Court of Appeal upholds appeal by EE finding that Ofcom’s statutory duties are non-delegable

11 Dec 2017 | by Monckton Chambers

EE Ltd v Ofcom [2017] EWCA Civ 1873

The Court of Appeal has upheld an appeal by EE Ltd. in the context of the Annual Licence Fees (ALFs) it and other mobile operators pay for the use of mobile spectrum. The High Court had found last year, dismissing EE’s application for judicial review, that Ofcom had been correct to conclude that it had no discretion but to set ALFs at the market value of the relevant spectrum. The High Court had agreed that Ofcom was obliged to do so in light of a direction by the Secretary of State to set fees at a level reflecting full market value. The Court of Appeal disagreed, finding instead that the power of the Secretary of State to direct Ofcom to exercise its functions in a specific manner did not absolve Ofcom from having regard to its statutory duties and objectives under the Communications Act and the EU Common Regulatory Framework. These duties were non-delegable, and the direction by the Secretary of State did not on the face of it preclude Ofcom from having regard to its wider objectives as it was required to.

Ofcom’s 2015 decision and its implementing Regulations which brought in a significant increase in ALFs have been quashed. Ofcom has been granted permission to appeal the matter to the Supreme Court.

Philip Woolfe and Stefan Kuppen acted for EE (led by Lord Pannick QC).

The judgment can be found here.