Eircom Ltd v Commission for Communications Regulation

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Date29 July 2005
Docket Number[2005 No. 152 JR]

[2006] IEHC 138

THE HIGH COURT

[No. 152 JR/2005]
EIRCOM LTD v COMMISSION FOR COMMUNICATIONS REGULATIONS
JUDICIAL REVIEW

BETWEEN

EIRCOM LIMITED
APPLICANT

AND

COMMISSION FOR COMMUNICATIONS REGULATIONS
RESPONDENT

COMMUNICATIONS REGULATION ACT 2002 S10

COMMUNICATIONS REGULATION ACT 2002 S12

COMMUNICATIONS REGULATION ACT 2002 S10(1)(a)

EEC DIR 02/21

EEC DIR 02/19

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003

EEC DIR 02/22

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (UNIVERSAL SERVICE & USERS RIGHTS) REGS 2003 SI 308/2003

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 ART 26

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 ART 27

COMMUNICATIONS REGULATOR DECISION NOTICE D8/04 MARKET ANALYSIS WHOLESALE UNBUNDLED ACCESS. DESIGNATION OF SMP & DECISION ON OBLIGATIONS 15.6.2004

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 13

COMMUNICATIONS REGULATOR DIRECTIONS TO EIRCOM - REQUIREMENT TO RESPOND TO INDUSTRY REQUEST FOR DEVELOPMENTS TO LLU PROCESSES & PRODUCT RANGE 18.1.2005

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 17

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 18(10)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 18(11)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 ART 3

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 18(12)

EEC DIR 02/21 RECITAL 12

COMMUNICATIONS REGULATION ACT 2002 S4(1)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 18

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 ART 16

EEC DIR 02/21 ART 4(1)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 ART 4

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 PART 2

EEC DIR 02/21 ART 4

VON COLSON & KAMANN v LAND NORDRHEIN-WESTFALEN 1984 ECR 1891 1986 2 CMLR 430

MECKLENBURG (WILHELM) v KREIS PINNEBERG - DER LANDRAT 1996 ECR I-3809 1999 AER (EC) 166 1999 2 CMLR 418

R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD 1991 1 AC 603 1991 1 AER 70 1990 ECR I-2433 1990 3 WLR 818 1990 3 CMLR 1 1990 2 LLOYD'S REP 351

SIPLES SRL (IN LIQUIDATION) v MINISTERO DELLE FINANZE 2001 ECR I-277

IMS HEALTH INC v EUROPEAN COMMISSION 2001 ECR II-2349 2001 ECR II-3193 2002 4 CMLR 46

MEGALEASING (UK) LTD v BARRETT & ORS 1992 1 IR 219

KOEN LENAERTS & PIET VAN NUFFEL CONSTITUTIONAL LAW OF THE EUROPEAN UNION 2ED 2005 109

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 6(1)

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD v WEDNESBURY CORPORATION 1948 1 KB 223

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

KIBERD & CAREY v HAMILTON 1992 2 IR 257 1992 ILRM 574

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

AER RIANTA CPT v COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.1.2003 2003/1/141

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART 2

PROPOSAL FOR A EUROPEAN PARLIAMENT & COUNCIL DIRECTIVE ON A COMMON REGULATORY FRAMEWORK FOR ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES OJ C 277/91 1.3.2001

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (FRAMEWORK) REGS 2003 SI 307/2003 PART 2

EEC DIR 02/20

WILSON v CHURCH (NO 2) (1879) 12 CD 454

ERINFORD PROPERTIES LTD v CHESHIRE CO COUNCIL 1974 CH 261 1974 2 AER 448 1974 2 WLR 749

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 ART18(1)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES) (ACCESS) REGS 2003 SI 305/2003 REG 18(4)

ZUCKERFABRIK SUDERDITHMARSCHEN AG v HAUPTZOLLAMT ITZEHOE 1991 ECR I-415 1993 3 CMLR 1

PRACTICE AND PROCEDURE

Appeal

Stay on decision pending appeal - Communications regulation - Competition - Local loop unbundling - Enforcement proceedings - Whether decision enforceable immediately notwithstanding right of appeal - Enforcement proceedings after decision appealed - Interim relief pending appeal - Effectiveness of European law - Whether interim compliance can be subsequently undone Declaration granted that stay available to preserve effectiveness of appeal .

