CAT ruling on GSM Refarming EU Directive

The CAT has ruled today that the EU Refarming Directive 2009/114 does not grant O2 an automatic right to use GSM frequencies for UMTS services. The judgment is available here.

The case focuised on the notion of "making available" of 900 MHz for UMTS use, which according to the Directive should occur by 9 May. The Court considered that "making available" means that "any measures necessary should be put in place to ensure that, by 9th May 2010, the 900 MHz and 1800 MHz bands are available throughout EU Member States to be authorised for use with UMTS technology, and are thereby capable of being made use of".

Interestingly, the Court also notes that "O2 does not contend that the GSM Amendment Directive itself takes effect, without any action by OFCOM, to remove its licence restrictions. This concession is, in our judgment, fatal to O2’s approach".

It is also interesting to see how the CAT goes much further than deciding on O2's right to actually criticizing Ofcom's way of handling the implementation of the Directive.