Update 3 Aug 2012: Today, the Polish UKE opened a national consultation (30 days for interested parties to file comments), in which it puts forward proposals to implement the agreed approach, including symmetric MTRs based on a BU-LRIC model, as follows:

  • From 1 Jan 2013 to 30 June 2013: 8,26 groszy/min (2,00 eurocent/min at today's exchange rate).
  • From 1 July 2013: 4.29 groszy/min (1,04 eurocent/min at today's exchange rate).

Reference is made to the European Commission's acceptance of delay of the last step of the glide-path to 1 July 2013 in the cases of Spain and Italy.

The relevant UKE web page and consultation documents (in Polish) are accessible by clicking here.

Update 20 Jan 2012: Today, the European Commission, BEREC and the Polish regulatory authority UKE issued a Common Statement, in which they indicate that, in a tripartite meeting, they 'successfully defined together the most efficient regulatory approach'.  

The Parties agreed that UKE:

  • Withdraws those draft decisions which were notified in October/November 2011;
  • Will notify by mid-2012 new draft SMP (significant market power) decisions for mobile operators in
    the voice call termination market, defining symmetric MTRs (mobile termination
    rates) based on the bottom-up LRIC model.

The full text of the Common Statement is available by clicking here.

Update 13 Jan 2012: On 12 and 13 Jan 2012, the Polish regulatory authority UKE formally notified the European Commission of its withdrawal of notifications PL/2011/1255-1258 (wholesale mobile call termination on the individual networks of PTC, P4, Polkomtel and PTK) as well as the withdrawal of notifications PL/2011/1260 and PL/2011/1273 concerning UKE dispute settlement decisions regarding interconnection involving AERO2.  

This is not unexpected given the previous developments which were described in the original T-REGS news item, and in the updates to it. It is in accordance with one of the options of the Article 7/7a procedure (diagram linked below). 

Update 20 Dec 2011: Today, the European Commission formally communicated on a third Second Phase case relating to Polish MTRs, even though the initiation of the proceedings concerned is more than a month old. Case PL/2011/1273 concerns a UKE dispute resolution between TP SA, the incumbent fixed telecommunications operator in Poland, and AERO2, a late entrant mobile operator, relating to AERO2's MTRs. The deadline for filing observations in this case is 13 January 2012.

In other news, BEREC yesterday (19 Dec 2011) published the full detail of its Opinions on the two earlier Polish MTR cases. The BEREC Opinions on those two cases are available by clicking here and here (links may not be persistent - please contact T-REGS for a copy if needed). Update 18 Jan 2012: BEREC has now also published its Opinion on the third case.

Update 12 Dec 2011: BEREC, exercising for the first time its new role in the Art 7 process, has adopted formal opinions on the two cases relating to Polish MTRs which the European Commission had taken to Second Phase examination. BEREC largely shares the European Commission's assessment, with one nuance on each case. A summary of BEREC Opinions on these two cases can be accessed by clicking here (link may not be persistent - please contact T-REGS for a copy if needed).

Update 22 Nov 2011: The European Commission has now also opened a Second Phase examination (based on Art 7a(1) of the Framework Directive) relating to the Polish UKE notification of its proposals for setting asymmetric wholesale mobile call termination charges (MTRs) for the late entrant operator AERO2. The deadline for filing observations on this case is 6 Dec 2011.

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 - in principle accessible by clicking here - link likely to be non-persistent and the circabc site has been unreliable - please contact us in case it is inaccessible) 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 it has serious doubts as to the compatibility of these draft measures with 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 (in this case UKE) 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 9 November 2011.
Update: the deadline for filing observations is 23 Nov 2011.

The 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.