Polish lower Chamber of Parliament (Sejm) enacted an Act on Electronic Communications Law ("ECL") which will implement Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (“EECC”). The ECL will replace the existing Act of 16 July 2004 Telecommunications Law ("TL") and certain provisions of the Act of 18 July 2002 on the Provision of Electronic Services (“PES”). Apart from that, most provisions of the new Act on Counteracting Abuse in Electronic Communications (“CAEC”) have come into force.

Below, we present what we believe are the most important changes for telecommunications business resulting from the ECL draft and CAEC. This analysis has been carried out based on the CAEC of the 28th of July 2023 and the draft of ECL, which was passed by the Sejm on 12th of July 2024.

One of the most significant resulting from the ECL is the extension of the material scope of this act to providers of electronic communications services, while the TL applied to providers of telecommunications services only.

Electronic communications service will be defined as a service provided via a telecommunications network, usually for remuneration, excluding services related to the provision or exercise of control over content transmitted using telecommunications networks or electronic communications services (Article 2 (76) of ECL). It follows from the above, that a service may be deemed as an electronic communications service regardless of being provided for remuneration.

The provisions of ECL state that electronic communications services include are: internet access service, interpersonal communications service, and services consisting wholly or mainly of the transmission of signals (in particular sending signals in interpersonal communication regardless of technology used, as well as transmission service used in order to provide communications services between machines and for broadcasting).

Based on the ECL draft, the term/concept? of electronic communication service providers is understood firstly as providers of publicly available telecommunications services and secondly as entities providing publicly available interpersonal communication services not using numbers (Article 2 (6) of ECL).

The term interpersonal communication service pertains to a service that enables direct interpersonal and interactive exchange of information over a telecommunications network among a finite number of persons, where/in which the persons initiating or participating in the call determine the recipient or recipients of the call, excluding services in which the interpersonal and interactive communication is solely a subordinate function to another primary service (Article 2 (78) of ECL).

In addition, the ECL draft indicates that interpersonal communication services are both interpersonal communication services that use numbers (i.e., services that enable calls to be made to numbers from the national numbering plan or international numbering plans) and interpersonal communication services that do not use numbers (i.e., services that do not enable the aforementioned calls).

Until now, the TL provisions applied to providers of telecommunications services which were understood as service "consisting primarily of the transmission of signals over a telecommunications network". However, the provisions of the ECL will also cover services that enable interpersonal and interactive exchange of information. Thus, the transmission of signals over a telecommunications network will not be relevant to the applicability of the ECL if the service enables interpersonal and interactive exchange of information.

In practice, the regulations of ECL will apply to services such as email, instant messaging, and group chats. Providers of such services will need to comply with certain obligations imposed under the ECL.

As in TL, only undertakings which carry out telecommunications activities are subject to the obligation of being entered into the Telecommunications Undertakings Register. Electronic communications providers, who are not telecommunications undertakings (e.g., interpersonal communication services providers) are not subject to that obligation (Article 5 (1) of ECL).

Below we identify the key new obligations or changes in the obligations of electronic communications undertakings. Some of the obligations will apply only to telecommunications undertakings, while others will also apply to electronic communications undertakings (inter alia providers of interpersonal communication services).

Note that when the obligations described below apply to electronic communications undertakings, it means both telecommunications undertakings and providers of interpersonal communications services.

Obligation of responding to inquiries

Until now, under the TL provisions, only telecommunications undertakings or entities that have obtained a radio license were subject to the obligation of responding to inquiries of the President of the Office of Electronic Communications ("UKE"). Under the ECL, all providers of electronic communications services (excluding government users) will be required to respond to inquiries from the President of UKE. Therefore, providers of interpersonal communication services will also be subject to this obligation. The scope of the obligation will be to provide the President of UKE with information necessary for the President of UKE to enact rights and fulfil obligations, while such information will include in particular financial information, information on planned development of networks or services and information about the existing telecommunications infrastructure (Article 19 (1) of ECL).

Moreover, when the aforementioned information is insufficient, the President of UKE will be entitled to obtain necessary information from other entities operating in the electronic communications market or other closely related markets (Article 19 (2) of ECL).

The request for information shall be proportionate to the pursued objective and should include all necessary elements listed in ECL. The request will most probably be made on special forms prepared by the UKE (Article 19 (4-5) of ECL).

State defense and security obligations under the ECL

Important changes in state defence and security obligations of telecommunications undertakings include:

Additionally, an electronic communications undertaking will be required to provide technical conditions for recording and sharing of electronic messages and other data, at their own expense, to courts and the public prosecutors and to provide technical and organizational conditions for access and recording that allow simultaneous and mutually independent acquisition of information by the authorities transmitted or created as part of the publicly available telecommunications service provided. (Article 43 (1) (1 and 2) of ECL).

