Today, for the first time since the publication (18 Dec 2009) and entry into force (25 May 2011) of EC Directive 2009/140/EC which amended the Framework Directive 2002/21/EC, the European Commission published a letter (addressed to the Polish national regulatory authority UKE), in which the European Commission exercised its new powers over regulatory remedies (regulatory remedies are the regulatory obligations which can be imposed on providers of electronic communications services that have been found to hold Significant Market Power on defined relevant markets).

The letter constitutes a notification in application of Article 7a(1) of the revised Framework Directive, triggering the new process, in which the European Commission notifies a national regulatory authority and
BEREC of its reasons for considering that a draft measure would
create a barrier to the single market or that it has serious doubts as to the compatibility of the draft measure with Community law.

The case at hand, which triggered the European Commission's first action in application of its new powers, is the notification by the Polish UKE concerning wholesale mobile
call termination (Market 7 listed in the EC Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation). The European Commission's letter (7 pages in length - accessible by clicking here - please contact us if link does not work - the circabc site has been unreliable) briefly describes the Polish UKE's draft measures, and essentially criticises what the European Commission considers to be their non-binding character. The European Commission states that the measures proposed by the Polish UKE may
create barriers to the single market and that the European Commission has serious doubts
as to the compatibility of these draft measures with the EU law and
in particular with the requirements referred to in Articles 16(4)
and 16(6) in conjunction with Article 6 and 7 of the Framework
Directive, Article 8(5) (a) of the Framework Directive, and Article
4 of the Framework Directive.

In application of Art 7a of the revised Framework Directive, the Polish NRA is
prohibited from adopting its proposed measures for 3 months, BEREC is tasked (within 6
weeks) to issue an opinion on the European Commission's notification,
indicating whether it considers that the draft measure should be
amended or withdrawn and, where appropriate, provide specific
proposals to that end. More generally, Article 7a of the revised Framework Directive instructs the European Commission, BEREC and the national
regulatory authority concerned to co-operate closely
to identify the most appropriate and effective measure in the light
of the objectives laid down in Article 8 of the Framework Directive, whilst taking due account
of the views of market participants and the need to ensure the
development of consistent regulatory practice.

Tomorrow, the European Commission will issue a formal invitation to interested parties to file their observations, within 10 working days from 12 November 2011.

These procedural steps highlighted above, as well as potential future procedural steps in case co-operation between the institutions does not yield agreement within the 3-month period, are described in a diagram, usefully provided by the European Commission, which can be accessed by clicking here (second diagram in annex of the press release).

For a discussion of the substance of the Polish Market 7 case, or for a discussion of the new Article 7a procedure launched for the first time, please contact Yves Blondeel.