CEDH · CASELAW;STATEMENTOFFACTS;ENG — 2 février 2009

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s719C48CE { width:279.15pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s8B6082D6 { margin-top:12pt; margin-left:39.55pt; margin-bottom:6pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic; list-style-position:inside } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s673A384F { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }   20 January 2009     FOURTH SECTION Application no. 31425/06 by Albania Online Service Provider against Albania lodged on 1 August 2006   STATEMENT OF FACTS THE FACTS The applicant, Albania Online Service Provider (AOLSP), is a limited liability company incorporated in the Republic of Albania. The applicant company is represented before the Court by Mr S. Puto, a lawyer practising in Tirana. A.     The circumstances of the case The applicant company held several licences issued by the national Telecommunications Regulatory Authority ( Enti Rregullator i Telekomunikacioneve – “TRA”) for the following purposes: (i) providing internet services; (ii) establishing a rural telecommunications network; (iii) providing a pre-paid telephone-card service; and (iv) providing telecommunications services with added value. In accordance with sections 42 and 43 of the Telecommunications Act (see “Relevant domestic law” below) and pursuant to its licences, the applicant company filed two requests on 5 April 2001 and 5 September 2001, respectively, with the telecommunications supplier that had a dominant position in the market (“the dominant supplier”), with a view to entering into an interconnection agreement. Having received no response from the dominant supplier, the applicant company sent a letter to the TRA on 19 January 2001 in accordance with section 43 of the Telecommunications Act (see “Relevant domestic law” below). On 27 September 2001 the TRA sent a letter to the dominant supplier requesting it to respond immediately to the applicant company’s request to negotiate an interconnection agreement. The applicant company addressed further requests to the dominant supplier for an interconnection agreement on 14 January 2002, 12 June 2002, 24 October 2002, 14 and 23 January 2003, 13 March 2003 and 12   June 2003. On 2 December 2003, in accordance with section 43 of the Telecommunications Act, the TRA issued the dominant supplier with an order to enter into an interconnection agreement within one month following a decision of 19 November 2003 taken by the TRA’s Steering Committee. Another letter of 17 December 2003 to the dominant supplier reinforced the TRA’s position of 2 December 2003. Judicial proceedings to secure an interconnection agreement Faced with its failure to secure an interconnection agreement, on 15   January 2004 the applicant company lodged a civil action with the Tirana District Court, requesting the court to order the dominant supplier to enter into an interconnection agreement. The applicant company also requested payment of damages. On 20 October 2004, following the dominant supplier’s counterclaim that the case should be declared outside the court’s jurisdiction, the Tirana District Court, in an interim decision, rejected that counterclaim. On an unspecified date the dominant supplier lodged an appeal with the Supreme Court against the interim decision of 20 October 2004. On 10 February 2005 the Supreme Court upheld the dominant supplier’s appeal and held that the dispute fell outside the jurisdiction of the courts. It observed that the applicant company had not exhausted the domestic administrative remedies in accordance with section 43 of the Telecommunications Act, under which the TRA would issue an order for the conclusion of an interconnection agreement. On 23 May 2005 the Tirana District Court decided to declare the case outside its jurisdiction, dismissed the proceedings and transferred the case file to the TRA. On an unspecified date the applicant company lodged a constitutional complaint with the Constitutional Court against the Supreme Court’s decision of 10 February 2005. It maintained that it had exhausted all domestic administrative remedies in the light of the TRA’s orders to the dominant supplier. It contended that the Supreme Court’s failure to appreciate the fact that an order had been issued had breached its right to a fair hearing. On 6 February 2006 the Constitutional Court declared the constitutional complaint inadmissible, finding that there had not been a breach of the applicant company’s right to a fair hearing. B.     Relevant domestic law 1. Constitution of Albania Article 131 “The Constitutional Court shall decide on: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” 2. The Telecommunications Act (Law no. 8618 of 14 June 2000; repealed by Law no. 9918 of 19 May 2008) The Telecommunications Act of 2000, as it stood at the material time, governed telecommunications activities in Albania and aimed at protecting the public interests and creating a transparent regulatory environment which would promote investments and enhance free competition (section 1). Section 2 defined interconnection as the linking of public telecommunications networks in order to allow the users of one public telecommunications supplier to connect or communicate with users of another public telecommunications supplier. The Act established the Telecommunications Regulatory Authority (“TRA”) which supervised the regulatory framework defined by the law and determined by the Council of Ministers (section 8). The TRA issued licences on the basis of criteria established by the Act and regulated the interconnection of telecommunications networks (section 9). It also determined whether a network supplier had a dominant position in the market (section 17). According to section 42(a), network suppliers having a dominant position in the market ( me fuqi të ndjeshme në treg ) had to provide the same services, under the same terms and conditions, to other network suppliers interested in establishing an interconnection. Moreover, suppliers having a dominant position in the market had to make available to other suppliers the interconnection lines and equipment, including the relevant data, applying the same tariff and quality as those used for their own services. The suppliers were required to conclude an interconnection agreement. Under section 43, when suppliers were unable to conclude an interconnection agreement within two months from the start of negotiations, the TRA, after examining their claims, would issue a written order requiring that the interconnection agreement be concluded within one month from the date of that order. The 2000 Telecommunications Act was repealed by the enactment of the 2008 Act. 3. The Civil Code Under Article 673, a company having a dominant position in the market is obliged, in accordance with the law and good commercial customs, to conclude an agreement with anyone whose operational activity falls within its own activity. Failure to conclude an agreement cannot be justified without lawful grounds. 4. The Code of Civil Procedure Article 59 “The court, at any stage and instance of the proceedings, and even of its own motion, shall consider whether the case it is examining falls under judicial or administrative jurisdiction. An appeal may be lodged with the Supreme Court against such a decision.” COMPLAINTS The applicant company complains under Article 6 § 1 of the Convention about a denial of its right to a fair hearing, as a result of the domestic courts’ failure to appreciate that an order had been issued by the TRA in accordance with section 43 of the Telecommunications Act. It complains about a disproportionate interference with its right to the peaceful enjoyment of property, relying on Article 1 of Protocol No. 1 to the Convention. Under Article 13, in conjunction with Article 1 of Protocol No. 1 to the Convention, it complains about the lack of an effective remedy in respect of exercising and maintaining its economic activity. QUESTIONS TO THE PARTIES 1. Were Article 6 § 1 of the Convention under its civil head and Article 1 of Protocol No. 1 to the Convention applicable to the proceedings in the present case? 2. Has there been a breach of the applicant company’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention, in particular by the domestic courts’ decisions to declare the case outside their jurisdiction? 3. Has there been a disproportionate interference with the applicant company’s peaceful enjoyment of its possessions, within the meaning of Article 1 of Protocol No. 1? 4. Did the applicant company have at its disposal an effective domestic remedy for its complaint under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?