COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COMPETITION APPEAL
Vivien Rose (Chairman), Dr Arthur Pryor CB and
Adam Scott TD
1102/3/3/08 and 1103/3/3/08
Strand, London, WC2A 2LL
B e f o r e :
THE RT HON LORD JUSTICE JACOB
SIR WILLIAM ALDOUS
| T-Mobile (UK) Ltd & Telefónica 02 UK Ltd
|- and -
|Office of Communications
for the Appellant T-Mobile
Lord Pannick QC, Thomas de la Mare and Tom Richards (instructed by
Messrs Ashurst LLP) for the Appellant Telefónica
Miss Dinah Rose QC, Josh Holmes and Ben Lask (instructed by Ofcom)
for the Respondent
Hearing dates: 20 and 21 November 2008
Crown Copyright ©
Lord Justice Jacob:
The EU Law Arguments
i) it shall have "appropriate expertise available to it to enable it carry out its functions" ("the expertise requirement");
ii) "the merits of the case are duly taken into account" (the "merits requirement");
iii) "there is an effective appeal mechanism";
iv) If the appeal body is not judicial in character it must give reasons and its decision must be "subject to review by a court or tribunal within the meaning of Art. 234 of the Treaty."
s.29(1A) The High Court shall have jurisdiction to make mandatory, prohibiting and quashing orders in those classes of case in which, immediately before 1st May 2004, it had jurisdiction to make orders of mandamus, prohibition and certiorari respectively.
 Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department  2 AC 532, paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith  QB 517, 554.
 Moreover, it is for the national courts to interpret the procedural rules governing actions brought before them, such as the requirement for there to be a specific legal relationship between the applicant and the State, in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective, referred to at paragraph 37 above, of ensuring effective judicial protection of an individual's rights under Community law.
She said, correctly in my opinion, that this demonstrated an obligation on a national court to adapt its procedures as far as possible to ensure Community rights are protected. In setting the limits of what can be taken into account it follows that the JR court would itself conform to the requirements of Art. 4.
 … Those principles, whether applied by a court or a specialised tribunal, are flexible enough to be adapted to the particular statutory context.
 That, however, is essentially by the way. For the reasons earlier given I have concluded that what would be required on a substantive challenge here would be a full merits review of the propriety of the treatment proposed and, for that purpose, cross-examination of the specialists. I would allow this appeal.
Brooke LJ referred to the availability of a "full merits review" (see ) and Hale LJ said:
 … Super-Wednesbury is not enough. The claimant is entitled to a proper hearing, on the merits, of whether the statutory grounds for imposing this treatment upon him against his will are made out …
 Accordingly, the answer to the second question must be that Article 4 of the Framework Directive must be interpreted as meaning that the body responsible for hearing an appeal against a decision of the national regulatory authority must have at its disposal all the information necessary in order to decide on the merits of the appeal, including, if necessary, confidential information which that authority has taken into account in reaching the decision which is the subject of the appeal. However, that body must guarantee the confidentiality of the information in question whilst complying with the requirements of effective legal protection and ensuring protection of the rights of defence of the parties to the dispute.
I do not accept that Mobistar is authority for the suggested proposition. The case was about something quite different from the standard of review to be applied on appeal. It was about whether, on an appeal, confidential information used by the regulator must be disclosed to the appellant. That is a question of basic fairness – whatever the standard of review, the appellant cannot get going if he cannot see the basis of the impugned decision.
 Where application of national law in accordance with the requirements of Article 5a(3) of Directive 90/387 is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in the measure the application of which would, in the circumstances of the case, lead to a result contrary to that directive, whereas national law would comply with the directive if that provision was not applied (see, to that effect, Engelbrecht, paragraph 40).
 It follows that a national court or tribunal which satisfies the requirements of Article 5a(3) of Directive 90/387 and which would be competent to hear appeals against the decisions of the national regulating authorities if it was not prevented from doing so by a provision of national law which explicitly excluded its competence, such as Article 133(4) of the B-VG, has the obligation to disapply that provision.
