It will be recalled that GFS requested Gibtelecom to enter into an agreement to afford it access to Mount Pleasant Data Centre in order to enable GFS to connect directly via fibre link with the servers of potential customers and thereby provide those customers with its electronic communications services. Gibtelecom had previously entered into an arrangement of this nature with Sapphire Networks and GFS sought a like deal. Gibtelecom refused to negotiate access with GFS at first denying it had capacity but later conceding that the true reason was purely commercial.

A statement adds: GFS asked the GRA to intervene and compel Gibtelecom to enter into the agreement to allow GFS access or at least to enter into negotiations in good faith. On 16 February 2017 the GRA decided that it did not have the power to compel Gibtelecom to afford GFS access to the Mount Pleasant Data Centre. GFS appealed to the Supreme Court against the refusal and the Supreme Court upheld the GRA's decision. Not being satisfied with the decision of the Supreme Court GFS appealed further to the Court of Appeal.

The Court of Appeal upheld the appeal and found that the GRA had the power to impose access in favour of GFS under Article 5 of EC Directive 2002/21, the Access Directive. The Court of Appeal further quashed the decision by the GRA on 16 February insofar as the GRA denied it had power to direct Gibtelecom to grant access in the manner sought by GFS. Further, the Court of Appeal has directed the GRA to reconsider whether it would be appropriate to order GFS access in accordance with its Judgment and the relevant law.

GFS Director Geny Sheriff said: "After a long two years we have been successful in securing a positive judgment which establishes that the GRA have the statutory power to compel Gibtelecom to grant a rival telecommunications operator access to an electronic services network under Article 5 of the Access Directive. We wish to thank our legal team comprising of Elliott Phillips and Cecile Gomez of Signature Litigation and Alan Maclean QC of Blackstone Chambers who have provided excellent representation and support to our business throughout the judicial process and complex litigation over the last two years."

07-05-19 PANORAMAdailyGIBRALTAR