The High Court has ordered Telefónica to continue to deal
with Packet Media pending resolution of a dispute between them raising a claim
of abuse of dominance on the part of Telefónica.
Telefónica (trading as O2 in the UK) provides Packet Media
with O2 SIM chips which are used in the mobile gateway system that Packet Media
provides to its customers and which allows callers from landlines to make calls
to mobiles using mobile networks. Such calls are typically cheaper than
landlines originated calls to mobiles. The gateways use multiple mobile
phone SIMs as part of call origination.
Packet Media claims that Telefónica’s threat to disconnect
over 2000 SIMs, despite them being supplied by an O2 authorised reseller,
amounts to the refusal to grant access to an essential facility and, as such,
is an abuse of dominance.
An interim injunction was granted pending trial with the
judge stating that “the course that is likely to cause the least irremediable
prejudice is that which involves maintenance of the present status quo”.
The injunction was granted despite there being a dispute
between the parties as to the relevant market. Packet Media amended its claim
to state that the relevant market was the markets for wholesale provision of
access to call and SMS origination on the mobile networks on which both parties
operate in the UK.
Injunctions of this nature are rare but have been granted in
previous cases. In 2013, the High Court ordered Barclays to continue to
provide banking services to money transfer service provider Dahabshill pending
a full trial.
Probably this is not the end of the matter and Telefónica
will apply to discharge the injunction.
Packet Media Ltd v Telefonica UK Ltd [2015] EWHC 2235 (Ch)
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