Judges overturn ruling over ISP access to network

The Constitutional Court yesterday overturned a judgment by the First Hall of the Civil Court which had upheld a constitutional application filed by Melita Cable plc against the Attorney General and the Minister for Transport and Communication.

The First Hall of the Civil Court had, last July, declared that a legal notice of 1999 violated Melita Cable's constitutional rights.

Melita had claimed that it was licensed to install and operate a telecommunications system including cable television and data transmission services.

The company owned the telecommunications system and had invested millions of liri to build the system and to maintain and upgrade it.

Between 1999 and 2003 Melita had spent Lm10 million so as to offer data services on its network, including internet services.

In terms of Legal Notice 173 of 1999, Melita was obliged, if it was established that it dominated the market, to negotiate with all internet service providers (ISPs) to allow access to its network.

In the event that the negotiations failed, then the ISP was entitled to complain to the Malta Communications Authority (MCA) which could order Melita to give access to such ISP under what the authority considered suitable conditions.

In August 2003 Melita was declared to be in a dominant position and the MCA imposed a schedule that would lead to forced access to Melita's network by June 2004.

Melita appealed to the Telecommunications Appeals Board (TAB).

In its constitutional application, Melita claimed that it could only appeal to the TAB on certain limited grounds and that, in terms of the legal notice, it could subsequently appeal to the Court of Appeal on points of law only.

It pleaded that the imposition of interconnection and access to its network, as provided in Legal Notice 173, was in violation of its right to protection from forced deprivation of property without fair compensation.

The company added that its rights had been violated as it was not given access to an independent and impartial court of tribunal, and that its right of appeal to the Court of Appeal was limited.

Respondents had pleaded that the court ought to decline to hear Melita's case as the company had other remedies available to it at law.

However, the first court found that the ordinary remedies available to Melita in this particular case were not sufficient to obtain the remedy requested by the company.

Melita's right of appeal to the TAB was limited in the sense that the company could only appeal from a decision of the authority when there was a material error in the facts or some material error in procedure.

The company could also appeal if there was an error in the law or some material illegality.

Melita's subsequent right of appeal to the Court of Appeal was limited to points of law only.

The First Hall of the Civil Court therefore concluded that there were not other procedures available to Melita Cable plc and it therefore accepted jurisdiction to hear and decide the case.

The First Hall of the Civil Court had concluded that Melita's right of access to an independent and impartial tribunal had been violated. It therefore declared that Legal Notice 173 of 1999 was in violation of article 37 of the Constitution and ought to be amended so as to provide a right of appeal from all decisions of the TAB to the courts.

The Attorney General and the Minister for Transport and Communication appealed from this judgment to the Constitutional Court composed of Chief Justice Vincent Degaetano, Mr Justice Joseph D. Camilleri and Mr Justice Joseph A. Filletti.

The court limited its judgment to the plea raised by respondents, namely that Melita had other remedies available to it in terms of law.

In this case, Melita was not alleging that its right to a fair hearing was going to be violated.

The company's complaint was limited to its right not to be deprived of property without compensation as a result of the imposition of access to its network.

If the decision that Melita had a dominant position on the market was overturned, then Melita's rights would be safeguarded.

In fact, Melita had appealed to the TAB on this very issue, and the company had acknowledged that it was entitled to appeal to the TAB.

However, Melita alleged that this right of appeal was limited and that it therefore did not constitute an adequate remedy.

The Constitutional Court declared that it was not in agreement with Melita's submission on this point.

An appropriate remedy, the court ruled, was not one which could be proven on an a priori basis to provide guaranteed success. What was sufficient was that the remedy could, when made use of, make good for the alleged violation of law.

Local case law had declared that in order for a remedy to be effective it had to be accessible, suitable, effective and adequate to address the alleged violation of law. There was therefore no need to show that the remedy would give the applicant a guaranteed success.

The Constitutional Court concluded that Melita was provided with an adequate remedy in terms of law and the court therefore overturned the judgment of the first court and declined to exercise its constitutional jurisdiction to hear and decide the appeal.