Brussels, 12/03/2010 (Agence Europe) - In a ruling published on Thursday 11 March 2010 (Case C-522/08), the European Court of Justice ruled that member states may “prohibit the making of the conclusion of a contract for the provision of telecoms services contingent on the conclusion by the end-user of a separate contract.” The Court of Justice points out, however, that “national legislation which, subject to certain exceptions… provides any combined offer is incompatible with European Union law on consumer protection,” and this has been the case since 12 December 2007, later than the date of the dispute giving rise to the court case in question.
The Court of Justice explains that a Polish telecoms law of 2004 provides that “for the purpose of protecting the end-user, the president of the Urz¹d Komunikacji Elektronicznej (the Polish Office for Electronic Communications, the UKE) may impose an oblgiation on a telecoms operator with significant market power in the retail market not to oblige an end-user to subscribe to services which the end-user does not require. By decision of 28 December 2006, the UKE president called on Telekomunikacja Polska SA w Warszawie (TP) to put an end to irregularities which had been identified, consisting of making the conclusion of a contract for the provision of 'neostrada tp' broadband internet access services contingent on the conclusion of a contract for telephone services. Following dismissal of the actions challenging that decision, TP appealed to the Naczelny S¹d Administracyjny (Poland's Supreme Administrative Court)... which “made a reference to the Court of Justice on the question whether national legislation which requires all operators to refrain from linking provision of their services, without an assessment of the degree of competition on the market and independently of their position on it, complies with the directives on the common regulatory framework for electronic communications”.
In its ruling, the Court of Justice points out that “the Universal Service Directive is designed to ensure the availability throughout the European Union of good-quality publicly available services through effective competition and choice... in such a way that the subscriber is not obliged to pay for facilities or services which are not necessary or not required for the service requested. In this regard, the Court finds that legislation which, generally and without discrimination, prohibits linked sales does not affect the powers of the NRA concerned (Ed: national regulatory authority.) to define and analyse the different electronic communications markets. Nor does it affect the power of the NRA to impose, after carrying out an analysis of a market, regulatory obligations ex ante on undertaking with significant market power on that market. Although the NRAs, in carrying out their tasks, are required to promote the interests of the citizens of the European 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. Consequently, the Court notes that the Framework Directive and the Universal Service Directive cannot preclude national legislation which, for the purpose of protecting end-users, prohibits an undertaking from making the conclusion of a contract for the provision of telecommunications services contingent on the conclusion, by the end-user, of a contract for the provision of other services.”
“So far as concerns European Union legislation on consumer protection, that is, in particular, the Unfair Commercial Practices Directive, the Court points out that this precludes national legislation which, subject to certain exceptions and without taking account of the specific circumstances of the case in question, imposes a general prohibition of combined offers made by a vendor to the consumer. It points out, however, that in view of the fact that the decisions under challenge in the main proceedings were adopted before the date on which the period for the transposing of the Unfair Commercial Practices Directive expires, that directive applies to the case in the main proceedings only with effect from that date, that is to say, from 12 December 2007.” (O.L./transl.fl)