Brussels, 25 June 2009
The European Commission today closed three infringement proceedings against Poland after the country took steps at national level to correct the problems and bring Polish law into line with EU telecoms rules. The cases concern the independence of the Polish regulator, consumer contracts, and the obligation for operators to negotiate interconnection. The Commission is still analysing other parts of the amendments made by the Polish government to national telecoms laws.
" I congratulate Poland for the changes made in national law, which today allowed the Commission to close three important legal cases," said Viviane Reding, the EU Telecoms Commissioner. " I am especially glad to see the steps taken to guarantee the independence of the Polish national telecoms regulator. Independent regulators are the backbone of an efficient and fair regulatory system in the interests of competition and consumers. This is a positive signal for the telecoms industry and consumers in Poland."
Independence of the Polish telecoms regulator improved
The Commission took legal action against Poland in December 2006 as the national rules on state personnel gave the Polish Prime Minister unlimited discretion to dismiss the head of the national telecoms regulator ( ). The length of the regulator's term of office and circumstances under which the regulator could be dismissed had been removed from Polish telecoms laws. The Commission considered that this undermined the independence of the Polish regulator, especially since the Polish government is a major shareholder in a number of telecoms companies.
Poland amended its telecoms rules in April 2009 reinstating a five-year term of office for the head of the telecoms regulator (the President of UKE) together with a list of conditions for dismissal and ensuring independence of the regulator as required by European rules.
Polish consumer contracts rules now in line with EU requirements
In January 2008, the Commission warned Poland ( ) that it had not correctly transposed into national legislation provisions of the EU's rules on Universal Services that give customers the right to withdraw from contracts without penalty if a telecoms operator informs them of proposed changes to their contracts. Subscribers must be given at least a month's notice of any modifications and must be told of their right to withdraw from the contract without penalty if they do not accept the new conditions.
The Commission sent Poland a letter of formal notice because Polish law gave customers the right to withdraw from their contracts in case of any change to the contract, even when adjustments are necessary in view of legal or regulatory changes and were not proposed by the operator. This has a wider scope than the provisions in the EU's Universal Service Directive and the Commission felt this generated legal uncertainty in a disproportionate manner.
In April 2009, changes were made to Polish provisions relating to consumer rights to withdraw from contracts bringing them in line with EU requirements and allowing the Commission to close the infringement.
Poland complies with ECJ ruling on the negotiation of interconnection
The EU Access Directive requires operators to negotiate interconnection with each other to provide electronic communications services. Under the EU's telecoms rules, "interconnection" means the physical and logical linking of networks in order to allow users of one company to communicate with users of the same or other company. "Access" is a broader term and relates to facilities and/or services available to another company under defined conditions for the purpose of providing electronic communications services.
The Commission opened an infringement procedure in March 2005 as Poland did not correctly transpose this requirement. Under Polish law, operators were required to negotiate access and this applied to all operators regardless of their power in the market. In its judgment of 13 November 2008, the European Court of Justice declared that Poland failed to correctly transpose the relevant provision of the Access Directive.
To comply with the ruling of the Court of Justice, Poland amended its rules in April 2009. In particular the operators' obligation to negotiate was narrowed down to the scope of interconnection.
Following today's closures, the number of pending infringement proceedings has halved but three cases are still outstanding against Poland.
In January 2009 the European Court of Justice ruled that the Polish definition of subscriber is incorrect, depriving subscribers without a written contract of many of their rights. Poland still has to comply with this judgement.
The case concerning the regulation of retail broadband which did not follow a prior market analysis is currently before the Court of Justice and a further infringement is pending since 2005 as Poland has not yet finalised its first round of market analyses.
A detailed overview of the telecoms infringement proceedings is available at: