OPINION OF ADVOCATE GENERAL
BOT
delivered on 15 January 2015 (1)
Case C‑3/14
Prezes Urzędu Komunikacji Elektronicznej,
Telefonia Dialog sp. z o.o.
v
T-Mobile Polska SA, formerly Polska Telefonia Cyfrowa SA
(Request for a preliminary ruling from the Sąd Najwyższy (Poland))
(Reference for a preliminary ruling — Electronic communications networks and services — Directive 2002/19/EC — Article 5 — Powers and responsibilities of the national regulatory authorities with regard to access and interconnection — Directive 2002/21/EC — Article 7(3) — Notification of measures envisaged by national regulatory authorities — Scope of the procedure — Scope of the condition concerning the purpose of the decision — Scope of the condition concerning that measure’s effect on trade between Member States — Decision of a national regulatory authority adopted in connection with the resolution of a dispute between two national operators, within the meaning of Article 20 of Directive 2002/21/EC — Decision imposing on one of those operators the obligations laid down in Article 28 of Directive 2002/22/EC in respect of access to non-geographic numbers)
1. By this reference for a preliminary ruling, the Court is asked to define the scope of the notification procedure laid down by the EU legislature in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive). (2)
2. Under that provision, a national regulatory authority (‘NRA’) is required to notify the Commission and the NRAs of the other Member States of any draft measures which are adopted on the basis of the provisions expressly referred to by the EU legislature in Article 7(3)(a) of the Framework Directive and which also ‘affect trade between Member States’ within the meaning of Article 7(3)(b) of that directive.
3. The Sąd Najwyższy (Supreme Court) (Poland) requests the Court, in essence, to clarify the scope of each of those two conditions.
4. That request has been made in proceedings brought by the Prezes Urzędu Komunikacji Elektronicznej (President of the Office of Electronic Communications — ‘the President of the UKE’), the Polish NRA, and Telefonia Dialog sp. z o.o. (‘Telefonia Dialog’) against T-Mobile Polska SA, formerly Polska Telefonia Cyfrowa SA (‘T-Mobile Polska’), one of the main telecommunications operators in Poland. At the request of Telefonia Dialog SA (‘Telefonia Dialog’) and in order to resolve the dispute between it and T-Mobile Polska, the President of the UKE in effect imposed on T-Mobile Polska obligations designed to ensure that end-users would have the right to access non-geographic numbers guaranteed in Article 28 of Directive 2002/22/EC. (3) According to Article 2(d) and (f) of the Universal Service Directive, a ‘non-geographic number’ is a number from the national numbering plan the digit structure of which does not contain any geographic significance used for routing calls to the physical location of the network termination point. It includes, inter alia, mobile, freephone and premium rate numbers. It is clear from the material in the file that the President of the UKE did not notify that measure to the European Commission or to the NRAs of the other Member States prior to its adoption.
5. By its questions, the referring court asks the Court, in essence, whether an NRA is required to notify, under the procedure referred to in Article 7(3) of the Framework Directive, a measure such as that at issue in the main proceedings. In particular, it asks whether that measure, by which the NRA imposed on an operator obligations in respect of access to non-geographic numbers in order to resolve a dispute, falls within the scope of the procedure and, more precisely, whether it satisfies the two conditions referred to in Article 7(3)(a) and (b) of the Framework Directive.
6. In this Opinion I shall explain why I consider that such a measure does fall within the scope of Article 7(3) of the Framework Directive and ought therefore to be notified to the Commission and the NRAs of the other Member States since it affects trade between Member States.
7. In that regard, I shall propose that the Court should rule that the condition concerning the measure’s effect on trade between Member States, referred to in Article 7(3)(b) of the Framework Directive, requires it to be shown that the measure at issue is capable of having a significant effect on trade between Member States by having an influence, direct or indirect, actual or potential, on the pattern of trade between them. Since such an assessment is a matter of fact, I shall submit that it is for each of the competent national authorities to conduct such an examination in each particular case, taking into account the nature of the measure and services concerned and the position and importance of the operators concerned on the market.
I – Legal framework
A – EU law
1. The Access Directive
8. Article 1(1) of Directive 2002/19/EC (4) reads as follows:
‘Within the framework set out in [the Framework Directive], this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. The aim is to establish a regulatory framework, in accordance with internal market principles, for the relationships between suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits.’
9. Article 5 of the Access Directive, entitled ‘Powers and responsibilities of the [NRAs] with regard to access and interconnection’, provides:
‘1. [NRAs] shall, acting in pursuit of the objectives set out in Article 8 of [the Framework Directive], encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users.
