Official Journal of the European Union

(Case C-192/08)

(Telecommunications sector - Electronic communications - Directive 2002/19/EC - Article 4(1) - Networks and services - Interconnexion agreements between telecommunications undertakings - Obligation to negotiate in good faith - Definition of ‘operator of public communications networks’ - Articles 5 and 8 - Powers of the national regulatory authorities - Undertaking without significant market power)

2010/C 11/04

Language of the case: Finnish

Referring court

Parties to the main proceedings

Applicant: TeliaSonera Finland Oyj

Intervening parties: iMEZ Ab

Re:

Reference for a preliminary ruling — Korkein hallinto-oikeus — Interpretation of Articles 4(1), 5 and 8 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) (OJ 2002 L 108, p. 7) — National legislation requiring every telecommunications operator to negotiate on interconnection with other telecommunications operators — Extent of the obligation to negotiate and requirements which may be imposed by the national regulatory authority

Operative part of the judgment

1.Article 4(1) 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 (the ‘Access Directive’), read in conjunction with recitals 5, 6, 8 and 19 in its preamble and with Articles 5 and 8 thereof, precludes national legislation such as the Communications Market Law (Viestintämarkkinalaki) of 23 May 2003 in so far as it does not restrict the possibility of relying on the obligation to negotiate on the interconnection of networks solely to operators of public communications networks. It is for the national court to determine whether, having regard to the status and the nature of the operators concerned in the main proceedings, they may be classified as operators of public communications networks.

2.A national regulatory authority may take the view that the obligation to negotiate an interconnection has been breached where an undertaking which does not have significant market power proposes interconnection to another undertaking under unilateral conditions likely to hinder the emergence of a competitive market at the retail level where those conditions prevent the clients of the second undertaking from benefiting from its services.

3.A national regulatory authority may require an undertaking which does not have significant market power but which controls access to end-users to negotiate in good faith with another undertaking for either interconnection of the two networks concerned if the undertaking which requests such access must be classified as an operator of public communications networks, or interoperability of SMS and MMS message services if that undertaking is not covered by that classification.

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(1) OJ C 197, 02.08.2008.