Regulations Act 2002 - Council Directive 2002/21/EC - Council Directive 2002/19/EC - Access Regulations -

Framework Regulations

The Applicant contended that it had an unqualified right of appeal against a decision of the respondent and

was entitled to apply to an Appeal Panel to suspend the decision until the substantive appeal. The applicant contended

that the respondent could not use Regulation 17 of the Access Regulations to render its right of appeal nugatory.

Held by McKechnie J. that Regulation 17 of the Access Regulations had to be harmoniously interpreted in conformity

with Article 4(1) of the Framework Directive and Part II of the Framework Regulations. The enforcement procedures

that followed from the decision of the respondent could not be operated to as to impair or curtail the right of the

applicant to appeal to the Appeal Panel.

Reporter: E.F.

1

JUDGMENT of Mr. Justice William M. McKechnie dated 29th July, 2005 .

2

1. The applicant in these judicial review proceedings is eircom Limited (eircom) which is a company providing telecommunications services both in the State and elsewhere. The respondent (ComReg) is the national regulatory authority for inter alia the telecommunications industry in Ireland. Its statutory powers and duties derive principally from the Communications Regulations Act 2002with its functions being set out in s. 10 thereof and its objectives in s. 12 thereof. These impose upon it, amongst other requirements, an obligation "to ensure compliance by undertakings with obligations in relation to the supply of and access to electronic communications services, electronic communications networks and associated facilities and the transmission of such services on such networks;" (s. 10(1)(a)) and secondly, in the exercise of its functions, it is mandated to promote competition in the electronic communications networks, services and associated facilities (section 12).

3

2. In the instant set of proceedings there are also a number of other legislative enactments which are directly relevant to the issues raised. These, which have introduced a new European Regulatory Framework, include, Council Directive 2002/21/EC (The Framework Directive), the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2003 S.I. No. 307 of 2003 ("The Framework Regulations"), Council Directive 2002/19/EC (The Access Directive), The European Communities (Electronic Communications Networks and Services) (Access) Regulations 2003 S.I. No. 305 of 2003 ("The Access Regulations"), Council Directive 2002/22/EC (The Universal Service Directive), and the European Communities (Electronic Communications Networks and Services) (Universal Service and Users Rights) Regulations 2003. S.I. No. 308 of 2003.

4

The purpose of the Framework Regulations and the Access Regulations was to implement into Irish law the Framework Directive and the Access Directive respectively.

5

3. The dispute in the present case concerns the market for "wholesale unbundled access (including shared access) to metallic loops and sub loops for the purpose of providing broadband and voice services." See the European Commission's Recommendation of 11th February, 2003, on relevant product and services markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services.

6

4. eircom is the owner of an established telecommunications network throughout the State. In general non technical terms, it consists of a mainstream or core network and a local network which is separated therefrom by a local exchange. This local access network is the connection between the local exchange and a customers premises. This consists of a physical connection, typically provided over copper pairs and is known and referred to as the "loop" or the "local loop".

7

"Local loop unbundling" is a service which permits other industry operators to gain exclusive access to and control over the loop so as to offer, independent from eircom, services to their own customers. This process involves the physical connection being disconnected from eircom's network in the local exchange and transferred to alterative operators, who in the documents later referred to are described as "Access Seekers". The connection at all times however and notwithstanding the exercise of control over it by the access seeker, remains the property of eircom.

8

5. The affidavits sworn in this matter by eircom and ComReg, set out in impressive detail a great deal of information which is highly informative of both the background to the substantive dispute and of the generality of the efforts which have been made and the problems which have been encountered in opening up this market. Whilst most appreciative of this information, I truly believe that it is neither desirable or necessary to burden this judgment with much of the materials...

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