Three Ireland (Hutchison) Ltd v Commission for Communications Regulation
| Jurisdiction | Ireland |
| Judge | Mr. Justice Maurice Collins |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] IECA 300 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2022/189 |
and
and
[2022] IECA 300
Haughton J.
Collins J.
Allen J.
Record Number: 2022/189
High Court Record Number: 2021/9 MCA
THE COURT OF APPEAL
Stay – Balance of interests – Regulation 7(2) of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 – Appellant appealing against a stay granted pursuant to Regulation 7(2) of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 – Whether intervention was required
Facts: The appellant, Commission for Communications Regulations (ComReg), appealed to the Court of Appeal against the judgment and order of the High Court (McDonald J) of 21 July 2022 staying the commencement by ComReg of the “Main Stage” of the auction process provided for in ComReg Decision D11/20 of 18 December 2020 (the Decision) and ComReg’s Information Memorandum and Draft Regulations of 16 April 2021 pending the determination of the appeal brought by the respondents Three Ireland (Hutchison) Ltd and Three Ireland Services (Hutchison) Ltd (Three), from that Decision or until further order. That stay was granted by the High Court pursuant to Regulation 7(2) of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011. On 8 November 2022, the Court of Appeal indicated to the parties that it had decided that the stay granted by the High Court should be varied so as to permit ComReg to commence the “Main Stage” of the auction process and to complete the auction process up to (but not including) notifying the winning bidders of their entitlement to apply for licences as provided for in paragraph 3.259 of the Information Memorandum, with ComReg being restrained from taking that or any subsequent steps in the auction process pending the determination of the proceedings in the High Court and/or further order. The Court of Appeal indicated that it would give its reasons for its decision later.
Held by Collins J that in the very particular (and, arguably, exceptional) circumstances, where in the absence of a stay, the impugned Decision could have produced new and potentially irreversible legal rights and relationships beyond the reach of the High Court adjudicating on Three’s appeal, the limited intervention of the Court of Appeal was required to preserve the effectiveness of that appeal.
The Court of Appeal, on 15 December 2022, when this judgment was at an advanced stage of preparation, was notified of the fact that Three had issued a motion in the High Court seeking leave to discontinue its appeal. The Court of Appeal was subsequently made aware that, on 19 December 2022, the High Court had made an order permitting the discontinuance of the appeal, with the consent of ComReg. In those circumstances, the order made by the Court of Appeal on 8 November 2022 must be discharged. Even so, the Court of Appeal took the view that, having given a decision on ComReg’s appeal on the promise that it would give its reasons later, it should proceed to give those reasons.
Appeal allowed.
JUDGMENT of Mr. Justice Maurice Collins delivered on 21 December 2022
This judgment concerns the appeal of Commission for Communications Regulations (“ ComReg”) against the Judgment and Order of the High Court (McDonald J) of 21 July 2022 staying the commencement by ComReg of the “Main Stage” of the auction process provided for in ComReg Decision D11/20 of 18 December 2020 1 (“ the Decision”) and ComReg's Information Memorandum and Draft Regulations of 16 April 2021 2 pending the determination of the appeal brought by Three Ireland (Hutchison) Limited and Three Ireland Services (Hutchison) Limited (collectively “ Three”) from that Decision or until further order.
That stay was granted by the High Court pursuant to Regulation 7(2) of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (hereafter, “ the Framework Regulations”). 3 The application for a stay — which was vigorously contested by ComReg — was heard over two days in the High Court (on 7 and 8 July 2022) with the Judge giving a detailed judgment on 20 July 2022. I make further reference to his judgment below.
ComReg's appeal was given an early hearing in this Court and was listed for a one day hearing on 19 October 2022. It did not conclude that day however and the hearing resumed, and concluded, on 25 October 2022.