 Therefore, the answer to the first question referred for a preliminary ruling must be that in order to ensure that national law is interpreted in compliance with Directive 90/387 and that the rights of individuals are effectively protected, national courts must determine whether the relevant provisions of their national law provide individuals with a right of appeal against decisions of the national regulatory authority which satisfies the criteria laid down in Article 5a(3) of Directive 90/387. If national law cannot be applied so as to comply with the requirements of Article 5a(3) of Directive 90/387, a national court or tribunal which satisfies those requirements and which would be competent to hear appeals against decisions of the national regulatory authority if it was not prevented from doing so by a provision of national law which explicitly excluded its competence, such as that at issue in the main proceedings, has the obligation to disapply that provision.
Lord Pannick submitted, on the hypothesis that s.192(a) of the CA 2003 precluded jurisdiction in the CAT, it should, as in Connect-Austria, be disapplied. But that is to ignore the reason why the ECJ said the Austrian provision limiting jurisdiction should be disapplied. It was because unless that were done, there would be no appeal remedy as required by EU law – no effective jurisdiction. So EU law had to trump national law. That is not this case – national law does provide a remedy in the shape of JR. There is no national law which needs to be trumped.
 In that regard, it is important to note that the principle of effective judicial protection is a general principle of Community law (see, to that effect, Case C-432/05 Unibet  ECR I-2271, paragraph 37 and the case-law cited).
 The Court has consistently held that, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law (citations omitted).
 The Member States, however, are responsible for ensuring that those rights are effectively protected in each case (citations omitted)
 In those circumstances, where the national legislature has chosen to confer on specialised courts jurisdiction to hear and determine actions based on the legislation transposing Directive 1999/70, the obligation which would be placed on individuals in the situation of the complainants – who sought to bring a claim based on an infringement of that legislation before such a specialised court – to bring at the same time a separate action before an ordinary court to assert the rights which they can derive directly from that directive in respect of the period between the deadline for transposing it and the date on which the transposing legislation entered into force, would be contrary to the principle of effectiveness if – which is for the referring court to ascertain – it would result in procedural disadvantages for those individuals, in terms, inter alia, of cost, duration and the rules of representation, such as to render excessively difficult the exercise of rights deriving from that directive.
That is miles from saying that where there is a specialist tribunal all claims must be put in that box.
Construction of the UK legislation
Sir William Aldous:
Lord Justice Tuckey:
s.192 Appeals against decisions by OFCOM, the Secretary of State etc
(1) This section applies to the following decisions—(a) a decision by OFCOM under this Part [or any of Parts 1 to 3 of the Wireless Telegraphy Act 2006] that is not a decision specified in Schedule 8;
(2) A person affected by a decision to which this section applies may appeal against it to the Tribunal.
(5) The notice of appeal must set out—(a) the provision under which the decision appealed against was taken; an
(b) the grounds of appeal.
(7) In this section and Schedule 8 references to a decision under an enactment—(a) include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but
(b) include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;
and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.
(8) For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.
Schedule 8 Decisions not Subject to Appeal
Wireless Telegraphy Act 2006
40 A decision given effect to—(a) by regulations under section 8(3), 12, 14, 18, 21, 23, 27, 30, 45 or 54 or paragraph 1 of Schedule 1 or paragraph 1 of Schedule 2;
(b) by an order under section 29 or 62.
s.14(1) Having regard to the desirability of promoting the optimal use of the electromagnetic spectrum OFCOM may by regulations provide that, in such cases as may be specified in the regulations, applications for wireless telegraphy licences must be made in accordance with a procedure that involves the making by the applicant of a bid specifying an amount that he is willing to pay to OFCOM in respect of the licence.
(12) Any party who is the subject of a decision by a national regulatory authority should have the right to appeal to a body that is independent of the parties involved. This body may be a court. Furthermore, any undertaking which considers that its applications for the granting of rights to install facilities have not been dealt with in accordance with the principles set out in this Directive should be entitled to appeal against such decisions. This appeal procedure is without prejudice to the division of competences within national judicial systems and to the rights of legal entities or natural persons under national law.
4 Right of Appeal
1. Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. Pending the outcome of any such appeal, the decision of the national regulatory authority shall stand, unless the appeal body decides otherwise.
2. Where the appeal body referred to in paragraph 1 is not judicial in character, written reasons for its decision shall always be given. Furthermore, in such a case, its decision shall be subject to review by a court or tribunal within the meaning of Article 234 of the Treaty.