A copy of a "confidential" letter from the European Commission to the former minister for transport, Mr Michael Lowry, on the second GSM licence competition has been discovered in the files of Esat Telecom.
The letter, which, according to tribunal counsel Mr John Coughlan SC, contained "valuable information" on the bidding process, was found last Friday after the tribunal had been furnished with boxes of documents by solicitors for British Telecom (BT), which purchased Esat Telecom following the award of the second mobile phone licence to the latter company.
The letter, sent by the European Competition Commissioner Mr Karol Van Miert, to Mr Lowry on July 14th, 1995, detailed the government's plans to limit the weighting of the auction aspect of the bids to less than 15 per cent, thereby giving other aspects, such as the technical capacity of the applicants, greater weight.
Mr Coughlan said the first page of the letter had been found among the BT documents, having apparently been faxed to a director of Esat Telecom by a Brussels-based lawyer, Mr Jarlath Burke, who at the time had the title of chief regulatory counsel for the company.
A cover letter on the fax, dated July 24th, 1995, noted that Mr Burke was enclosing a copy of the Commissioner's letter in the transmission. Asked about the letter this week, Mr Burke told the tribunal "in all likelihood" it came from the Commission, and it fell on the Commission to confirm or deny that.
Mr Burke further told the tribunal he disagreed with its suggestion that the discovery of the letter might have a negative impact on either him or Esat, adding there was no suggestion that he did anything improper in getting the document.
He said the description of the document as "confidential" was misleading as it referred to a Commission intervention on EU law, and did not disclose the weightings used in the GSM competition.
However, Mr Coughlan said that while the letter did not indicate precise weightings, it did indicate that the auction aspect would not exceed 15 per cent. This provided valuable information on the weightings which would have applied to the other criteria.
Mr Coughlan noted the tribunal had written to the European Commission on the matter but had yet to receive a response. He added the tribunal would inquire into the matter to see whether the integrity of the process was compromised.
Earlier, Mr Coughlan said the tribunal would be investigating a separate incident where confidential information was apparently obtained by a solicitor for Communicorp Group, which initially held a 50 per cent share in Esat Digifone.
The tribunal was shown a letter dated June 20th, 1995, in which Mr Owen O'Connell, of William Fry Solicitors, issued instructions to solicitors acting for Advent International, one of Esat's backers, on the way in which their application should progress following the European Commission's intervention.
Mr O'Connell wrote: "The Commission has objected primarily to the auction concept inherent in the proposals for the grant of a second GSM licence.
"Accordingly, the terms of the application are to be revised with either no up-front payment required or a maximum cap placed thereon. It is expected that the timetable will be extended by about two months."
Mr Coughlan said the statement appeared to reflect discussions which had taken place at a meeting of the internal government GSM project group on June 9th, 1995.
He added the tribunal had written to Mr O'Connell to ask on what basis did he make this statement, and who provided him with the information behind it.
Mr O'Connell has informed the tribunal that he had no direct recollection of who or when he received instructions on the matter. He said he had undertaken a review of his files but these contained no written record of either his receipt of the information or the source thereof.
Mr Coughlan said: "This is a matter which the tribunal will inquire into for the purpose of considering whether the integrity of the second GSM licensing process was compromised or undermined."
