The progressive informatization of the country and the steady development of the modern economy impose a review and update of the existing regulatory framework for electronic communications in Europe. In this regard, the legislative work currently underway in this area in Poland stems from the obligation to implement the provisions of Directive (EU) 2018/1972 of the European Parliament and of the Council of December 11, 2018, establishing the European Electronic Communications Code (hereinafter “ECE”) into the national legal order.
Published on February 26, 2024, the provisions of the proposed Law – Electronic Communications Law (hereinafter “PKE” or “the Law”) are intended to replace the current Law of July 16, 2004. – Telecommunications Law (hereinafter “PT”), while enabling further development of the Polish electronic communications sector.
Among other things, the PKE comprehensively regulates the functioning of electronic communication markets, the performance of activities involving the provision of electronic communication services, the conditions of frequency management, or the rights and obligations of electronic communication entrepreneurs.
Some of the new solutions proposed by the Law include:
1. regulation of interpersonal communication service not using numbers
The draft PKE uses the concept of an electronic communications entrepreneur (Article 2, Section 39 of the PKE), which has been expanded to include entities that provide interpersonal communications services that do not use numbers (e.g., instant messaging calls such as Messenger, WhatsApp, or email). The expansion of the regulation will increase the rights of end-users of interpersonal communication services that do not use numbers by introducing obligations related to the conclusion of contracts for the provision of electronic communication services, or obligations related to the processing of personal data. Chapter II of Division VII of the PKE includes end-user rights regulating, among other things:
a) minimum requirements for the form and content of contracts (including contracts for prepaid services, so-called pre-paid),
b) pre-contractual obligations,
c) summary of the main elements of pre-contractual information.
Under the current legal regime, the contract for the provision of telecommunications services has so far consisted of a contract, regulations and price lists. According to the new regulations, the documents indicated in (a) – (c) above should regulate all issues covering the service provided, so that the consumer will receive a set of information about the services sought at the pre-contractual stage.
2. Clarification of the concept of telecommunications activity
According to the proposed Article 1(2) of the PT, a telecommunications activity is not the enabling of the use of a public telecommunications network via a local radio network if it is an activity that is ancillary to the entity’s main activity. The PT did not resolve doubts about whether providing access to the Internet in publicly accessible places constitutes a telecommunications activity. The unambiguous definition of the scope of telecommunications activities in both the ECL and the PT will positively influence the development of wireless networks in publicly accessible places, which may also translate into the development of the information society through easier access to the Internet outside the place of residence or workplace.
- According to the wording of the proposed Article 1(1)(a) of the PKE, telecommunications activity is the provision of publicly available telecommunications services, the provision of public telecommunications networks, including networks and services for the dissemination or distribution of radio and television programs, or the provision of related services.
3. Introduction of the authority of the President of UKE to issue area-based decisions
The PKE will introduce an entirely new power of the President of the Office of Electronic Communications (“UKE”) to issue area decisions, which will be able to regulate issues of access to telecommunications networks in a comprehensive manner (Article 192 of the PKE), and thus ensure unification of the obligations imposed. The subject of area decisions may be:
a) access to cabling extended to telecommunications network elements with associated resources,
b) access to the technical infrastructure of network operators,
c) access to real estate, including the building.
Issuance of decisions setting out the general conditions for access to certain elements of infrastructure under the area decision procedure will reduce the risk of raising charges of discrimination by addressees of individual decisions (raising charges of discrimination against entities against which such individual decisions have not been issued). It should be noted that the power of the President of UKE to issue area-based decisions (for a period of up to 7 years) does not preclude the issuance of decisions under the ordinary procedure.
4. Provision of a comparative tool for electronic communication service offers
According to the PKE, end-users are to be provided with access to an independent and free comparison tool for offers of electronic communication services (Internet access services and interpersonal communication services using numbers, while interpersonal communication services not using numbers only if it is possible to compare them according to prices, tariffs and quality of service – Article 314 of the PKE). It is proposed that the tool should first be developed by independent entities, while if during the analysis it turns out that end users do not have access to such a tool, the UKE President will develop and launch it himself. The comparison tool will enable end-users to compare the offers of electronic communication entrepreneurs and choose the most convenient one.
5. Introducing a ban on the conclusion of contracts for the provision of electronic communication services off-premises
The proposed paragraph 4 of Article 284 of the PKE introduces measures to counteract unfair practices of some service providers by introducing a ban on the conclusion of contracts for the provision of electronic communication services off-premises (in the so-called door-to-door formula). According to the wording of the provision, a contract for the provision of electronic communication services concluded off-premises, or during an unscheduled visit of the entrepreneur to the consumer’s place of residence or usual residence, is invalid.
In the case of persistent violation of obligations to conclude a contract for the provision of electronic communication services, the UKE President may, by decision, prohibit that service provider from carrying out telecommunications activities for up to 5 years, and issue a public warning indicating the person responsible for the violation.
In addition, in connection with the regulation of provisions on fines in Section IX of the PKE, the regulation on subjecting entities sending unsolicited commercial information by means of electronic communication (proposed Article 448 of the PKE), from the Act of July 18, 2020 on the provision of services by electronic means, was moved to the PKE, among other things.
As one of the overall goals of the ECLEC is also to promote connectivity and the use of ultra-high-speed networks (including fixed, mobile and wireless networks) by all EU citizens and all EU businesses, the proposed Law aims to encourage industry investment in ultra-high-speed fixed and mobile broadband networks in Poland, as well as to ensure a consistent internal market approach to radio frequency management policy.
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Due to Poland’s failure to implement the directive by the deadline (i.e., December 21, 2020), on July 8, 2022. The European Commission filed a complaint with the CJEU against the Republic of Poland (Case C-452/22), seeking a declaration that by failing to adopt the legislation necessary to implement the ECE Directive, Poland has failed to comply with its obligations under the Directive, and the payment of an appropriate lump sum and a periodic penalty payment (if the failure continues until the date of the judgment in the case). The Ministry of Digitization announces that the draft law is expected to be adopted by the end of Q2 2024.
