compulsory interconnection of his network with the network of an operator with significant (dominant) market power was lodged with the national regulator, and the decisive part of the proceedings on that application before it took place, before 1 May 2004, i.e. before the day on which the Czech Republic acceded to the European Communities?

To the extent that during the crucial period — from 1 May 2004 to 30 April 2005 — the Czech Republic had not sufficiently implemented the above-mentioned directives, is it possible directly to apply Directive 2002/21/EC (Framework Directive) and Directive 2002/19/EC of the European Parliament and of the Council (Access Directive), thus

4a.	are these directives (or is one of them) unconditional and sufficiently precise to be applied (by a court) in the place of national law?

4b.

is an operator with significant (dominant) market power in the telecommunications market entitled (actively subjectively legitimised) to rely, as a result of the incorrect transposition of Directives 2002/19/EC and 2002/21/EC, on their direct effectiveness, having regard to the question whether those directives (or one of them) do in any case protect the interests of that person who refuses to conclude an agreement on interconnection (in the area of ADSL service) with other domestic telecommunications operators (and who in the view of the national telecommunications regulator, which the court must also take into account, thus acts contrary to the aims of the new regulatory framework)?

4c.

Can that operator invoke the direct effectiveness of directives that have not been properly implemented (or of one of them), if (even where the conditions introduced in the directives are fulfilled) in the decision-making process of the national telecommunications regulator decisions are always made about the concrete conditions for interconnection of operators' sites, i.e. it concerns the imposition of concrete duties on individuals?