Recall Support Services Ltd & Ors v Secretary of State for Culture, Media and Sport

Under the original Article 5 of the Authorisation Directive, public security could justify subjecting radio-frequency use to individual licensing rather than general authorisation. A national measure permitted by a harmonising directive did not require notification under Article 114(4) TFEU.

In the telecommunications context, harmful interference required extraneous or unwanted signals. Congestion caused by competing wanted signals did not qualify.

State liability required a manifest and grave disregard of EU obligations, assessed through all relevant circumstances. A limited, excusable infringement following detailed consideration of public-security concerns was not sufficiently serious, particularly where the governing rule lacked clarity and the European Commission had declined to pursue infringement proceedings.

The appellants operated commercial GSM gateways. They claimed damages arising from the United Kingdom’s continued restriction of their use, alleging infringement of the Authorisation Directive and a sufficiently serious breach for state liability under Francovich principles.

Rose J, in [2013] EWHC 3091 (Ch), held that public security justified the restriction for commercial multi-user gateways, but not commercial single-user gateways. The resulting limited breach was not sufficiently serious to attract damages.

The operators appealed on the interpretation and domestic implementation of Article 5 and on sufficient seriousness. The Secretary of State argued additionally that harmful interference justified the restriction and that public security also justified restricting commercial single-user gateways.

1. Appeal dismissed. Public security was available under the original Article 5 of the Authorisation Directive as a ground for requiring individual licences. The words “where possible, in particular” showed that harmful interference was not the sole permitted justification. The recitals, Article 3(1), and the wider regulatory framework confirmed that public-security measures were contemplated. The later amendment expressly referring to general-interest objectives clarified what had previously been implicit rather than effecting a substantive change (paras 18–29).

2. Article 114(4) TFEU required notification where a national provision conflicted with a harmonising measure. It did not apply to a measure falling within an exception permitted by the directive itself. The authorities relied upon concerned national measures directly conflicting with harmonising directives and were distinguishable (paras 30–31).

3. The domestic regime was an individual licensing regime rather than a complete prohibition. An application could be made and had to be determined on its merits, subject to judicial review. The absence of any realistic prospect that a licence would be granted did not convert the regime into a ban (paras 32–33).

4. The continued Wireless Telegraphy (Exemption) Regulations 2003 validly maintained the commercial-use restriction. To the extent that public security justified its application to multi-user gateways, it was compatible with Article 5. Doubts about whether section 5 of the Communications Act 2003 could override Ofcom’s statutory exemption duty did not determine that compatibility. Section 5(4) concerned suspension or restriction of an existing entitlement, not prevention of an entitlement arising (paras 53–59).

5. Harmful interference bore a technical telecommunications meaning. It required disturbance by an extraneous or unwanted signal. Congestion, blocked calls or degraded quality caused by competing wanted signals within a mobile operator’s network did not constitute interference for this purpose. The Secretary of State’s first additional ground therefore failed (paras 60–71).

6. The judge had allowed the national authorities an appropriate margin concerning public security but was entitled to examine the evidence closely. Her finding that the evidence did not justify treating commercial single-user gateways differently from self-use gateways disclosed no error. The second additional ground failed (paras 72–76).

7. The limited infringement concerning commercial single-user gateways was not a manifest and grave disregard of EU obligations. Article 5 lacked clarity; officials had considered the affected operators and public-security concerns in detail; the error was excusable; and the Commission’s decision not to pursue infringement proceedings pointed against sufficient seriousness. Even if defective domestic implementation produced a wider breach, that breach would have been inadvertent and excusable. It would still not attract Francovich damages (paras 77–89).

1. Court of Appeal (Civil Division): The appeal from [2013] EWHC 3091 (Ch) was dismissed. The court also rejected both additional grounds advanced by the Secretary of State.
2. High Court, Chancery Division: Rose J dismissed the damages claim. She held that public security justified restricting commercial multi-user GSM gateways, but not commercial single-user gateways, and that the resulting limited infringement was not sufficiently serious for state liability: [2013] EWHC 3091 (Ch).