On 8 November 2022, the Court informed the parties that it had decided that the stay granted by the High Court should be varied so as to permit ComReg to commence the “ Main Stage” of the auction process and to complete the auction process up to (but not including) notifying the Winning Bidders of their entitlement to apply for licences as provided for in paragraph 3.259 of the Information Memorandum, with ComReg being restrained from taking that or any subsequent steps in the auction process pending the determination of the proceedings in the High Court and/or further Order. The Court indicated that it would give its reasons for its decision later. This judgment sets out my reasons for that decision.
ComReg is a statutory body established by Part 2 of the Communications Regulation Act 2002 (to which, as amended, I shall refer as “ the 2002 Act”). ComReg has extensive and important functions in the area of telecommunications regulation: section 10 of the 2002 Act. Section 12 of the 2002 Act identifies the objectives of ComReg in carrying out those functions, which include the promotion of competition and the promotion of the interests of users of electronic communications within the EU. ComReg is the national regulatory authority (NRA) for the purposes of the many EU legislative measures that, to a significant extent, harmonise telecommunications regulation within the European Union and that are now consolidated in Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Recast) ( “the Recast Directive”)
One of ComReg's functions is to manage the radio frequency spectrum and make decisions regarding the allocation of rights of use of radio spectrum for electronic communications services. 4 Ensuring the efficient management and use of the radio frequency spectrum is one of ComReg's statutory objectives under section 12 of the 2002 Act. It is common case that decisions relating to spectrum allocation have significant implications for service providers, users and for the wider economy.
Following a very lengthy consultation process, Decision D11/20 was adopted by ComReg in December 2020. The Decision is concerned with the allocation of long-term rights of use across four spectrum bands, all of them suitable for mobile and wireless broadband (WBB). 5 According to ComReg (and this is not in dispute) this spectrum – and in particular the 700 MHz Duplex 6 — is critically important to the rollout of 5G mobile services in the State. That, in turn, is said by ComReg to be critically important to the future economic welfare of the State. Again, that is not in controversy. 7
The Decision is lengthy and complex. Including the Response to Consultation, the formal Decision Document and the many annexes, it runs to more than 900 pages. It references many previously published ComReg documents addressing various aspects of the award process. What follows is a brief, and inevitably simplistic, summary of its principal aspects insofar as they appear to be relevant to this appeal.
As already mentioned, the Decision is concerned with the allocation of long-term rights of use across four spectrum bands, the 700 MhZ Duplex, 2.1 GHz, 2.3 GHz and 2.6 GHz Bands. These bands are harmonised at EU level for the provision of WBB services.
ComReg proposes to award 470MHz of spectrum rights in aggregate, which represents a significant increase in the spectrum assigned to WBB services. It includes 6 “ blocks” of 700 MHz Duplex spectrum (each block consisting of 2 x 5 MHz of spectrum).
Sub-1 GHz spectrum (spectrum in the 700 MHz Duplex, 800 MHz and/or 900 MHz bands) is critical to the provision of mobile telephony services in Ireland because low frequency spectrum enables operators to achieve wide-area geographic coverage, particularly in rural areas and areas of low density of population, on a financially sustainable basis. Otherwise, the cost of achieving such coverage would be prohibitive. The 700 MHz band is described in the Decision as a “coverage band”.
Higher frequency spectrum is typically used to provide/improve capacity and performance and the 2.1 GHz, 2.3 GHz and 2.6 GHz Bands are described in the Decision as “ performance bands”.
There are three mobile network operators (“ MNOs”) in the State, Three, Vodafone and eir. Each already holds sub-1 GHZ spectrum, with Three holding the largest amount (50 MHz (5 x 2 x 5 MHz blocks) as against 40 MHz (4 blocks) held by Vodafone and eir). Three also holds more spectrum overall (i.e. including supra 1 GHz spectrum) than Vodafone or eir (280 MHz as against 225 MHz (Vodafone) and 185 MHz (eir)).
It is evident from the Decision that ComReg was concerned that the award process might result in “ extreme asymmetries” that could damage competition. In particular, ComReg was concerned that Three and Vodafone could engage in “strategic bidding” that might result in eir being denied further 700 MHz spectrum which would undermine eir's capacity to compete effectively in the mobile market. As a result, ComReg decided to impose a spectrum...
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