Abbey Mine Ltd v The Coal Authority

In a competitive statutory licensing process, fairness generally requires an applicant to know the material concerns affecting its own application and to have a proper opportunity to answer them. It does not ordinarily require disclosure of a competing application or all internal working documents. The scope of fairness depends on the statutory framework and the purpose of the review procedure.

A public authority regulating access to a scarce resource is not necessarily an undertaking for competition-law purposes. The Coal Authority was not an undertaking because it acted under statutory powers, could not itself mine coal, and was not carrying on an activity capable of being conducted by a private undertaking for profit. A competition-law challenge also requires evidence of the relevant market and an appreciable adverse effect.

Abbey Mine Limited sought judicial review of the Coal Authority’s decision to grant Corus UK Ltd a mining licence and associated coal rights in the Margam area. The claimant argued that the review process was unfair, that relevant matters had been ignored or irrelevant matters considered, and that the decision breached statutory competition duties, domestic and European competition law, and State aid rules.

The Authority had preferred Corus because its proposal was considered more deliverable, with clearer production targets, access arrangements, planning prospects and market demand. The central issues were whether the review procedure was fair and whether the Authority had lawfully applied its duties under the Coal Industry Act 1994.

1. Judicial review refused. The Authority’s decision was not unlawful, irrational, perverse or unreasonable.
2. Fairness was to be assessed in the light of the statutory framework and the purpose of the review. The review was not an adversarial comparison between applicants and was not an opportunity to restructure or improve the claimant’s application. The claimant was entitled to know the material concerns affecting its own application and to answer them.
3. There was no general duty to disclose the competing application or every document before the review panel. The Corus application and internal comparative working documents could properly remain undisclosed, provided the claimant had a fair opportunity to address matters which materially affected the decision. The failure to disclose one commentary document caused no prejudice.
4. The claimant had opportunities to address track record, time frames, production targets, surface rights, access and related matters. The Authority was entitled to rely on its experience and to regard Corus’s proposal as more deliverable. The alleged SSSI issue was unsupported by evidence and had not been raised at the hearing.
5. The Authority had properly considered its statutory duties, including the duty under section 3(4) to secure the best terms reasonably available. Best terms did not necessarily mean the highest price where deliverability and the likelihood of payment were relevant.
6. The Coal Authority was not an undertaking for Chapter I competition-law purposes. It was a public authority regulating exploitation of a scarce resource, was not in competition with another body, could not itself mine coal under sections 5(6) and 5(7), and acted under a statutory licensing regime. The reasoning in SAT v Eurocontrol [1994] ECR I-43 supported that conclusion.
7. Alternatively, the claimant had not shown by market analysis or evidence that the agreement had an appreciable adverse effect on prices, output, innovation, quality or variety. The Chapter II and article 82 allegations also failed because the relevant market and Corus’s dominance had not been established. The State aid argument failed because the Authority had selected the bid offering the best terms in the light of deliverability, not granted a subsidy.