On balance, and on the specific facts of this case, we provisionally consider that the principles of legal and regulatory certainty and the potential unfairness to Openreach of requiring it to repay sums that it charged in compliance with binding regulation at the time, outweigh the arguments that suggest that not to require repayment would result in an unfair outcome for Opal and Sky.
We note that Ofcom was found to have set the 2009 price control incorrectly and in that sense there was some overpayment by Opal and Sky to Openreach for the period before the revised price control came into effect. However we also note our view that Openreach complied with the regulatory obligations which Ofcom had set. We consider that legal and regulatory certainty in conditions set by Ofcom is important.
We acknowledge that the sums sought by Opal and Sky are not in themselves insignificant, but we also consider that in the context of the overall value of the services provided, any harm to competition that arose during the relevant period was limited, and it is not clear that any retrospective repayment now would remove any alleged competition distortion or economic inefficiency.
If we were satisfied that a repayment was likely to have a positive effect on consumers or competition, either directly or indirectly, this could alter the balance of relevant factors in favour of ordering a repayment. However, we note in this regard our view that, in the circumstances of these Disputes, a repayment would be unlikely to have a significant impact (positive or negative) on competition or consumers.