Automated Summary
Key Facts
VIP Communications Limited (in administration) appealed OFCOM's 2005 decision that T-Mobile (UK) Limited had not infringed Section 18 of the Competition Act 1998 or Article 82 of the EC Treaty by disconnecting GSM gateway services to VIP while continuing to supply such services to other companies. The Competition Appeal Tribunal, in its judgment dated 22 January 2007 (Neutral Citation [2007] CAT 3), ruled that it had jurisdiction to substitute its own finding for OFCOM's decision, rejecting T-Mobile's argument that the Tribunal's power was limited to remitting the matter for further investigation.
Issues
The key issue was whether the Competition Appeal Tribunal has jurisdiction to make its own findings on the merits of a case, including making an infringement decision, when reviewing OFCOM's non-infringement decision. T-Mobile argued that the Tribunal could not make an infringement decision because OFCOM had not completed the necessary procedural steps to issue such a decision at the time. The Tribunal rejected this argument, finding that paragraph 3(2)(e) of Schedule 8 of the Competition Act 1998 permits the Tribunal to make any decision OFCOM could have made, including an infringement decision, when appropriate.
Holdings
The Tribunal held that it has jurisdiction to make its own decision on the merits, including infringement decisions, under paragraph 3(2)(e) of Schedule 8 of the Competition Act 1998. The Tribunal rejected T-Mobile's submission that its jurisdiction was limited to decisions OFCOM could have lawfully made at the time of its decision, and accepted VIP and OFCOM's submissions that the Tribunal's jurisdiction refers to the types of decisions OFCOM can make (infringement/non-infringement), not the procedure.
Legal Principles
The Competition Appeal Tribunal held that it has the power to make its own infringement decision under paragraph 3(2)(e) of Schedule 8 of the Competition Act 1998, rather than merely remitting the case to OFCOM. The Tribunal interpreted the phrase 'any decision which [OFCOM] could itself have made' to refer to the type of decision (infringement/non-infringement) rather than the procedure by which it was made. This interpretation was supported by the House of Commons statement during the passage of the Competition Bill in 1998, which stated that the Tribunal should be primarily concerned with the correctness of the conclusions in the appealed decision rather than how the decision was reached. The Tribunal also noted that its jurisdiction is wider than that of the European Court of Justice or the Court of First Instance in Community law cases.
Precedent Name
- Argos & Littlewoods v. OFT
- Aberdeen Journals v. DGFT
- Floe Telecom Limited v. OFCOM
- Pernod Ricard SA v. OFT
- Napp v. DGFT
- Burgess v. OFT
- Freeserve v. Director General of Telecommunications
Cited Statute
- EC Treaty
- Competition Act 1998
Judge Name
- Michael Davey
- Marion Simmons QC
- Sheila Hewitt
Passage Text
- If the appellant challenges a decision by a regulator, and establishes, on grounds taken in the notice of appeal, that the decision was wrong, whether as a matter of procedure or because of some misdirection of law or because the CAT takes a different view of the facts on the evidence before it, the Tribunal has a choice of a number of courses open to it. It may set aside the decision and remit the case to the regulator. It may feel able to decide itself what the correct result should have been, so that no remission or reference back is necessary.
- Schedule 8 paragraph 3 gives the Tribunal a wide jurisdiction. We consider that the true construction of paragraph 3(2)(e) of Schedule 8 refers to the types of decisions OFCOM can make (i.e. infringement/non-infringement etc.) and not to the procedure by which it makes them.
- T-Mobile submits that the words 'lawfully at the time it took its decision' should be inserted into paragraph 2 (d) and (e) and accordingly, where the decision appealed against is a non-infringement decision, the Tribunal has no jurisdiction to make an infringement decision. The Tribunal considers that this submission is totally misconceived. The submission fails to give any effect to the appeal on the merits jurisdiction of the Tribunal.