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You are here: BAILII >> Databases >> United Kingdom Competition Appeals Tribunal >> T-Mobile (UK) Ltd v Office of Communications (Sequencing Decision) [2008] CAT 15 (10 July 2008) URL: https://www.bailii.org/uk/cases/CAT/2008/15.html Cite as: [2008] CAT 15 |
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Neutral citation [2008] CAT 15
IN THE COMPETITION
APPEAL TRIBUNAL
Case Number: 1102/3/3/08
1103/3/3/08
Victoria House
Bloomsbury Place
London WC1A 2EB
10 July 2008
BETWEEN:
Appellant
Intervener
Respondent
Appellant
Respondent
Mr. Michael Fordham QC and Mr. Meredith Pickford (instructed by Lovells LLP) appeared on behalf of T-Mobile (UK) Limited.
Mr. David Pannick QC, Mr. Thomas de la Mare and Mr. Tom Richards (instructed by Ashurst LLP) appeared on behalf of Telefónica O2 UK Limited.
Ms. Dinah Rose QC, Mr. Josh Holmes and Mr. Ben Lask (instructed by the Office of Communications) appeared for the respondent.
I. INTRODUCTION
(a) The domestic statutory provisions
"192 Appeals against decisions by OFCOM, the Secretary of State etc
(1) This section applies to the following decisions—
(a) a decision by OFCOM under this Part [or any of Parts 1 to 3 of the Wireless Telegraphy Act 2006] that is not a decision specified in Schedule 8;
…
(2) A person affected by a decision to which this section applies may appeal against it to the Tribunal.
…
(7) In this section and Schedule 8 references to a decision under an enactment—
(a) include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but
(b) include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;
and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.
(8) For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed."
The reference in section 192(1)(a) to the Wireless Telegraphy Act 2006 was inserted by that Act.
"40 A decision given effect to—
(a) by regulations under section 8(3), 12, 14, 18, 21, 23, 27, 30, 45 or 54 or paragraph 1 of Schedule 1 or paragraph 1 of Schedule 2;
(b) by an order under section 29 or 62."
(b) The appellants' challenge
"4. By this appeal, T-Mobile challenges the decision of OFCOM as to the sequencing of two regulatory matters within its control. That sequencing decision ("the Sequencing Decision") is embodied in:
4.1 the decision (the "Award Decision") to proceed with the award of available radio spectrum in the ranges 2500 – 2690 MHz and 2010 – 2025 MHz (the "2.6 GHz Award"); in combination with
4.2 its (advertent and ongoing) failure (the "Refarming Failure"), despite requests so to do, first to take a decision in relation to its policy on the liberalisation and potential reallocation ("Refarming") of spectrum in the 900 MHz and 1800 MHz ranges (respectively, the "900 MHz Spectrum" and the "1800 MHz Spectrum" and together the "Existing Spectrum")."
"The decision that is the subject of O2's Appeal ("the Decision") is Ofcom's decision to reject the possibility of proceeding with the award by way of split auction ("the Split Auction Alternative"). As a consequence Ofcom has decided not to reserve the auction of licences for frequencies between 2500 and 2570 MHz and 2620 and 2690 MHz ("the Outer Bands") until a later date, but instead to auction the entirety of the 2.6 GHz Band forthwith. The Decision was taken under sections 3 and 4 of [the CA 2003] and Parts 1-3 of [the WTA 2006] in particular its section 3. The Decision is contained (along with a number of other decisions) in a document entitled 'Award of available spectrum: 2500 – 2690 MHz, 2010 – 2025 MHz' published by Ofcom on 4 April 2008 ("the 4 April Document")."
(c) The Award Decision
"1.1 This Statement sets out our decisions on the award of the frequency bands 2500- 2690 MHz (the 2.6 GHz band) and 2010-2025 MHz (the 2010 MHz band). It explains that we have decided to proceed with the award and why we have decided to do so as soon as possible, and it explains the way in which the award will be structured and the conditions that will attach to the licences to be awarded."
"1.6 In making decisions in relation to this award, we have given careful consideration to the duties imposed on us by both the European legislative framework and by UK legislation. Taking into account the relevant facts and circumstances, we consider that our principal duty under the Communications Act 2003 to further the interests of consumers, where appropriate by promoting competition, is of particular importance to this award. In fulfilling this duty, we consider that our duties to secure optimal use of spectrum, promote innovation, and secure the availability of a wide range of electronic communications services are also of particular significance.
1.7 We consider that a decision to hold an award for the 2.6GHz and the 2010MHz bands, and to do so as soon as possible, is the decision that best meets these duties."
The same point is made in the main body of the Award Decision at paragraphs 3.20 – 3.21.
(d) The European context
"4. Right of Appeal
1. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. Pending the outcome of any such appeal, the decision of the national regulatory authority shall stand, unless the appeal body decides otherwise.
2. Where the appeal body referred to in paragraph 1 is not judicial in character, written reasons for its decision shall always be given. Furthermore, in such a case, its decision shall be subject to review by a court or tribunal within the meaning of Article 234 of the Treaty."
II. THE PRELIMINARY ISSUE
(a) How to approach the issue
"Having regard to the desirability of promoting the optimal use of the electromagnetic spectrum OFCOM may by regulations provide that, in such cases as may be specified in the regulations, applications for wireless telegraphy licences must be made in accordance with the procedure that involves the making by the applicant of a bid specifying an amount that he is willing to pay to OFCOM in respect of the licence."
