On the basis of a fully reasoned decision, the Court of Appeal has dismissed an application for permission to appeal by Airwave Solutions Limited, Motorola Solutions UK Limited and Motorola Solutions Inc. (“Motorola”) against a judgment of the Competition Appeal Tribunal (the “Tribunal”), that upheld a decision of the Competition and Markets Authority (“CMA”) imposing a ‘charge control’ on the pricing of emergency communications services (the “CMA Decision”): see CAT ruling and CMA decision.
The CMA Decision relates to the supply of mobile communications for local and national emergency services under the “Airwave Network”. The CMA found that, after the expiry of the original term of the contracts governing such supply, the terms on which these services were provided involved an “adverse effect on competition” within the meaning of section 134 of the Enterprise Act 2002. The CMA found that Motorola would have been able to earn “supernormal” profits, amounting to around £1.2 billion in the period 2020-2029, and therefore imposed a ‘charge control’ restricting Motorola’s prices from August 2023 onwards.
The Court of Appeal refused permission to appeal on the basis that the Tribunal had rightly found that the CMA Decision reflected a legitimate exercise of balancing competing economic and factual considerations. In particular, the CMA had been entitled to find that the position of Motorola was materially different following the expiry of the original term, and in particular that the costs of building the Airwave Network had been fully paid for during that initial contract term.
Rhodri Thompson KC and Suzanne Rab acted for the Home Office on the appeal. They are also acting in an application for a collective proceedings order from the Tribunal to bring claims for damages against Motorola for the period prior to the charge control coming into force, 1 January 2020 to 31 July 2023. This will be one of the first cases involving a collective claim on behalf of public sector claimants.
The Court of Appeal judgment can be found at here.