In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, [NRAs] shall be able to impose:
(a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control access to end-users, including in justified cases the obligation to interconnect their networks where this is not already the case;
…
3. Obligations and conditions imposed in accordance with paragraphs 1 and 2 … shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of [the Framework Directive].
4. With regard to access and interconnection, Member States shall ensure that the [NRA] is empowered to intervene at its own initiative where justified or, in the absence of agreement between undertakings, at the request of either of the parties involved, in order to secure the policy objectives of Article 8 of [the Framework Directive], in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of [the Framework Directive].’
10. Article 8 of the Access Directive, entitled ‘Imposition, amendment or withdrawal of obligations’, reads as follows:
‘1. Member States shall ensure that [NRAs] are empowered to impose the obligations identified in Articles 9 to 13.
…
4. Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of [the Framework Directive]. Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of that Directive.
…’
2. The Framework Directive
11. Recitals 15 and 38 in the preamble to the Framework Directive state:
‘(15) It is important that [NRAs] consult all interested parties on proposed decisions and take account of their comments before adopting a final decision. In order to ensure that decisions at national level do not have an adverse effect on the single market or other Treaty objectives, [NRAs] should also notify certain draft decisions to the Commission and other [NRAs] to give them the opportunity to comment. It is appropriate for [NRAs] to consult interested parties on all draft measures which have an effect on trade between Member States. The cases where the procedures referred to in Articles 6 and 7 apply are defined in this Directive and in the Specific Directives ...
...
(38) Measures that could affect trade between Member States are measures that may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might create a barrier to the single market. They comprise measures that have a significant impact on operators or users in other Member States, which include, inter alia: measures which affect prices for users in other Member States; measures which affect the ability of an undertaking established in another Member State to provide an electronic communications service, and in particular measures which affect the ability to offer services on a transnational basis; and measures which affect market structure or access, leading to repercussions for undertakings in other Member States.’
12. Article 6 of the Framework Directive, entitled ‘Consultation and transparency mechanism’, provides as follows:
‘Except in cases falling within Articles 7(6), 20 or 21 Member States shall ensure that where [NRAs] intend to take measures in accordance with this Directive or the Specific Directives which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period ...’
13. Article 7 of the Framework Directive is entitled ‘Consolidating the internal market for electronic communications’. It provides as follows:
‘1. In carrying out their tasks under this Directive and the Specific Directives, [NRAs] shall take the utmost account of the objectives set out in Article 8, including insofar as they relate to the functioning of the Internal Market.
2. [NRAs] shall contribute to the development of the internal market by cooperating with each other and with the Commission in a transparent manner to ensure the consistent application, in all Member States, of the provisions of this Directive and the Specific Directives ...
3. In addition to the consultation referred to in Article 6, where [an NRA] intends to take a measure which:
(a) falls within the scope of Articles 15 or 16 of this Directive, Articles 5 or 8 of [the Access Directive] or Article 16 of [the Universal Service Directive], and
(b) would affect trade between Member States,
it shall at the same time make the draft measure accessible to the Commission and the [NRAs] in other Member States, together with the reasoning on which the measure is based, in accordance with Article 5(3), and inform the Commission and other [NRAs] thereof. [NRAs] and the Commission may make comments to the [NRA] concerned only within one month or within the period referred to in Article 6 if that period is longer. The one-month period may not be extended.
…’
14. Article 20 of the Framework Directive, entitled ‘Dispute resolution between undertakings’, reads:
‘1. In the event of a dispute arising in connection with obligations arising under this Directive or the Specific Directives between undertakings providing electronic communications networks or services in a Member State, the [NRA] concerned shall, at the request of either party, and without prejudice to the provisions of paragraph 2, issue a binding decision to resolve the dispute in the shortest possible time frame …
…
3. In resolving a dispute, the [NRA] shall take decisions aimed at achieving the objectives set out in Article 8. Any obligations imposed on an undertaking by the [NRA] in resolving a dispute shall respect the provisions of this Directive or the Specific Directives.
…’
3. The Universal Service Directive
15. Article 28 of the Universal Service Directive comes within Chapter IV of the directive, entitled ‘End-user interests and rights’. That article concerns access to non-geographic numbers and provides as follows:
‘Member States shall ensure that end-users from other Member States are able to access non-geographic numbers within their territory …’
B – Polish law
16. The Law on Telecommunications (Ustawa Prawo telekomunikacyjne) of 16 July 2004, (5) in the version applicable at the material time, transposes into national law the provisions adopted by the EU legislature in the context of the ‘telecoms package’.
