CJEU - C-231/15 / Opinion Prezes Urzędu Komunikacji Elektronicznej and Petrotel sp. z o.o. w Płocku v. Polkomtel sp. z o.o.

Key facts of the case:

Electronic communications networks and services — Directive 2002/21/EC — Article 4(1) — Decisions of national regulatory authorities — Resolution of a dispute between operators — Effects of annulment of a decision of a national regulatory authority — Right to an effective remedy — Charter of Fundamental Rights of the European Union — Article 47 — Scope of the judgment

Results (sanctions) and key consequences of the case:

  1. In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) in the following terms:

(1) Article 4(1) 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), in conjunction with the right to effective judicial protection, means that:

– an appeal body may annul a decision of a national regulatory authority on which it is required to adjudicate and may extend the nullifying force of a judgment annulling such a decision to the effects already produced by that decision;

– the provisional maintenance of the effects of a decision of a national regulatory authority, unless and until that decision is suspended by an appeal body, is compatible with the fact that the subsequent annulment of such a decision may extend, ex tunc, to the effects the decision has produced.

(2) Where national law so permits, the annulment of a decision of a national regulatory authority may, by way of exception, only produce effects ex nunc if the appeal body considers it appropriate for overriding reasons aimed at the preservation of legal certainty and the protection of legitimate expectations, or for the purpose of safeguarding the rights of third parties, or for reasons relating to the general interest.

Paragraphs referring to EU Charter: 
  1. In this respect, the reference to Article 47 of the Charter offers no significant guidance (leaving aside the fact that, ratione temporis, it can hardly apply to a legal situation arising as a result of decisions adopted, and appeals brought, in 2008 and 2009). The right to effective judicial protection, enshrined in the Charter in respect of the cases referred to in Article 51 thereof, does not imply an unequivocal solution to difficulties which may arise in relation to the effects of judgments annulling administrative acts. Admittedly, the general rule I have mentioned can be inferred from that right but that rule does not preclude the possibility of making use of the exceptions referred to above.