High Court refers Eir’s ‘unfair’ obligation claim over sharing of infrastructure to ECJ

The European Court of Justice (ECJ) has been asked by the High Court to determine whether the cost to Eir of being required to share its physical infrastructure with rivals is excessive.

Telecoms watchdog ComReg says the cost is some €43 million over five years in the context of Eir’s €1.39 billion in earnings before interest and tax for its fixed line business over that period.

Under its obligations as the State’s chosen universal service provider, Eir must ensure that a home phone service and other services like payphones, are available to all consumers through all providers.

Eir says it is an unfair burden and that ComReg made significant errors in the way it arrived at its decisions.

It also says its profitability and ability to earn a fair rate of return is significantly impacted by that burden because it imposes an extra cost on Eir that its rivals do not bear without Eir having any countervailing advantage.

Eir appealed against ComReg in High Court proceedings in which rivals Vodafone and Three are notice parties.

It claims ComReg erred in law and that the obligations imposed on it are unreasonable, disproportionate and without any legal or factual justification. ComReg denies the claims.

Last October, Eir and ComReg asked Mr Justice Brian O’Moore, in advance of the hearing of the case, to refer it to the ECJ for a preliminary ruling.

Mr Justice O’Moore decided to refer one question to the ECJ.

On Friday, he said that question was framed in the context of the liberalisation of the communications market, that there are now multiple providers in the market, and that Eir was chosen to be the universal service provider.

It was also in the context of where it had been determined by ComReg the cost is material compared to the administrative costs of establishing a sharing mechanism for others in the market.

The ECJ was therefore asked if ComReg was required, as part of its obligations under EU regulation to consider whether the net cost of this was excessive in view of Eir’s ability to bear it.

The judge said he was requesting the ECJ for a preliminary ruling on the question pursuant to certain provisions of the Treaty on the Functioning of the EU.