Data retention obligations

Data subject to the retention obligation must be made available to the authorities in a specific and uniform electronic format (Article 47 (1) (2) of ECL).

Also, in case the telecommunications undertaking takes over the users of the telecommunications undertaking which has ceased operations, the telecommunications undertaking is also required to accept the data subject to the retention obligation. In case there is no undertaking taking over the users or in case of insolvency of the undertaking, the data are accepted by the President of UKE (Article 48 of ECL).

The scope of the data subject to the retention obligation has been extended to include data necessary to uniquely identify the end user (Article 49 (1) of ECL). Such data may include the number of communications port or the IP address. An executive regulation will be enacted which will specify the type, structure and means of saving the data subject to the retention obligation (Article 49 (2) of ECL).

Execution of obligations

Certain obligations, including the obligation to provide conditions for access and saving of data, providing access to the processed data as well as the obligation to retain the processed data, may be fulfilled by another electronic communications undertaking (Article 50 (1) of ECL). These obligations may also be fulfilled jointly by two or more electronic communications undertakings (Article 50 (2) of ECL).

Obligation to provide information to the President of UKE

An electronic communications undertaking will be required to provide the President of UKE with information on: the organizational unit or a person with registered office or place of residence in the territory of Poland authorized to represent the undertaking in matters related to the performance of certain obligations, as well as on an electronic communications undertaking which will carry out obligations for that undertaking on the basis of the relevant outsourcing agreement. (Article 51 (1) of ECL).

Each change of such information shall be provided to the President of UKE without undue delay (Article 51 (2) of ECL).

Blocking of calls and communications on request of authorized authorities

Upon request of certain authorities, the President of UKE will be authorized to immediately impose, in an administrative decision, an obligation to block, no later than within six hours of receiving the decision, calls and electronic communications, if they may compromise defence, state security and public safety and order, or to enable such blockade by authorized entities. Such decision may be announced verbally and delivered to the party in writing within 14 days of its announcement. Such decision is immediately enforceable (Article 53 ECL).

The main change regarding the telecommunication access comes down to the change of a form of an agreement for telecommunications access. It will have to be concluded in a documented form under pain of nullity, rather than in writing (Article 168 ECL).

Obligation of providing access to wiring of the building

New provisions, regulating the obligation of providing access to wiring of a building has been introduced in ECL. A telecommunications undertaking, as well as the owner of the building’s wiring, between the ends of networks in a building and a closest point of distribution (except for the government user), upon a request of a telecommunications undertaking, will be required to provide access to such wiring, if the duplication of such wiring is economically unviable or technically unfeasible (Article 173 (1) of ECL).

Conditions of access

The President of UKE will be allowed to define, by issuing a decision, objective, transparent, proportionate, and indiscriminatory conditions under which an access to the wiring in question should be made available, as well as conditions for the extended access to wiring (regulated under Article 177 of ECL) (Article 174 (1) of ECL).

In certain circumstances, a telecommunications undertaking will be required to provide the President of UKE with an agreement on providing telecommunication access on a durable medium, within 14 days of the conclusion of such an agreement (Article 175 (1) of ECL), as well as in case of a change of the agreement (Article 175 (2) of ECL). Such agreements, except for the company secrecy included in the agreement (information on the settlements from providing telecommunications access cannot constitute company secrecy), are publicly available and will be made available to interested parties by the President of UKE upon request (Article 175 (3) of ECL).

Symmetrical access obligations

ECL introduced provisions regulating symmetrical access obligations which pertain to certain situations when the President of UKE may require telecommunications undertakings to provide different types of telecommunications access, described in the ECL. Details on symmetrical access obligations have been set out in Articles 176 – 181 of ECL.

Coordination of the telecommunications access

Implementation of EECC provisions has introduced in the ECL provisions which allow the President of UKE to settle the dispute on telecommunications access between telecommunications undertakings or between a telecommunications undertaking and an entity required to provide telecommunications access, by decision, upon request of a party, within 60 days of the request (Article 182 (1) of ECL). Details on the request and this proceeding before the President of UKE have been provided in the following provisions (Article 182 (2) – (13) of ECL).

When settling a dispute, the President of UKE will be able to either:

The President of UKE, when settling the dispute will also be able to impose a symmetrical access obligation (Article 186 (1) of ECL) or an obligation to share frequency with the undertaking required to provide access on a specific territory, as well as assess conditions of such sharing (Article 187 (1) of ECL).

