{"id":6574,"date":"2021-05-21T13:37:17","date_gmt":"2021-05-21T12:37:17","guid":{"rendered":"https:\/\/mbnl.co.uk\/?p=6574"},"modified":"2021-05-21T13:39:48","modified_gmt":"2021-05-21T12:39:48","slug":"mbnl-welcomes-clear-guidance-from-scottish-appeal-court-on-the-renewal-of-existing-code-agreements","status":"publish","type":"post","link":"https:\/\/mbnl.co.uk\/mbnl-welcomes-clear-guidance-from-scottish-appeal-court-on-the-renewal-of-existing-code-agreements\/","title":{"rendered":"MBNL welcomes clear guidance from Scottish appeal court on the renewal of existing Code agreements"},"content":{"rendered":"
<\/p>\n
In EE Limited & Hutchison 3G UK Limited v Duncan, the Inner House of the Court of Session (the Scottish appeal court) has provided some welcome guidance on the renewal of existing agreements between mobile network operators and site providers under the Electronic Communications Code (\u201cthe Code\u201d).<\/p>\n
EE Limited and Hutchison 3G UK Limited (\u201cEE and H3G\u201d) appealed against a decision of the Lands Tribunal for Scotland (\u201cthe Tribunal\u201d) dismissing their application for an order to terminate an existing agreement and replace it with a new agreement under the Code, for failure to prove a \u201cbusiness and technical need\u201d (pursuant to paragraph 34(13) of the Code) for the new agreement.<\/p>\n
The appeal court accepted EE and H3G\u2019s argument that the Tribunal had set the bar higher than the Code intended, stating:<\/p>\n
\u201c\u2026Parliament has identified certain minimum rights for operators, including sharing\/upgrading abilities and reduced outlays resulting from valuation on a no scheme basis. The view was taken that these are required if network operators and infrastructure providers are to be in a position to deliver the modern low-cost electronic communications system which Parliament wants and which business and the public at large expect.\u201d<\/p>\n
Reflecting on the policy aims of the Code, the appeal court observed that \u201cnew code rights would be phased in for existing sites when such agreements ended, with the old code becoming obsolete over time\u201d.<\/p>\n
EE and H3G\u2019s appeal was therefore allowed, and the original order of the Tribunal was quashed.<\/p>\n
This Scottish appeal court\u2019s decision highlights the aims of the Code regarding the transition of old Code agreements to new Code agreements, and provides much needed clarity on the availability of orders under Paragraph 34 of the Code for assisting all parties in negotiating the renewal of existing agreements.<\/p>\n