Regulator seeks €5.3m punishment but Justice Twomey delays
Irish market regulator ComReg is pursuing the national telco Eircom Ltd, trading as eir, for an alleged breach of its obligation to give other operators access to its physical infrastructure. The former monopolist of the telecoms market has been reluctant to let other younger players use its ducts and cabling. Now the telecoms watchdog wants the government to impose a €5.3m penalty on Eircom.
ComReg says non-compliant conduct hampers the ability of competitors to compete in the market and can have serious commercial implications, including the strengthening of eir’s competitive advantage. However, it appears to be delaying the litigation. Ann O’Loughlin reported in the Irish Examiner that an application to admit the case to the High Court’s fast track commercial division was adjourned as mediation talks are due to take place next month.
Brian Kennedy SC, for ComReg, said that as the dominant provider with a “significant market position” in the wholesale local access market, eir must allow other providers not just access to its physical infrastructure but also to its passive records which detail locations and capacity of that infrastructure.
Proceedings move at glacial speed however. ComReg was not satisfied that eir was doing so and in 2019 the watchdog opened an investigation which continued until 2021, resulting in the issuing of a notice of non-compliance with the relevant EC Electronic Communications and Services Access regulation and seeking remediation. Counsel said there was an exchange of correspondence between eir and ComReg and while eir had now made a proposal for remediation of the breaches, it was not full remediation.
ComReg prepared a report which recommended the High Court should be asked to impose a penalty of some €5.379m. It wanted the case admitted to the Commercial Court so the matter could be dealt with expeditiously. ComReg said in court that non-compliant conduct hampers the ability of competitors to compete in the market and can have serious commercial implications, including the strengthening of eir’s competitive advantage.
The senior counsel for eir, Johnathan Newman SC, opposed the admission of the case to the commercial list because the parties had already agreed to go to mediation. The only difference between the parties was what week next month the mediation should begin, said Newman. Given there was only a week between the parties, nobody was “going to die in a ditch” by putting the application for entry to the list back to December, said Newman.
Presiding over the case was Mr Justice Michael Twomey, who agreed with the telecoms estabishment. A week would not make any difference, Twomey said, and the focus should be on mediation in the interest of saving on costs and ensuring court resources are used in an efficient manner. The application was adjourned to December and the judge encouraged the parties “in the strongest terms” to seek a resolution through mediation.