Better Regulation Unit: Consultation Paper on Regulatory Appeals

This Consultation Paper on Regulatory Appeals primarily focuses on appeals relating to major economic and sectoral regulatory authorities, such as: the Commission for Communications Regulation (ComReg); the Commission for Aviation Regulation (CAR); the Commission for Energy Regulation (CER); the Financial Regulator; the Competition Authority; and the Commission for Taxi Regulation.

It describes existing appeals mechanisms in place for these Regulators, sets out some of the issues that must be examined in designing or reviewing systems for appeals and invites submissions from interested parties. The Paper also poses a number of questions in relation to regulatory appeals to assist respondents with their submissions.

Responses to this consultation process should be sent to the Better Regulation Unit, Department of the Taoiseach, either by post or by email to the addresses below:

Mary Keenan
Better Regulation Unit
Department of the Taoiseach
Government Buildings
Dublin 2

By email: betterregulation@taoiseach.gov.ie

Please note that the deadline for receipt of submissions is 31 October 2006

Please specify if your response relates to a particular sector/appeals body
1. In respect of any of the six regulators under review, do you think that individuals are well-served in terms of:
(a) Accessibility to information/assistance for appealing against regulators’ decisions?
(b) Effectiveness of the service experienced?
(c) Recommendations as to the best way of dealing with consumer appeals?

2. Are there particular principles which you consider important in evaluating appeals mechanisms? If yes, please specify and comment on whether you consider current appeals provisions satisfy these principles.
3. Is the appeals mechanism operating efficiently?
4. Is the appeals mechanism cost effective for all parties and for the State?
5. Are the time and resources involved in appeals commensurate with the significance of the issue under appeal?
6. Does the appeals process deliver decisions sufficiently quickly to achieve legal certainty and avoid uncertainty for industry?
7. Do those hearing an appeal have equivalent expertise at their disposal to those making the original decision?
8. Do the processes appear to lead to a fair and balanced outcome?
9. Are the appeals procedures clear and accessible to potential appellants and to regulators?
10. Can the appeals mechanism deliver an enforceable decision or is another body required to endorse the decision and order compliance?
11. Are the provisions for setting up the appeals body, and for appeals from it, appropriate in terms of accountability?
12. Can the rules and structures that govern the appeals mechanism be adapted sufficiently quickly to match market, technological and other changes in the sector?
13. Are there appeals mechanisms in other jurisdictions which work well, and which should be considered in the Irish context? Please supply details.

Alternatives to Current Appeals Mechanisms
14. Are there other potential advantages/disadvantages of the appeals mechanisms detailed in Table 4.1 that are not identified in the table?
15. Do you agree with the potential advantages/disadvantages attributed to the various appeals mechanisms in Table 4.1?
16. Is there scope for using mediation/arbitration as an alternative to formal appeals mechanisms? Are there particular sectors where such alternative approaches could have particular applicability/value?
17. What are the relative merits of an expert appeals body compared with a specialist Court?
18. Would a Court supported by a panel of experts (along the lines of the UK Competition Appeals Tribunal) be appropriate in any of the sectors in question? Please explain why/why not.
19. Should an extension of the use of the Commercial Court to other sectors be considered? Should “commercial” be interpreted as including regulatory sectors?
20. Would the hearing of appeals in Courts using assessors be an appropriate alternative to an appeals panel?
21. (a) What are the relative merits of a single appeals body for a number of sectors compared with having a separate appeals body for each sector?
(b) Would it be possible and beneficial to have a single appeals body operating different rules fordifferent sectors?
22. What are the relative merits of a standing appeals body compared with an appeals panel formed for the duration of a particular appeal?
23. Should appellants be bound to appeal within certain timeframes? If yes, what is a realistic time period to set and are there any other considerations?
24. Are there mechanisms which could avoid vexatious or delaying appeals while at the same time ensuring that the right of appeal of citizens/undertakings is not unduly compromised?


Other procedural issues
25. Is there an optimum number of members for an appeals body and, if so, what is it?
26. Does this vary between a specialist Court, a specialist appeals panel, a sector-specific appeals panel and a single appeals panel, etc?
27. How should appointments to an appeals panel be made?
28. Should a mechanism be established whereby leave to appeal would need to be sought and granted? If so, what person/body should be given the power to grant or refuse leave to appeal?
29. Should appeals be allowed in relation to the facts on which the regulatory decision was based, or should appeals be confined to conclusions drawn by the regulator from these facts?
30. Should an appeals body have the power to remit the case to the regulator for a new decision, or the power to replace the regulator’s decision with its own? Should this vary from sector to sector?
31. Should the regulator’s decision stand during the appeals process? What would be the implications of such an approach? Should certain types of decisions stand?
32. Should there be scope for suspending parts of a decision and who should adjudicate on this?
33. Where a decision has not been suspended and an appeal is upheld, what type of remedy should be available for the appellant and who should decide this?
34. Are there any outstanding issues/challenges in improving appeals mechanisms that are not reflected in this Paper? Please specify.

As of 1 March, 2006, eleven appeals had been referred to ECAP:

• One appeal by Hutchinson 3G Ireland Limited was determined by an appeals panel finding in favour
  of the appellant;
• Six appeals concluded following a consent order for the annulment of ComReg decisions by an appeals
  panel. These six appeals related to findings of joint dominance by ComReg against Vodafone and O2; and
• Four appeals were withdrawn prior to a determination by an appeals panel.

Of these 11 appeals, only the Hutchinson case resulted in a detailed written judgement.