Ruling of the Tribunal on the application made by the Competition Commission (the “Commission”) for the payment by Everything Everywhere Limited (“EE”) and Vodafone Limited (“Vodafone”) of its costs of, and arising out of, defending its determination dated 9 February 2012 (the “Determination”) before the Tribunal. EE and Vodafone challenged the Determination pursuant to section 193(7) of the Communications Act 2003 (the “2003 Act”).
Rule 55(2) of the Tribunal’s Rules provides that the Tribunal may, at its discretion, make an order “in relation to the payment of costs by one party to another”. The Tribunal held that, in defending its Determination against the challenges brought pursuant to section 193(7) of the 2003 Act, the Commission was not a “party” to the proceedings, within the meaning of Rule 55(2). On that basis the Tribunal lacked jurisdiction to make an order for the payment of the Commission’s costs. Nevertheless, in cases where a challenge is brought against a determination made by the Commission in relation to price control matters, the Commission is entitled to appear before the Tribunal in order to actively, but neutrally, assist the Tribunal. The Tribunal also accepted that, if an appropriate application were made in a future case, it has a discretion to join the Commission as a “party” but held that that discretion would be exercised only rarely.
As such, the Commission’s application for its costs was refused for lack of jurisdiction.
