ALBANIA ONLINE SERVICE PROVIDER SHPK v. ALBANIA

THIRD SECTION

DECISION

Application no. 31425/06
ALBANIA ONLINE SERVICE PROVIDER SHPK
against Albania

The European Court of Human Rights (Third Section), sitting on 2 April 2024 as a Committee composed of:

 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 31425/06) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 1 August 2006 by Albania Online Service Provider SHPK, a limited liability company incorporated in Albania (“the applicant company”) and represented by Mr S. Puto, a lawyer practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agent, Mrs S. Meneri, and subsequently by their Agent Mrs E. Hajro and Mr O. Moçka, General State Advocate;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The applicant company is a telecommunications operator. It follows from the state register of limited liability companies that between 2009 and 2021 the applicant company’s members changed and the company’s name changed first to Primo Communications SHPK and, subsequently, to TIBO Communications SHPK. For the present decision, use will be made of its former name.

2.  The case concerns the alleged violation of the applicant company’s right of access to a court and its right to peaceful enjoyment of possessions.

3.  In 2001 the applicant company unsuccessfully sought to conclude an interconnection agreement for the provision of internet services with Albtelecom SHA, a dominant provider designated by the Telecommunications Regulatory Authority (“the TRA”).

4.  In the absence of a response from the dominant provider, on 19 September 2001 the applicant company requested the TRA, under Section 43 of the Telecommunications Act, to regulate its relations with the dominant provider (see “Relevant domestic law” below).

5.  On 27 September 2001 the TRA asked the dominant provider to respond to the applicant company’s request to negotiate an interconnection agreement for the provision of internet service. The letter also stated that if the issue was not resolved within two months after the beginning of the negotiations, the TRA would apply a standard interconnection agreement and the corresponding tariffs.

6.  On 19 November 2003 the TRA’s Executive Board adopted ruling no. 148, by which it decided that the relations between the dominant provider and internet service providers (“ISPs”) were to be governed by interconnection agreements.

7.  On 2 December 2003 the TRA informed the dominant provider as follows:

“At its meeting of 19 November 2003, the TRA’s Executive Board examined the requests of ISPs licensed by the TRA for the provision of internet service, to conclude interconnection agreements with Albtelecom ...

The Executive Board has concluded that the requests of ISPs to conclude interconnection agreements were justified.

Pursuant to Section 43 of the Telecommunications Act, the TRA orders Albtelecom to conclude interconnection agreements with ISPs within one month from the date of entry into force of this decision.

This order enters into force on 5 December 2003.”

8.  On 17 December 2003 the TRA informed the applicant company as follows:

“In response to your letter of 17 October 2003 we inform you that the Executive Board of the TRA has decided to ask Albetecom to conclude interconnection agreements with ISPs. Enclosed you will find the letter addressed to Albtelecom ‘On the obligation to conclude the interconnection agreement’”.

9.  In January 2004 the applicant company brought a civil action in the Tirana District Court against the dominant provider. It asked the court to order the dominant provider to conclude an interconnection agreement and to recover damages sustained.

10.  On 2 April 2004 the TRA sent a letter to the dominant provider which stated as follows:

“Following order no. 1341 of 2 December 2003 issued by the TRA on the basis of the Ruling of the Executive Board of TRA no. 148 of 19 November 2003 for the conclusion of interconnection agreements between Albtelecom operator and ISPs, [you should] by 16 April 2004 send to the TRA copies of agreements concluded between the parties or your official version presented for negotiation”.

11.  The dominant provider lodged a counter claim in which it asked the court to dismiss the applicant company’s claims as falling outside the court’s subject-matter jurisdiction. On 20 October 2004 the Tirana District Court dismissed that counter claim.

12.  On 10 February 2005 the Supreme Court granted the dominant provider’s appeal against the decision of 20 October 2004. It quashed that decision and resolved the matter by holding that the applicant company’s claims fell outside the court’s jurisdiction. In particular, the Supreme Court held that in accordance with Section 43 of the Telecommunications Act the applicant company should have used the administrative remedy for conclusion of the interconnection agreement – the application to the TRA, which it failed to do. The Supreme Court further held that a court could not order the conclusion of a contract – this was the competence of an administrative authority, whereas the court was competent to examine the consequences of any breach of legal obligations.

13.  On 23 May 2005 the Tirana District Court held that the applicant company’s claims fell outside its jurisdiction and terminated the proceedings.

14.  The applicant company lodged a constitutional complaint against the Supreme Court’s decision of 10 February 2005. It claimed, with reference to the TRA’s letter of 2 December 2003, that it had exhausted the administrative remedies.

15.  On 6 February 2006 the Constitutional Court declared the constitutional complaint inadmissible, finding that there had been no breach of the applicant company’s right to a fair hearing.

16.  On 1 November 2007 and 1 February 2009, the applicant company concluded interconnection agreements with Vodafone Albania SHA, another dominant provider.

