The commercial court will not accelerate the Comreg case

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

There have recently been unsuccessful attempts to settle the dispute between telecoms regulator Comreg and Eircom Ltd, trading as Eir.

Last October, Comreg asked the court to allow its case, seeking a €5.3 million fine against Eircom for allegedly failing to comply with certain requirements that allow competitors access to Eir-installed ducts and cables.

On Monday, Judge Denis McDonald refused to admit the case to the expedited commercial court because Comreg had failed to explain why there had been a nine-month delay since Comreg first handled the matter. The case will now go through the normal High Court list.

As a dominant player, Eircom has an obligation to allow competitors to access its infrastructure.

Comreg’s enforcement procedures are specifically about providing other operators with digital maps showing where the lines are and how large they are.

Comreg alleges that Eircom is in breach of its obligations to allow other operators to purchase access to the infrastructure.

It alleges that Eircom’s alleged non-compliant conduct impedes the ability of competitors to compete in the marketplace and may have serious commercial repercussions, including enhancing its competitive advantage.

When an application for admission of the case to the Commercial Court was made in October, it was adjourned to allow for arbitration.

It came before Mr Justice McDonald on Monday who was advised by Brian Kennedy SC on behalf of Comreg that the mediation had been unsuccessful and his client now wished to proceed with the application to have the matter listed.

Mr Kennedy said it was not “for lack of urgency to move things quickly” that the case was going to court, but because it was a complex investigation from Comreg’s perspective.

Eircom’s Jonathan Newman SC said his client disputes that Comreg has shown the level of promptness consistent with filing an application for registration with the Commercial Court.

Mr Newman also said his client made suggestions to Comreg on how it would meet the requirement to provide access to infrastructure. It hired an outside software maker to create an “e-map” of the infrastructure, which went online in 2019, he said.

Mr Justice McDonald said there was a nine-month period in 2020 from the time Eircom presented its proposals until Comreg produced a draft report on its findings. While Comreg had said it was carefully considering Eircom’s proposals during this time, the judge said he was not convinced why it had taken nine months to do so.

The judge said he was unaware of Comreg’s internal workings but had given no explanation as to why it had taken so long.

There therefore appears to be no merit in including the case on the trade list, he said. The commercial court will not accelerate the Comreg case

Fry Electronics Team

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