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“Who would be thence that has the benefit of access”*: C-192/08 TeliaSonera

Posted on May 19, 2009 | Filed Under communication technologies 

Does the access directive 2002/19/EC permit a member state to require operators of electronic communication networks to negotiate interconnection (or access) agreements with a provider of SMS- and MMS-services? The ECJ will have to address this issue in the case C-192/08 TeliaSonera, and last week, advocate general Colomer delivered his opinion (not yet available in English). To sum it up briefly:

The obligation to negotiate interconnection as laid down in article 4 of the access directive applies only to operators of electronic communications networks, not to providers of electronic communications services. As this is not a case of minimum harmonisation, member states may not impose such an obligation also on service providers. Whether the SMS- and MMS-service provider in this particular case is to be regarded as a network operator or a mere service provider will have to be determined by the national court.

But even if there is no obligation to negotiate, regulatory authorities could, under article 5 paragraph 4 of the access directive (and article 20 of the framework directive 2002/21/EC) “intervene …  in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).”

Advocate general Colomer, who has a reputation for quoting fine literature (even if the relevance to the case is sometimes hard to see), this time quotes C.M. Cipolla’s Fundamental Laws of Human Stupidity (in footnote 30, to paragraph 50). I have tried hard to understand what Colomer wants to tell us with this reference, but I have not yet found an answer. I am grateful for hints!

*) Shakespeare, The Winter’s Tale, Act V Scene 2

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