17. Article 15 of that law, which is in Chapter 3, entitled ‘Consultation Procedure’, is designed to transpose Article 6 of the Framework Directive. Article 15 provides as follows:
‘Before the President of the UKE gives a decision on:
(1) market analysis and the designation of a telecommunications undertaking with significant market power, or the annulment of a decision in that regard,
(2) the imposition, withdrawal, maintenance or amendment of regulatory obligations in relation to a telecommunications undertaking, whether or not it possesses significant market power,
(3) granting access to telecommunications, referred to in Articles 28 to 30,
(4) other matters referred to in the Law,
he shall follow a consultation procedure to enable interested parties to express in writing their position in relation to the draft decision within the specific time-limit.’
18. Article 18 of that law is in Chapter 4, entitled ‘Consolidation Procedure’. It is designed to transpose Article 7 of the Framework Directive and provides as follows:
‘If the decisions referred to in Article 15 may affect trade between Member States, at the same time as he initiates the consultation procedure, the President of the UKE shall initiate a consolidation procedure and shall send the … Commission and the regulatory authorities of the other Member States the draft decisions, together with the reasoning on which they are based.’
19. Articles 27 and 28 of the Law on Telecommunications are designed to transpose Article 5 of the Access Directive. Articles 27 and 28 read as follows:
‘Article 27
1. The President of the UKE may, of his own motion or at the written request of a party to negotiations for the conclusion of an access agreement, by order, lay down a time-limit for closing the negotiations, which must not exceed 90 days from the day on which the request for the conclusion of such an agreement is submitted.
2. If the negotiations do not commence, if access is refused by the operator required to grant such access, or if the agreement is not concluded within the time-limit referred to in paragraph 1, any party may request the President of the UKE to adopt a decision regarding the points in dispute or defining the terms of cooperation.
…
‘Article 28
1. The President of the UKE shall take his decision on the grant of access within 90 days of the date of the submission of the request referred to in Article 27(2), taking account of the following criteria:
(1) the interest of users of the telecommunications networks;
(2) the obligations imposed on telecommunications undertakings;
(3) the promotion of modern telecommunications services;
(4) the nature of existing contentious issues and the practical possibility of implementing solutions concerning the technical and economic aspects of access, proposed by telecommunications undertakings party to the negotiations, which may provide alternatives;
(5) a guarantee of:
(a) the integrity of the networks and the interoperability of services,
(b) non-discriminatory access conditions,
(c) the development of a competitive market for telecommunications services;
…
4. The decision on access shall replace that part of the access agreement covered by the decision.
…
6. The decision on access may be amended by the President of the UKE at the request of any party concerned or ex officio, where this is justified by the need to protect the interests of end-users, effective competition or interoperability of services.
…’
20. Article 79(1) of the Law on Telecommunications transposes Article 28 of the Universal Service Directive. It reads as follows:
‘The operator of the public telecommunications network shall ensure that end-users on its network and end-users from other Member States, where this is technically and economically feasible, are able to access non-geographic numbers within the territory of the Republic of Poland, except where a called subscriber has placed restrictions on calls from end-users located in specific geographical areas.’
II – The facts of the main proceedings and the questions referred for a preliminary ruling
21. The order for reference states that Telefonia Dialog requested the President of the UKE to take the measures necessary in order to amend the terms of an agreement between that company and T-Mobile Polska concerning access by end-users to non-geographic numbers.
22. It was on the basis of Article 28 of the Law on Telecommunications, which transposes Article 5 of the Access Directive, entitled, it will be recalled, ‘Powers and responsibilities of the [NRAs] with regard to access and interconnection’, that the President of the UKE, by a decision of 19 December 2008, imposed on Telefonia Dialog the obligation to provide call termination services on its network in return for remuneration as defined in that decision. T-Mobile Polska for its part was required to provide access for its subscribers to information and entertainment services provided on Telefonia Dialog’s network in return for remuneration also defined in that decision.
23. In proceedings brought by T-Mobile Polska, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) annulled the decision of the President of the UKE, on the ground that the latter had failed to make the notification required under Article 7(3) of the Framework Directive. In the opinion of the Sąd Okręgowy w Warszawie, that decision concerned citizens of Member States using T-Mobile Polska’s roaming services and therefore affected trade between Member States.