In cases when it is justified with a need of providing protection of end-users, effective competition or providing interoperability of services, The President of UKE will also be able to amend the access agreement or decision on telecommunications access by decision (Article 188 (1) of ECL).

Territorial decisions on telecommunications access

In certain cases, indicated in ECL (e.g., in a decision on conditions of telecommunications access or in a decision on extended telecommunications access), the President of UKE will be able to issue a decision pertaining to a specific location and unspecified number of entities, taking into account the rule of indiscrimination (Article 192 (1) of ECL).

The President of UKE will be able to issue a territorial decision only for a period of no longer than seven years (Article 194 (1) of ECL) and it will not revoke individual decisions, unless stated otherwise in the territorial decision (Article 192 (2) of ECL).

Prior to the proclamation of the territorial decision, the President of UKE will publish information on:

Everybody is allowed to submit positions on the matter, within a date specified by the President of UKE, no shorter than 30 days (Article 196 (1) of ECL). The President of UKE will be required to publish a report, which will include comments on submitted positions (Article 196 (2) of ECL).

The territorial decision shall be published in the Official Journal of the Office of Electronic Communications (Article 197 (1) of ECL). It will be possible to appeal from the decision within two months of the announcement of the decision (Article 197 (2) of ECL) and the court will hear all cases concerning such decision jointly (Article 197 (3) of ECL). It should be noted that a request for restoration of the deadline for submitting the appeal will be inadmissible (Article 197 (4) of ECL).

Analysing the electronic communications market is a main tool and competence allowing the the President of UKE to regulate the electronic communications market. The provisions on analysing the market already existed in the TL. The new provisions in this regard mainly implement the provisions of EECC.

The President of UKE will analyse the market within the scope of products and services of electronic communications (Article 198 of ECL).

A significant change in relation to proceeding on assessing a relevant market after the analysis, is that the President of UKE will have to take into account the level of competition in the scope of infrastructure in these locations and the results of geographical analysis (Article 200 (1) (1) of ECL). New provisions also introduce criteria for imposing regulatory obligations, including:

When carrying out the market analysis, the President of UKE will have to examine the development of the situation on the market with an assumption that no regulatory obligations have been imposed on the market and taking into account elements specified in the ECL (Article 201 of ECL). Under this provision, the President of UKE will have to assess whether the market may become competitive in the future, even though the regulatory obligations have not been imposed.

Other provisions regarding the assessment of markets are essentially the same as in the current provisions from the TL, with some minor changes introduced by the EECC. The changes which are worth noting with regard to regulating the electronic communications market include:

Potential regulatory obligations have been divided into obligations that may be imposed on the wholesale market (Article 211 – 230 of ECL), migration from infrastructure (Article 231 – 235 of ECL) and to restrictions on retail markets (Article 236 – 237 of ECL).

ECL also introduced provisions regulating specific regulatory conditions (Article 238 – 241 of ECL) as well as specific investing conditions (Article 242 – 257 of ECL).

There were no significant changes introduced in provisions related to the regulatory accounting and calculation of costs (Article 258 – 263 of ECL).

 Rights of end users

One of the most significant changes regarding the rights of end-users is the remodelling of concluding an agreement on provision of publicly available electronic communications services.

The possible forms of the agreement have remained unchanged. It is worth noting that the agreement shall not be concluded with a service provider off-premises, in a household, during an unscheduled visit to the consumer’s residence – such agreement will be deemed void (Article 284 (4) of ECL).

Another change worth noting is a new right of the President of UKE, regarding cases in which obligations regarding the agreement for provision of publicly available electronic communications services are breached (including obligations regarding the agreement, as well as obligation information prior to the conclusion of the agreement). The authority may impose an immediately enforceable decision with a public warning, indicating the person responsible for the breach of law and the character of the breach, as well as prohibiting the provider from carrying out telecommunications activity for a period up to five years (Article 284 (5) of ECL).

A new change is also the obligation to provide a consumer, prior to the conclusion of the agreement for provision of electronic communications services, with information relevant to those services, which will need to be transferred on a durable medium (Article 285 (1) of ECL). The scope of information subject to this obligation is indicated in the ECL and varies depending on the type of the agreement to be concluded.

New provisions introduce as well:

The important new provisions in the ECL regarding the rights of end users include protection against abuse using telecommunications networks. Service providers shall:

New regulations have also been introduced with regards to direct billing. Direct billing will require prior consent of a subscriber to launch the service and the provider of an electronic communications service shall record the subscriber’s consent and deliver it to the subscriber on a durable medium (Article 349 (1) of ECL).

