Vodafone Ireland Ltd v Commission for Communications Regulation

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date10 December 2013
Neutral Citation[2013] IEHC 382
CourtHigh Court
Docket Number[2013 No. 146 COS]
Date10 December 2013
Vodafone Irl Ltd v Cmsn for Communications Regulation
MR JUSTICE COOKE
APPROVED TEXT
COMMERCIAL

BETWEEN

VODAFONE IRELAND LIMITED
APPELLANT

AND

COMMISSION FOR COMMUNICATIONS REGULATION
RESPONDENT

[2013] IEHC 382

[No. 465 MCA/2012]
[No. 8 COM/2013]

THE HIGH COURT

EUROPEAN LAW

Directives

Appeal against decisions of electronic communications networks and services regulator - Imposition of cost recovery and pricing obligations on appellant - Wholesale charges made to telecommunications service providers for mobile voice call termination - Application of domestic regulations - Whether methodology used incompatible with regulations - Whether statutory authority acted unlawfully - Scope of statutory appeal - Right of appeal - Market analysis - Price control decision - Grounds of appeal - Whether market analysis inadequate and flawed - Whether recourse to benchmarking unlawful - Powers of statutory authority - Effect of Directives - Orange ltd v Director of Telecoms (No 2) [2000] 4 IR 159; Rye Investments Ltd v Competition Authority [2009] IEHC 140, (Unrep, Cooke J, 19/3/2009); Ulster Bank Investment Funds Ltd v Financial Services Ombudsman [2006] IEHC 323, (Unrep, Finnegan P, 1/11/2006); Carricksdale Hotel Ltd v Controller of Patent Designs and Trademarks [2004] IEHC 83, [2004] IEHC 185, [2004] 3 IR 410; Everything Everywhere Ltd v Competition Commission [2013] EWHC Civ 154; Dunne v Minister for Fisheries [1984] IR 230; State (Keegan) v Stardust Compensation Tribunal [1986] IR 642; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748; MJ Gleeson v Competition Authority [1999] 1 ILRM 401; Hutchison 3G LT UK Ltd v Office of Communications [2008] CAT 11; T-Mobile (UK) Ltd v Office of Communications [2008] EWCA Civ 1373, [2009] 1 WLR 1565; T-Mobile (UK) Ltd v Office of Communications [2008] CAT 12; British Communications v Office of Communications [2011] EWCA Civ 245, [2011] 4 All ER 372; Telefonica O2 UK Ltd v British Telecommunications Plc [2012] EWCA Civ 1002, [2012] CAT 28; Grimaldi v Fonds des Maladies Professionnelles [1989] ECR 4407; Environmental Protection Agency v Neiphin Trading [2011] IEHC 67, [2011] 2 IR 575 and Vodafone Espana SA v Commission of the European Communities (Case T-109/06) [2007] ECR II-5151 considered - European Communities (Electronic Communications Networks and Services (Framework) Regulations 2011 (SI 333/2011) - European Communities (Electronic Communications Networks and Services (Access) Regulations 2011 (SI 334/2011) - Communications Regulation Act 2002 (No 20), s 6 - Council Directive 2001/19/EC - Council Directive 2002/21/EC - Appeal allowed in part; order made setting aside part of decision instrument (2012/465MCA - Cooke J - 14/8/2013) [2013] IEHC 382

Vodafone Ireland Limited v Commissioner for Communications Regulation

Facts: The appellant in these proceedings was a telecommunications service provider. The respondent was a statutory authority established by s. 6 of the Communications Regulation Act 2002 to regulate, among other things, electronic communication services and providers within the State. The respondent was also obliged to oversee the proper implementation of European Union measures in relation to these fields. On the 21 st November 2012, the respondent addressed two decisions to the appellant which it was argued had the effect of imposing certain cost recovery and pricing obligations upon the appellant in respect of the wholesale charges it was making to other telecommunications service providers for a service known as 'Mobile Voice Call Termination' ('MVCT'). It was said that the effect of these obligations was to limit the appellant (and other telecommunication service providers) to a maximum amount of cents per minutes it could charge for calls made by subscribers of different service providers to subscribers of its own service. These proceedings concerned the appeal of these two decisions brought by the appellant pursuant to Regulation 4 of the European Communities (Electronic Communications Networks and Services) (Framework) Regulations 2011 (S.I. No. 333 of 2011) ('the Framework Regulations').

The respondent"s had determined in the course of the two decisions that the appellant had 'significant market power' which was used to justify the imposition of the cost recovery and pricing obligations. The appellant argued that the respondent"s market analysis used to come to this conclusion was inadequate and flawed. It was not argued that the appellant did not have significant market power, but it was said that as the market analysis was not properly conducted it could not be used to justify the decision the cost recovery and pricing obligations. It was further argued that the extent of intrusion involved in setting the price control obligations could not be justified in accordance with the Framework Regulations. Likewise, it was said that the method of price control (namely the 'Pure BU-LRIC' method) was the most severe and intrusive form of price control and was a disproportionate measure as its effect would be go far beyond the aim of addressing any defects in competition. It was finally argued that the respondent"s interim measure of imposing certain rates that were based upon averages from seven other Member States ('benchmarking') was unlawful. These rates had been fixed pursuant to the Framework Regulations and the European Communities (Electronic Communications Networks and Services) (Access) Regulations 2011 (S.I. No. 334 of 2011) ('the Access Regulations')

Held by Cooke J that it was clear from a reading of the Framework and Access Regulations that they did not cater for the practice of 'benchmarking' in determining the maximum rates of the relevant services as an interim measure. It was particularly clear that such a methodology fell outside Regulation 13 of the Access Regulations. The Court was then obliged to interpret these Regulations in accordance with the European Union Directives that the Regulations were based upon. From a reading of the relevant Directives, it was held that these also did not support the calculation of a maximum price to be fixed by way of price control on a cost analysis other than that which relates to the operator upon which the control is to be imposed. Likewise, a consideration of the Commission Recommendation 2009/396/EC of 7 May, 2009, on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU, O.J. L124/67, 20.05.2009, ('the 2009 Recommendation') yielded the same conclusion. On that basis, it was held that the practice of fixing the rates of the price control on the basis of benchmarking did not have a legal basis. As a result, an order was made pursuant to Regulation 6(2)(a) of the Framework Regulations setting aside the decision instrument annexed to the decision on price control to the extent that it required the appellant to fix its MVCT rates in accordance with the benchmarking methodology.

