Gibfibre Ltd v Gibraltar Regulatory Authority (Gibraltar)

The scope of the Access Directive 2002/19/EC is defined by its scope provision and cannot be enlarged by a broad definition of access. Article 5 does not empower a regulator to require access to physical infrastructure which is neither part of the requested operator’s electronic communications network nor an associated facility. The network termination point marks the regulatory boundary; private networks and telecommunications terminal equipment beyond it fall outside the common regulatory framework. Article 5 cannot be interpreted to circumvent the structured significant-market-power regime, including the safeguards governing Article 12 obligations. Potentially anti-competitive conduct in a separate hosting-services market may be addressed through ex post competition law. The Board left other issues undecided.

Gibfibre sought access to a data centre operated by a subsidiary of Gibtelecom so that it could connect directly with customers’ hosted servers and provide competing electronic communications services. Gibtelecom refused the request. The Gibraltar Regulatory Authority concluded that it lacked power to compel access.

The Supreme Court of Gibraltar dismissed Gibfibre’s appeal. The Court of Appeal of Gibraltar upheld the conclusion that Article 12 of the Access Directive 2002/19/EC did not apply, but held that Article 5 supplied a general power to require access. It also rejected the GRA’s challenge concerning Market 4. The appeal to the Privy Council concerned whether Article 5 could authorise access to infrastructure outside the operator’s network or associated facilities, and the related scope of the regulatory framework.

1. Disposition. The Board unanimously allowed the appeal on Issue 2. It did not decide Issue 1 or Issue 3, and expressly stated that its abstention was not an endorsement of the Court of Appeal’s conclusions on those issues.
2. Scope of the Access Directive. The majority judgment of Lord Hamblen, with Lord Reed, Lord Lloyd-Jones and Lord Leggatt agreeing, treated Article 1 of the Access Directive 2002/19/EC as fundamental. The Directive regulates access to electronic communications networks and associated facilities. The definition of access in Article 2(a) identifies what may be made available; it does not itself impose an obligation to grant access or enlarge the Directive’s scope. Accordingly, any general power under Article 5 must remain confined to the requested operator’s networks and associated facilities.
3. Regulatory boundary. The definitions in the Framework Directive 2002/21/EC establish that the network termination point marks the boundary of a public communications network. Private networks and telecommunications terminal equipment beyond that point are outside the common regulatory framework. The hosted servers and the data-centre access sought therefore fell outside Article 5.
4. Coherent regulatory scheme. A wider reading would allow Article 5 to impose obligations exceeding the maximum obligations in Articles 9–13, bypassing the Commission-authorisation safeguard in Article 8(3) for additional access obligations imposed on operators with significant market power. The structured ex ante regime could not be rendered ineffective in that way. The Board also noted that anti-competitive conduct in a functionally separate hosting-services market could be addressed through ex post competition law.
5. Separate opinion. Lord Sales agreed with the result and much of the reasoning, but considered that the Directives contained competing textual indications and that the issue would previously have required a reference to the Court of Justice. On the materials available, he nevertheless concluded overall that the data centre was not an electronic communications network or associated facility within the Directive’s scope.

1. Privy Council allowed the GRA’s appeal on Issue 2 and advised that the appeal should be allowed: [2021] UKPC 31.
2. Court of Appeal of Gibraltar dismissed Gibfibre’s appeal on the Article 12 ground, allowed it on the Article 5 ground, and dismissed the GRA’s cross-appeal concerning Market 4.
3. Supreme Court of Gibraltar dismissed Gibfibre’s appeal, holding that Article 12 and Article 5 did not empower the GRA to require the requested access, while rejecting the argument that Market 4 was limited to the local loop.