Brussels, 10/05/2010 (Agence Europe) - By regulating retail tariffs for broadband access services without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations under Articles 16 and 17 of Directive 2002/22/EC of the European Parliament and Council of 7 March 2002 concerning universal service and users' rights relating to electronic communications services and networks (“universal service” directive), in conjunction with Articles 16 and 27 of Directive 2002/21/EC of the European Parliament and Council, of 7 March 2002, relating to a common regulatory framework for electronic communications services and networks (“framework” directive). This was the judgement reached on Thursday 6 May by the Court of Justice in Case C-545/08, between the European Commission and the Republic of Poland.
In its appeal of 4 December 2008, the Commission reproached Poland for having regulated retail tariffs for broadband access without carrying out a prior market analysis. It argued that the fact that it had submitted retail tariffs practised by Telekomunikacja Polska (the main Polish telecommunications operator) for approval by the national regulatory authority, and that the requirement that the tariffs are determined on the basis of the costs of providing the services, constitute new obligations and not the maintenance in force of existing obligations under Article 27 of the “framework” directive. These new obligations can only be imposed after a market analysis in good and due form. Also, obligations regulating the retail broadband access services imposed on the same company cannot be described as transitional measures under the meaning of Article 27 of the “framework” directive, as Article 17 of Directive 98/10/EC, invoked by Poland in order to impose its regulation, only concerns tariffs applicable to fixed public telephone services and networks. The Court followed this reasoning and found Poland guilty of non-compliance with EU directives. Poland must pay the costs. (F.G./transl.jl)