EU Court Rulings Provide Important Message To Irish Telcos On Interaction Between Competition And Regulatory Laws

• Published date: 27 May 2021
• Subject Matter: nti-trust/Competition Law, Antitrust, EU Competition
• Law Firm: Matheson
• Author: Ms Kate McKenna, Simon Shinkwin and Conor Doyle

The European Court of Justice ("ECJ") has recently delivered two judgements which provide an important message for telecoms businesses operating in Ireland. The first of these rulings confirms that the risk of non-compliance with competition rules is particularly high for telcos in that they may face two fronts of attack from both the European Commission and the Irish Commission for Communications Regulation ("ComReg") for the same suspected anti-competitive behaviour. The second ruling confirms that the risk of telcos falling foul of abuse of dominance rules when dealing with access seekers is significantly higher where the telco is subject to regulatory 'open access' requirements, or has otherwise decided to grant wholesale access, than where the telco has refused to deal with an access seeker (in a non-regulated context).

We briefly consider these rulings from an Irish perspective, as well as pending cases of potential significance.

Slovak Telecom and 'Ne Bis in Idem'

The legal principle of 'ne bis in idem' restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same cause of action. In its recent decision in Slovak Telekom a.s. v Protimonopolný úrad Slovenskej republiky decision (C-857/19), the ECJ clarified the application of this principle in the context of proceedings brought by both a national competition authority ("NCA") and the European Commission for suspected abuse of market dominance by a telco operator during the same time period (with the wholesale broadband access services market being the focus of the European Commission's investigation and, for the NCA investigation, the wholesale and retail markets for telephone services and low-speed internet access services). The ECJ reiterated that where the European Commission initiates proceedings in connection with infringements that are identical to those for which a NCA has brought proceedings, the NCA will no longer have competence in that matter. In this case however, while the European Commission and the NCA had both opened investigations into the alleged infringement, they had done so with different product markets as the subject matter. Consequently, the ECJ held that the NCA had retained its competence to bring proceedings insofar as it was pursuing a different product market than the Commission.

The Slovak Telecom decision provides greater clarity on the issue that where a NCA and the European Commission have brought proceedings against an undertaking for...