24. That judgment was upheld by the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw).
25. The President of the UKE lodged an appeal on a point of law with the Sąd Najwyższy. He considers that the Sąd Apelacyjny w Warszawie, in finding that the measure at issue led to repercussions on the single market, failed to interpret correctly the concept of the ‘[effect on] trade between Member States’ referred to in Article 7(3) of the Framework Directive and, consequently, infringed that provision.
26. In those circumstances the Sąd Najwyższy decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 7(3) of [the Framework Directive], in conjunction with Article 28 of the Universal Service Directive, be interpreted as meaning that every measure taken by [an NRA] in order to fulfil the obligation arising from Article 28 of [the Universal Service Directive] affects trade between Member States where that measure may ensure that end-users from other Member States are able to access non-geographic numbers within the territory of that Member State?
(2) Must Article 7(3) in conjunction with Articles 6 and 20 of [the Framework Directive] be interpreted as meaning that, in resolving disputes between undertakings providing electronic communications networks or services concerning the fulfilment by one of those undertakings of the obligation arising from Article 28 of [the Universal Service Directive], [an NRA] cannot conduct consolidation proceedings even where the measure affects trade between Member States and national law requires the [NRA] to conduct consolidation proceedings in every case where a measure may affect that trade?
(3) If the answer to Question 2 is in the affirmative, must Article 7(3) in conjunction with Articles 6 and 20 of [the Framework Directive], read in conjunction with Article 288 TFEU and Article 4(3) TEU, be interpreted as meaning that a national court is obliged to refrain from applying provisions of national law which require the [NRA] to conduct consolidation proceedings in every case where a measure taken by that [NRA] may affect trade between Member States?’
III – Preliminary observations
27. I suggest that the Court should examine the questions in a different order from that adopted by the Sąd Najwyższy, for the following reasons.
28. In its questions, the referring court asks the Court, in essence, whether an NRA is required to comply with the notification procedure referred to in Article 7(3) of the Framework Directive where it imposes, in the context of a dispute between two undertakings providing electronic communications services in a Member State, the obligations concerning access to non-geographic numbers laid down by the EU legislature in Article 28 of the Universal Service Directive.
29. The cases in which NRAs are required to notify their draft measures are expressly indicated by the EU legislature in Article 7(3) of the Framework Directive. Two conditions must be met.
30. The first concerns the purpose of the measure. Thus, according to Article 7(3)(a) of the Framework Directive, it must be a measure ‘[falling within the scope] of Articles 15 or 16 of [that] Directive, Articles 5 or 8 of [the Access Directive] or Article 16 of [the Universal Service Directive]’.
31. The second condition concerns the repercussions of the measure on the single market. According to Article 7(3)(b) of the Framework Directive, it must be a measure ‘[affecting] trade between Member States’.
32. In its first question, the referring court asks about the scope of that second condition. In effect, the Sąd Najwyższy is asking whether a measure such as that at issue in the main proceedings, which is designed to ensure access to non-geographic numbers, would affect trade between Member States, within the meaning of Article 7(3)(b) of the Framework Directive.
33. Moreover, in its second question it asks about the scope of the first condition concerning the nature of the decision. The referring court is asking in effect whether the notification procedure is applicable to a measure that is adopted on the basis of Article 20 of the Framework Directive in order to resolve a dispute between national operators.
34. In the light of the foregoing, it appears to me to be more logical therefore to reverse the order in which those two questions are considered. Indeed, were I to take the view that a measure such as that at issue in the main proceedings, adopted in connection with the resolution of a dispute between undertakings, did not fall within one of the situations expressly defined by the EU legislature in Article 7(3)(a) of the Framework Directive, it would not be necessary to examine whether that measure might, under Article 7(3)(b) of that directive, lead to repercussions as regards trade between Member States.
IV – My analysis
A – The scope of the condition laid down in Article 7(3)(a) of the Framework Directive concerning the nature of the measure
35. In its second question, the referring court asks the Court, in essence, whether, under Article 7(3) of the Framework Directive, an NRA is required to notify a measure by which it imposes on a telecommunications operator obligations in respect of access to non-geographic numbers, where that measure is adopted in connection with the resolution of a dispute within the meaning of Article 20 of that directive. (6)
36. The question arises because, in Article 20 of the Framework Directive, the EU legislature does not make clear that such a decision must be notified to the Commission and the NRAs of the other Member States under the procedure referred to in Article 7(3) of that directive.
37. The question also arises because that decision does not, at first sight, fall within one of the cases identified by the EU legislature in Article 7(3)(a) of that directive.
