Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej.

• Jurisdiction: European Union
• Celex Number: 62009CC0099
• ECLI: ECLI:EU:C:2010:199
• Date: 15 April 2010
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-99/09

OPINION OF ADVOCATE GENERAL

BOT

delivered on 15 April 2010 ¹(1)

Case C‑99/09

Polska Telefonia Cyfrowa sp. z o.o.

v

Prezes Urzędu Komunikacji Elektronicznej

(Reference for a preliminary ruling from the Sąd Najwyższy (Poland))

(Telecommunications sectors – Universal service and users’ rights – Telephone number portability – Directive 2002/22/EC – Article 30(2) – Whether or not the direct charge to the subscriber acts as a disincentive – Assessment of the national regulatory authorities – Indicator obtained from the costs incurred by operators)

1. At the time when the new Body of European Regulators for Electronic Communications (BEREC) is being established, (2) a new question has been referred to the Court of Justice for a preliminary ruling relating to the implementation of one of the key measures of telecommunications reform, namely, the right of European consumers to port their numbers which is enshrined in Article 30 of Directive 2002/22/EC. (3)

2. This right offers any subscriber the opportunity to keep the same telephone number if he changes operator, subject, sometimes, to payment of a direct charge. Article 30(2) of the Universal Service Directive entrusts the national regulatory authorities (‘the NRAs’) with a supervisory role as regards not only the interconnection costs incurred by the operators in providing number portability, but also the amount of the direct charges for which operators may sometimes invoice subscribers. That provision gives operators the option of passing on to the subscriber the costs they have incurred in providing that facility. Under the provision, where a charge is made it must not act as a disincentive.

3. The judgment in Mobistar (4) enabled the Court to provide clarification regarding the discretion enjoyed by the NRAs when examining the amount of the interconnection costs incurred by operators. The present case now offers the Court the opportunity to explain the way in which, in very concrete terms, the NRAs must examine the pricing of the provision of portability to subscribers.

4. The reference for a preliminary ruling has been made in proceedings between Polska Telefonia Cyfrowa sp. z o.o. and Prezes Urzędu Komunikacji Elektronicznej (the President of the Office for Electronic Communications, ‘the President of the UKE’) concerning the latter’s decision to impose on the applicant a fine of PLN 100 000 (about EUR 24 350) for infringement of the provisions applicable to number portability. The President of the UKE considered that the applicant’s direct charge of PLN 122 (about EUR 29.70) to subscribers was such as to dissuade them from seeking to port a number. In that connection, the President of the UKE considered that the amount of the charge was to be determined not on the basis of the costs incurred by the operators but in the light of the perception of consumers and, in particular, of the results of an opinion poll.

5. In this case, the matter before the Court is not whether the portability service should be free of charge. Although, at the present time, a number of Member States have legislated to that effect, the provision in question does not require an operator to provide this service free of charge. It may therefore opt, in accordance with that provision and with the applicable national law, to charge the subscriber in that respect. The question arises, therefore, as to how best to control the pricing of that service provided to the subscriber.

6. The Sąd Najwyższy (Supreme Court), Poland, is therefore asking the Court whether the NRAs, in the exercise of their supervisory function under Article 30(2) of the Universal Service Directive, are required to take into account the number portability costs incurred by operators when assessing whether the direct charge to the subscriber acts as a disincentive.

7. In this Opinion, I shall set out the reasons why I think that NRAs cannot disregard the costs incurred by operators when they assess the amount of the price for providing portability to subscribers, given the general scheme of which the portability facility forms part and the objectives pursued by the European Union legislature in this regard.

8. I shall also set out my doubts regarding the method used by the President of the UKE, which consists, when all is said and done, in basing an administrative penalty merely on an opinion poll.

