Presentation

1. Mr. Justice William McKechnie
Supreme Court of Ireland
Brussels, 20 January 2017
Scope of Judicial Review of
NRA’s Decisions in Ireland
Seminar for National Judges on the Role of the Judiciary
in the Changing Digital Single Market

2. Core Legislation
• Communications Regulation Act 2002
• Framework Regulations (2011)
• Access Regulations (2011)

3. The Framework Regulations
4. Right of appeal against decision of Regulator
- User/undertaking affected by decision of ComReg may appeal to
the H. Ct against the decision (28 days)
6. Powers of High Court with respect to appeals
(1) H. Ct to hear + determine appeal; may make such orders as it
considers appropriate
(2) Without limiting para. (1), H. Ct may make an order—
(a) affirming or setting aside all/part of the ComReg decision
(b) remitting the case to ComReg to be reconsidered, with or
without hearing further evidence, in accordance with the H. Ct’s
directions
7. Effect of appeal on operation of Regulator’s decision
(1) Lodging an appeal with the H. Ct does not affect operation/
implementation of the ComReg decision
(2) However, H. Ct may stay operation/implementation if necessary 
such a stay has effect for period specified or until H. Ct judgment

4. Statutory Appeals – General [1/2]
• Meaning/Purpose  b/y legality / rationality
• Words/Context  everything
• Domestic provisions  influenced by Union law
• Nature of decision-maker
• Function/power
– Supervisory role
– Monitoring role
– Advisory role
• Curial deference

5. Statutory Appeals – General [2/2]
• H. Ct
– De novo
– On the record
– Against error
– Point of law: certification
• H. Ct
– Confirm decision / prohibit issue of licence
– No reassessment of merits / substitution of views
– Serious and significant errors / series of errors
• H. Ct
– Confirm; amend; revoke decision
– Significant erroneous inference / root of decision
• H. Ct
– Issue of fact / law
– On the record / unless reasonable to so do
– Matters accepted/found by decision maker were correctly so accepted/found
Conclusion
 Pulled / multiple directions – sheer variety  shifting standards

6. Scope of Appeal under the
Framework Regulations
• Key case: Vodafone Ireland Limited v.
Commissioner for Communications
Regulation [2013] I.E.H.C. 382 (Cooke J.,
14 August 2013)

7. Vodafone
Background [1/4]
• Appeal against two decisions of ComReg
(“the SMP decision” and “the price control
decision”) imposing cost recovery and
pricing obligations on Vodafone in respect
of charges to other telecommunications
service providers for MVCT service
• Imposed maximum price for calls made to
a subscriber on its network by a subscriber
to another mobile network

8. Vodafone
Background [2/4]
• Could ComReg rely on Recommendation 2009/396/EC
of 7 May 2009 on Regulatory Treatment of Fixed and
Mobile Termination Rates in the EU?
• Recommendation stipulates that for the purpose of
implementing the price control obligations imposed on
an MVCT service, a particular cost recovery
methodology called “long-run incremental costs” (“L-
RIC cost recovery methodology”) (LRIC) is to be used
and applied by the addressee service providers.
• ComReg relied on the Recommendation as basis for
the contention that it was entitled to fix the MVCT rates
not by reference to the LRIC methodology but on a
“benchmarking” of results obtained by the NRAs
applying LRIC methodologies in a number of member
states.

9. Vodafone
Background [3/4]
Vodafone appealed, arguing that:
1. LRIC methodology is incompatible with the
relevant provisions of the Access Regulations
authorising the imposition of price control and cost
recovery obligations
2. ComReg acted unlawfully by fixing the MTR
(mobile termination rates) figures not by reference
to any actual costs of service providers in the Irish
market, but by “benchmarking”, i.e. by taking an
average of the corresponding prices fixed
according to the LRIC methodology as notified to
the Commission by NRAs in seven other member
states.

10. Vodafone
Background [4/4]:
ComReg responded that:
• The LRIC methodology and its
implementation by benchmarking are fully
compatible with the requirements of the
Regulations and the Directives and
ComReg is entitled to adopt both on the
basis of the reasons and analysis given in
the contested decisions and having regard
especially to its obligations to take “utmost
account” of the 2009 Recommendation.

11. Vodafone [1/8]
Scope of the Appeal
• Although uniformity in approach of H.Ct to statutory
appeals is desirable, the terms and scope of remedies
under available various statutory appeals invariably take
account of the particular subject matter, circumstances
and requirements of the administrative processes
concerned  especially where statutory remedy lies
against an authority charged with making determinations
in areas requiring economic, financial, scientific or
technological expertise
• Starting point and overriding principle in considering
scope of a statutory appeal and approach which Court
must take: appeal will be governed by the particular
terms in which the statutory right of appeal has been
created by the legislator (even more important where
appeal process has its origin at EU level)

12. Vodafone [2/8]
• Article 4 FD requires MS to provide users and
undertakings with a “right of appeal” against
decisions of an NRA
 does not impose any qualification on
nature/scope of appeal other than requirements
that it be effective and that the “merits of the
case” are taken into account.
• Appeal body is to have the appropriate expertise
available to it – thus clearly expected to fully
examine all technical, economic, financial or
other factors

