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Irish Court of Appeal allows €500 million spectrum 5G auction to proceed


On 22 December 2022, the Irish Court of Appeal handed down its judgment in which it overturned the High Court’s reasoning in granting a temporary stay in the context of a €500 million 5G spectrum auction, leading to it permitting the spectrum auction to proceed to its main stage.

In 2021, the mobile operator, Three, appealed the communication regulator’s (ComReg) decision setting out the terms of its auction award for 5G.  Three’s appeal submitted that the decision was vitiated by various material errors concerning the imposition of caps on the amount of spectrum that could be acquired by any one operator in the auction, as well as the chosen auction format. 

In June 2022, Three also applied for a stay of the award process pending the High Court’s ruling on its appeal.  In July 2022, the High Court granted such a stay, on the basis that it apprehended the High Court ruling on the main appeal was reasonably imminent and Three could suffer serious and irreparable harm if the auction proceeded prior to judgment. 

The Court of Appeal overturned the judge’s findings in granting the stay, and allowed the auction to proceed to the Main Award stage.  Three has also now discontinued its appeal against ComReg’s decision on the auction award.  The main interest of the Court of Appeal ruling is two-fold:

  1. It considers the issue of whether the availability of Francovich-type damages only against the State means that any harm suffered is reparable or irreparable and, relatedly, whether the EU law Zuckerfabrik principles on interim relief against EU measures also apply to national courts considering interim relief against national decisions implementing EU measures.  The Court of Appeal held, albeit purely obiter, that the Zuckerfabrik principles do apply in such a case, and thus approached the appeal on the basis that purely financial loss would only exceptionally amount to serious and irreparable harm; and
  2. It considers the level of probability that needs to be satisfied by an applicant for interim measures against a major State decision such as an auction of scarce resources and how one balances that against the need to ensure the integrity of any appeal against such a decision.  Here, the Court of Appeal emphasised the need for a good degree of probability, back with specific witness evidence.

The judgment is here.

Robert O'Donoghue KC and Margaret Gray KC acted for ComReg, instructed by Mason Hayes Curran LLP.