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CHANCERY DIVISION
7 Rolls Buildings London, EC4A 1NL |
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B e f o r e :
(Sitting as a High Court Judge of the Chancery Division)
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PACKET MEDIA LIMITED |
Claimant |
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- and - |
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TELEFONICA UK LIMITED |
Defendant |
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1st Floor, Quality House, 6-9 Quality Court
Chancery Lane, London WC2A 1HP.
Tele No: 020 7067 2900, Fax No: 020 7831 6864, DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www.martenwalshcherer.com
MR. BRENDAN McGURK (instructed by DWF LLP) for the Defendant
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Crown Copyright ©
HIS HONOUR JUDGE HODGE QC:
"(1) Operators of public telecommunications networks:
(a) shall connect or permit the connection, at an interface, of any telecommunications terminal equipment which meets the requirements of regulation 4 ...
(b) shall not discontinue such connection lawfully made of any such equipment."
"... that the Commercial Use Restriction is and was a failure by the UK to implement Article 5 of the Authorisation Directive in so far as it applied to COSUGs."
"It is a feature of the way in which mobile telephone services work across different networks that several services are involved. These include the services of access, origination and termination. For present purposes the services of access and origination can be treated as providing a person with the ability to access a network and to originate a call from it. The service of termination can be treated as allowing a call to be terminated on another network, namely that used by the person receiving the call."
Or, I would add, the SMS text message.
"GSM Gateways, including SMS Gateways, are wireless telegraphy apparatus. They are equipment which conforms to an ETSI standard and which is CE-approved. They are therefore equipment which is also caught by the RTTE Regulations and, in particular, regulation 7. This provides a duty on MNOs to connect this apparatus and to keep it connected to its network."
"I agree with DCMS that the RTTE Directive is not relevant to this case. It is inconsistent with the Authorisation Directive to interpret the RTTE Directive as meaning that any person owning a piece of CE-compliant telecoms equipment has a concurrent right of access to whatever spectrum he needs to operate it himself or to provide a commercial service to others using it unless that right can be restricted on grounds set out in Article 7."
"But the supply of the SIM card is not simply a supply of mobile call termination. The SIM card enables call origination (and termination on that and other networks) at the retail level. There is a complex interrelationship between the upstream and downstream markets that would need to be analysed in this case [the case before her] and the arbitrage opportunity for the GGO arises from the anomalous fact that the retail price for on-net minutes in a SIM card is often cheaper than the wholesale price for terminating those minutes. It is not at all straightforward to say that MNOs are dominant in a market that is the relevant market for the supply of SIM cards and SIM card services."
".... the Chapter II prohibition implies two tests: whether an undertaking is dominant, and whether it is abusing that dominant position. It is not necessary to show that the abuse was committed in the market which the undertaking dominates. In certain circumstances, Article 82 and the Chapter II prohibition may apply where an undertaking that is dominant in one market commits an abuse in a different but closely associated market. This principle was set out by the European Court in the case of Tetra Pak II."
The marginal note reveals:
"In this case the European Court found that Tetra Pak's activities in relation to the markets in non-aseptic machines and cartons constituted an abuse of its dominant position in the distinct, but closely associated, markets for aseptic machines and cartons intended for the packaging of liquid foods."