Opinion of Advocate General Collins delivered on 9 June 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:455
• Date: 09 June 2022
• Celex Number: 62021CC0243
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 9 June 2022(1)

Case C‑243/21

‘TOYA’ sp. z o.o.,

Polska Izba Informatyki i Telekomunikacji

v

Prezes Urzędu Komunikacji Elektronicznej,

joined party:

Polska Izba Komunikacji Elektronicznej

(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland))

(Reference for a preliminary ruling – Telecommunications – Directive 2014/61/EU – Article 3 – Power of the national regulatory authority to impose conditions relating to access to physical infrastructure on an operator not having significant market power – Absence of a dispute relating to access – Article 1(3) – Minimum harmonisation)

I. Introduction

1. This request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland) raises two issues about the interpretation of Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks. (2) First, when read in the light of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (Framework Directive) (3) and of Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), (4) does Directive 2014/61 preclude a national regulatory authority from imposing conditions on an electronic communications network provider that does not have significant market power (SMP) on the relevant market? Second, does Directive 2014/61 preclude a national regulatory authority from imposing conditions on telecommunications operators to permit access to their physical infrastructure in the absence of a dispute about such access?

II. Legal context

A. European Union Law

1. The Framework Directive

2. The preamble of the Framework Directive sets out, inter alia, the following objectives:

‘(25) There is a need for ex ante obligations in certain circumstances in order to ensure the development of a competitive market. The definition of [SMP] in the Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) […] has proved effective in the initial stages of market opening as the threshold for ex ante obligations, but now needs to be adapted to suit more complex and dynamic markets. For that reason, the definition used in this Directive is equivalent to the concept of dominance as defined in the case-law of the Court of Justice and the [General Court] of the European Communities.

…

(27) It is essential that ex ante regulatory obligations should only be imposed where there is not effective competition, i.e. in markets where there are one or more undertakings with significant market power, and where national and Community competition law remedies are not sufficient to address the problem. …’

3. Chapter III of the Framework Directive is entitled ‘Tasks of national regulatory authorities’. Article 8 thereof sets out policy objectives and regulatory principles. Article 8(5)(f) provides that national regulatory authorities must impose ex ante regulatory obligations only where there is no effective and sustainable competition. Once that condition has been satisfied, they must relax or lift such obligations.

4. Chapter IV of the Framework Directive is headed ‘General provisions’. Article 14 defines SMP. Article 16 describes the market analysis procedure that a national regulatory authority must conduct in order to determine whether a relevant market is effectively competitive: where a market is not effectively competitive, the national regulatory authority must identify undertakings with SMP on that market.

2. The Access Directive

5. Under Article 8(2) of the Access Directive:

‘Where an operator is designated as having [SMP] on a specific market as a result of a market analysis carried out in accordance with Article 16 of [the Framework Directive], national regulatory authorities shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate.’

6. The obligations laid down in Articles 9 to 13 of the Access Directive relate to: (i) transparency, including the requirement for an operator to publish a reference offer; (5) (ii) non-discrimination; (iii) accounting separation; (iv) access to, and use of, specific network facilities; and (v) price control and cost accounting.

7. Article 8(3) of the Access Directive provides that, without prejudice to Article 5(1) and Article 6 thereof, and Articles 12 and 13 of the Framework Directive, national regulatory authorities shall not impose the obligations described in Articles 9 to 13 of the Access Directive on operators that have not been designated as having SMP on a specific market.

3. Directive 2014/61

8. The directive’s preamble explains its objectives as follows:

‘(6) Taking into account the need for action at Union level to provide better broadband coverage, including by reducing the cost of high-speed broadband infrastructure as reflected by the Conclusions of the European Council of 13/14 December 2012, the Communication from the Commission entitled “Single Market Act II” stresses the need for additional efforts in order to achieve quickly the objectives laid down in the Digital Agenda by, inter alia, addressing the high-speed network investment challenge.

(7) The roll-out of high-speed fixed and wireless electronic communications networks across the Union requires substantial investments, a significant proportion of which is represented by the cost of civil engineering works. Limiting some of the cost-intensive civil engineering works would make broadband roll-out more effective.

(8) A major part of those costs can be attributed to inefficiencies in the roll-out process related to the use of existing passive infrastructure (such as ducts, conduits, manholes, cabinets, poles, masts, antenna installations, towers and other supporting constructions), bottlenecks related to coordination of civil works, burdensome administrative permit granting procedures, and bottlenecks concerning in-building deployment of networks, which lead to high financial barriers, in particular in rural areas.

(9) Measures aiming at increasing efficiency in the use of existing infrastructures and at reducing costs and obstacles in carrying out new civil engineering works should provide a substantial contribution to ensuring a fast and extensive deployment of high-speed electronic communications networks while maintaining effective competition, without adversely affecting the safety, security and smooth operation of the existing public infrastructure.

(10) Some Member States have adopted measures intended to reduce the costs of broadband roll-out. However those measures remain scarce and scattered. Scaling up those measures across the Union could significantly contribute to the establishment of a digital single market. Moreover differences in regulatory requirements sometimes prevent cooperation across utilities and may raise barriers to entry for new network operators and new business opportunities, hindering the development of an internal market for use and deployment of physical infrastructures for high-speed electronic communications networks. Finally, the initiatives at Member State level do not always seem to be holistic, whereas it is essential to take action across the whole roll-out process, and across sectors, in order to achieve a coherent and significant impact.

(11) This Directive aims at laying down some minimum rights and obligations applicable across the Union in order to facilitate the roll-out of high-speed electronic communications networks and cross-sector coordination. While ensuring a minimum level playing field, this should be without prejudice to existing best practices and measures adopted at national and local level entailing more detailed provisions and conditions as well as additional measures complementing those rights and obligations, in accordance with the subsidiarity principle.

…

(13) It can be significantly more efficient for electronic communications network operators, in particular new entrants, to re-use existing physical infrastructures, including those of other utilities, in order to roll out electronic communications networks, in particular in areas where no suitable electronic communications network is available or where it may not be economically feasible to build up a new physical infrastructure. Moreover, synergies across sectors may significantly reduce the need for civil works due to the deployment of electronic communications networks and therefore also the social and environmental costs linked to them, such as pollution, nuisances and traffic congestion. Therefore this Directive should apply not only to public communications network providers but to any owner or holder of rights to use, in the latter case without prejudice to any third party’s property rights, extensive and ubiquitous physical infrastructures suitable to host electronic communications network elements, such as physical networks for the provision of electricity, gas, water and sewage and drainage systems, heating and transport services.

(14) With a view to improving the deployment of high-speed electronic communications networks in the internal market, this Directive should lay down rights for public communications network providers to access physical infrastructure irrespective of its location under fair and reasonable terms consistent with the normal exercise of property rights. The obligation to give access to the physical infrastructure should be without prejudice to the rights of the owner of the land or of the building in which the infrastructure is located.’

9. Article 1 of Directive 2014/61, entitled ‘Subject matter and scope’, states:

‘1. This Directive...