I – Legal framework

A – European Union law

9. The opening-up of the telecommunications sector to competition has three broad components, namely liberalisation, harmonisation and the application of the competition rules to telecommunications undertakings. (5)

10. The process of liberalising the telecommunications sector began in 1988. By the adoption of Directives 88/301/EEC, 90/388/EEC and 96/19/EC, (6) the European Union legislature arranged, according to a strict timetable, for the removal of the special and exclusive rights generally enjoyed by the traditional telecommunications operators over terminal equipment (that is to say, importation, marketing, implementation and maintenance rights) and over the supply of telecommunications services. Since 1 January 1998, that market has been, in principle, fully liberalised.

11. At the same time as the liberalisation directives were being adopted by the Commission of the European Communities, the Council of the European Union adopted a series of harmonisation measures on the basis of Article 100A of the EC Treaty (which became, after amendment, Article 95 EC). At the heart of that system, Directive 90/387/EEC (7) laid down common principles for the pricing of the provision of an open telecommunications network. The 1990 Framework Directive was supplemented by Directive 97/33/EC, (8) which laid down more specific measures designed inter alia to ensure interconnection of networks and interoperability of services. (9)

12. The matter of interconnection pricing proved crucial to the structure and scale of competition in this sector. The Council therefore established strict rules for this pricing and their implementation, at national level, was entrusted to the NRAs.

13. Under Article 7 of Directive 97/33, the NRAs must ensure that charges for interconnection follow the principles of transparency and cost-orientation. (10)

14. By ensuring full interconnection between the networks at European Community level and by arranging for more effective competition between the service operators, the European Union legislature intended inter alia to enable European consumers to obtain a wider range of services of better quality and for a better price.

15. Among those services is the number portability facility which was established on the adoption of the new regulatory package on 7 March 2002 (11) in Article 30 of the Universal Service Directive. This facility offers any customer of a telecommunications operator the opportunity to change operator while keeping the same number.

16. Under Article 30(1) of that directive, Member States are required to ensure that all subscribers of publicly available telephone services, including mobile services, who so request can benefit from that facility irrespective of the undertaking providing the service.

17. The pricing for this facility is delimited in Article 30(2) and (3) of the directive, which is worded as follows:

‘2. [NRAs] shall ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities. [(12)]

3. [NRAs] shall not impose retail tariffs for the porting of numbers in a manner that would distort competition, such as by setting specific or common retail tariffs.’

18. Finally, Article 4(1) of the 2002 Framework Directive requires Member States to provide an effective appeals mechanism enabling all users and providers to appeal against NRA decisions which affect them.

B – National law

19. The conditions under which the right to port a number is exercised in Poland are set out inter alia in Articles 41 and 71 of the Law on Telecommunications (Prawo telekomunikacyjne) of 16 July 2004. (13)

20. Article 41(1) of that Law provides that fees for mutual use of interconnected networks which relate to the porting of numbers between the networks are to take account of the costs incurred.

21. Article 71 of that Law provides:

‘1. A subscriber who is party to an agreement with a service provider providing a connection to the public telephone network of an operator may demand, upon a change of operator, that the assigned number be ported to an existing network of another operator in the area of:

(1) a numbering area – in the case of geographic numbers;

(2) the entire country – in the case of non-geographic numbers.

…

3. Where the assigned number is ported upon a change of operator, the previous service provider may charge the subscriber a one-off fee set out in its list of tariffs, the amount of which shall not act as a disincentive to exercise of this right by subscribers.’ [(14)]

22. Under Article 74(1) of that Law, an operator providing a connection to the public telephone network (the donor operator) and the operator to whose network a subscriber has been connected (the recipient operator) are required to facilitate the exercise of porting rights. If they do not do so, Article 74(3) of the Law allows the President of the UKE to impose the fine referred to in Article 209(1)(16) of the Law.

23. Under the latter provision, any person who prevents subscribers from exercising their rights to port an assigned number, as referred to in Articles 70 and 71 of the Law on Telecommunications, is to be liable to a fine.

II – The facts and the order for reference

24. In accordance with Articles 74(3) and 209(1)(16) of the Law on Telecommunications, the President of the UKE imposed a fine of PLN 100 000 (about EUR 24 350) on the applicant following...