Hassans advises on Gibraltar's first ever competition law claim.

Gibfibre Limited’s multimillion pound competition law claim against Gibtelecom & Rockolo is dismissed in its entirety.

Today, the Supreme Court of Gibraltar handed down judgment in what was Gibraltar’s first ever competition law claim. Moshe Levy and Samuel Marrache of Hassans appeared together with Robert Palmer KC and Nikolaus Grubeck of Monckton Chambers, on behalf of Gibtelecom & Rockolo Limited (referred to as “Gibtelecom” or the “Defendants”). 

The claim brought by Gibfibre in 2021 relates to the Defendants’ refusal to grant it access to its Data Centres. Gibfibre’s claim was that the Defendants’ conduct was anti-competitive and that it had caused them many millions of pounds of losses. Gibfibre initially claimed in excess of £30 million in damages. 

The trial was heard from 6th to 23rd March 2024, when the court heard evidence from both factual and expert witnesses. 

In his judgment, Mr Justice Restano held that Gibfibre’s claim failed at every hurdle. 

To succeed, Gibfibre had to show that Gibtelecom was dominant in a particular market and that it had abused its dominance in the same. Gibfibre had argued for a very narrow market definition restricted to connectivity to each data centre in Gibraltar. Gibtelecom had resisted this submission by arguing that the market for third-party colocation services was far wider and included cloud services, as well as other jurisdictions which Gibraltar was competing with for the said services. 

In dismissing this part of Gibfibre’s claim, the Supreme Court found that cloud services and colocation services formed part of the same product market as from 1 January 2018. In addition, it also found that other ‘remote gambling jurisdictions’ such as the Isle of Man and Malta were also part of the same product market as they were competing for the colocation business of the main customers in Gibtelecom’s data centres i.e., online gaming companies. 

Mr Justice Restano went on to find that even if the market could be defined in accordance with Gibfibre’s submissions, Gibtelecom was not in any event dominant in the same due to all the competitive constraints it faced. These included real competition from other local competitors, pricing behaviour, out of market constraints and evident countervailing buyer power. 

The Supreme Court also held that even if it was wrong on market definition and dominance, Gibtelecom had not abused its position in the market in any event. Mr Justice Restano then went on to consider the correct quantum of Gibfibre’s claim and significantly reduced Gibfibre’s claim for several million pounds in damages to just over £300,000 (less the costs Gibtelecom would have had to have incurred in constructing a Meet Me Room for Gibfibre had they been mandated to grant them access). 

Overall, the Supreme Court’s judgment represents a thorough analysis and application of the relevant Competition Law principles.

Preparation for the trial involved several complicated applications on the imposition of a Confidentiality Ring, as well as the review of tens of thousands of documents at the disclosure stage. 

Moshe Levy of Hassans International Law Firm Limited was the Partner on this case. He was assisted throughout by Samuel Marrache, a Senior Associate in the Litigation Department. Brian Caetano and Avromi Endfield also formed part of the successful Hassans team. 

Enquiries: moshe.levy@hassans.gi samuel.marrache@hassans.gi