The Polish national regulatory authority (NRA, UKE) notified to the Commission two draft measures, on 29 April 2022 and 2 May 2022 respectively, without conducting prior the obligatory national public consultations. In those draft measures UKE proposes the review of Weighted Average Cost of Capital (WACC) value, based on updated parameters. The first case concerns the re-notification (for formal reasons of an appeal) of a decision already assessed by the Commission in 2021 (case number PL/2021/2314). Already back then the Commission pointed out to UKE its obligation stemming from EU law to conduct the national consultations. UKE, when re-notifying its current draft measure had disregarded this comment. The second decision concerns an update of WACC for the following period 2022-2023.
In both cases, the Commission raises serious doubts as to the fact that UKE has not carried out obligatory prior national consultations, and therefore the notified measures do not fulfil UKE’s obligation to adhere to the applicable EU regulatory framework in its decision-making procedures. In particular, pursuant to Article 23(1) of the European Electronic Communications Code, Member States shall ensure that NRAs give interested parties the opportunity to comment on draft measures within a reasonable period (not shorter than 30 days) in case of measures taken in accordance with the Directive. The national procedure at hand is not compliant with the principle of transparency enshrined in the Article 23 of the Code.
Therefore, the Commission has serious doubts as to the compatibility of this proposal with EU law and opens an in-depth investigation under Article 33 of the Code. As the notified measures had not been consulted in line with the provisions of the Code, the Commission does not assess and pronounce itself on the merits of both cases. The Commission therefore initiates the in-depth investigation to verify the compatibility of UKE’s proposal with EU law.
The Commission has three months to discuss the draft measure with UKE, in close cooperation with the Body of European regulators (BEREC), which may issue its opinion. At the end of the Phase II investigation period, the Commission may either lift its reservations or issue a Recommendation under Article 33 of the Code. During this period, UKE will not be able to adopt its final measure.
The Commission’s serious doubts letter opening the in-depth investigation is available online on CIRCABC.
The Commission invites third parties to submit their observations within a period of ten working days following the publication of the Commission’s serious doubts.