Independence of the Polish Regulator

In 2009, the Polish government amended its telecommunications rules in order to comply with EU rules concerning regulatory independence.

The European Commission initiated legal action against Poland in December 2006.  At the time, Polish legislation concerning state personnel gave the Prime Minister unlimited discretion to dismiss the head of the national communications regulatory authority, the UKE.  Moreover, the Polish telecommunications law had been amended to remove provisions that specified the length of the regulator’s term and the circumstances under which the regulator could be dismissed had been removed.  Given that the Polish government still controlled significant shareholdings in a number of telecommunications companies, the European Commission argued that the regulatory framework in Poland compromised the independence of the regulatory authority.

In January 2008, the European Court of Justice held that Poland’s electronic communications regulatory framework violated the Framework Directive.  The Framework Directive is one of the key legal documents that make up the common regulatory framework governing the ICT sector in Europe.  The Framework Directive requires European Member States to guarantee the independence of their national regulatory authorities.  (See Box 1.)

Box 1: The European Framework Directive and Regulatory Independence

The provisions of the Framework Directive require that European Member States safeguard the independence of their national regulatory authorities.

The general principle of regulatory independence is set out in Paragraph 11 of the Preamble of the Framework Directive:

(11) In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 295 of the Treaty. National regulatory authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.

The specific requirements related to regulatory independence are set out in Article 3 of the Framework Directive. Paragraphs 2 and 3 of Article 3 stipulate:

2. Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services. Member States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.

3. Member States shall ensure that national regulatory authorities exercise their powers impartially and transparently.

Source: Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0021:EN:NOT.

Poland amended its telecommunications legislation in April 2009 in order to bring its regulatory framework into compliance with the Framework Directive.  The amendments included provisions that establish a five year term of office for the head of UKE, the Polish regulatory authority, and that set out the conditions under which the head of the UKE may be dismissed.  The amendments to the Polish telecommunications legislation bring Poland back into compliance with the Framework Directive’s requirements concerning regulatory independence.

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