Competition

Section 195(5) of the Communications Act 2003 referred to the power that the decision-maker would “otherwise have”. It could not sensibly be read as referring to the power that the decision-maker “would otherwise have had” at the time of the original decision.

The power under s 45 to set conditions in the first place was indisputably a power to set them with prospective, not retrospective, effect. The purpose of the conditions was to regulate the future behaviour of undertakings with significant market power in markets where there was a lack of effective competition. That was made clear both by the EU Directives that the 2003 Act implemented, and by the terms of the 2003 Act itself. The power under s 45(1) of the 2003 Act was to set conditions binding the persons to whom they were applied, and the evident intention was to bind them in respect of their future behaviour.

An appeal was not rendered ineffective by