ECJ decision in telia/Sonera

The European Court of Justice today gaves its decision in the TeliaSonera/iMEZ dispute. This dispute arose following TeliaSonera's refusal to provide SMS and MMS interconnection to iMEZ on the basis of the fact that it was not registered in Finland and was not a provider of public electronic communication networks.

The reasoning of the Court is quite interesting:

First, it adopts a restrictive view. The ECJ ruled that interconnection obligations cannot be applied to operators other than those designated by the national telecoms regulator as running public communications networks.In particular, the framework "precludes national legislation in so far as it does not restrict the possibility of relying on the obligation to negotiate on the interconnection of networks solely to operators of public communications networks."

Second, the Court is more lenient. The obligation to negotiate is independent of whether the undertaking concerned has significant market power, and does not entail the obligation to conclude an interconnection agreement, but merely an obligation to negotiate such an agreement and interconnection obligations should also apply "where an undertaking which does not have significant market power proposes interconnection to another undertaking under unilateral conditions likely to hinder the emergence of a competitive market at the retail level." The Court also emphasize the reciprocal nature of interconnexion agreements. In my view, this suggests that interconnection obligations applies as much to the conditions of the services provided by the operator requesting interconnection than to the services provided by the operator to which interconnection is requested.

Third, the Court is even more lenient. First, based on the any-to-ant obligation, the ECJ states that a NRA may require an undertaking which does not have SMP but which controls access to end-users to negotiate in good faith with another undertaking for either interconnection of the two networks concerned if the undertaking which requests such access must be classified as an operator of public communications networks. This is fairly logical in view of the above. However, the ECJ also adds that NRA can require such undertaking to negociate for interoperability of SMS and MMS message services if the undertaking which requests such access does not qualify as an operator of public communications networks. Thus, on the basis of the any-to-any obligations, the restrictive bniew of point 1 is annuled by the extensive view in point 3.

Here is the wording of the answers to the Court's questions:

1. Article 4(1) of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (the ‘Access Directive’), read in conjunction with recitals 5, 6, 8 and 19 in its preamble and with Articles 5 and 8 thereof, precludes national legislation such as the Communications Market Law (Viestintämarkkinalaki) of 23 May 2003 in so far as it does not restrict the possibility of relying on the obligation to negotiate on the interconnection of networks solely to operators of public communications networks. It is for the national court to determine whether, having regard to the status and the nature of the operators concerned in the main proceedings, they may be classified as operators of public communications networks.

2. A national regulatory authority may take the view that the obligation to negotiate an interconnection has been breached where an undertaking which does not have significant market power proposes interconnection to another undertaking under unilateral conditions likely to hinder the emergence of a competitive market at the retail level where those
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conditions prevent the clients of the second undertaking from benefiting from its services.
3. A national regulatory authority may require an undertaking which does not have significant market power but which controls access to end-users to negotiate in good faith with another undertaking for either interconnection of the two networks concerned if the undertaking which requests such access must be classified as an operator of public communications networks, or interoperability of SMS and MMS message services if that undertaking is not covered by that classification.