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 to a provider of electronic communications to be able to offer services of Premium SMS charged at the end of the message (mobile terminations) to the subscribers of CYTA, constitutes an abuse in violation of sections 6(1)(b) and 6(1)(c) 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. 43/2010 had been issued on 14 October 2010. 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, as dominant in the relevant market concerned, failed to respond to its special responsibility to provide the complainant company, Thunderworx, access to the necessary facilities, thus enabling the latter to provide Premium SMS services to CYTA’s mobile users, charged at the end of the message (mobile termination).
The CPC in its decision held that the infrastructure for the provision of services of Premium SMS-MT was essential to the development of competition in this area, and thus, CYTA ought to provide it and take the necessary actions that would help them overcome any obstacle, technical or of other nature, that existed in the provision of such service and/or facility.
The CPC, having considered all the evidence before it, concluded that the reasons for refusal put forward by CYTA to provide the requested facility to Thunderworx, in order to be able to provide services of Premium SMS-MT to users of CYTA’s mobile network, was not objectively justified. The CPC considered that the issues that concerned CYTA could be addressed in a written agreement or a code of practice.
Also, the CPC considered that the time taken for the implementation of the software from August 2005, i.e. the date on which it was specifically requested to provide this facility, until April 2010, i.e. the date on which a technical solution was found by CYTA, was very long, provided that the data of the file show that actions to solve the problem on the part of CYTA had begun in 2009 and were completed in 2010, just one year after. The fact that there was no available software and that neither could be bought, cannot constitute an objective justification for the time elapsed from 2005 to 2010.
The infringements concern the period from 31 August, 2005, the date on which Thunderworx had requested in writing the ability to provide Premium SMS services to the subscribers of CYTA, charged on message termination, to April 2010, the time when the technical solution for the implementation of the requested service was found and notified to Thunderworx by CYTA.
Therefore, the CPC, acting according to Section 24 (a) (i) of the Law decided:
(A) In respect of the infringement of Section 6 (1) (b) of the Law, to impose a fine on CYTA amounting to €480.000 (four hundred eighty thousand Euros), and
(B) In respect of the infringement of Section 6 (1) (c) of the Law, to impose a fine on CYTA amounting to €480.000 (four hundred eighty thousand Euros).