38. Under that provision, an NRA is required to notify measures by which:
– it defines the relevant market or carries out a market analysis in accordance with Articles 15 and 16 of the Framework Directive;
– it implements obligations in respect of access to, and interconnection of, electronic communications networks in accordance with Article 5 of the Access Directive;
– it imposes, amends or withdraws, in accordance with Article 8 of the Access Directive, obligations applicable to operators designated as having significant market power on a specific market, and in particular
– obligations for transparency of the terms and conditions for interconnection or access in accordance with Article 9 of the Access Directive;
– obligations of non-discrimination in accordance with Article 10 of the Access Directive;
– obligations for accounting separation in accordance with Article 11 of the Access Directive;
– obligations in respect of access to specific network elements and associated facilities in accordance with Article 12 of the Access Directive, and
– price control and cost accounting requirements in accordance with Article 13 of the Access Directive, and
– it maintains, amends or withdraws obligations relating to retail markets in accordance with Article 16(3) of the Universal Service Directive.
39. The EU legislature therefore makes no express reference to a measure adopted on the basis of Article 20 of the Framework Directive.
40. None the less, in my view that does not preclude such a decision from falling within the scope of the notification procedure referred to in Article 7(3) of the Framework Directive where that measure concerns one of the obligations laid down in Article 7(3)(a) of the Framework Directive and leads to repercussions as regards trade between Member States in accordance with Article 7(3)(b) of that directive.
41. Article 20 of the Framework Directive is a purely procedural provision. As will be recalled, it sets out the rules and procedure applicable where an NRA intervenes in a dispute arising between undertakings providing electronic communications networks or services in a Member State and adopts a binding decision for the purpose of resolving that dispute.
42. Implementation of the notification procedure is not dependent on the nature of the procedure following which the NRA adopted the measure in question. As is clear from the wording of Article 7(3)(a) of the Framework Directive, implementation of that procedure depends solely on the purpose of the measure. Does it seek to define a relevant market, provide access to an electronic communications service or impose on an operator on the market obligations in respect of price control?
43. In the case in the main proceedings, it is therefore necessary to address the actual purpose of the decision adopted by the President of the UKE, irrespective of the procedural framework within which it was taken.
44. The order for reference states that that measure was adopted by the President of the UKE in order to implement the obligations referred to in Article 28 of the Universal Service Directive, which is designed to ensure that end-users have the right to access non-geographic numbers on their territory. Such a decision therefore concerns access to an electronic communications service.
45. Although that measure was taken in connection with the procedure for the resolution of disputes referred to in Article 20 of the Framework Directive, the referring court confirms that it was adopted under the powers conferred on the President of the UKE by Article 28 of the Law on Telecommunications, which transposes into national law Article 5 of the Access Directive. It should be borne in mind that that provision confers on each of the NRAs the right, the obligation even, to impose on operators on the market obligations in respect of access to, and interconnection of, electronic communications services. It is a substantive provision which clearly applies to the measure at issue in the main proceedings.
46. The measure adopted by the President of the UKE is therefore based, so far as its purpose is concerned, on Article 5 of the Access Directive, which lays down the powers and responsibilities incumbent on NRAs in so far as access and interconnection are concerned and, as regards procedure, on Article 20 of the Framework Directive, which lays down the procedural rules applicable as regards the resolution of a dispute.
47. In that regard, I would point out that the EU legislature establishes a very close link between measures adopted on the basis of Article 5 of the Access Directive and the procedural mechanisms referred to in Articles 6, 7, 20 and 21 of the Framework Directive. As is very clear from Article 5(3) and (4) of the Access Directive, the obligations and conditions imposed by NRAs with regard to access and interconnection must be implemented in accordance with the consultation and notification procedures referred to in Articles 6 and 7 of the Framework Directive and, where appropriate, in compliance with the rules of procedure referred to in Articles 20 and 21 of the Framework Directive, where they relate to the resolution of a national or cross-border dispute.
48. That being said, it is necessary at this point to state that measures adopted on the basis of Article 5 of the Access Directive expressly fall within the cases identified in Article 7(3)(a) of the Framework Directive. The NRAs are therefore required to notify them to the Commission and the NRAs of the other Member States where they affect trade between Member States.