(b) The domestic statutory provisions
"400. The appeals mechanisms in the Act have been devised to meet the specific requirements of Article 4 of the Framework Directive. Article 4 of the Framework Directive, in effect, requires that any person who is affected by a decision of OFCOM or the Secretary of State which relates to networks or services or rights of use of spectrum must have the right of appeal on the merits against that decision to an appeal body that is independent of the parties involved. The Act therefore sets out a mechanism for appeal on the merits to the Competition Appeal Tribunal (CAT) against any decision (with specified exceptions) taken by OFCOM under Part 2 of the Act or the Wireless Telegraphy Acts 1949 or 1998, against certain specified decisions of the Secretary of State and against directions, approvals and consents pursuant to conditions under section 45. Once the CAT has reached its decision it must remit the decision under appeal to OFCOM, the Secretary of State or the person responsible for the direction, approval or consent as appropriate, with such directions, if any, as it considers necessary." (emphasis added)
"Section 192: Appeals against decisions by OFCOM, the Secretary of State etc.
416. This section provides for appeal to the Competition Appeal Tribunal (CAT) against decisions (with specified exceptions) made by OFCOM under Part 2 of the Act and the Wireless Telegraphy Acts 1949 and 1998 and against decisions made further to a condition of entitlement set under section 45. The specified exceptions are set out in Schedule 8 and are either (i) decisions that do not have immediate effect on a person, but are of a legislative or quasi-legislative nature that require a further act or decision to be given effect, or (ii) decisions on matters which fall outside the scope of the Communications Directives. For example, a decision taken by OFCOM relating to the making or revision of a statement of policy on information-gathering under section 145 would not have immediate effect on any person. It would only be where OFCOM exercised their powers under section 135 to require the provision of information, in accordance with that statement, that there would be a decision that would actually have effect on any person. Another example is decisions under section 175 (special procedure for contraventions by multiplex licence holders), which fall outside the scope of the Directives."
(c) Identifying the power used by OFCOM in taking the decisions under challenge
(a) the decision was taken under section 14 of the WTA 2006 but was not a decision "given effect to by regulations under section 14" for the purposes of paragraph 40 of Schedule 8; alternatively that
(b) the decision was taken under section 1(3) of the CA 2003 in conjunction with section 14 of the WTA 2006. Section 1(3) of the CA 2003 provides that OFCOM may do anything which appears to it to be incidental or conducive to the carrying out of its functions; alternatively that
(c) section 3 of the WTA 2006 in conjunction with section 14 of that Act confers on OFCOM the function of taking a decision of the kind challenged here. Section 3 sets out a number of factors to which OFCOM must have regard in carrying out their radio spectrum functions, for example the extent of available spectrum and the economic and other benefits that may arise from its use.
(a) section 1(3) of the CA 2003. We do not consider that this adds anything to the powers inherent in section 14 WTA 2006 to take all the decisions needed preparatory to the making of regulations. In any event, this does not avail the appellants since this section is in Part 1 of the CA 2003 and not in the same part as section 192 (which is in Part 2). Hence decisions taken under this power do not fall within section 192(1)(a);
(b) sections 3 and 4 of the CA 2003. In so far as these were still relied on by O2, we do not find that they assist, both because they fall within Part 1 and not Part 2 of the 2003 Act (and hence are not included in section 192) and also because they do not confer self-standing functions on OFCOM, but rather provide how OFCOM is to exercise functions conferred by other provisions;
(c) section 1(1)(b) of the WTA 2006. We do not consider that the decision to proceed with the award of spectrum is a decision about the provision of a "service" within the meaning of section 1(1)(b);
(d) section 3 of WTA 2006. We accept the argument put forward by OFCOM in its Defence (paragraph 14) as regards reliance on this provision. Section 3 of the WTA 2006 does not confer any power or duty on OFCOM to take a decision but rather specifies the matters to which OFCOM is to have regard when carrying out its radio spectrum functions under other provisions of the WTA 2006. We also accept the point made by OFCOM that if the appellants were right in their contention that any decision to which section 3 applied could be a decision under Part 1 of the WTA 2006 for the purposes of applying section 192 of the CA 2003, that would widen the scope of section 192. Section 3 applies to functions conferred under all the Parts of that Act, not simply Parts 1 to 3 and to some of the powers referred to as excluded in Schedule 8;
(e) failure to take the Refarming Decision. T-Mobile's Notice of Appeal states clearly that the decision under challenge is the Sequencing Decision and not, as a separate matter, the alleged failure to take the Refarming Decision. This is reflected in the relief sought in the appeal, which is not that OFCOM should take the Refarming Decision but rather that OFCOM take no steps to proceed with the 2.6 GHz Award "until such time as it has made a final decision in relation to its policy on Refarming". T-Mobile's written submissions on the preliminary issue state (at paragraph 8) that the absence of a Refarming decision is not "objectionable in its own right". We do not consider that it is open to T-Mobile to recast its case by relying on the alleged failure to take the Refarming Decision.
(d) The application of paragraph 40 of Schedule 8
(e) Section 192(8) of the CA 2003
"For the purposes of this section … a decision to which effect is given by the exercise or performance of a power ... shall be treated … as made at the time when the power is exercised …."
III. IS THIS RESULT COMPLIANT WITH ARTICLE 4?
(a) The scope of the rights conferred by Article 4
(b) Marleasing
"It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter…"
(c) The duty of the Tribunal to set aside the limits on its jurisdiction
"… Community law can be used to remove or circumvent barriers against or restrictions on a claim, but … it does not create rights of action which have an existence apart from domestic law"
"If national law cannot be applied so as to comply with the requirements of [the] directive, a national court or tribunal which satisfies those requirements and which would be competent to hear appeals against decisions of the national regulatory authority if it was not prevented from doing so by a provision of national law which explicitly excludes its competence, such as that at issue in the main proceedings, has the obligation to disapply that provision." (emphasis added)
IV. CONCLUSION
Vivien Rose |
Arthur Pryor |
Adam Scott |
Charles Dhanowa Registrar |
Date: 10 July 2008 |