Ruling of the Tribunal on an application by VIP to amend its notice of appeal under rule 11 of the Competition Appeal Tribunal Rules 2003 and an application by OFCOM to reject the existing notice of appeal pursuant to rule 10 of those rules.
The applications arose from the judgment of the Court of Appeal in OFCOM and T-Mobile v Floe Telecom Ltd [2009] EWCA Civ 47 which held that the use of COMUGs without a licence was unlawful. VIP had given an undertaking to the Tribunal to abide by the determinations in Floe in its appeal against the rejection by OFCOM of VIP’s complaint that a refusal by T-Mobile to provide SIM cards amounted to an infringement of Article 82 EC and the Chapter II prohibition. In its application to amend its notice of appeal, VIP submitted that the UK domestic provisions which required a licence for the use of COMUGs were inconsistent with the European regulatory framework for telecommunications.
The Tribunal first considered VIP’s submission that the Tribunal was entitled to examine whether or not UK domestic provisions were compatible with European law when considering OFCOM’s determination of VIP’s complaint against T-Mobile. The Tribunal concluded that it did not have jurisdiction in the context of the appeal by VIP against a rejection of a complaint against T-Mobile to determine as a free-standing point that OFCOM should have set aside or disapplied the domestic legislation alleged by VIP to be inconsistent with the European regulatory framework.
The Tribunal next considered how the alleged illegality of the UK domestic legislation affected the characterisation of T-Mobile’s conduct as abusive under Article 82 EC or the Chapter II prohibition. The Tribunal concluded that the issue had been decided in OFCOM and T-Mobile’s favour by the European Court of Justice in Case C-198/01 Consorzio Industrie Fiammiferi (“CIF”) v Autorita Garante della Concurrenza e del Mercato [2003] ECR I-8055. Although, according to that judgment, OFCOM as an emanation of the State was obliged to disapply domestic UK provisions which were inconsistent with EC law, unless or until the decision to disapply the relevant UK domestic provisions became definitive, T-Mobile was shielded from all the consequences of an infringement of Articles 81 EC and 82 EC vis-à-vis both public authorities and other economic operators.
Consequently, T-Mobile could not be held liable under Article 82 EC or the Chapter II prohibition refusing to supply SIMs to VIP when VIP’s intention was to use those SIMs for activity contrary to the UK domestic provisions.
The Tribunal therefore ordered that VIP’s application to amend its notice of appeal be dismissed and that the notice of appeal be rejected.