49. That interpretation is confirmed by the objectives pursued by the EU legislature in this matter.
50. The objective, as expressly stated in recital 15 in the preamble to the Framework Directive, is to ensure that decisions adopted by NRAs at national level do not have an adverse effect on the single market. Moreover, according to recital 2 in the preamble to the Commission recommendation of 15 October 2008, (7) such decisions must not have an adverse effect on achievement of the objectives pursued by the EU legislature in establishing a regulatory framework for the telecommunications market, which are referred to in Article 8 of the Framework Directive. In other words, the EU legislature requires NRAs to contribute to the development of the single market by cooperating in a transparent manner, among themselves and with the Commission, in order to ensure a coherent application of the rules laid down in the context of the ‘telecoms package’ and thus avoid any distortion of competition that might hinder the development of the telecommunications market.
51. It would be contrary to those objectives to exclude from the notification procedure measures adopted by NRAs in connection with the resolution of a dispute. Such measures are of an administrative and not a judicial nature and their notification is clearly part of the cooperation that the EU legislature seeks to establish between the NRAs and the Commission. Consequently, exclusion of such measures from the scope of Article 7(3) of the Framework Directive would, in my view, be likely to disrupt the harmonisation sought. I would observe in that regard that in recital 32 in the preamble to the Framework Directive the EU legislature expressly stated that the ‘intervention of [an NRA] in the resolution of a dispute between undertakings providing electronic communications networks or services in a Member State should seek to ensure compliance with the obligations arising under [the Framework Directive] or the Specific Directives’, which include the requirement of transparency and cooperation.
52. It is interesting to note, moreover, that, in connection with the pursuit of those objectives, the Commission stated, in recital 4 in the preamble to its abovementioned recommendation, that it ‘will give [NRAs], if they so request, the opportunity to discuss any draft measures, before formal notification of such measures under Article 7 of [the Framework Directive]’.
53. In the light of all those considerations, I therefore take the view that Article 7(3) of the Framework Directive must be interpreted as meaning that a measure adopted in connection with the resolution of a dispute, by which an NRA imposes on an operator obligations in respect of access to non-geographic numbers, and does so in accordance with its powers and responsibilities under Articles 5 of the Access Directive, 20 of the Framework Directive and 28 of the Universal Service Directive, falls within the scope of the notification procedure and must therefore be notified where that measure affects trade between Member States.
B – The scope of the condition laid down in Article 7(3)(b) of the Framework Directive concerning the measure’s effect on trade between Member States
54. In its first question, the referring court asks the Court, in essence, whether, under Article 7(3) of the Framework Directive, a measure by which an NRA seeks, in accordance with Article 28 of the Universal Service Directive, to ensure that end-users are able to access non-geographic numbers necessarily affects trade between Member States, so that such a measure must be notified to the Commission and to the NRAs of the other Member States.
55. In order to answer that question it is necessary to determine the scope of the criterion of the measure’s ‘[effect on] trade between Member States’, referred to in Article 7(3)(b) of the Framework Directive.
56. That criterion, as we have seen above, determines the scope of the notification procedure. Although this has been the subject of much case-law in the context of competition litigation, the Court has not yet ruled on its scope in the context of litigation in the telecommunications sector.
57. First of all, it should be noted that the EU legislature expressly defines the scope of that criterion in recital 38 in the preamble to the Framework Directive.
58. It covers ‘measures that may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might create a barrier to the single market’, the EU legislature explaining moreover that such measures ‘comprise measures that have a significant impact on operators or users in other Member States’.
59. I note, first of all, that that definition is the same as the definition adopted by the Court and the Commission in competition law cases. In its judgment in Völk, (8) a seminal judgment in this matter, the Court held that the concept of ‘[the effect on] trade between Member States’, referred to in Article 85(1) of the EEC Treaty (subsequently Article 85(1) of the EC Treaty, then Article 81(1) EC and now Article 101(1) TFEU), requires that the agreement in question be capable of having ‘an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way that it might hinder the attainment of the objectives of a single market between States’. (9) Two years later in Béguelin Import, (10) the Court also held that the concept of the effect on trade between Member States relates to agreements and practices which affect trade between Member States ‘to an appreciable extent’. (11)
60. That definition was also used by the Commission in its Notice entitled ‘Guidelines on the effect on trade concept contained in Articles 81 [EC] and 82 [EC]’, (12) to which I shall make further reference below.
61. Consequently, the definition of ‘[the effect on] trade between Member States’ for the purposes of Article 7(3) of the Framework Directive, adopted by the EU legislature, and the definition of the effect on trade between Member States for the purposes of Articles 101 TFEU and 102 TFEU are the same.
62. It is quite logical that those definitions should be the same when one considers that the telecommunications market nowadays is a competitive market on which operators may engage in conduct which may fall foul of Articles 101 TFEU and 102 TFEU.
