T-Mobile (UK) Ltd and Others v Office of Communications

JurisdictionEngland & Wales
JudgeSir William Aldous
Judgment Date12 December 2008
Neutral Citation[2008] EWCA Civ 1373
Docket NumberCase No: C1/2008/2257, 2257(A) and 2258
CourtCourt of Appeal (Civil Division)
Date12 December 2008

[2008] EWCA Civ 1373





Vivien Rose (Chairman), Dr Arthur Pryor CB and

Adam Scott TD

1102/3/3/08 and 1103/3/3/08

Royal Courts of Justice

Strand, London, WC2A 2LL


The Rt Hon Lord Justice Tuckey

The Rt Hon Lord Justice Jacob and

Sir William Aldous

Case No: C1/2008/2257, 2257(A) and 2258

T-Mobile (Uk) Ltd & Telefónica 02 Uk Ltd
Office of Communications

Michael Fordham QC and Meredith Pickford (instructed by Messrs Lovells LLP)

for the Appellant T-Mobile

Lord Pannick QC, Thomas de la Mare and Tom Richards (instructed by

Messrs Ashurst LLP) for the Appellant Telefónica

Miss Dinah Rose QC, Josh Holmes and Ben Lask (instructed by Ofcom)

for the Respondent

Hearing dates: 20 and 21 November 2008

Lord Justice Jacob

Lord Justice Jacob:



The Office of Communications (“Ofcom”) is the UK's independent regulatory authority for electronic communications services and networks. One of its functions is to license the use of the electromagnetic spectrum for telecommunications purposes. On 4 th April 2008, following substantial consultation it published a document entitled “Award of available spectrum: 2500–2690 MHz, 2010–2025MHz” (“the Award”) The subheading was “This document sets out Ofcom's decisions for the award of wireless telegraphy licences in these spectrum bands.”


The Award contains a number of decisions made by Ofcom in principle – policy decisions as to how and when it intended to go about licensing the spectrum concerned. The one that matters for present purposes is the decision to proceed forthwith by way of auction for the two wavebands concerned. With the Award were draft regulations for the implementation of this auction, published for consultation.


Both of the appellants, O2 (whose case was argued by Lord Pannick QC) and T-Mobile (whose case was argued by Michael Fordham QC) object to this manner of proceeding. The basis of their objection is essentially the same: that they already hold licences for other parts of the spectrum, that there is a possibility that they may lose some of the licences they now have for other parts of the spectrum pursuant to a decision to be made by Ofcom at some time in the future (called “refarming”) so that it would be unfair to make them bid now for more licences when they will not know what they will need until the refarming decision has been made. We were told that Ofcom are not in a position to make a decision about refarming now because the problems involved are complex.


On the other hand Ofcom takes the view that it is in the public interest that the new spectrum licences be allocated now in order to enable new players to enter the market – particularly for broadband access to mobile devices. Ofcom also observes that it is in the interests of existing operators such as O2 and T-Mobile that new operators be kept out of the market for as long as possible. Not only will that obviously avoid any competition from new operators during the period of delay, but also it will enable the existing operators to garner the market for this new technology before the newcomers can get going.


T-Mobile object to the whole Award and say it should be set aside entirely. O2 take a less radical position: that only some of the new wavelengths should be auctioned now, the rest to be auctioned or otherwise marketed after the refarming decision is made known.


We are not concerned with the merits of these objections. The narrow point before us is simply this: are these matters to be raised by way of an appeal to the Competition Appeal Tribunal (“CAT”) or must they go by way of judicial review (“JR”).


O2 and T-Mobile launched appeals from the Award to the CAT. T-Mobile has also commenced JR proceedings in which O2 (and another party) have intervened. These are in abeyance pending a final decision on the question of jurisdiction of the CAT.


By its decision of 10 th July this year, the CAT (Vivien Rose, Dr Arthur Pryor CB and Adam Scott TD) decided it did not have jurisdiction to hear the appeals. This is the appeal from that decision.


So the relevant parts of the legislation can be seen as a whole, I have set these out separately in an Appendix. Where it has been amended it is set out as amended, though nothing turns on the amendments. The relevant UK legislation is contained in the Communications Act 2003 (CA 2003) and the Wireless Telegraphy Act 2006 (WTA 2006). The relevant EU legislation is the “Framework Directive”, Directive 2002/21/EC “on a common regulatory framework for electronic communications networks and services.”


Lord Pannick and Mr Fordham divided up the arguments for jurisdiction in the Court of Appeal between them, each also espousing the arguments of the other. I have to say that one always has a suspicion that if a great number of alternative arguments are deployed, there is no really good argument. And all the more so if some of them involve a turgid trawl through a mass of travaux préparatoires. So it proved here, for I think the CAT was clearly right. It has no jurisdiction to hear these appeals; the Administrative Court is the place where the appellants' complaints can be heard and decided in compliance with the requirements of the Directive.


Lord Pannick went first, working on the assumption Mr Fordham's arguments on the construction of the UK legislation would be rejected. I will consider the arguments in the same order. But before I do so it is essential to lay down some important foundation stones.

The EU Law Arguments


First, it is common ground that the challenge to the Award which the appellants wish to make is an “appeal” within the meaning of Art. 4(1) of the Framework Directive. This requires that “effective mechanisms .. under which any user … has a right of appeal be provided by Member States.”


Art. 4 goes on to require that the “appeal body” be independent, and that:

i) it shall have “appropriate expertise available to it to enable it carry out its functions” (“the expertise requirement”);

ii) “the merits of the case are duly taken into account” (the “merits requirement”);

iii) “there is an effective appeal mechanism”;

iv) If the appeal body is not judicial in character it must give reasons and its decision must be “subject to review by a court or tribunal within the meaning of Art. 234 of the Treaty.”


It is also common ground that Art. 4 confers on affected parties such as O2 and T-Mobile a directly applicable right of appeal. So, if no effective appeal mechanism is created by UK law, part of that law must be disapplied so such a right of appeal is conferred. I suppose an alternative to disapplication might perhaps be a Francovitch claim against the State, but no one suggested this and the point does not arise. However that may be one would obviously strive to avoid the conclusion that the UK, in seeking to implement the Framework Directive, had failed to achieve that.


But, and this lies at the heart of this case, it is not now suggested that the UK is in breach of Art. 4. For it is now common ground (it was not below) that if the route of challenge to the Award must be by way of JR rather than appeal to the CAT, such a route would be an “effective appeal mechanism” within the meaning of Art. 4.


Although, as I say, this point is now common ground, it is appropriate to spell out in more detail why I think Lord Pannick was right so to concede.


Section 31 of the Supreme Court Act 1981 provides that an application for JR relief (mandatory, prohibiting or quashing orders, or certain forms of declaration and injunction) can be made to the High Court. But statute does not seek to spell out or limit what the court can consider on an application for JR. All the Act says about jurisdiction is this:

s.29(1A) The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1 st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively.


Those limits are set by the inherent jurisdiction of the court, themselves governed by the rules of precedent. Traditionally those limits indeed confined the courts to considering things like procedural unfairness or Wednesbury unreasonableness – various forms of error of law. JR did not allow an attack purely on the merits of the impugned decision. And that is still broadly so, as the cases cited by Lord Pannick demonstrate. He took us to R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 and R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100. Both were concerned with the impact of the ECHR in JR cases. It is sufficient for present purposes to go to what Lord Bingham said in the latter case:

[34]Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, paras 25–28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith ...

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