The Supreme Court has quashed a decision by the Gibraltar Regulatory Authority allowing GibFibre to access to Gibtelecom’s data centre in Mount Pleasant, the latest twist in a long-running legal wrangle that sheds light on the highly competitive telecoms sector.
Government-owned Gibtelecom, the Rock’s largest telecommunications provider, had lodged an appeal in the court after the GRA required it to provide GibFibre with a leased line to access the data centre operated by its wholly-owned subsidiary Rockolo.
The data centre hosts several servers for customers including many major online gaming and gambling companies, and connectivity services are provided there by Gibtelecom and Sapphire Networks.
The GRA’s decision followed a complaint from Gibfibre that the arrangements were “anti-competitive”, and that it should also be allowed to provide connectivity services to the customers at the data centre.
Gibfibre had previously tried to gain access to the servers at the data centre through different means, namely by routing its own fibre cables through ducts.
That request was refused by the GRA and challenged by Gibfibre, culminating in an appeal to the Privy Council in which Gibfibre was unsuccessful.
The company then tried again to achieve the same end through a different route, requesting access to the data centre servers from its communication system by means of a wholesale leased line.
That request was also the subject of legal challenges resulting in the GRA asking Gibtelecom to grant access to the data centre via a leased line.
But Gibtelecom challenged that decision, arguing the GRA had made errors of fact, procedure and law.
In a 38-page, highly-technical judgement published this week, Puisne Judge John Restano agreed with Gibtelecom’s position and found the GRA’s decision was “flawed” and “based on material errors of law and of fact such that it cannot stand”.
Mr Justice Restano quashed the decision granting GibFibre access and asked the GRA to reconsider its position in accordance with the court’s findings.
But the judge also recognised that this was not the first time that GibFibre had tried to access Gibtelecom’s data centre, adding there were other routes the company could follow to address its concerns.
Mr Justice Restano said his judgement did not mean that anti-competitive behaviour within a facility such as the data centre cannot be addressed if it exists, “only that this is the wrong way to go about it”.
He noted that GibFibre had now filed a claim in the Supreme Court against Gibtelecom and Rockolo alleging breaches of abuse of dominant position in respect of the Mount Pleasant Data Centre.
In that claim, GibFibre seeks an injunction requiring access to the data centre and damages.
“Whether such anti-competitive behaviour exists is a matter which has yet to be determined in those proceedings, but that claim provides the correct route for GibFibre’s complaint to be determined,” Mr Justice Restano said in his judgement.
Robert Palmer, KC, appeared for Gibtelecom, with Moshe Levy and Samuel Marrache.
The GRA was represented by Sir Peter Caruana, KC, with Christopher Allan.