2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The appellants sought damages for losses due to UK's restriction on commercial GSM gateways, alleging breaches of EU law. Rose J ruled against them, stating that the specific restriction was not justified but the general approach was sound. The EU principles for breaches were discussed, and it was found that the breaches were not sufficiently serious for liability.
Judgment
Lord Justice Richards :
Introduction
The appellants claim damages for loss alleged to have been suffered as a result of the United Kingdom’s maintenance in force of a restriction on the commercial use of a piece of telecommunications equipment known as a “GSM gateway”. They contend that the restriction, referred to in these proceedings as “the commercial use restriction”, was in breach of European Union law and that the breach was sufficiently serious to give rise to liability to damages under the principles in Cases C-6 & 9/90, Francovich v Italian Republic [1991] ECR I-5357 as developed in subsequent case-law. Their claim was dismissed by Rose J after a trial lasting almost four weeks. The judge herself granted permission to appeal.
Rose J’s judgment extends to 75 pages plus a confidential annex and provides a masterly account of the background and analysis of the factual and legal issues with which she had to deal (including several that do not arise on this appeal). I will cross-refer heavily to it, repeating only those matters that are central to the issues in this court.
As explained more fully at paragraphs 4-9 of her judgment, a GSM gateway contains one or more mobile SIM cards which are used to route telephone calls originating from a fixed line network so as to terminate on a mobile network. Calls routed in that way appear to originate on the same mobile network as that of the party called and thereby benefit from the reduced rates available for “on-net” mobile-to-mobile calls on the same network. The use of GSM gateways can be divided into three kinds:
a “self-use GSM gateway”, where a single customer buys and installs the GSM gateway for use in its own business;
a “commercial single-user GSM gateway” (or “COSUG”), where a commercial operator uses a GSM gateway to provide services to a single end-user, so that all the calls diverted through the gateway come from one user (though from multiple fixed lines used by that one user’s workforce);
a “commercial multi-user GSM gateway” (or “COMUG”), where a commercial operator uses a GSM gateway to provide services to multiple end users, so that the calls diverted through the gateway come from more than one user.
The appellants were GSM gateway operators (or were all so treated by the judge) who provided commercial services to business users, mainly in the form of COMUGs but also in the form of COSUGs. Their position is described at paragraphs 31-36 of Rose J’s judgment. It appears th