United Kingdom Competition Appeals Tribunal

Neutral citation: [2004] CAT 25

IN THE COMPETITION Case No. 1026/2/3/04

APPEAL TRIBUNAL

Victoria House

Bloomsbury Place

London WC1A.2EB

9 December 2004

Before: SIR CHRISTOPHER BELLAMY (The President) PROFESSOR JOHN PICKERING MS PATRICIA QUIGLEY Sitting as a Tribunal in England and Wales

BETWEEN:

WANADOO UK PLC (formerly FREESERVE.COM PLC) Appellant and
OFFICE OF COMMUNICATIONS Respondent
supported by
BT GROUP PLC Intervener

Mr Nicholas Green QC (instructed by Messrs Baker & McKenzie) appeared for the Appellant.

Mr Richard Fowler QC and Mr Meredith Pickford (instructed by The Director of Legal Services (Competition), Office of Communications) appeared for the Respondent.

Mr Gerald Barling QC and Miss Sarah Lee (instructed by the Head of Competition and Public Law, BT Retail) appeared for the Intervener.

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Transcribed from the Shorthand notes of Beverley F. Nunnery & Co. Official Shorthand Writers and Tape Transcribers Quality House, Quality Court, Chancery Lane, London WC2A 1HP Tel: 020 7831 5627 Fax: 020 7831 7737

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RULING: FUTURE CASE MANAGEMENT


 


THE PRESIDENT:

1. We have been discussing this morning various case management issues that arise in relation to Wanadoo's pending Appeal against OFCOM's Decision of 20 November 2003 in which OFCOM found that BT had not abused a dominant position contrary to the Chapter II prohibition in the two month period following March 2002.
2. The difficulty with managing the present appeal is that OFCOM is conducting a parallel investigation into the broadband market which commenced in April 2003, was shelved in July 2003 and recommenced in February 2004, but is not yet completed. In that parallel investigation OFCOM is investigating the period subsequent to that dealt with in the existing Decision of 20 November 2003.
3. As we understand it OFCOM served a statement of objections in that parallel investigation and an oral hearing has recently taken place. OFCOM tells us that in the light of BT's response to the statement of objections it feels it needs until June 2005 or thereabouts to issue a new statement of objections with a view to arriving at a Decision thereafter – whether a Decision of infringement or non-infringement is obviously not at this stage clear.
4. The result of this somewhat tangled situation is that the present appeal is effectively blocked by the existence of the parallel proceedings unless the Tribunal is able to take appropriate action to move matters along. We have had in our view a useful discussion this morning, and we have been much assisted by the presence of a senior OFCOM partner and executives in helping us understand the present situation. The obvious importance of competition law being able to be enforced expeditiously and by reference to rules that are manageable, reasonably clear, and publicly known, needs no further emphasis from us.
5. BT, the interveners in the present appeal, have protested vigorously this morning about the time being taken by the parallel investigation and about the burden that that places on BT's resources. Mention has been made in particular of issues that surround Broadband Basic, apparently introduced in March last year but which was not a subject of the first statement of objections in the parallel investigation, but is apparently now to be included in that investigation. Also, BT has particularly expressed concern about the lack of any cut-off date for the investigation.
6. Wanadoo, the appellant, has equally expressed concern about delay in this case and about the effectiveness of the underlying competition regime.
7. OFCOM has told us that one issue that has arisen subsequently to the statement of objections is the question of the relevant market and particularly whether narrowband and broadband should be included in the relevant market. We would have hoped that that issue, which would (we would have thought) have been subject to regulatory reflection in some detail over the years, should not unduly prolong the existing investigation. We are also assured that Broadband Basic is not a cause of the further time apparently required; although it is said to be part of the investigation it is not "on the critical path" of the inquiry in timing terms.
8. We think, if we may say so, in that latter latter regard that OFCOM's letter of 29 November 2004 to us was somewhat misleading in that respect and we would take this opportunity to emphasise the importance of clear and accurate information being given to the Tribunal.
9. The essential reason for the further investigation is therefore, as OFCOM tells us, that there are further lines of inquiry to be pursued, but quite properly we have not been able (and would not wish) to go into any detail as to what those lines of inquiry are.
10. No party is particularly enthusiastic about the present appeal being brought on before the parallel investigation being completed but, on the other hand, our experience in this case to date does not give grounds for tremendous optimism that existing timetables will necessarily be adhered to. The history of this matter is set out in some detail in the Tribunal's recent Judgment of 29 November 2004 in this case.
11. The Tribunal is therefore faced with a somewhat intractable situation. Quite apart from the interests of the parties, which we feel we must do our best to protect, this case is taking up a great deal of the Tribunal's own resources, which has a knock-on effect on other litigants in other cases before the Tribunal. We are also concerned that in this very important area there is a need for a clear decision on what the ground rules are in this particular market, and that is a problem that arises from the situation in which we find ourselves. It seems to us that the determination of what the ground rules are is quite an important consideration that we should bear in mind in deciding what we should do for case management purposes for the present appeal.
12. In our view, the best we can do, but it is to some extent the least of the various evils with which we are faced, is indeed to now set a provisional date for the hearing of the existing appeal, which we propose to set provisionally for the first open date after 1 July 2005. We would envisage that between now and then we would attempt to refine the issues in the existing appeal, so that that appeal would not be unduly burdensome in terms of resources, and would address certain important points of principle. Although there is an obvious downside to bringing the Appeal on, if it is brought on in a managed and measured way that would at least enable the Tribunal to address the points of principle that underlie the issues in this case, and give guidance on these points which, in the existing vacuum, we feel is urgently needed.
13. In order to follow that course we would need to adjourn the present Case Management Conference to a further Case Management Conference the date of which we propose to fix in consultation with the parties in early March. We do very much hope that everyone will bear in mind the importance of being able to observe deadlines in this particular sphere and where appropriate the dangers associated with allowing cut-off dates for investigations to be extended. We do draw attention to the fact that the Competition Commission (which operates under a regime of strict statutory deadlines) is able to deal with very complicated issues within the time available, and we do hope that that is an example that others can follow where appropriate in the circumstances.
14. We fully understand that all concerned in this case are grappling as very best they can with the very difficult issues that the proceedings present but that, as I have outlined it, is the view that we take from the point of view of case management in this particular case.

Thank you all very much for your help this morning.

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