63. In that regard, as is clear from the regulatory framework laid down in the telecommunications sector, the definition and analysis of the relevant markets, the position and power of economic operators on those markets and the effect of the practices adopted by those operators on those markets derive from an economic analysis based on competition law methodology. Moreover, the EU legislature expressly stated this with regard to obligations in respect of access to, and interconnection of, electronic communications networks in recital 13 in the preamble to the Access Directive.
64. In those circumstances and like all the parties who submitted observations in the main proceedings, I think that the concept of ‘[the effect on] trade between Member States’ used by the EU legislature in Article 7(3) of the Framework Directive should have the same scope as the concept of the effect on trade between Member States which it used in the context of competition law, and in particular of Article 101 TFEU, and should be assessed using the same methodology.
65. That methodology was set out in the Guidelines, which are based on the case-law of the Court in that area.
66. Under those Guidelines, for trade between Member States to be affected within the meaning of Articles 101 TFEU and 102 TFEU, it is required, as I have said above, that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. (13) According to the Court, that assessment must be based on examination of a set of objective factors of law or of fact relating to the actual circumstances of the agreement. (14) In that context, the competent authorities must take into account the nature of the agreement or practice in question, the nature of the products concerned and the position and importance of the undertakings involved.
67. The nature of the agreement and the power of the undertakings on the market indicate the capacity of that agreement to affect trade between Member States. The nature of the products concerned indicates whether it is likely that intra-Community trade will be affected. Where the purchase or sale of a product takes place in the context of cross-border trade or represents a significant share of the activities of an undertaking seeking to become established or to increase its activities in other Member States, it is easier to show that such an agreement may lead to repercussions on the single market.
68. Moreover, under the Guidelines, having an effect on trade between Member States, for the purposes of Articles 101 TFEU and 102 TFEU, means that the agreement or practice in question must be capable of having a minimum level of cross-border effects, (15) involving at least two Member States. The criterion of the effect on trade between Member States includes a quantitative element which limits the applicability of EU law to agreements and practices that are capable of having effects of a certain magnitude. Assessing whether the effect is appreciable again depends on the circumstances of each case and in particular the nature of the agreement or practice in question, the nature of the products concerned and the market position of the undertakings involved. (16)
69. As I have said above, I am of the view that the same methodology must be used to assess whether a measure adopted by an NRA affects trade between Member States.
70. That assessment is, to my mind, a matter of fact which each competent national authority must determine in each particular case. Those authorities must therefore assess whether the measure they are planning to adopt may affect trade between Member States to an appreciable or significant extent by having an influence, direct or indirect, actual or potential, on the pattern of trade between them. To that end, their assessment should, inter alia, be based on the nature of the measure and services concerned and on the position and importance of the undertakings concerned on the market. (17)
71. In recital 38 in the preamble to the Framework Directive the EU legislature sets out a non-exhaustive list of measures that might have a significant impact on operators or users in other Member States. It includes, inter alia, measures which affect market structure or access, thereby leading to repercussions for undertakings established in other Member States. It also includes measures which affect prices for users in other Member States and measures which affect the ability of an undertaking established in another Member State to provide an electronic communications service.
72. Thus, for example, the Commission considers that measures concerning the setting of termination rates (18) lead to repercussions for operators in other Member States so that it should be notified in advance of such measures under the procedure referred to in Article 7(3) of the Framework Directive. (19) With regard to termination rates, the Commission considers that they are a component of the cost of calls between customers of operators of different networks and are included in the caller’s telephone bill, so that such a measure may be regarded as having a significant effect on users. It considers, moreover, that the level of termination rates has a direct influence on the capacity of operators established in other Member States to provide their services in the Member State in question as a result of the termination rates set.
73. Similarly, the Commission considers that measures by which an NRA sets the rates for the wholesale supply of broadband access and the method of calculating them should be notified in advance in accordance with Article 7(3) of the Framework Directive.
74. In the main proceedings, it is therefore for the national court to determine in this particular case whether the measure at issue, adopted in order to ensure that end-users are able to access non-geographic numbers, may likewise affect trade between Member States, so that all the conditions required under the notification procedure are satisfied.
75. To that end, the national court must therefore take into account the nature of that measure and the nature of the services concerned.
76. In that regard, I would point out that that measure requires T-Mobile Polska to ensure that end-users, when they are within the territory of the Republic of Poland and making use of the roaming arrangement available on a Polish operator’s network, will be able to access non-geographic numbers.
