A national telecoms regulator can prohibit a dominant operator from imposing combined offers (such as internet plus fixed telephony) on its customers. This is the gist of the judgement handed down, on 11 March, by the EU Court of Justice in a case pitting former monopoly Telekomunikacja Polska (TP) against the Polish regulator UKE (Case C 522/08).

A Polish telecoms law of 2004 protects consumers against having to subscribe to a service they do not need from a dominant operator. Two years later, the UKE therefore obliged TP to halt its illegal practice of making internet service contingent on taking out a contract for telephone service. TP brought several actions before the Polish courts, all of which were rejected. The operator then appealed to the supreme administrative court, which turned to the Court of Justice for a preliminary ruling on the compatibility of the Polish law with EU law.

The court reviewed the case from two angles, the 2002 telecoms regulation and the 2005 directive on unfair commercial practices.

Its ruling is based on the first angle because the Polish ban was decided before the date on which the period for transposition of directive on unfair practices expired (2007). The court notes that the Universal Service Directive establishes rights for consumers. Member states must see to it that companies “establish conditions in such a way that the subscriber is not obliged to pay for facilities or services which are not necessary or not required for the service requested”.

Consequently, holds the court, EU telecoms legislation “cannot preclude” a national regulation, which for the sake of consumer protection prohibits a company from making a contract contingent on conclusion of a contract for the provision of other services.

NOT HARMONISED

The fact remains that consumer law is not harmonised in the EU. Paradoxically, the new 2005 directive on unfair commercial practices precludes a national regulation which, subject to certain exceptions, imposes a general prohibition of combined offers made by a vendor to a consumer. The message could therefore be different with the 2005 directive. As the court notes, however, this legislation only applies to the Telekomunikacja Polska-UKE case from the time of the deadline for its transposition into national law (ie from 12 December 2007).

As a result, Poland must ensure the conformity of its law with the EU directive on unfair practices.

Poland must ensure the conformity of its law with the EU directive on unfair practices