Phones 4U v EE Limited and others 2025: The Appeal

Introduction

In Phones 4U Ltd (in administration) (P4U) v EE Ltd and others¹, the Court of Appeal of England and Wales (COA) upheld the High Court’s dismissal of P4U’s claims against several major mobile network operators (MNOs) and their parent companies. The case arose from the collapse of P4U in September 2014, following decisions by, in turn, O2 (in 2012 and 2013), Vodafone (in August 2014) and EE (in September 2014) not to renew their supply agreements. P4U alleged that these decisions were the result of a collusive and anticompetitive concerted practice in breach of Article 101(1) TFEU and section 2 of the Competition Act 1998. The appeal focused on whether the High Court had erred in rejecting the claims of unlawful concerted practices and breach of contractual obligations.

 

Phones 4U v EE Ltd and others 2025

P4U’s main argument was that Mr Justice Roth erred in law by concluding that no concerted practice existed between O2 and EE, and by not applying the “Anic presumption”. The Anic presumption originates from the Commission v Anic Partecipazioni SpA case². It holds that once an undertaking is shown to have participated in a concerted practice, for example where one competitor receives competitively sensitive information from another, it is presumed to have taken that information into account in its own course of conduct unless it clearly distances itself from that information or otherwise can demonstrate that it did not take it into account.

The COA rejected P4U’s claim on the basis that there was insufficient evidence of a meeting of minds or coordination that would amount to an agreement or concerted practice under Article 101(1) TFEU or Chapter I of the Competition Act 1998. The court clarified that similar or simultaneous decisions by competitors, such as EE, Vodafone, and O2 all choosing not to renew contracts do not automatically imply collusion. There must be evidence of coordination.

The court found that each MNO's decision to stop supplying P4U was a unilateral decision as each MNO had legitimate, independent commercial reasons for ending its relationship with P4U. The timing and similarity of their decisions did not, in itself, prove collusion. Alleged interactions, such as the 2012 lunch between Ronan Dunne (CEO of O2) and Olaf Swantee (CEO of EE), were examined and found insufficient. Mere passive receipt of information does not constitute a concerted practice unless it influences future conduct.

The court cited the T-Mobile Netherlands case³ which held that even a single meeting where competitors exchange sensitive information can constitute a concerted practice if the exchange is capable of removing uncertainty about future conduct. The court concluded that Vodafone's decision to sign an exclusive agreement with a different retailer was unilateral, despite their exposure to EE's decision to do the same. This was because Vodafone’s conditional approval came only after a detailed internal evaluation, which considered multiple options, including exclusivity with P4U, a different retailer, or continuing with both. This demonstrated a genuine decision-making process rather than reactive alignment with EE.

The COA held that the burden of proof lies with the claimant, who must provide clear and compelling evidence of a concerted practice. Circumstantial evidence or speculation is not sufficient.

 

Key takeaways

• Concerted practice requires coordination, conduct, and causation: There must be evidence of coordination between parties, conduct on the market aligned with that coordination, and a causal link between the two. Further, “it requires some form of coordination, in the form of “practical co-operation”, between the participants”⁴
• Anic presumption: Once participation in a concerted practice is shown, it is presumed to continue unless the party clearly withdraws. But this can be rebutted by clear, independent conduct.
• Passive receipt of information is not enough: Simply hearing or observing another party’s intentions does not amount to agreement unless it influences future behaviour.
• Parallel decisions are not proof of collusion: Similar or simultaneous actions by competitors must be shown to result from coordination, not just commercial reasoning.
• High evidentiary burden: Claimants must show clear, compelling evidence.

 

Why it is significant

The judgment clarified the boundaries of what constitutes a concerted practice and reinforced the evidentiary burden required to prove collusion. Arguably it has diluted the strength of the Anic presumption by making clear the scope for recipients of commercially sensitive information from competitors to rebut that presumption by demonstrating that their actions were rational unilateral decisions that did not take that third party disclosure into account.

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¹ [2025] EWCA Civ 869
² [1999] ECR I-4125
³ T-Mobile Netherlands BV v Raad van bestuur van de Nederlandse Mededingingsautoriteit [2010] Bus LR 158 (ECJ)
⁴ Phones 4U Ltd v EE Ltd and others [2025] EWCA Civ 869, [140]