Mauritius Telecom Ltd and 3 others (Respondents) v Emtel Ltd (Appellant) No 2 (Mauritius)

Mauritius Telecom Ltd and 3 others (Respondents) v Emtel Ltd (Appellant) No 2 (Mauritius)

The Board held that Emtel’s claim for unfair competition based on unlicensed market entry and cross-subsidisation during Period 1 (March–September 1996) was properly pleaded and supported by evidence. The Judge at first instance made adequate findings of tortious conduct (acte fautif) by Cellplus and Mauritius Telecom Ltd in both periods. However, the Board found that the Telecom Act 1988 did not confer power on the regulator to grant a licence with retrospective effect so as to cure unlawful acts or criminal offences already committed. The backdating of Cellplus’ licence could not legitimise prior unlicensed commercial operations or the application of a zero-tariff. The Appeal Court...

Citation
[2024] UKPC 9
Parties
Appellant: Emtel Ltd; 1st Respondent: Mauritius Telecom Ltd; 3rd Respondent: Cellplus; Respondent: Information Communication Technologies Authority (ICTA); Respondent: Ministry of Technology, Communication and Innovation
Jurisdiction
United Kingdom
Judgment Date
22 April 2024
Procedural Posture
Civil Appeal / Final Appellate Judgment (privy Council)
Outcome
Appeal allowed in part, dismissed in part
Legal Topics
Unfair Competition, Cross Subsidisation, Licensing of Telecom Operators, Judicial Review, Tortious Liability Under Civil Code, Abuse of Dominant Position, Transitional Provisions for Regulatory Authorities
Telecommunications Law Competition Law Administrative Law Tort Law Unfair Competition Cross Subsidisation Licensing of Telecom Operators Judicial Review +3 more

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Parties

Emtel Ltd

Appellant

Mauritius Telecom Ltd

1st Respondent

Cellplus

3rd Respondent

Information Communication Technologies Authority (ICTA)

Respondent

Ministry of Technology, Communication and Innovation

Respondent

Procedural Posture

Civil Appeal / Final Appellate Judgment (privy Council)

Legal Issues

  1. 1 Whether Cellplus and Mauritius Telecom Ltd committed tortious acts under article 1382 of the Civil Code by engaging in unfair competition and cross-subsidisation
  2. 2 Whether the interconnection and cross-subsidy prohibitions were incorporated as licence conditions for Cellplus and binding on Mauritius Telecom Ltd
  3. 3 Whether Cellplus unlawfully entered the market and operated without a licence during Period 1 (March–September 1996)

Ratio Decidendi

The Board held that Emtel’s claim for unfair competition based on unlicensed market entry and cross-subsidisation during Period 1 (March–September 1996) was properly pleaded and supported by evidence. The Judge at first instance made adequate findings of tortious conduct (acte fautif) by Cellplus and Mauritius Telecom Ltd in both periods. However, the Board found that the Telecom Act 1988 did not confer power on the regulator to grant a licence with retrospective effect so as to cure unlawful acts or criminal offences already committed. The backdating of Cellplus’ licence could not legitimise prior unlicensed commercial operations or the application of a zero-tariff. The Appeal Court...

Court Disposition

Appeal allowed in part, dismissed in part

Orders

  • The appeal by Emtel against Mauritius Telecom Ltd and Cellplus is allowed; the order of the Appeal Court dismissing the claim is set aside and the judgment of the trial judge awarding damages is restored for Period 1 and Period 2.
  • The appeal by Emtel against the ICTA is dismissed; the claim against the ICTA remains dismissed.