Court holds contracts with minimum commitment periods fall within EU consumer protection rules requiring end-of-term notifications.

THE HIGH COURT

COMMERCIAL

[2026] IEHC 12

2025 No. 275 MCA

BETWEEN

COMMISSION FOR COMMUNICATIONS REGULATION

Applicant

AND

SKY IRELAND LIMITED

Respondent

JUDGMENT of Ms. Justice Eileen Roberts delivered 14 January 2026

Introduction

1. The issue to be decided in this case is whether, on the expiry of their contractual minimum periods of commitment, the customers of Sky Ireland Limited are receiving all of the information they are entitled to as a matter of Irish and EU law.

2. The Applicant (“ComReg”) is the national regulatory authority for electronic communications networks and services in Ireland. The Respondent (“Sky”) is an authorised provider of such services to Irish customers and is subject to the regulatory supervision of ComReg for those services in Ireland.

3. In these proceedings, ComReg seeks orders pursuant to s. 46 of the Communications Regulation Act 2002, as amended (“the 2002 Act”) requiring Sky to cease from contravening Regulation 89(6) of the European Union (Electronic Communications Code) Regulations 2022, as amended (“the 2022 Regulations”). The 2022 Regulations transpose into Irish law Directive (EU) 2018/1972 of 11 December 2018 (the “Directive”) establishing the European Electronic Communications Code (the “EECC”). Regulation 89(6) of the 2022 Regulations (“Regulation 89(6)”) (and Regulation 89(5)) transpose Article 105(3) of the Directive (“Article 105(3)”) which is particularly relevant to this case.

4. It is ComReg’s position that Sky’s customer contracts, properly construed, come within the scope of Regulation 89(6) thereby triggering obligations on Sky to provide end-ofcontract notifications and best tariff advice to customers at the end of their contractual commitment period and to provide those customers with best tariff information annually thereafter.

5. Sky disputes that its contracts are within the scope of Regulation 89(6) (or Article 105(3)). Sky contends that its customer contracts are of indefinite duration with no predefined end date and therefore fall outside the scope of Regulation 89(6) which, it says, applies only to “fixed duration contracts” which are “automatically prolonged”. Sky maintains that Regulation 89(6) targets the mischief of “lock-in” risks from automatic renewal of fixed-term contracts, not rolling subscriptions or indefinite contracts, and asserts that ComReg’s interpretation would improperly expand EU law beyond its text and purpose.

6. The issue in this case thus involves the legal interpretation of Regulation 89(6) (and Article 105(3)) – specifically whether Sky’s contracts fall within the scope of these provisions. As will be seen, a key consideration in that regard is whether Regulation 89(6)

applies only to fixed duration contracts with a specified end date or whether Regulation 89(6), properly interpreted, also applies to a contract of indeterminate duration which is subject to a fixed minimum term.

7. Before considering the statutory provisions in detail I will set out the factual background and matters of relevance to this application.

The relevant factual background

8. The Directive was published in the Official Journal of the European Union in December 2018. Like all EU directives it is not directly applicable and was required to be transposed by Member States into their own national laws.

9. Sky confirms that it began planning with respect to the implementation of the Directive and the EECC from 2019. Sky says that it formed the view that Article 105(3) did not apply to its contracts because the Sky contracts were not fixed duration contracts but rather subscription contracts of indeterminate duration with no end date from the outset.

10. A document entitled European Commission (2020) “Questions and Answers on the EECC” (the “EC Guidance”) was published on 2 December 2020 and shared with Member States solely for information purposes as a “rolling document that has not been adopted or endorsed by the European Commission” but which represented the “preliminary views of the Commission services”.

11. ComReg published its own Regulatory Guidance on Title III: End-User Rights of the European Electronic Communications Code (the “Regulatory Guidance”) on 23 December 2020. The Regulatory Guidance refers to the EC Guidance and reflects ComReg’s interpretation of the relevant regulatory obligations required by the Directive and the EECC.

12. On 9 February 2021 Sky published updates to its Terms and Conditions to refer to the EECC terminology and, it says, to ensure compliance with the EECC and the Directive.

Relevant for present purposes is the following wording which was added to Sky’s Terms and Conditions at that time: “Your Sky subscription for each service is a contract of Indeterminate Duration. This means that it will continue indefinitely until you cancel your services with Sky in accordance with these terms and conditions.”

13. ComReg says that Sky must have appreciated that Article 105(3) was imposing new obligations on providers and that it is naive to think that this new wording was unrelated to a move by Sky to try to avoid the effects of Article 105(3). Sky denies this and says that the new wording was added by way of clarification only and did not alter the pre-existing contractual structure it had with its customers.

14. The 2022 Regulations, although signed on 6 September 2022, did not come into effect until 9 June 2023. The transposition deadline for the EECC was 31 December 2020.

15. In September 2024, ComReg commenced correspondence with Sky outlining ComReg’s concern that Sky customers were not being provided with the information mandated by Regulation 89(6).

16. Sky maintained its position throughout that engagement that it was not required to provide the relevant information because its customer contracts were outside the scope of Regulation 89(6).

17. The present application issued by way of originating notice of motion filed by ComReg on 9 June 2025.

The relevant statutory provisions

18. The specific part of the 2022 Regulations at issue in this case is Regulation 89(6). It is necessary however to also consider some other parts of Regulation 89 to properly put Regulation 89(6) in context. It is also necessary to look at the Directive which was transposed by the 2022 Regulations and in particular Article 105.

19. Regulation 89 is headed generally “Contract duration and termination”, as indeed is Article 105. This heading does not on its face distinguish between different types of contracts, whether they be fixed term contracts or otherwise.

