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The Commission for Protection of Competition in its decision No. 50/2013 imposed CYTA a fine of € 663.000 for omission to comply with the Interim Order of the Commission dated 13.06.2013 regarding the complaint Primetel PLC (hereinafter the «Primetel») submitted against CYTA
25/10/2013


The decision concerned the application for issuing interim measures filed by Primetel PLC (hereinafter «Primetel») to the Commission against the Cyprus Telecommunications Authority (hereinafter «CYTA») for the alleged infringment of sections 6 (1) (b) and 6 (2) of the Protection of Competition Law No. 13(I)/2008 (hereinafter «Law»).The application was submitted in relation to an ongoing investigation against CYTA. The investigation concerns the complaint filed by Primetel, alleging that the prices charged by CYTA in relation to the right of use of capacity over the MINERVA cable system were excessive and discriminatory.

The Commission for Protection of Competition, at the session dated 13/06/2013, after considering all evidence and data, unanimously decided to issue an Interim Order pursuant to sections 23(2) and 28 of the Law regarding the application for interim measures against CYTA, which concluded as follows:

a) not to terminate on 17/06/2013 the Agreement between Primetel and CYTA dated 8/2/2008 and the agreement dated 5/11/2009 due to failure to pay the invoice issued by CYTA, and not to recover the capacity, that Primetel had a right to use over the MINERVA cable system.

b) restore and re-connect the capacity that Primetel had a right to use over the Minerva cable system by virtue of the aforementioned agreements and which CYTA had already disconnected as from the 6/03/2013.

The term under b) will be fulfilled on condition that Primetel will pay the amount due plus potential costs of reconnection, as below:

i) Primetel shall pay CYTA a first installment until 30/06/2013 plus potential costs for reconnection. With the payment of said amount, CYTA is obliged to immediately and without further delay obey with the condition under (b), and
ii) Primetel shall pay to CYTA the remaining amount in two equal installments, with the first payable until 31/07/2013 and the second payable until 31/8/2013.

If Primetel does not respond fully with the obligations described above, in the order for Interim measures shall cease to apply.

On 19 June 2013, Primetel deposited in the bank account of the CYTA the first instalment which accounted for 50% of the amount due and on the same day notified this to CYTA, asking for restoration and reconnection of the capacity that was disconnected at 03/06/2013. CYTA however, did not proceed to reconnection of capacity and systematically avoided any attempt of communication.

On 1 July 2013, Primetel informed the Commission that CYTA had not complied with the Commission's decision dated 13 June 2013, calling to activate the provisions of section 28 (4) of the Law and to take all necessary measures to ensure Cyta's compliance with the Commission Interim measures.

During the hearing, CYTA argued that Primetel did not fully comply with the Interim Order of the Commission date 13 June 2013, because although it proceeded to pay the sum due, it did not requested to be informed on whether there was any additional cost, nor offered any additional amount. Therefore, CYTA alleged that the Interim Order of the Commission ceased to apply on 30 June 2013.

The Commission, by decision of 5 September 2013, considered that the Interim Order dated 13 June 2013 was clear. Cyta became aware of this on 17 June 2013 and as it emerged from the evidence before the Commission it had knowledge of what was expected from it, while not requested any clarification on the matter. The Commission noted, on the basis of the evidence before it, that CYTA proceeded on 1 July 2013 to terminate the agreement signed with Primetel and thus failed to comply with the Commission's Interim Order dated 13 June 2013. Also, CYTA failed to make an immediate and without further delay reconnection of the capacity or otherwise that Primetel had a right of use over the Minerva cable system pursuant to Agreements signed between them and which CYTA had disconnected as from the 3/6/2013, without informing about the existence of any potential cost of reconnection despite the letters or/and calls that Primetel made and despite the fact that Primetel had paid CYTA the sum on 28/6/2013 pursuant to the Commission's Interim Order. The Commission, in the light of the written comments submitted by CYTA in relation to the failure to comply with the order on the basis of section 28 (4) of the Law, unanimously decided that CYTA had indeed failed to comply with the order and to impose an administrative fine.

The Commission, for the imposition of the fine, took account of the nature, gravity and duration of the infringement, as well as the fact that the CYTA knew or ought to have known its obligations with regard to the implementation of the decisions of the Commission and noted the following regarding the behaviour of the CYTA:


(a) CYTA, was the only one aware of the existence of potential cost of reconnection and the amount and did not informed Primetel of the existence and of the actual amount of this, despite the letters of Primetel calling for restoring and reconnecting the capacity.
(b) Even after the transfer of the amount in Interim Order in favour of the CYTA on the morning of 27 June 2013 and the related email 28 June 2013 sent by Primetel to CYTA, did not informed on the existence and/or amount of the potential cost of reconnection, which was exclusively in the realm of knowledge of the company.
(c) CYTA left the time to pass without any actions on reconnection costs and verification of this amount and relative on Primetel's update, this time who on the basis of the Interim Order of the Commission had been established, so that with the expiry of 30 June 2013 to retrieve the capacity currently allocated to Primetel over the MINERVA cable system.
(d) Cyta's behavior in general could be characterized as indicative of her intention to avoid complying with the Commission's Interim measures and indifference with regard to the implementation of this.

Furthermore, the Commission noted the fact that CYTA on date 26 August 2013, the Commission has not given any mitigating factors that should be taken into account during the consideration by the Commission the imposition of an administrative fine.

Finally, the Commission stressed that non-compliance with a decision is considered a hardcore infringement the Law. The decisions of the commission should be respected by the undertaking, who are obliged to actively comply with them, ensuring thus the smooth and orderly functioning of administration and the Government.

The Commission, having taken into account all the evidence before it and the behaviour of the CYTA as a whole and having regard to the nature, gravity and duration of the infringement in accordance with section 42 of the Law, and the necessity to prevent repetition of the infringement of the law, unanimously decided:

With regard to the alleged failure to comply with the Interim Order of the Commision dated 13/6/2013 on the basis of section 28 (4) of the Law, the imposition of an administrative fine to Cyprus Telecommunications Authority of € 17,000 (Seventeen thousand euro) for each day of failure to comply with the above-mentioned Interim measures. Therefore, the total amount of the administrative fine imposed to CYTA for 39 (thirty nine) days that the omission of compliance lasted amounts to € 663.000 (six hundred sixty three thousand euro).








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