Guernsey’s Royal Court has overturned the regulator’s decision against Sure and JT, finding the Guernsey Competition & Regulatory Authority (GCRA) failed to follow proper legal process, and didn’t adhere to procedures.
The initial claim from the regulator was that Sure and JT had broken competition rules. The GCRA determined Sure and JT had violated competition law following its investigation.
Specifically, the GCRA alleged that Sure and JT had entered into agreements that prevented competition in Guernsey’s telecommunications market. The two companies disagreed however, and appealed the decision, claiming they had been encouraged by the States of Guernsey to explore the possibility of a shared 5G network.
What led to the successful appeal?
Sure and JT argued that the GCRA had failed to follow the correct legal process, specifically citing a breach of ‘Section 43 of the Competition (Guernsey) Ordinance, 2012’. They stated that the GCRA had not provided sufficient notice and opportunity for further representations after issuing a Statement of Objections (SSO), especially since the final decision differed from the SSO. Sure also felt that the GCRA had not conducted a fair hearing, and had already made up their mind about the verdict.
Section 43 of the local competition law relates to the procedures that the GCRA must follow when investigating potential breaches of competition law. Key aspects of this section include the GCRA issuing an SSO to businesses that it believes may have violated competition law. This SSO outlines the GCRA’s concerns and the evidence it has gathered.
Crucially, Section 43 also provides the business with the right to respond to the GCRA for the allegations made in the SSO. This is meant to ensure businesses have an opportunity to defend themselves and present their side of the story.
Essentially, Section 43 is designed to ensure procedural fairness in any competition law investigations. It proved to be the smoking gun in this case, as a key element brought forward in court.
The Royal Court agreed that the GCRA had failed to comply with Section 43, that the GCRA’s decision were based on grounds different from those outlined in the SSO, and that the companies were not given adequate opportunity to respond.
The Court criticised the GCRA’s approach to the appeal, deeming it “impermissible”, and stated that some of the other grounds for appeal would have been successful. The court subsequently allowed the appeals and set aside the GCRA’s decision.
Sure’s response
Sure has said it welcomes the court’s ruling, saying the GCRA failed its legal duties.
It added that it had always denied wrongdoing, and felt the ruling was “damning” for the GCRA, whose process was “deeply flawed” and “impermissible”.
Alistair Beak, Sure’s Group CEO, reflected on the cost to the island as a result of the drawn out situation.
“While we feel entirely vindicated by this outcome, we cannot help but conclude that this whole case has been a staggering waste of time, effort, and money. Since the first case was brought against Sure in 2019, the GCRA ignored the simple fact that Sure had been strongly encouraged by the States of Guernsey to explore the possibility of launching a single 5G network.
“We strongly believe that the States of Guernsey should be holding the GCRA’s Chief Executive, Chairman, and Board to account over what is, in our view, an appalling waste of taxpayers’ money, given the flawed approach taken by the regulator.”
Sure’s CEO went on to state the firm’s desire for proper regulation and said it will now focus on the 5G rollout following the “baseless” accusations.
“Sure welcomes proper, mature, and appropriate regulation, and the Guernsey taxpayer deserves a regulator that is focused on creating optimal market conditions to foster the investment and innovation needed to develop critical telecommunications infrastructure and digital services.
“Now that the spectre of this baseless legal case has been removed, Sure will focus fully on delivering next-generation 5G technology to Guernsey and building the networks that will futureproof the island and benefit islanders with faster speeds, improved coverage and greater security.”
Sure went on to point towards other cases which it says have potentially damaged the reputation of the GCRA.
“In the last four years, the GCRA has lost two other appeals – in cases against Guernsey Electricity and the Medical Specialist Group.”