Judge refuses to admit ComReg’s dispute with Eir to Commercial Court

Matter will have to go through the normal High Court list

The Commercial Court has refused to hear a dispute over access for competitors to part of Eir’s infrastructure. Photograph: Alan Betson / The Irish Times logo

The Commercial Court has refused to hear a dispute over access for competitors to part of Eir’s infrastructure.

It follows unsuccessful attempts recently to resolve the dispute between telecoms watchdog ComReg and Eircom Ltd, trading as Eir.

Last October, ComReg asked the court to admit its case, seeking a €5.3 million penalty on Eircom, over its alleged failure to comply with certain requirements allowing competitors to access ducts and cabling that Eir has installed.

On Monday, Mr Justice Denis McDonald refused to admit the case to the fast-track Commercial Court because ComReg had not explained why there had been a nine-month period of delay from when ComReg first moved over the issue. The case will now go through the normal High Court list.

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As the dominant player in the market, Eircom is obliged to allow competitors to purchase access to its infrastructure.

ComReg’s enforcement proceedings are specifically about providing other operators with digital maps that show where the ducting is and its capacity.

ComReg claims Eircom is in breach of its obligations to allow other operators to purchase access to the infrastructure.

It claims Eircom’s alleged non-compliant conduct hampers the ability of competitors to compete in the market and can have serious commercial implications including the strengthening of its competitive advantage.

When an application to admit the case to the Commercial Court was made in October, it was adjourned to allow mediation to take place.

It returned on Monday before Mr Justice McDonald who was told by Brian Kennedy SC, for ComReg, that mediation was unsuccessful and his client now wanted to proceed with the application to admit the matter to the commercial list.

Mr Kennedy said it was not “from want of urgency to move things quickly” that the case was now before the court but because it involved a complex investigation from ComReg’s perspective.

Jonathan Newman SC, for Eircom, said his client disputed that ComReg showed the level of expedition consistent with the bringing of an application for entry to the Commercial Court.

Mr Newman also said his client had provided proposals to ComReg on how it would meet the requirement to provide access to the infrastructure. It had got a third-party software producer to produce an emap of the infrastructure which went online in 2019, he said.

Mr Justice McDonald said there had been a nine-month period in 2020 from when Eircom put forward its proposals until ComReg prepared a draft report on its findings. While ComReg had said it was giving careful consideration to Eircom’s proposals during this time, the judge said he was not persuaded as to why it took nine months to do so.

The judge said he was not aware of the internal workings of ComReg but there had been no explanation as to why it took so long.

It seemed to him ComReg had not shown sufficient expedition which meant there was no merit in admitting the case to the commercial list, he said.