Appeals
Section 57: Decisions by OFCOM to impose regulatory conditions, impose penalties etc
256.Subsection (1) defines a 'qualifying decision' for the purposes of this section as a decision by OFCOM that:
imposes or modifies a regulatory condition;
gives, modifies or withdraws a direction, consent or approval to impose a regulatory condition as set out in paragraph 2 of Schedule 6;
imposes a penalty or gives or modifies a direction under Schedules 4, 7 or 8 (which relate to recovery of administrative charges, enforcement of regulatory requirements and information provisions respectively);
gives or modifies a direction under section 89A or 116(2A) of the Postal Services Act 2000 (terms and conditions for provision of postal services and the Postcode Address File); or
gives a direction under section 25(5) of the Consumers, Estate Agents and Redress Act 2007 (enforcement of requirements to give information to the National Consumer Council - which is now part of Consumer Focus).
257.Subsection (2) provides that a person affected by a qualifying decision (as defined in subsection 1) may appeal against it to the Competition Appeal Tribunal (the CAT).
258.Subsection (3) specifies that an appeal must be made by sending a notice of appeal to the CAT in accordance with rules made under section 15 of the Enterprise Act 2002. These rules are set out in a Statutory Instrument and can be found on the CAT website www.catribunal.org.uk. Subsection (4) requires that the notice of appeal must be sent within the period set out in the rules.
259.Subsection (5) requires the CAT, in determining an appeal under this section, to apply the same principles as would be applied by a court on an application for judicial review.
260.Subsection (6) provides that the CAT may either dismiss the appeal or quash all or part of the decision against which the appeal was made. If the CAT quashes all or part of the decision, subsection (7) provides that it may refer the matter back to the decision maker (OFCOM) directing them to reconsider and make a new decision which takes account of the ruling. Subsection (8) ensures that the CAT , in making such a direction, cannot require OFCOM to take action which they would not otherwise have the powers to take in relation to the decision.
261.Subsection (9) provides that the decision of the Regulator stands while an appeal is being made. The exception to this is in cases concerning a penalty of the imposition or enforcement of a regulatory condition.
Section 58: Appeals from the CAT
262.Subsection (1) provides that an appeal on a point of law may be made to the appropriate court (as set out in subsection (4) this is the Court of Appeal in England and Wales and in Northern Ireland, and the Court of Session in Scotland).
263.Subsection (2) provides that such an appeal may be brought by a party to the proceedings in the original appeal or by any other person who has a sufficient interest in the matter.
264.Subsection (3) provides that an appeal may be made only with the permission of the CAT or the appropriate court.
Section 59: Price control decisions
265.This section provides for an appeal to the Competition Commission against a price control decision on the grounds that OFCOM has made a material error (or errors). It also sets out the timeframe in which appeals must be determined.
266.An appeal must be made within two months of the original decision and must be made in accordance with the requirements of the Commission on the form of appeals or the way in which they must be made. The Commission must determine the appeal within four months of the day on which OFCOM refer the appeal or 6 months in exceptional circumstances. The making of an appeal against a decision does not suspend the effect of the decision whilst the appeal is being considered.
267.Subsection (6) provides that on determining the appeal, the Commission must dismiss the appeal, allow the appeal and make its own decision on the subject matter of the appeal or quash all or part of the price control decision to which the appeal relates.
268.The Commission may only allow the appeal, or quash all or part of the price control decision to which it relates, if it considers that OFCOM made a material error. Subsection (8) provides that, on quashing all or part of the price control decision, the Commission may refer the matter back to OFCOM with a direction to make a new decision in accordance with its ruling. The Commission may not direct OFCOM to take any action which they would not otherwise have the power to take.
269.Subsection (10) provides that OFCOM must give effect to any decision of the Commission as soon as is reasonably practicable after it is made.
270.Subsection (11) provides that the Commission may investigate any matter or do any other thing in order to allow the appeal or reach its own decision.
271.Subsection (12) provides that decisions made by the Competition Commission in respect of this section may be appealed to the CAT as provided for under section 55.
272.Subsection (13) defines a price control decision for the purposes of this section.
Section 60: section 59 supplementary
273.This section provides a power for the Competition Commission to make rules regulating the conduct of appeals under section 59.
274.Subsection (2) provides that the rules may impose time limits and other restrictions on the taking of evidence and the making of representations or observations at an oral hearing.
275.Subsection (5) provides that the Commission must consult in the making of its rules, and subsection (4) provides that the Commission must publish the rules that it makes.
276.Subsection (6) provides for the Secretary of State by order to apply the investigation powers the Commission currently has under the Enterprise Act 2002 in relation to its appeal function under section 59 and make provision for extending the period within which appeals must be determined when requirements as to attendance of witnesses and production of documents have not been complied with.
277.Subsection (7) ensures that an order made by the Secretary of State under subsection (6) cannot impose civil or criminal penalties at greater levels that those specified in the Enterprise Act 2002.
