Anneli Howard KC and Jack Williams act successfully for Home Office in Airwaves charge control review

The Competition Appeal Tribunal has handed down judgment in relation to an application under section 179 of the Enterprise Act 2002 by Motorola for review of the Competition and Markets Authority’s (“CMA”) Final Report on “Mobile radio network services” dated 5 April 2023.

The Decision concerns the supply of communications network services for emergency personnel via the “Airwave network”. It determined that there are features of the relevant market which cause an “adverse effect on competition” (“AEC”) within the meaning of section 134 of the Act, and imposed a charge control remedy that will reduce the price payable by the Home Office and other governmental departments for the services below the contractually agreed price.

The Home Office is the main contracting party with Motorola and the primary customer for the supply of the relevant network services for public safety (and ancillary services) in Great Britain.

Motorola sought an Order that the Decision be quashed and remitted to the CMA on the following grounds:

• Ground 1: The CMA erred in its approach when finding that there was an AEC, and failed to take its own findings on competitive constraints into account when conducting its competitive assessment.
• Ground 2: The CMA relied on an unlawful “profitability analysis” in reaching its conclusions on both the existence of an AEC and its proposed remedy.

The Tribunal dismissed both grounds of appeal, holding that:

• Ground 1: There had been no failure by the CMA to take into account a relevant consideration, nor was there any inconsistency between its findings on market definition and those made in its competitive assessment.
• Ground 2: The CMA was entitled to a degree of latitude in how it approached its profitability assessment; the approach it adopted was not irrational or inconsistent.

Anneli Howard KC, Jack Williams and Suzanne Rab from Serle Court instructed by TLT LLP acted for the Home Office, intervening in support of the CMA’s Decision. Josh Holmes KC acted for the CMA at an earlier stage of the proceedings.