You are here:

Sweden / Administrative Court of Appeal in Stockholm / 2597-17

Borderlight Ltd. (a communications company) vs. Uppsalahem (a property owner and landowner) and/or Telenor (the contracted communications operator for the properties in question)

Policy area:
Competition
Deciding Body type:
National Court/Tribunal
Deciding Body:
Administrative Court of Appeal in Stockholm
Type:
Decision
Decision date:
04/04/2018

Key facts of the case:

Borderlight Ltd. delivers communications services (data connections) to various healthcare and medical service functions in Uppsala municipality and county council. The activities in question are located in premises owned by Uppsalahem Ltd, a public housing company that owns a large number of properties in Uppsala municipality. Previously, Borderlight has had delivery agreements with Uppsalahem on the right to use the fiber pipelines for broadband services in Uppsalahem's own properties.

The fiber pipelines in the buildings are currently owned by Uppsalahem and are so-called black fiber, i.e. a physical fiber cord without any electronic equipment. In order to provide broadband services to end customers, an operator, like Borderlight, needs to ensure connections between their own network and the access network leading to the end customer. If the operators do not have access to their own infrastructure, they may purchase an electronic communications service in the form of a wholesale product by another operator. Infrastructure-based wholesalers for electronic communications have different degree of processing.

After a procurement in 2012, Uppsalahem has exclusively contracted Telenor Sverige Ltd as communications operator[1] for its entire property portfolio.  Telenor generally does not offer services directly to end users. Instead, operators (service providers) may enter into an agreement with Telenor to provide services - eg. internet access, telephony or ip tv - to end users through Telenor's active equipment. Telenor gives service providers access at the bitstream level to the active network established by Telenor. This communications operator model means that end users in Uppsala's property network can choose between different service providers ("open network").

After the contract entered into force in 2012, Uppsalahem terminated the previously entered agreement with Borderlight regarding the right to use the fiber pipelines. This agreement was formally terminated in June 2014. Uppsalahem has accepted that Borderlight Ltd. continues to have the right to the property network until the matter in the case is settled.

In October 2014 and in March 2015, Borderlight Ltd. applied that the Swedish Post and Telecom Authority (Post- och telestyrelsen, PTS) should order Uppsalahem and/or Telenor to provide joint utilisation of the fiber pipelines in certain properties of Uppsalahem, which housed healthcare centres and preschools.

In March 2016, the Post and Telecom Authority decided to reject Borderlights’ applications, mainly because the authority considered that Telenor had such rights to the current fiber pipelines that Telenor must be considered to have disposition over them.

Borderlight Ltd. appealed this decision to the Administrative Court in Stockholm (Förvaltningsdomstolen i Stockholm), which rejected the appeal stating that it was doubtful whether the purpose of the Act on electronic communications (Lag [2003:389] om elektronisk kommunikation)[2] was that the Post and Telecom Authority should intervene to safeguard the interests of such actors who themselves should be able to make the necessary decisions regarding the availability of the property network.

Subsequently, Borderlight Ltd. appealed to the Administrative Court of Appeal in Stockholm (Kammarrätten i Stockholm).


[1] This means that Telenor installs, operates and monitors the active equipment required for electronic communications services to be provided in Uppsala's physical network. 

[2] Sweden, Act on electronic communications (Lag [2003:389] om elektronisk kommunikation), 12 June 2003, available at: https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2003389-om-elektronisk-kommunikation_sfs-2003-389

Key legal question raised by the Court:

The case concerns whether Uppsalahem (a property owner and landowner) and/or Telenor (the contracted communications operator for the properties in question) must provide Borderlight (another communications company) joint utilisation of certain wires in the fiber networks found in buildings owned by Uppsalahem where Telenor has been appointed as a communications operator.

Outcome of the case:

The provisions of the Act on electronic communications focuses on allowing competition in the market for the sake of the end users, not for an individual operator. The fact that Borderlight needs access to black fiber in order to comply with its civil-law agreements – to provide internet services to certain healthcare centres and preschools – which it entered into after a public procurement cannot by itself constitute grounds to order a joint utilisation of the fiber pipelines. In summary, the Administrative Court of Appeal considered that the Post and Telecom Authority has had ground for its decision not to order Uppsalahem and/or Telenor to provide Borderlight Ltd. with joint utilisation of the fiber pipelines in question. The appeal was therefore rejected.