Watchdog seeking imposition of multi-million euro fine on Eir, court hears

High Court Reporter

The telecoms watchdog Comreg believes the High Court should impose a €5.3m penalty on Eircom over its alleged failure to comply with certain requirements allowing competitors access its infrastructure.

Comreg has brought proceedings against Eircom Ltd, trading as eir, claiming it is in breach of its obligations, as the dominant provider in the telecommunications market, to allow other operators to purchase access to eir's physical infrastructure including its ducts and cabling.

An application to admit the case to the High Court's fast track commercial division on Monday was adjourned as mediation talks are due to take place next month.

Brian Kennedy SC, for Comreg, said as the dominant provider, or provider with a "significant market position" in the wholesale local access market, eir must allow other providers not just access to its physical infrastructure but also to its "passive records" which details locations and capacity of that infrastructure.

Comreg was not satisfied eir was doing so and in 2019, the watchdog opened an investigation which continued until 2021 resulting in the issuing of a notice of non-compliance with the relevant EC (Electronic Communications and Services Access) regulation and seeking remediation.

Counsel said there was an exchange of correspondence between eir and Comreg and while eir had now made a proposal for remediation of the breaches, it was not full remediation.

Comreg prepared a report which recommended that the High Court should be asked to impose a penalty of some €5.379 million. It wanted the case admitted to the Commercial Court so the matter could be dealt with expeditiously.

Comreg says non-compliant conduct hampers the ability of competitors to compete in the market and can have serious commercial implications including the strengthening of eir's competitive advantage..

Johnathan Newman SC, for eir, opposed the admission of the case to the commercial list because the parties had already agreed to go to mediation. The only difference between the parties was what week next month the mediation should begin, he said.

Given that there was only a week between the parties, nobody was "going to die in a ditch" by putting the application for entry to the list back to December, he said.

Mr Justice Michael Twomey agreed that a week would not make any difference and said the focus should be on mediation in the interest of saving on costs and ensuring court resources are used in an efficient manner.

He adjourned the application to December and encouraged the parties "in the strongest terms" to seek a resolution through mediation.