Brussels, 12/05/2011 (Agence Europe) - In a ruling (C-410/09) handed down on Thursday 12 May, the Court of Justice of the EU ruled that the guidelines on market analysis and the assessment of significant market power, framed by the Commission in 2002, do not contain any obligations capable of being imposed, directly or indirectly, on individuals. Consequently, the Polish national regulatory authority (NRA) could legitimately refer to them in its 2003 decision with regard to Polska Telefonia Cyfrowa sp. Z o.o. (PTC).
PTC is one of the principal telecommunications operators in Poland. In 2006, the Office for Electronic Communications (the Polish national regulatory authority) took a decision imposing certain regulatory requirements, deeming PTC to have significant market power in the market for the provision of voice call termination services. PTC appealed against the decision, taking the view that the 2002 guidelines, on which that decision was based, could not be relied upon against it, since they had not been published in Polish in the Official Journal of the European Union, though Polish is one of the EU's official languages. The Polish Supreme Court, to which the appeal was referred, asked the Court of Justice whether, given the above, the NRA decision did, indeed, comply with Poland's Act of Accession to the EU.
In its ruling, the Court reiterates that, in accordance with a fundamental principle of the EU's legal order, a measure adopted by the public authorities must not be enforceable against the persons concerned before they have had an opportunity to acquaint themselves with it. Further, the Court points out that the 2003 Act of Accession precludes the obligations contained in EU legislation which has not been published in the Official Journal of the European Union in the language of a new member state, where that language is an official language of the European Union, from being imposed on individuals in that state, even though those persons could have acquainted themselves with that legislation by other means. However, the Court says, the 2002 guidelines set out the principles for use by NRAs in the analysis of markets and, therefore, do not contain any obligations capable of being imposed, directly or indirectly, on individuals. In consequence, the Polish NRA could legitimately refer to them in its decision. (F.G./transl.rt)