Consumer Protection and Limits for National Legislatures in the Field of Electronic Communications: Some Reflections about the ECJ Judgments in Polish Cases

The recent developments in the European Court of Justice case law on the electronic communications package, contribute to define more accurately the boundaries of national rule-makers in this field. In particular, two references for preliminary ruling from Polish courts have given the Court the opportunity to clarify the extent of consumer protection’s rules that aim to shelter clients against the risks inherent in the bundling of different products and to facilitate the number portability, as a requirement to enhance competition in the telephone services market. In the first decision (case of Telekomunikacja Polska), the Third Chamber held that harmonized provisions concerning unfair B2C commercial practices preclude national legislation which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of combined offers made by a vendor to a consumer; according to the judges, this principle applies to the rule that bans making the conclusion of a contract for the provision of certain services contingent on the conclusion, by the end-user, of a contract for the provision of other services. In the latter circumstance (case Polska Telefonia Cyfrowa), the Fourth Chamber ruled that the National Regulatory Authority could not ignore the costs incurred by mobile telephone network operators in carrying out the number portability service when it appraises whether the direct charge to subscribers for the use of that service has a negative motivational influence; the Authority retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is likely to dissuade clients from making use of the portability facility. Both decisions reveal that legislators and agencies operating in Member States, while providing safeguard measures for consumers, ought to be fully aware of the interests of other market players and to pursue the goals of the efficiency and openness of the market itself.