T-Mobile (UK) Ltd. & Anor v Office of Communications

Judicial review is sufficiently flexible to satisfy a directly effective European Union requirement that an appeal body duly take account of the merits. Its intensity and procedure must adapt to the governing legal context, although this does not require a fresh determination by a duplicate regulator.

A statutory exclusion of tribunal jurisdiction over regulations also covers an antecedent policy decision which is to be given effect by those regulations. Legislative and quasi-legislative decisions of a regulator are ordinarily challenged by judicial review where Parliament has systematically excluded them from a specialist tribunal’s appellate jurisdiction.

Ofcom decided, after consultation, to proceed with an auction of specified wireless spectrum before resolving the possible refarming of spectrum already licensed to mobile operators. T-Mobile and Telefónica O2 appealed to the Competition Appeal Tribunal, contending that the timing and structure of the proposed auction were unfair.

The Tribunal held that it lacked jurisdiction. T-Mobile also commenced judicial review proceedings, which were held in abeyance pending determination of jurisdiction.

The central issue on the operators’ appeal was whether the challenge belonged before the Tribunal under section 192 of the Communications Act 2003, consistently with article 4 of Directive 2002/21/EC, or had to proceed by judicial review.

1. Appeal dismissed unanimously. The Competition Appeal Tribunal had no jurisdiction. Any challenge to the Award had to proceed by judicial review.

2. Article 4 of Directive 2002/21/EC required an effective appeal mechanism before an independent body with appropriate expertise, in which the merits were duly taken into account. Judicial review could satisfy those requirements. Its principles and procedures were sufficiently flexible to adapt to the intensity of review required by European Union law. If necessary, the reviewing court could investigate merits and evidence more fully than under traditional domestic review.

3. The article 4 appeal was not a fresh regulatory determination. The appeal body had to examine whether the regulator had made a material error. It did not have to operate as a duplicate regulatory authority reconsidering the policy decision from the beginning. The same substantive standard would therefore govern whether the challenge proceeded before the Tribunal or by judicial review.

4. European Union law was neutral between those two domestic routes because judicial review supplied an effective remedy. There was consequently no basis for disapplying the statutory restriction on the Tribunal’s jurisdiction. The authorities requiring disapplication concerned situations in which domestic law otherwise denied effective protection of European Union rights.

5. On the domestic legislation, section 192 of the Communications Act 2003 excluded decisions specified in Schedule 8. Paragraph 40 of that Schedule covered decisions given effect by regulations under section 14 of the Wireless Telegraphy Act 2006. That exclusion necessarily encompassed both the regulations and the antecedent decision to make them. A contrary construction would permit simultaneous challenges to the policy decision before the Tribunal and to the resulting regulations by judicial review.

6. The asserted decision to hold the auction before refarming was not an independent appealable decision. It was the consequence of Ofcom’s decision to proceed immediately with regulations under section 14. Parliament had systematically excluded Ofcom’s legislative and quasi-legislative decisions from the Tribunal’s jurisdiction. Challenges to such measures were classically matters for judicial review.

• Court of Appeal (Civil Division): By [2008] EWCA Civ 1373, unanimously dismissed the operators’ appeal and held that their remedy, if any, lay in judicial review.
• Competition Appeal Tribunal: On 10 July 2008, held that it lacked jurisdiction to hear appeals against Ofcom’s Award. No citation is stated in the judgment.