EE Ltd v Office of Communications & Ors

EE Ltd v Office of Communications & Ors

The 2010 Direction did not exclude Ofcom's duty to consider Article 8 Framework Directive objectives when setting licence fees; Ofcom failed to give effect to the Direction as properly construed, and its interpretation was ultra vires.

Source-derived case information.

Parties
Appellant: EE Limited; Respondent: Office of Communications (Ofcom); Interested Party: Secretary of State for Culture, Media and Sport; Interested Party: Vodafone Limited; Interested Party: Telefónica O2 UK Limited; Interested Party: Hutchison 3G UK Limited
Jurisdiction
England and Wales
Judgment Date
22 November 2017
Procedural Posture
Judicial Review / Appeal
Outcome
Appeal allowed
Legal Topics
Spectrum Licensing, Regulatory Compliance, Statutory Interpretation, Judicial Review, Delegated Legislation
Telecommunications Administrative Law EU Law Spectrum Licensing Regulatory Compliance Statutory Interpretation Judicial Review Delegated Legislation

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Parties

EE Limited

Appellant

Office of Communications (Ofcom)

Respondent

Secretary of State for Culture, Media and Sport

Interested Party

Vodafone Limited

Interested Party

Telefónica O2 UK Limited

Interested Party

Hutchison 3G UK Limited

Interested Party

Procedural Posture

Judicial Review / Appeal

Legal Issues

  1. 1 Whether Ofcom correctly interpreted and applied the 2010 Direction in setting licence fees for radio spectrum.
  2. 2 Whether the 2010 Direction lawfully excluded Ofcom's duty to consider Article 8 Framework Directive objectives when setting fees.
  3. 3 Whether the Secretary of State's direction could override Ofcom's statutory and EU law duties.

Ratio Decidendi

The 2010 Direction did not exclude Ofcom's duty to consider Article 8 Framework Directive objectives when setting licence fees; Ofcom failed to give effect to the Direction as properly construed, and its interpretation was ultra vires.

Court Disposition

Appeal allowed

Orders

  • Ofcom must reconsider and set licence fees for the 900 MHz and 1800 MHz bands in accordance with Article 8 Framework Directive objectives.
  • Previous licence fee regulations set solely by reference to market value are quashed.