THE Fair Trading Commission (FTC) has been given the go ahead to challenge at the United Kingdom-based Privy Council last year’s decision by the Court of Appeal on the Digicel/Claro merger.

The appellate court this week gave the FTC conditional leave to appeal its judgement that was delivered on December 19, 2014.

In that judgement, the appellate court upheld the FTC’s jurisdiction over telecommunications matters, rejecting Digicel’s argument to the contrary.

The Court of Appeal held that the specific agreement between Digicel and Claro is not governed by section 17 of the Fair Competition Act because there is no collusion in the agreement between Digicel and Claro.

But the court also held that, where the relevant minister approves the transfer of a licence under the Telecommunications Act, a subsequent agreement between the parties relating to the transfer of the licence cannot be reviewed by the FTC, as it could not have been the intention of Parliament for this to occur.

The merger was first approved by then Prime Minister Bruce Golding in August 2011 and took effect on March 1, 2012 when Claro ceased operating in Jamaica. The matter wound its way through the courts, ending with the December 2014 ruling by the appellate court.

In its Notice of Motion for Leave to Appeal to the Privy Council, the FTC, which is represented by Dr Delroy Beckford, is seeking clarification and a final judicial interpretation on a number of issues which, it argues, are matters of

public importance with implications for the enforcement of competition law in the Jamaican market.

These include whether it is necessary to prove collusion for an “agreement” to be found in breach of section 17 of the Fair Competition Act (FCA).

The FTC is of the view that there needs not be collusion or a conspiracy for an agreement to be caught by section 17 of the FCA, as the term “agreement” is not given any such narrow definition.

The FTC also argues that agreements with an “anti-competitive” effect on a market are also covered by section 17 of the FCA, “even if there is no anti-competitive purpose such as with collusive agreements”.

Regarding the specific agreement or transaction between Digicel and Claro, the FTC seeks final judicial determination on whether the FCA is excluded from the Telecommunications Act as it relates to “non-collusive agreements and mergers in the telecommunications sector where these are having or are likely to have an anti-competitive effect”.