The Commission for the Protection of Competition (hereinafter ‘the CPC’) at its meeting convened on 8 October 2012, evaluated all the evidence before it and unanimously decided that the actions and/or omissions of CYTA and particularly its refusal to provide direct access to the SMS Centre of CYTA, and to all related services that are essential for electronic communications providers to be able to offer Premium SMS services to the mobile subscribers of CYTA, constituted an infringement of section 6(1)(b) of the Protection of Competition Law L.13(I)/2008 (hereinafter ‘the Law’).
The case was a re-examination of the complaint filed by Thunderworx Ltd against CYTA, for which CPC’s decision No. 132/2008 had been issued on 27 November 2008. The CPC decision was annulled by the Supreme Court as a result of the decision of the Supreme Court in appeal No. 1544/09, 1545/09, 1596/09 and 1601/09 (ExxonMobil Cyprus Ltd etc. and the Commission for the Protection of Competition).
The CPC in its decision held that CYTA had a dominant position in the retail mobile telephone market and in its own mobile network (origination and termination of calls and SMS). The CPC found that CYTA had failed to respond to its special responsibility as a dominant player in the market to provide the complainant company, Thunderworx Ltd, access to its SMS Center in order to provide Premium SMS services to the mobile users/subscribers of CYTA.
The CPC in its decision held that the infrastructure for the provision of Premium SMS services was essential to the development of competition in this field and thus, CYTA ought to provide it and take the necessary actions to overcome any obstacle, technical or of other nature, that existed in the provision of such service and/or facility.
The CPC found that CYTA failed to respond to a letter from Thunderworx dated June 26, 2002, by which the latter requested access to this service, up until 22 April 2003, the date on which the Board of Directors of CYTA decided to find a technical solution. The CPC considered that, for a telecommunications organization of the size of CYTA and the many years of its accumulated experience and activity in the market, this period (i.e. 11 months) cannot be regarded as objective and reasonable, in order to understand what was requested by Thunderworx. Therefore, the CPC did not accept the position of CYTA that the time elapsed was reasonable to realize and / or understand the request of Thunderworx.
Moreover, the CPC found that there was a systematic delay in informing Thunderworx on the progress that was made in regard to the provision of the requested service. Even more, the CPC found that the time elapsed from the date Thuderworx filed its request to CYTA up until the necessary technical solutions for the provision of the service were completed, was unreasonably long, since it lasted more than three years.
The infringements concern the period from 26 July 2002, the date on which Thunderworx had requested in writing the ability to provide Premium SMS services to the subscribers of CYTA, up to June 2005, when an Agreement was signed between the two parties.
Therefore, the CPC, acting according to Section 24 (a) (i) of the Law, decided in respect of the infringement of Section 6 (1) (b) of the Law, to impose a fine on CYTA amounting to €130.000 (one hundred thirty thousand Euros).