Presentation

1. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 1
UK Scope of judicial review of NRAs decisions
Dr Adam Scott
Director of Studies, UK Competition Appeal Tribunal
The Task of the Competition Appeal Tribunal
A specialist court to scrutinize the detail of
regulatory decisions in a profound and
rigorous manner
Hutchison [2008] CAT 11 @ (164)

2. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 2
The Common Regulatory Framework
• Appeals – FD Article 4
• Member States shall ensure that the merits of the case
are duly taken into account
• Administrative appeals shall be subject to review by a
court or tribunal
UK’s bifurcated appeal system
• Appeals come to the CAT (Chairman plus 2)
• SMP Price control matters are referred to the
Competition and Markets Authority (CMA);
• An administrative panel (Chairman plus 3/4)
considers the grounds and makes a determination;
• Subject to judicial review by the CAT
• The CAT hears an appeal on other grounds, “on the
merits” and can then tell the NRA what to do next

3. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 3
First challenge: Hutchison [2005] CAT 39
• Suggested that the existence of a remedy meant a
higher standard of proof than balance of probabilities
• The CAT followed an Irish Hutchison judgment –
Decision No: 02/05 of the Electronic Communications
Appeals Panel in respect of appeal No: ECAP 2004/01
• The existence of a remedy did not mean a higher
standard of proof than balance of probabilities
• Differentiating C-12/03P Commission of the European
Communities v.Tetra Laval BV
Hutchison [2008] CAT 11 – correct ?
• 164 abbreviated …an appeal on the merits and the
Tribunal is not concerned solely with adequate reasoning
but also with whether those reasons are correct
• The Tribunal is a specialist court designed to be able to
scrutinise the detail of regulatory decisions in a
profound and rigorous manner
• The question for the Tribunal is not whether the decision
to impose a price control was within the range of
reasonable responses but whether the decision was the
right one.

4. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 4
Pay TV [2012] CAT 20
• Arguments:
• Has the NRA reached the right decision ?
• Is each element of the wholesale must-offer
obligation (WMO) offer justified and correctly
specified ?
• Counter arguments:
• Specialist NRA has a reasonable margin of discretion
• No right answer so the NRA must make choices
• NRA’s extensive work and conflict of evidence mean
that there was no single correct approach
Pay TV [2012] CAT 20 – relevant findings
• The CAT is not limited to investigating
unreasonableness, irrationality or going beyond a range
of reasonable responses (as in a judicial review)
• The CAT, given the grounds and the evidence, must
decide whether the NRA was wrong (as in taking
account of merits)
• The CAT should carefully consider the NRA’s decision
and give it due weight as this is not a de novo rehearing
• The CAT should not interfere unless satisfied that the
NRA was wrong

5. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 5
T-Mobile [2008] CAT 15 & [2008] EWCA Civ. 1372
• Regulations governing spectrum auctions – a statutory
exception to appeals on the merits to the CAT
• Argument: initially that judicial review was so non Article
4 compliant that the CAT should strike the exception
down and proceed
• Counter argument; judicial review by a regional court
could fulfil Article 4 requirements
• Counter argument upheld – judicial review could take
account of merits as required by Article 4
Direct effect of Article 4 – see T-Mobile (63)
• Article 4 does confer directly effective rights on the
appellants
• Following the Court of Justice in Cases C-462/99
Connect Austria Gesellschaft für Telekommunikation
GmbH v Telekom-Control-Kommission and C-426/05
Tele2 Telecommunication v Telekom-Control-
Kommission

6. Scott on Standard of Review, Brussels 20th January 2017
© 2017 Competition Appeal Tribunal 6
Reform – the Digital Economy Bill 2016-17
• Introduced by the Government in the House of Lords
• The Tribunal must decide the appeal, by reference to the
grounds of appeal set out in the notice of appeal, by
applying the same principles as would be applied by a
court on an application for judicial review
• Where (the Tribunal) quashes the whole or part of that
decision, (it may) remit the matter back to the decision-
maker with a direction to reconsider and make a new
decision in accordance with the ruling of the Tribunal
• Whilst remembering Article 4 FD whilst still relevant
The future, thanks and any questions
• How the CAT (and other courts including the EUCJ) will
interpret judicial review taking account of the merits we
shall have to wait and see
• Thank you for listening – any questions ?
• CAT website: catribunal.org.uk
• My e-mail address: adam.scott@btinternet.com