Lawyers from the competition law team at Wierzbowski Eversheds have successfully represented Orange Polska (formerly Telekomunikacja Polska) in a dispute concerning fines imposed on the company by Poland’s telecoms regulator.

In 2006, the President of the Office of Electronic Communications imposed a fine on Orange Polska of PLN 100 million for alleged violation of the obligation to establish prices for services on the basis of the costs of providing the services. The matter involved the Neostrada service. Then, in 2007, the regulator imposed a fine on Orange Polska of PLN 338.9 million for failure to comply with the obligation to submit the price list and rules for Neostrada services to the regulator for approval, as well as failure to comply with obligations concerning the rules for establishing prices. The fine was one of the highest penalties ever imposed on a single company by a regulatory agency in Poland.

The team of lawyers from Wierzbowski Eversheds prepared appeals for Orange Polska in both cases to the Court of Competition and Consumer Protection, alleging that there were no grounds for imposing the fines.

Meanwhile, the European Commission sued Poland before the European Court of Justice concerning attempts by the Office of Electronic Communications to regulate prices for broadband Internet access. In May 2010, the ECJ ruled that the Polish regulator had violated requirements under EU directives. Consequently, the court in Poland vacated the decisions by the regulator, holding that the President of the Office of Electronic Communications had imposed fines for failure to perform obligations which Orange Polska was not actually required to perform (submission of price lists and service rules, and establishing prices based on cost).

With respect to the allegations of violating the obligation to establish prices on the basis of clear, objective and non-discriminatory criteria (Art. 61(2) of the Telecommunications Law), the courts at two instances held:

• In the case of the fine of PLN 100 million, the President of the Office of Electronic Communications had overbroadly interpreted the duties arising under Art. 61(2) of the Telecommunications Law. The courts also found that there was no legal basis for imposing a fine for conditioning the supply of Neostrada services on the supply of telephone service by Orange Polska.
• In the case of the fine of PLN 338.9 million, the President of the Office of Electronic Communications had failed to prove the allegations.

After a 7-year legal battle, the Supreme Court of Poland ultimately ended both cases by refusing to accept for consideration the cassation appeals filed by the regulator against the judgments in favour of Orange Polska by the court of appeal upholding the judgments of the Court of Competition and Consumer Protection setting aside both decisions imposing the fines.

The competition law team at our law firm was involved in both cases from the very beginning and represented Orange Polska at all stages of the proceedings. The work of the team was directed by Piotr Pasnik, supported by the many years of litigation experience of Henryk Romanczuk.