77. I note that, according to Article 2(d) and (f) of the Universal Service Directive, a ‘non-geographic number’ is a number from the national numbering plan the digit structure of which does not contain any geographic significance used for routing calls to the physical location of the network termination point. It includes in particular mobile, freephone and premium rate numbers.
78. I also understand, in the present case, that the measure at issue lays down the rules for setting the rates for the service providing access to non-geographic numbers under the agreement between T-Mobile Polska and Telefonia Dialog.
79. All this goes to show, in my view, that that measure is capable of affecting trade between Member States.
80. First, the access to non-geographic numbers which T-Mobile Polska is required to ensure benefits not only the end-users of that company’s network but also those who use its roaming services. As the Commission rightly states, roaming involves a transnational dimension of communication. At the hearing, T-Mobile Polska also stated that it had entered into more than 140 roaming contracts with operators in the other Member States.
81. Secondly, the measure at issue sets the prices of telecommunications services and lays down rules for reviewing those rates. If those rules are included in T-Mobile Polska’s agreement they are, to my mind, liable to have direct repercussions for the end-user since they are a component of the cost of a call and, hence, affect the amount of the caller’s telephone bill. In those circumstances, it seems to me that such a measure may have a significant effect on users. Furthermore, it is not impossible, as the Sąd Apelacyjny w Warszawie held, that the measure might also have repercussions as regards the conditions under which operators can access the market, in particular operators established in other Member States.
82. Moreover, the national court must take into consideration the position and importance on the market of the undertakings concerned, in particular of T-Mobile Polska. According to the information available to me and that provided by T-Mobile Polska at the hearing, that undertaking is one of the main telecommunications operators in Poland and in Eastern Europe. In 2006, as is apparent from Polska Telefonia Cyfrowa, (20) the President of the UKE had already identified that undertaking as having significant power in the market for the provision of voice call termination services and decided to impose on it certain regulatory obligations. (21) In 2008, T-Mobile Polska held a 29% market share, and in 2013 its market share was 27%. That information regarding the importance of T-Mobile Polska on the market clearly goes to show that the volume of communications passing over that undertaking’s network, including those made to non-geographic numbers, is significant.
83. Although the above considerations show that the measure at issue may lead to repercussions as regards trade between Member States, in my view they are insufficient to conclude that intra-Community trade may be affected to an appreciable extent. It is for the national court, in the light of all the evidence available to it in the context of the present case, to determine the precise extent of that effect.
84. In the light of those considerations, I am therefore of the view that Article 7(3) of the Framework Directive must be interpreted as meaning that a measure by which an NRA seeks, in accordance with Article 28 of the Universal Service Directive, to ensure that end-users are able to access non-geographic numbers is capable of affecting trade between Member States, where that measure may affect to an appreciable extent trade between those States by having an influence, direct or indirect, actual or potential, on the pattern of trade between them.
85. That assessment concerns a matter of fact which it is for each of the competent national authorities to determine in each particular case, taking into account the nature of the measure and services concerned and the position and importance of the operators concerned on the market.
C – Third question
86. There is no need, in my view, to examine the referring court’s third question in view of the answers I propose to give to the first two questions. Moreover, as I have stated above, it is clear from the wording of the Polish legislation, as set out in the documents available to me, that it is not at variance with the obligations laid down by the EU legislature in Article 7(3) of the Framework Directive.
V – Conclusion
87. In the light of the foregoing considerations, I propose that the Court should answer the Sąd Najwyższy’s questions as follows:
(1) Article 7(3) of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) must be interpreted as meaning that a measure adopted in connection with the resolution of a dispute, by which a national regulatory authority imposes on an operator obligations in respect of access to non-geographic numbers, and does so in accordance with its powers and responsibilities under Article 5 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), Article 20 of Directive 2002/21 and Article 28 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), falls within the scope of the notification procedure and must therefore be notified where that measure affects trade between Member States.
(2) Article 7(3) of Directive 2002/21 must be interpreted as meaning that a measure by which a national regulatory authority seeks, in accordance with Article 28 of Directive 2002/22, to ensure that end-users are able to access non-geographic numbers is capable of affecting trade between Member States, where that measure may affect to an appreciable extent trade between those States by having an influence, direct or indirect, actual or potential, on the pattern of trade between them.
That assessment concerns a matter of fact which it is for each of the competent national authorities to determine in each particular case, taking into account the nature of the measure and services concerned and the position and importance of the operators concerned on the market.