Chief Minister set to target regulator

Wednesday 17 January 2018

The Chief Minister has got Jersey’s competition regulator in his sights after it was dealt a damning blow by the Royal Court for a fourth time last week – despite having apparently led ministers to believe the outcome would be different.

JCRA – the Jersey Competition and Regulatory Authority – accused ATF fuels of abusing a dominant market position in the Airport fuel farm by failing to supply an operator with fuel for resale and charging them more than previous suppliers.

ATF appealed against the decision in October last year and won their case, leading the Court to set aside the regulator’s decision – a move with potentially important consequences for the way in which the JCRA oversee local markets.

Following the appeal, Bailiff Sir William Bailhache published a detailed written judgment, rebutting each argument put forward by JCRA’s legal defence. They concluded that ATF’s actions had not resulted in any price penalty for their customers, and that the company was entitled to arrange its business “in a way that kept its own risks under control.” 

Pictured: Bailiff William Bailhache, presiding over the Royal Court, gave a series of detailed rebuttals in his judgement against the JCRA on the matter of airport fuel supply.

It was the fourth time the Royal Court has quashed a JCRA decision in under a decade, having previously lost against Clear Mobitel in 2011 and in 2013 and 2017 against JT.

Discussing the matter during questioning in yesterday's States Assembly, the Chief Minister, Senator Ian Gorst, suggested that the Council of Ministers had been misled over the strength of JCRA’s case, stating: “The outcome was not the outcome that was expected nor communicated to Ministers.”

His comments came in response to a question by Senator Philip Ozouf, who claimed that the recent court case had revealed a “systemic problem with CICRA” and asked what action would be taken to deal with the consequences of the judgement.

The Chief Minister responded that the Council of Ministers would consider the issue further and that they would require legal advice to process the implications of the judgement.

He said that, while it was “right that Ministers don’t interfere” with regulatory work, which he described as “critically important to communities like ours”, he said that it was important for political officials to consider the implications of the fourth judgement against the body.

Pictured: CICRA said they were disappointed with the Royal Court's findings.

“I expect that Ministers will be agreeing to a number of reviews,” he said. It is thought that such a review could end in a change in the remit of the regulator or replacements in the body’s board. 

Pressing the Chief Minister, Senator Ozouf asked whether it was still possible to have confidence in the body, given that the judgement was what he called a “complete and utter damnation” of the JCRA’s arguments. Senator Gorst declined to “pass judgement” on this, however, but reaffirmed that it was important to “ensure that markets are working in our community.”

CICRA’s Chief Executive, Michael Byrne, commented that the body was “disappointed” with the recent Royal Court judgement, but vowed to carefully consider how it would move forward in light of the Bailiff’s comments.

In a statement, he said: “Competition law has been key to lowering costs to Jersey consumers by at least £30m since the law came into effect in 2005; the decision to defend fundamental competition law principles in this appeal in order to protect competition was not made lightly. We will now look carefully at the arguments made in the judgment by the Jersey Royal Court and consider how we will respond.”