Judgment of the Tribunal on an application by Airwave Solutions Limited and Others (together, "the Applicants") for a review under section 179 of the Enterprise Act 2002 ("EA 2002") of the decision of the Competition and Markets Authority (the “CMA”) to make a market investigation reference (the "Reference”) under section 131 of the EA 2002 into the supply of land mobile radio network services for public safety in Great Britain contained in a report published by the CMA on 25 October 2021 entitled "Mobile radio network for the police and emergency services: Final report and decision on a market investigation reference" (“the Decision”). The Applicants challenged both (1) the decision to make the Reference, and (2) the timetable by which the Reference is to be determined. The Applicants advanced three grounds in support of the first challenge, which were, in summary:
Ground 1: The CMA proceeded on the basis of a flawed understanding of the contractual position.
Ground 2: The CMA's approach to the investment rate of return under the contract was irrational and contrary to established literature.
Ground 3: The CMA adopted an irrational approach to the market.
The Applicants' second challenge, in relation to the Administrative Timetable Decision, was on the basis that "the process by which the timetable was determined was unfair, the timetable is unfair, and the CMA's decision on the timetable was unreasoned".
For the reasons given in the Judgment, the Tribunal unanimously rejected each of the Applicants' Grounds 1 to 3. The Applicants' challenge to the Administrative Timetable Decision was also unanimously rejected.
