ECJ: Another simple answer to a complicated question?

Posted on June 14, 2007 | Filed Under communication technologies 

The Advocate General said in his opinion (not yet available in English) in the case C-64/06 that the Czech court requesting a preliminary ruling from the European Court of Justice would need an answer more simple than one could imagine reading its heterogenous questions ( in the original Spanish: “una respuesta más sencilla de lo que permite conjeturar el abigarrado conjunto de preguntas que ha formulado.”) .

In telecommunications law, the Court has some experience with simple answers, especially in rejecting a request for a preliminary ruling by the Austrian Regulatory Authority, when the Court stated - more or less in passing - that a decision by the European Commission in an “Article 7″ procedure was “just an answer” to a question (”Par ailleurs, la Commission n’a fait que répondre à l’autorité nationale.”) - a very interesting view of one of the core aspects of the regulatory framework for electronic communications (Case C-256/05 Telekom Austria).

So today the Court itself had to come up with a simple answer, as the Advocate General had proposed. The case touches on the issue of the transitional regime between the old to the new framework, especially the transition from the ONP interconnection directive (97/33/EC) to the new Access Directive (2002/19/EC)Â and the Framework Directive (2002/21/EC).

Article 27 (Transitional measures) of the Framework Directive states:

Member States shall maintain all obligations under national law referred to in Article 7 of Directive 2002/19/EC (Access Directive) and Article 16 of Directive 2002/22/EC (Universal Service Directive) until such time as a determination is made in respect of those obligations by a national regulatory authority in accordance with Article 16 of this Directive.

Operators of fixed public telephone networks that were designated by their national regulatory authority as having significant market power in the provision of fixed public telephone networks and services under Annex I, Part 1 of Directive 97/33/EC or Directive 98/10/EC shall continue to be considered “notified operators” for the purposes of Regulation (EC) No 2887/2000 until such a time as the market analysis procedure referred to in Article 16 has been completed. Thereafter they shall cease to be considered “notified operators” for the purposes of the Regulation.

In the light of these tranistional provisions, the Court came to the conclusion that the Czech regulatory authority

was entitled to consider the obligation, on the part of a telecommunications company with significant market power within the meaning of Directive 97/33/EC … to conclude a contract for the interconnection of its networks with that of another operator, subsequent to 1 May 2004, within the context of the provisions of Directive 97/33, as amended.

In other words: as long as the “new” framework has not yet been implemented, the old obligations can still be enforced and there is no room for a direct effect of Article 16 of the Framework Directive (so that the regulatory authority would have to conduct a market analysis of its own initiative even in the absence of national laws transposing the Framework Directive).

There is one more case touching on Article 27 of the Framework Directive still pending at the ECJ: C-262/06 Deutsche Telekom - we’ll see if the German Federal Administrative Court will also get such a simple and straightforward answer as the district court of first instance of Prague’s third district got in the case decided today.

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One Response to “ECJ: Another simple answer to a complicated question?”

  1. ECJ on the transition regime to the “new” (2002) framework : contentandcarrier on November 22nd, 2007 2:09 pm

    […] has to deal with questions on the transitional regime to the current (2002) framework. After a simple answer to a complicated question in the case C-64/04, today the Court came up with a simple answer to a simple question (without […]

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