13. Vodafone [3/8]
• Detailed transposition of Article 4 in Framework Regulations
does not curtail broad scope of the appeal
• Wide scope of the appeal, as compared with many other
statutory appeals, is evident from a number of points in the
Framework Regulations:-
- The H. Ct is to hear and determine the appeal and
make “such orders as it considers appropriate”;
- These may include setting aside a decision in whole or
in part;
- H. Ct is entitled (but not obliged) to remit a decision to
ComReg for reconsideration with or without directions
as to how that reconsideration is to be conducted; and
- Pending determination of the appeal, the Court may
stay the operation / implementation of a decision either
in whole or in part

14. Vodafone [4/8]
• No express mention of Art. 4 requirement to take
account of merits of the case, but clear from
Framework Regulations that an examination of
the substantive merits may be undertaken by the
Court when material factors of that kind are put in
issue on the appeal
• Thus “a relatively straightforward matter to so
define the scope and nature of the appeal and the
remedies available to be applied by the Court”
• Further issue: how badly “wrong” must appellant
demonstrate the decision to be in order to require
the Court to set it aside  what degree of gravity
of error on the part of ComReg must be
established if the appeal is to succeed?
• No definition of that standard in the legislative
provisions

15. Vodafone [5/8]
• Ct considered that the nuances of different
standards to be applied for distinct statutory appeal
procedures had no material bearing on the
approach to this case.
• First principle: nature/scope of each appeal is
governed by the particular terms of the legislation
• Standard to be applied is dictated by: subject
matter of decision under appeal; the type of
expertise deployed by the relevant decision maker;
the extent/quality of any consultation process; and
the degree of scrutiny expected of the H. Ct having
regard to the powers of annulment, alteration or
reformulation conferred

16. • Art. 4 and Reg. 4 embody an expectation
that H. Ct will, if necessary, exercise a
more extensive degree of scrutiny of
substantive aspects, including the merits,
of a ComReg decision, this because of the
requirement that the Court have
appropriate expertise available to it for the
purpose
• This contrasts with assumption made by
Keane C.J. Orange Limited that the
relevant areas of expertise would not be
available to the High Court
Vodafone: [6/8]

17. Vodafone [7/8]
Conclusion:
• Approach to appeal under Regulation 4 should be as
follows:
– If established that decision under appeal is vitiated by
a material error of law, inc. a significant failure to
comply with a mandatory requirement of the Regs or
a misinterpretation / misapplication of the Regs, H. Ct
should intervene to make an order appropriate to the
effect of that deficiency
– Should also intervene where decision is vitiated by a
serious and significant error or series of errors
– Having regard to apparent purpose of appeal in
requiring the merits to be taken into account, Ct is
also obliged to consider whether the decision is
“wrong” in the sense contended for by an appellant …

18. – However, to be wrong in that sense the Ct must find a
serious, significant and material mistake such that the
operation / implementation of the decision as it stands
would be manifestly unreasonable, disproportionate
or incompatible with the outcome sought to be
achieved through the regulatory remedies which
ComReg is entitled to impose.
– Distinction must be made in respect of technical and
policy decisions by the Regulator in choosing a
solution to the problem sought to be addressed. If
analysis conducted and expertise relied upon are free
from serious defect, and reasons for choosing the
particular solution are adequately explained, a
decision ought not be set aside upon the sole ground
that the appellant and its experts contend that a better
/ different solution was available
Vodafone [8/8]

19. Subsequent Developments
• Vodafone: appeal to Sup. Ct –
discontinued
• Eircom Ltd. v. ComReg [2015] IEHC 51-
settled
• No legislative measures pending
• Any further questions?

20. Framework Directive
Article 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.

21. Eircom Ltd. v. ComReg [2015] IEHC 51
Submissions: Appellant (Eircom)
• Scope of right of appeal must reflect Art. 4(1) FD –
means appeal on any/every aspect of merits
• Expected to examine fully technical / financial /
other matters factors raised by appellant &
necessary to determine appeal
• Standard of review not only greater than in judicial
review, but also than standard in Orange (statutory
appeal of reg. body)
• “Extensive degree of scrutiny” expected
• Thus question is two-fold: a) did ComReg exercise
its discretion reasonably; b) are the reasons
justifying the Decision relevant and sufficient

22. Respondent (ComReg)
• Says Eircom failed to identify applicable standard and
scope of review – asking only “is it right or wrong”
obscures scope of an appeal on the merits under Art.4
FD
• Says Eircom quotes from Vodafone case but not from
Cooke J’s conclusions (para. 32)
• A statutory appeal in which the merits must duly be
taken into account cannot be equated with a full appeal
on the merits and certainly not a de novo or fresh
hearing
• Not required to have “fully equipped duplicate regulatory
body waiting in the wings just for appeals” (Jacob LJ, T-
Mobile v. Ofcom)
• Vodafone case represents applicable approach; no basis
to depart from it; Eircom comes nowhere near satisfying
the test laid down therein

23. Notice Party (Vodafone)
• If decision vitiated by material error of law (inc.
significant failure to comply w/ a mandatory requirement
of Regs, or misinterpretation/misapplication of Regs), H.
Ct can and should intervene
• Ct should also intervene if it is establish that decision is
vitiated by a serious and significant error or series of
errors
• Also obliged to consider whether decision is “wrong” –
should be satisfied there is serious, significant and
material mistake such that implementation of decision
would be unreasonable, disproportionate or incompatible
with outcome intended to be achieved by a remedy
• However, if decision is free of serious defect and
cogently reasoned, should not be set aside on sole
ground that Appellant contends better solution was
available