In its decision on Wednesday, the Court of Appeal presided over by Mr Justice Philip Sciberras, dismissed the decision of the Telecommunications Appeals Board of 1 April 2003.

The decision was taken following separate applications by Maltacom (which owns go mobile) and the Malta Communications Authority (MCA) contesting the decision given by the Appeals Board.

This means that the original decision taken by the Telecommunications Regulator (the MCA was not yet in operation) on 10 November 2000, which had established an interconnection rate of 8c5 per minute has been upheld .

The Telecommunications Appeals Board had overturned this decision of the Regulator following an appeal by Vodafone Malta on 6 December 2000. In doing so the Appeals Board had referred the matter back to the Minister to see if the rate as established at law should be confirmed .

The face value of this decision is limited. In May 2003 the MCA replaced the 2000 decision on interconnection rates with a new one within the framework of the Reference Interconnection Offer (RIO), setting the interconnection rate from the previous 8c5 to 6c85 a minute.

Observers noted, though, that the actual importance of this decision lies in the fact that the Court of Appeal refrained from setting a precedent whereby telecommunications companies could overturn a decision by the MCA merely on a point of principle, without however adequately demonstrating that any declaration by the court could lead to some tangible remedy enforceable at law.

The original decision by the Telecommunications Regulator was taken following a request for its intervention by go mobile since the two mobile companies could not reach an agreement on the interconnection rates.

The rates as established in the Regulator’s decision were then confirmed by a legal notice published on 28 November 2000.

The court said that the Appeals Board in reaching its conclusions could not ignore the fact that the aforesaid Legal Notice was published after the Regulator’s decision and before the appeal made by Vodafone Malta to the same Appeals Board. The court noted that with the publication of the legal notice the matter passed into the realm of legislative regulation. The court further observed that the Appeals Board does not have the power to overturn any subsidiary legislation established in the Legal Notice and that the Appeals Board could not ignore this juridical

realty.

The Court of Appeal noted that Vodafone Malta, in its submissions to the Appeals Board, had said that it was not contesting the rate established by the Regulator. The court said that at law there is nothing to prohibit it from making a declaration as to the rights that a party enjoys. However, any such declaration by the court, must be understood as being conducive to other legal action “...li d-dikjarazzjoni intiza li tinkiseb tkun preordinata ghall-azzjoni ohra.” The court held that in the circumstances it was not convinced that the revocation of the Regulator’s decision would lead to some advantageous result in favour of Vodafone Malta.

The court further noted that Vodafone Malta did not have the required juridical interest when it contested the Regulator’s decision once it had itself accepted the final rates set by the Regulator. The court declared that Vodafone Malta contesting the procedure adopted by the Regulator, without contesting the merit of what was established by that procedure, did not objectively serve any practical purpose “...ma kien ser iservi ta’ l-ebda konfort f’termini ta’ utilita oggettiva.”