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GibFibreSpeed wins appeal in bid to access Gibtelecom data centre

State-owned Gibtelecom may be forced to allow rival telecoms firm GibFibreSpeed to access its data centre following a Court of Appeal decision that will level the playing field for the private operator in a highly competitive sector.

The decision follows a two-year legal wrangle over the issue that laid bare the tough competition between local rivals in the sector.

GibFibreSpeed took the case to the Court of Appeal following a Supreme Court ruling which came down in favour of Gibraltar’s largest telecoms company, the government-owned Gibtelecom.

Gibtel had refused a request from GibFibreSpeed to access its Mount Pleasant data centre, prompting the private operator to appeal to the Gibraltar Regulatory Authority.

The GRA looked into the matter and initially found that Gibtel’s refusal was “abusive, anti-competitive and discriminatory”.

But the authority later accepted Gibtel’s argument that it had no powers to require it to allow access to GibFibreSpeed.

That decision by the GRA was appealed to the Supreme Court. When the appeal was rejected GFS took the case to the Court of Appeal, where it secured a positive judgement.

The Court of Appeal found that the GRA did have the power to impose access in favour of GFS.

The court has therefore directed the GRA to reconsider whether it would be appropriate to order GFS access.

GFS requested Gibtelecom to enter into an agreement to afford it access to Mount Pleasant Data Centre in order to enable GFS to connect directly via fibre link with the servers of potential customers and thereby provide those customers with its electronic communications services.

Gibtelecom had previously entered into an arrangement of this nature with Sapphire Networks and GFS sought a like deal so that it could compete with Gibtel and Sapphire in the same way.

Gibtelecom refused to negotiate access with GFS at first denying it had capacity but later conceding that the true reason was purely commercial.

GFS asked the GRA to intervene and compel Gibtelecom to enter into the agreement to allow GFS access or at least to enter into negotiations in good faith.

On 16 February 2017 the GRA decided that it did not have the power to compel Gibtelecom to afford GFS access to the Mount Pleasant Data Centre.

GFS appealed to the Supreme Court against the refusal and the Supreme Court upheld the GRA's decision. Not being satisfied with the decision of the Supreme Court GFS appealed further to the Court of Appeal.

The Court of Appeal upheld the appeal and found that the GRA had the power to impose access in favour of GFS under Article 5 of EC Directive 2002/21, the Access Directive.

The Court of Appeal further quashed the decision by the GRA insofar as the GRA denied it had power to direct Gibtelecom to grant access in the manner sought by GFS.

Further, the Court of Appeal has directed the GRA to reconsider whether it would be appropriate to order GFS access in accordance with its judgment and the relevant law.

"After a long two years we have been successful in securing a positive judgment which establishes that the GRA have the statutory power to compel Gibtelecom to grant a rival telecommunications operator access to an electronic services network under Article 5 of the Access Directive,” said GFS Director Geny Sheriff.

GFS was represented by Elliott Phillips and Cecile Gomez of Signature Litigation and Alan Maclean QC of Blackstone Chambers.

The GRA was represented by Sir Peter Caruana QC and Christopher Allan.

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