Another crucial change is an introduction of rules on authorization in each case of direct billing, similar to the rules on strong authorization under provisions of the PSD2 directive. They include three categories: knowledge of something that only the subscriber knows about; possession of something that only the subscriber possesses; key characteristics of the subscriber - unless separate regulations provide for a higher level of authorization (Article 350 (1) of ECL).

Other changes include:

Universal service

Universal service constitutes an implementation of the EECC. It is understood as the service of adequate broadband access to the Internet and voice communication service, provided with use of any technology in mobile telecommunications network and in stationary telecommunications network, available in a good quality and fair price, available in a fixed location on the territory of Poland (Article 355 (1) of ECL).

In addition to the above/Moreover, a minimal scope of applications which should be available for use within adequate broadband Internet access has been introduced. It includes, among others, applications such as: electronic mail, information search engines or Internet banking/Netbanking/ Online banking (Article 355 (2) of ECL).

The President of UKE will be able to analyse availability and quality of the aforementioned services, taking into account the state of telecommunications market and planned or finished investment projects (Article 357 (1) of ECL). Details on rules of carrying out the analysis have been set out in the ECL.

A key change is the introduction of provisions pertaining to carrying out the contest for the selected undertaking (Article 360 (1) of ECL). The selected undertaking will be required to provide services on a specified territory, if in an analysis the President of UKE concludes that a service is not available or is not provided with good quality. In the conditions for the contest:

A selected undertaking will be deemed, by a decision, as an undertaking selected for execution of the obligation set out in the decision. Details on carrying out and results of the contest have been set out in the ECL. It is worth noting that in case no undertaking applies for the contest, or no undertaking meets the set out requirement or ensures execution of the described obligations, the President of UKE is entitled to arbitrarily select an undertaking in a decision (Article 361 of ECL).

The selected undertaking may apply for a surcharge to the execution of the obligations, if such execution turns to be unprofitable (Article 369 (1) of ECL).

Surcharge applications shall be submitted within 6 months of the end of the calendar year, when, in the opinion of the selected undertaking, a net cost occurred (Article 370 (1) of ECL).

Rules and details on the surcharge are set out in ECL.

The selected undertaking will be able to cease or limit execution of the obligation to provide services or to offer a special price package or to change the execution of such obligations, if certain justified circumstances described in ECL occur. However, the undertaking will need to inform the President of UKE of reasons, and other key information pertaining to the execution of the obligations (Article 374 of ECL).

If a selected undertaking cannot execute obligations due to reasons beyond their control, they must inform the President of UKE of such reasons, of intent to cease the execution of given obligations and of activities ensuring the continuity of the execution of those obligations (Article 375 of ECL). However, the selected undertaking cannot cease the execution of the given obligations until another undertaking is selected in their place (Article 375 (2) of ECL).

Liability for non-performance or improper performance of electronic communications service

Rules on liability for non-performance or improper performance of electronic communications service are similar to the current rules under TL, with a few changes introduced by ECL.

A new provision was introduced which directly provides that in case of significant permanent or frequent discrepancies between the actual performance of telecommunications services, excluding Internet access services and the terms and conditions stipulated in the contracts, the consumer, after exhausting the complaint procedure, may, in addition to the right to assert a claim for improper performance of the contract, terminate the contract due to the fault of the telecommunications service provider; and the provider will not be entitled to compensation for the premature termination of the agreement (Article 380 of ECL).

Electronic communications secrecy and data of end-users

Electronic communications secrecy under ECL pertains only to publicly available electronic communications services (Article 387 of ECL).

As a rule, the scope of information subject to electronic communications secrecy remains the same as the scope of information subject to telecommunication secrecy under TL. The key change is that electronic communications secrecy pertains not only to telecommunications undertakings but also to providers of interpersonal communications services that do not use numbers (i.e. numbers in national or international numbering plans). This results from the fact that the scope of the provision was extended to entities involved in the performance of electronic communication activities. This means that undertakings which provide such services will be subject to obligations such as, among others, complying with data retention periods.

Another important change is an introduction of a general need to collect consent from the end-user, in relation to provision of direct marketing or sending unsolicited commercial information. Previously, two consents were to be collected – one for direct marketing under TL and the other for sending commercial information by electronic means under PES. Now, it shall be prohibited to use automatic calling systems or telecommunications end-devices (in particular, the ones used for interpersonal communication), for the purposes of sending unsolicited commercial information by electronic means, including direct marketing, to the subscriber or end-user, unless they have given their prior consent (Article 398 (1) of ECL). This provision pertains not only to electronic communications undertakings or telecommunications undertakings but to every undertaking or entity which sends commercial information or direct marketing by electronic means to end users.

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