Privy Council rules on telecoms access rights to Gibraltar data centre

29 Nov 2021
Robert Palmer KC

The Privy Council has today handed down judgment in Gibfibre Ltd v Gibraltar Regulatory Authority [2021] UKPC 31, upholding the regulator’s decision that a rival network operator had no right of access to a data centre operated by Gibtelecom Ltd.

Gibtelecom is the state owned former monopoly provider of telecoms services in Gibraltar. It also operates a data centre which is a significant centre for the international online gambling industry. Gibtelecom provides electronic communications services to the servers stored by the data centre’s customers. Gibfibre Ltd, which operates a rival fibreoptic network, had sought to establish a right under the Access Directive to provide services directly to the data centre’s customers in competition with Gibtelecom. The Gibraltar Regulatory Authority (GRA) had accepted Gibtelecom’s submission that it had no power to enforce such a right. Gibfibre appealed.

The Gibraltar Court of Appeal had determined that although the data centre formed no part of Gibtelecom’s network, with the result that there was no right of access pursuant to any SMP remedy, the GRA nonetheless had a broad discretion under Article 5 of the Access Directive to require Gibtelecom to provide such access. The GRA appealed to the Privy Council against that decision, and Gibtelecom intervened in support.

Lord Hamblen, giving judgment for the majority, accepted Gibtelecom’s submission that the requested access fell outside the scope of the Access Directive altogether, and that therefore Article 5 could not endow the GRA with the power to require an operator to allow access to physical infrastructure where the relevant infrastructure could not be described as being part of Gibtelecom’s own electronic communications network or its associated facilities.

Lord Sales, concurring in the result, said that had there still been power to do so, he would have made a reference to the CJEU on the point, which was not acte clair. However, there was no longer any power to make a reference, and the the CJEU would have been unlikely to reach a different conclusion in any event.

The judgment is available here.

Robert Palmer QC acted for Gibtelecom Ltd.