17.  The Telecommunications Act governed telecommunication services in Albania (Section 1).

18.  “Interconnection” was defined as the physical and logistical connection of a provider’s public telecommunications networks with another provider’s network for the purpose of enabling their respective users to connect and communicate with each other (Section 2).

19.  The Telecommunications Act established the Telecommunications Regulatory Authority (“the TRA”) which was responsible, inter alia, for the regulation of the interconnection of telecommunication networks (Section 9). The TRA designated telecommunication providers with significant market power (“the dominant provider”, Section 11).

20.  A dominant provider had to make available to other providers the interconnection lines and equipment, applying the same fees and quality as those used for their own services (Section 42). A copy of the interconnection agreement, which determined technical and financial conditions of an interconnection, was to be submitted to the TRA (Section 43). Section 43 also stated the following:

“Upon receipt of a request, the dominant provider is required to provide the requesting party with an interconnection offer.

When providers are unable to conclude an interconnection agreement within two months from the start of negotiations, the TRA, after examining their claims, issues a written order, requiring that the interconnection agreement be concluded within one month from the date of entry into force of that order.”

21.  Non-compliance with the TRA’s order to conclude an interconnection agreement could lead to a fine (Section 96).

22.  Article 130 provided that the execution of obligations based on an administrative act could be enforced by the administration, without going to a court.

THE COURT’S ASSESSMENT

A. Standing and victim status of TIBO Communications SHPK

23.  After the exchange of the observations between the parties, the applicant company’s members changed, and the applicant company’s name changed several times. The company is now called TIBO communications SHPK. According to the state register of the limited liability companies, TIBO Communications SHPK is registered under the same fiscal identification number as Albania Online Service Provider SHPK. Therefore, the change of the applicant company’s name did not affect its standing in the proceedings before the Court.

24.  Furthermore, in the absence of any acknowledgement on the part of domestic authorities of the alleged violation of the applicant company’s rights and redress, it cannot be said that the applicant company lost its victim status.

25.  In the light of the above, the Court rejects the Government’s objections as to the standing of TIBO Communications SHPK and its victim status.

B. Alleged violation of Article 6 § 1 of the Convention

26.  The applicant company complained that its right of access to a court had been infringed because the courts refused to examine on the merits its claims against the dominant provider.

27.  The Court does not find it necessary to examine the Government’s objection concerning the applicability of Article 6 as the complaint shall in any event be declared inadmissible for the reasons set out below. The Court will proceed on the assumption that Article 6 is applicable to the facts of the case.

28.  General principles concerning the right of access to court were summarised most recently in Grzęda v. Poland [GC], no. 43572/18, §§ 342‑43, 15 March 2022.

29.  In the present case the limitation to the applicant company’s right of access to court derived from the statutory requirement to use the administrative remedy in the event of failure to conclude an interconnection agreement with a dominant provider. The applicant company did not argue – and the Court has no reason to hold – that that requirement did not pursue a legitimate aim.

30.  The applicant company complained about the way the requirement operated in its case. It argued that it had used the administrative remedy by applying to the TRA, and that on 2 December 2003 the TRA had ordered the dominant provider to conclude an interconnection agreement. The Government claimed the TRA had never issued an individual order for the conclusion of an interconnection agreement between Albtelecom and the applicant company and that, in any event, the applicant company had not complained to the TRA about the non-enforcement of such an order by the dominant provider.

31.  The Court does not find it necessary to examine whether the letter of 2 December 2003 could be regarded as an “on order” within the meaning of Section 43 of the Telecommunications Act (see paragraph 7 above) since, in any event, the applicant company had not lodged any complaint with the TRA in respect of the non‑enforcement of such order, a possibility which was open to it under Article 130 of the Code of Administrative Procedure, as in force at the material time (see paragraph 22 above). Therefore, the findings of the domestic courts regarding the applicant company’s failure to exhaust the administrative remedy do not appear arbitrary or manifestly unreasonable. The Court therefore considers that the domestic courts did not disproportionately restrict the applicant company’s right to have its claims determined by a court.

32.  It follows that the complaint about the lack of access to a court is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention

33.  The applicant company complained that there had been a disproportionate interference with the right to the peaceful enjoyment of property and there was no effective remedy to protect its right to exercise its activity.

34.  The Court notes that the complaint under Article 13 is essentially the same as that under Article 6 § 1, and, in so far as it is not absorbed by the latter (see Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI), is equally inadmissible.

35.  Where an applicant has failed to comply with domestic admissibility requirements, his or her application before the Court should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

36.  In the present case, the applicant company’s complaint about access to court was declared inadmissible on the grounds that it had not exhausted administrative remedies and that outcome was not inconsistent with the applicant company’s right of access to a court (see paragraph 32 above).

37.  The Court therefore accepts the Government’s objection relating to the non-exhaustion of domestic remedies and holds that the complaint under Article 1 of Protocol No. 1 to the Convention is inadmissible for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 May 2024.

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President