The Moriarty tribunal has discovered two letters it says raise questions about the integrity of the second mobile phone licence competition. Colm Keena reports.
Yesterday afternoon on the second day of the Moriarty tribunal's opening statement on its Esat Digifone inquiry, the proceedings took a serious turn.
While the matters being outlined by tribunal counsel Mr JohnCoughlan SC can be detailed and complex, at the heart of the matter is a very simple question. Was the supposedly sealed process designed to select who won the 1995 mobile phone licence competition compromised in any way? If it was, then the possibility arises that the losing bidders can initiate a massive law suit against the State.
The tribunal has found a copy of a letter from the EU Competition Commissioner, Mr Karel van Miert, to Mr Michael Lowry, in the files of Esat Telecom. The letter was sent out by the Commission on July 14th, 1995, to Mr Lowry via the Irish permanent representative to the EU in Brussels.
Ten days later a solicitor working for Esat Telecom, Mr Jarlath Burke, faxed a copy of the first page of that letter to an Esat director who was in the United States.
Last Friday the tribunal discovered this letter and fax cover sheet in Mr Burke's files in Esat. The files had been delivered to the tribunal on Thursday, having been requested many weeks earlier.
Mr Burke was the Esat Telecom's chief regulatory counsel at the time and is now Brussels-based.
Mr Burke has yet to give a good explanation as to how Esat had the letter.
He can't remember how he got it and suggests the tribunal take it up with the Commission. The tribunal has, and the Commission is looking into the matter.
Mr Burke said he did nothing improper to get the letter.
Although the letter was sent out on July 14th, an early draft of it was sent to the Department of Transport, Energy and Communications in late June.
Mr Burke said the letter was probably faxed by the Commission to Esat.
The copy the tribunal found has no fax number on the top, as is normal with faxed documents. The top of the page is obscured.
Mr Burke has questioned the tribunal's opinion that the letter was confidential or contained confidential information.
The letter deals with the issue of the fee to be paid by the winner of the licence.
The bidders for the licence knew the fee issue was one of a number of criteria by which their submissions would be graded. They knew the criteria and their order of importance but not the weightings that would be given to each.
The fee issue was fourth in the list of criteria, and the letter from the Commission said it would be given a weighting of less than 15 per cent.
For a bidder that would be useful information, Mr Coughlan indicated.
The second matter which the tribunal is going to inquire into as part of its examination of whether the competition process was compromised is a letter from a solicitor, Mr Owen O'Connell, of William Fry solicitors.
Mr O'Connell gave evidence to the tribunal last year about his work in 1997 for Esat Telecom.
The civil servants assessing the bids were conducting a supposedly sealed process.
On June 9th, 1995, they held a meeting where they discussed their options in relation to the fee issue and the European Commission.
They narrowed the options down to two. Either they were to proceed as planned with a licence auction and risk the Commission taking an action against Ireland, or they would set a cap on the fee which would have to be paid both by the winner of the competition, as well as a fee for Eircell.
On June 19th Mr O'Brien met departmental officials for a minuted meeting to discuss developments.
On June 20th Mr O'Connell sent a letter to another solicitor in which he said the options being looked at by the Department were either to have no upfront payment required or a maximum cap.
When asked by the tribunal what his source was for this information, Mr O'Connell has said that, although he has searched his files, he has not found anything that would throw light on the situation.
Mr Coughlan said this was a matter the tribunal will now inquire into to see if the integrity of the licence competition was compromised or undermined.