On September 6, 2023, the Cyprus Supreme Constitutional Court resolved the Revisional Appeal No. 60/2016 by dismissing the Cyprus Telecommunications Authority (hereinafter “CYTA”) challenge. This decision reaffirmed a previous ruling by the Administrative Court, which, on July 25, 2016 (Decision No. 2019/2012), upheld the Cyprus Commission for the Protection of Competition (CPC) Decision No. 47/2012.
One of the central issues in the Revisional Appeal was the question of the CPC’s authority to impose a fine after a 5-year hiatus. Citing a precedent, the appeal against Pfizer et al. vs. CPC (Decision No. 89/2016), the Court concluded that the period the case was under court review rightfully paused the statute of limitations. The Court further clarified that the 2014 amendment to Section 41 of the Protection of Competition of 2008 (Law 13(I)/2008), which introduces a provision about time limit interruptions due to ongoing processes, does not invalidate the original position.
In response to CYTA’s allegation of insufficient investigation, the Supreme Constitutional Court noted that the CPC had conducted an exhaustive study of the entire case. They highlighted that the disputed decision adhered to both the law and the given evidence.
Regarding the €130,000 fine that CYTA deemed unlawful, disproportionate, and not representative of the facts, the Court concluded that it was justified, noting that the CPC has the jurisdiction to impose a fine of up to 10% of an underwriter’s annual revenue.
The original dispute
This case was initiated in April 2004 by a complaint from THUNDERWORX (currently PRIMETEL PLC) alleging that CYTA violated the Protection of Competition Protection Law of 1989 (Law 207(I)/1989) by abusing its dominant market position to prevent independent telecommunications service providers from offering premium SMS services.
In 2012, the CPC concluded that CYTA had infringed Section 6(1)(b) of the Protection of Competition Protection Law of 2008 (Law 13(I)/2008). This infringement resulted from CYTA’s unwillingness to provide direct access to its Short Message Service Centre (SMSC) and the necessary services for premium SMS delivery. This affected both sending (mobile origination) and receiving (mobile termination) messages for CYTA’s customers.
The infringement lasted from June 26, 2002, when the service was first sought, to June 2005, when CYTA finally agreed to provide the service to the complainant. The culmination of this investigation led the CPC to levy a €130,000 fine on CYTA.
The decision of the Supreme Constitutional Court is available here.
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