In regards to the other grounds of appeal, it was held that it was not necessary to deal with these arguments in light of the fact the first ground of appeal that been successful. In particular, it was determined that the argument in regards to the Pure BU-LRIC methodology, which was to be put into place in fixing MVCT rates as soon as development was completed and it became available, were premature without the actual results of the methodology which would not become available until the completion of its development. The Court was not therefore in a position to determine whether it was a disproportionate measure.

Appeal allowed in part.

COMMUNICATIONS REGULATION ACT 2002 S6

EUROPEAN COMMUNITIES ACT 1972 S3

ORANGE LTD v DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

RYE INVESTMENTS LTD v COMPETITION AUTHORITY UNREP COOKE 19.3.2009 2009/50/12557 2009 IEHC 140

ULSTER BANK INVESTMENT FUNDS LTD v FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006/56/11976 2006 IEHC 323

CARRICKSDALE HOTTEL LTD v CONTROLLER OF PATENT DESIGNS & TRADEMARKS 2004 3 IR 410

EVERYTHING EVERYWHERE LTD v COMPETITION CMSN & ORS 2013 EWCA CIV 154 2012 CAT 11

EEC DIR 2002/21 ART 4

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES)(FRAMEWORK) REGS SI 333/2011 REG 7

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES)(FRAMEWORK) REGS SI 333/2011 REG 8

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES)(FRAMEWORK) REGS SI 333/2011 REG 9

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 263

DUNNE v MIN FOR FISHERIES 1984 IR 230

WADE ADMINISTRATIVE LAW 5ED 1982 34

ORANGE LTD v DIRECTOR OF TELECOM (NO 2) 2000 4 IR 159

POSTAL & TELECOMMUNICATION SERVICES ACT 1983 S111(2)

EEC DIR 97/13 ART 9(6)

POSTAL & TELECOMMUNICATION SERVICES ACT 1983 S111

POSTAL & TELECOMMUNICATION SERVICES ACT 1983 S111(2)(B)(I)

STATE (KEEGAN) v STARDUST COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

CANADA (DIRECTOR OF INVESTIGATION & RESEARCH) v SOUTHAM INC 1997 1 SCR 748

MJ GLEESON v COMPETITION AUTHORITY 1999 1 ILRM 401

COMMUNICATIONS ACT 2003 S192

HUTCHISON 3G LT UK LTD v OFFICE OF COMMUNICATIONS 2008 CAT 11

T-MOBILE (UK) LTD v OFFICE OF COMMUNICATIONS 2008 EWCA CIV 1373 2009 1 WLR 1565

T-MOBILE (UK) LTD v OFFICE OF COMMUNICATIONS 2008 CAT 12

BRITISH TELECOMMUNCIATIONS v OFFICE OF COMMUNICATIONS 2011 EWCA CIV 245 2011 4 AER 372

TELEFONICA O2 UK LTD & ORS v BRITISH TELECOMMUNICATIONS PLC 2012 EWCA CIV 1002 2012 CAT 28

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES)(FRAMEWORK) REGS SI 333/2011 REG 26(1)

EUROPEAN COMMUNITIES (ELECTRONIC COMMUNICATIONS NETWORKS & SERVICES)(FRAMEWORK) REGS SI 333/2011 REG 27(2)

EUROPEAN COMMUNITIES (ELECTRONIC...

To continue reading

Request your trial
3 cases
  • Three Ireland (Hutchison) Ltd v Commission for Communications Regulation
    • Ireland
    • Court of Appeal (Ireland)
    • 21 December 2022
    ...Those issues were closely analysed by the High Court (Cooke J) in Vodafone Ireland Ltd v Commission for Communications Regulations [2013] IEHC 382 and he expressed his conclusions thus: “32 Drawing all of these observations and considerations together, it seems to the Court that its approac......
  • Barry Sheehan Practising Under the Style of Barry Sheehan, Solicitor v Solicitors Disciplinary Tribunal
    • Ireland
    • Supreme Court
    • 16 September 2021
    ...legality. On an appeal the question is ‘right or wrong?’ On review the question is ‘lawful or unlawful?” 42 In Vodafone Ireland Ltd v. Commission for Communications Regulation [2013] IEHC 382, para 9., Cooke J. identified factors such as the power of the court to “… make such orders as it ......
  • Shannon LNG Ltd and Another v Commission for Energy Regulation and Others
    • Ireland
    • High Court
    • 11 December 2013
    ...(FRAMEWORK) REGS 2011 SI 333/2011 EEC DIR 21/2002 REG 4 VODAFONE IRL LTD v CMSN FOR COMMUNICATIONS REGULATION UNREP COOKE 14.8.2013 2013 IEHC 382 POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111 ORANGE v DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159 2000/15/5538 CANADA (DIRECTOR OF INVESTIGAT......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT