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I confess to having found this case a troublesome one. Ratio |
Is it a case in which the authorities could provide the appropriate facilities outside the state hospital if they chose to do so? If it is, then in my view the tribunal should at least make an order at the first hearing, even if the search eventually proves fruitless so that the order has to be recalled. Ratio |
Alternatively, is it a case where the patients therapeutic needs will genuinely be better met in the state hospital than they would be outside it? This is obviously relevant to factor (f) in section 1(3) (para 14 above), the importance of providing the maximum benefit to the patient, and to section 1(6) (para 21), the ... |
Those are factual matters for the tribunal, but I agree with Lord Reed that the evidence that the forensic psychology facilities at the state hospital were better than anywhere else, and that the patient would be more inclined to engage with them if he were still there (and thus had the incentive to demonstrate that he... |
So in my view the tribunal was entitled to take the view that the patients therapeutic needs would be better met in the state hospital. Ratio |
As Lord Reed has made clear (para 23), the obligation in section 1(4) is of a different nature from the obligation to consider the various matters listed in section 1(3), (5) and (6). Ratio |
It is not a matter to be taken into account. Ratio |
It is the manner in which the discretion is to be exercised, that is, the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Ratio |
Generally speaking, one would expect that if a patient does not need to be detained with the level of security that can only be provided at the state hospital, the minimum restriction on the patients freedom that is necessary in the circumstances will be found elsewhere. Ratio |
Once again, the object of the legislation would be defeated if the authorities were able to say that they had chosen to provide medium secure facilities in such a way as to make it difficult for people like this patient to move on. Ratio |
They might, for example, provide single sex accommodation where patients would not come into unsupervised contact with women until they were ready. Ratio |
However, I agree with Lord Reed (para 56) that risk, whether to the patient or others, is not irrelevant to the exercise of the tribunals discretion. Ratio |
It is inherent in factors 1(3)(f) and 1(6). Ratio |
This in turn feeds into what is necessary for the purpose of section 1(4). Ratio |
So the tribunal could conclude that, in the light of the patients treatment needs and the risks he posed either to himself or others, the restrictions on his freedom which would be necessary in a medium secure unit would in fact be greater than those entailed in staying in the state hospital. Ratio |
But I would hope that among the factors it considers when reaching that conclusion are the wishes and feelings of the patient (section 1(3)(a)). Ratio |
It could be that a patient is willing to accept a greater restriction on his freedom for the sake of the opportunity to leave the state hospital. Ratio |
It is therefore with a degree of reluctance that I conclude, for the reasons given by Lord Reed, that the tribunal was entitled to reach the conclusion that they did and that therefore this appeal must be dismissed. RPC |
It has, however, provided the court with a useful opportunity, both to clarify how these provisions are meant to work, and to sound some warning bells as to how they should not work. RPC |
These appeals arise out of a dispute between British Telecommunications Plc, whom I shall call BT, and four mobile network operators. FAC |
The dispute is about the termination charges which BT is entitled to charge to mobile network operators for putting calls from the latters networks through to BT fixed lines with associated 08 numbers. Ratio |
The dispute is a highly technical one, both factually and legally, and like most such disputes involves a surfeit of acronyms. Ratio |
But it raises issues of great importance to the telecommunications industry, to its regulator, and indirectly to millions of consumers. Ratio |
The following summary is a gross over-simplification but is sufficient for present purposes. FAC |
In principle, the cost of a call is charged to the caller by the originating communications provider to which he subscribes (a CP, in the jargon of the business). FAC |
Out of its charges to the caller, the originating CP must pay charges to the terminating network or to an intermediate carrier if there is one. FAC |
08 numbers are known as non-geographic numbers. FAC |
They are allocated to fixed line subscribers, and automatically translated into the appropriate geographic number in the course of transmission. FAC |
Where the call originates from another fixed line, an 08 number allows the subscriber to whom that number has been allocated to receive it on the basis that the caller will be charged at a standard, and generally reduced, charge. FAC |
Calls to 080 numbers are free to fixed line callers except where charges are notified at the beginning of the call. FAC |
Calls to 0845 numbers are charged to fixed line callers by the originating CP at its standard local call rate. FAC |
Calls to 0870 numbers are charged to fixed line callers by the originating CP at its standard national call rate except where different charges have been published. FAC |
In each case, the terminating CP will collect a termination charge from the CP from which it received the call. FAC |
However, where calls originate from a mobile network operator, that operator will commonly charge the caller for a call to a 080 number, or charge him more than the standard local or national rate for a call to a 0845 or 0870 number. FAC |
In 2009 BT notified mobile network operators of a revised scheme of termination charges for 08 numbers. FAC |
The defining feature of the new scheme was that mobile network operators would be charged at a rate which varied according to the amount which the originating network charged the caller. FAC |
The higher the charges to the caller, the greater the termination charge. FAC |
The new scheme was rejected by the four mobile network operators party to these appeals. FAC |
The issue was submitted to the Office of Communications (Ofcom) under a statutory dispute resolution procedure. FAC |
Appeal lies from Ofcom to the Competition Appeal Tribunal, and from them on points of law only to the Court of Appeal. RLC |
Ofcom decided that BT should not be allowed to introduce the new charging scheme. RLC |
The Competition Appeal Tribunal overturned that decision and decided that they should. RLC |
The Court of Appeal restored the original decision of Ofcom. RLC |
The legal framework FAC |
The sector is regulated under a pan-European regulatory scheme known as the Common Regulatory Framework. FAC |
The objective of the scheme is to ensure end- to-end connectivity on a common basis throughout the EU, without distortions arising from anti-competitive behaviour or restrictions arising from national law or practices. FAC |
It is contained in a number of Directives, all issued on 7 March 2002. FAC |
Two of these are important for present purposes. FAC |
They are Directive 2002/21/EC, known as the Framework Directive and Directive 2002/19/EC known as the Access Directive. FAC |
They were amended in 2009, with a deadline for transposition in 2011, after the time which is relevant for the present appeal. FAC |
I shall refer to them below in their unamended form. FAC |
They refer to each other, and have to be construed together. FAC |
The Directives STA |
The background to the Directives, and previous Directives on the same subject, is the progressive liberalisation of the European telecommunications market which had previously been dominated by state-controlled monopolies. FAC |
The Framework Directive recites, at Recital (1), that the current regulatory framework under previous Directives has been successful in creating the conditions for effective competition in the telecommunications sector during the transition from monopoly to full competition. FAC |
Recital (25) records that it may still be necessary to impose ex ante obligations on CPs to ensure the development of a competitive market, where CPs exceed a given threshold of market power, but that the relevant threshold should now correspond to the concept of dominance as defined in the case-law of the Court of Jus... |
Recital (27) recites: (27) It is essential that ex ante regulatory obligations should only be imposed where there is not effective competition, i.e. in markets where there are one or more undertakings with significant market power, and where national and Community competition law remedies are not sufficient to address ... |
Subject to ex ante regulation in circumstances where there is not effective competition, the scheme of the Directives is permissive. FAC |
The Access Directive recites: (5) In an open and competitive market, there should be no restrictions that prevent undertakings from negotiating access and interconnection arrangements between themselves, in particular on cross-border agreements, subject to the competition rules of the Treaty. FAC |
In the context of achieving a more efficient, truly pan-European market, with effective competition, more choice and competitive services to consumers, undertakings which receive requests for access or interconnection should in principle conclude such agreements on a commercial basis, and negotiate in good faith. FAC |
(6) In markets where there continue to be large differences in negotiating power between undertakings, and where some undertakings rely on infrastructure provided by others for delivery of their services, it is appropriate to establish a framework to ensure that the market functions effectively. FAC |
National regulatory authorities should have the power to secure, where commercial negotiation fails, adequate access and interconnection and interoperability of services in the interest of end-users. FAC |
In particular, they may ensure end-to-end connectivity by imposing proportionate obligations on undertakings that control access to end-users. FAC |
(14) Directive 97/33/EC laid down a range of obligations to be imposed on undertakings with significant market power, namely transparency, non-discrimination, accounting separation, access, and price control including cost orientation. FAC |
This range of possible obligations should be maintained but, in addition, they should be established as a set of maximum obligations that can be applied to undertakings, in order to avoid over-regulation. FAC |
(20) Price control may be necessary when market analysis in a particular market reveals inefficient competition. FAC |
The regulatory intervention may be relatively light, such as an obligation that prices for carrier selection are reasonable as laid down in Directive 97/33/EC, or much heavier such as an obligation that prices are cost oriented to provide full justification for those prices where competition is not sufficiently strong ... |
In particular, operators with significant market power should avoid a price squeeze whereby the difference between their retail prices and the interconnection prices charged to competitors who provide similar retail services is not adequate to ensure sustainable competition. FAC |
The general objectives of the scheme are identified by Articles 7.1 and 8 of the Framework Directive (as in force at the relevant time). STA |
They provide: Article 7 Consolidating the internal market for electronic communications 1. STA |
In carrying out their tasks under this Directive and the Specific Directives, national regulatory authorities shall take the utmost account of the objectives set out in Article 8, including in so far as they relate to the functioning of the internal market. STA |
Article 8 Policy objectives and regulatory principles 1. STA |
Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. STA |
Such measures shall be proportionate to those objectives. STA |
Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities take the utmost account of the desirability of making regulations technologically neutral. STA |
National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism. STA |
2 STA |
The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia: (a) ensuring that users, including disabled users, derive maximum benefit in terms of choice, price, and quality;... |
The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia: (a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive); (b) ensuring a high level of protection for consumers in their dealings with ... |
Detailed provision for the terms of interconnection between CPs is contained in the Access Directive. STA |
Article 1 provides: Article 1 Scope and aim 1. STA |
Within the framework set out in Directive 2002/21/EC (Framework Directive), this Directive harmonises the way in which Member States regulate access to, and interconnection of, electronic communications networks and associated facilities. STA |
The aim is to establish a regulatory framework, in accordance with internal market principles, for the relationships between suppliers of networks and services that will result in sustainable competition, interoperability of electronic communications services and consumer benefits. STA |
The key element of the system for achieving these objects is the legal relationship between CPs. STA |
This is embodied in interconnection terms agreed between them, generally in a series of bilateral contracts. STA |
The relevant provisions of the Access Directive are Articles 4 and 5. STA |
Article 4 Rights and obligations for undertakings 1. STA |
Operators of public communications networks shall have a right and when requested by other undertakings so authorised, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of servi... |
Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 5, 6, 7 and 8. STA |
Article 5 Powers and responsibilities of the national regulatory authorities with regard to access and interconnection 1. STA |
National regulatory authorities shall, acting in pursuit of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and interoperability of services, exercising th... |
In particular, without prejudice to measures that may be taken regarding undertakings with significant market power in accordance with Article 8, national regulatory authorities shall be able to impose: (a) to the extent that is necessary to ensure end-to-end connectivity, obligations on undertakings that control acces... |
Obligations and conditions imposed in accordance with paragraphs 1 and 2 shall be objective, transparent, proportionate and non- discriminatory, and shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive). STA |
4 STA |
With regard to access and interconnection, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified [or, in the absence of agreement between undertakings, at the request of either of the parties involved,] in order to secure the policy objectives ... |
The words in square brackets in Article 5.4 were removed by Directive 2009/140/EC. STA |
Articles 9 to 13 of the Access Directive represent the most intrusive parts of the regulatory scheme. STA |
They require member states to ensure that national regulatory authorities are empowered to impose obligations of transparency, non- discrimination, accounting separation, access to and use of specific network facilities, and price control and accounting obligations in certain cases. STA |
Article 8.3 provides that without prejudice to (among other provisions) Article 5.1, national regulatory authorities shall not impose the obligations set out in Articles 9 to 13 on operators that have not been designated in accordance with paragraph 2. STA |
Operators are designated in accordance with paragraph 2 of Article 8 if they have been shown to have significant market power in a specific market by a market analysis carried out in accordance with Article 16 of the Framework Directive. STA |
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