20. Regulation 89(1) is similarly in general terms and states that: “Conditions and procedures for contract termination shall not act as a disincentive to changing service provider.”

21. Regulation 89(2) provides in material part that a provider shall not “conclude a contract with a consumer that mandates a commitment period longer than 24 months.”

22. Regulation 89(1) and 89(2) taken together mirror the provisions of Article 105(1) of the Directive. These provisions apply to contracts generally, including Sky’s contracts with its customers.

23. Regulation 89(5)(a) of the 2022 Regulations provides as follows: “In this Regulation, a reference to the prolongation of a fixed duration contract is a reference to a contract that following the expiry of a fixed term automatically continues on the same terms and conditions and irrespective of the term of the prolongation.”

24. Regulation 89(5)(b) provides in material part that: “Where a contract or law provides for automatic prolongation of a fixed duration contract ... after such prolongation, end-users shall be entitled to terminate the contract at any time with a maximum one-month notice period, or such shorter notice period as may be specified by the Regulator, and without incurring any costs except the charges for receiving the service during the notice period.”

25. Regulation 89(6) is the central provision in this case. It provides (in material part) that: “Before a fixed duration contract is automatically prolonged the provider concerned shall inform the end-user, in a prominent and timely manner (being not less than one month before the prolongation date) and on a durable medium, of the end of the contractual commitment and of the means by which to terminate the contract. In addition, and at the same time, providers shall give end-users best tariff advice relating to their services. Providers shall provide end-users with best tariff information at least annually. A provider who fails to inform an end-user or give tariff advice or information in accordance with this paragraph commits a hybrid offence.…”

26. Turning then to the Directive, Article 101(1) of the Directive states that: “Member States shall not maintain or introduce in their national law end-user protection provisions diverging from Articles 102 to 115, including more, or less, stringent provisions to ensure a different level of protection, unless otherwise provided for in this Title.”

27. Article 105(1) (mirroring Regulation 89(1)) provides that “Member States shall ensure that conditions and procedures for contract termination do not act as a disincentive to changing service provider.” It is accepted by Sky that this provision applies to both fixed duration contracts and to contracts of indefinite duration.

28. Article 105(3) of the Directive is the key provision of the Directive for present purposes. It provides (in material part) as follows: “Where a contract or national law provides for automatic prolongation of a fixed duration contract for electronic communications services … Member States shall ensure that, after such prolongation, end-users are entitled to terminate the contract at any time with a maximum one-month notice period, as determined by Member States, and without incurring any costs except the charges for receiving the service during the notice period. Before the contract is automatically prolonged, providers shall inform end-users, in a prominent and timely manner and on a durable medium, of the end of the contractual commitment and of the means by which to terminate the contract. In addition, and at the same time, providers shall give end-users best tariff advice relating to their services. Providers shall provide end-users with best tariff information at least annually.”

Some matters not in dispute

29. There is no challenge to the entitlement or standing of ComReg under s. 46 of the 2002 Act to apply to the High Court for orders to restrain repeated or apprehended contraventions of the 2022 Regulations.

30. It is accepted that Sky has not and is not providing its Irish customers with end of contractual commitment information, best tariff advice or annual best tariff information. Sky says however that it is not in breach of Regulation 89(6) (or Article 105(3)) in failing to provide this information because Sky’s customer contracts fall outside the scope of these provisions.

31. There is no challenge to Sky’s contention that it is providing all other information required to be furnished to its customers under the 2022 Regulations, the Directive and the EECC, such as information to be provided at the commencement of the customer’s contractual relationship.

32. Sky accepts that on the basis of the same contract wording, it is providing its UK customers with end of contractual commitment information, best tariff advice and best tariff information. Sky does not contend that it would be impossible for it to provide the same information to its Irish customers – rather it says it has no legal obligation to do so.

33. While other providers in the Irish market provide what they describe as contracts for a fixed term, in fact no provider in the Irish market offers a contract that actually ends on the expiry of a fixed term. All contracts in the Irish market require the customer to take active steps to cancel their contract. Sky is the only provider who refers to its contracts as being of indeterminate duration.

34. Providers generally specify a minimum commitment period (which cannot under EU law exceed 24 months). If a customer seeks to cancel their contract during that minimum commitment period or term, they will incur early termination fees.

35. Providers generally charge discounted fees during a minimum commitment period. Providers, including Sky, can offer discounted fees for a longer or shorter period than the minimum commitment period. In general however there is a correlation between the period of discounted fees and the minimum commitment period. A minimum commitment period enables providers (including Sky) to offer competitive pricing to customers including discounted rates for a period of time.

36. The parties agree that a contract of indefinite duration with no minimum commitment period would fall outside the scope of Regulation 89(6).

37. It is agreed that the Directive (as made clear by the provisions of Article 101 thereof) requires maximum harmonisation across Member States. It is also agreed that the interpretation of domestic law must align with EU law, ensuring that national regulations do not exceed the scope of the Directive.

38. The parties were agreed that there were few decisions of the CJEU concerning the Directive, and none dealing specifically with the issue to be determined in this application. There was no agreement however between the parties on whether this court should make a preliminary reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).

Description of Sky’s contract structure and comparison with other service providers in the market

39. In February 2021, Sky added to its terms and conditions the wording, previously outlined, which describes its contract as one of “Indeterminate Duration” which will continue indefinitely until properly cancelled. It is Sky’s position that the addition of this wording was not a change to its contract.

40. In fact however this description does not fully explain the nature of the Sky contract, in particular the inclusion of a minimum period of contractual commitment during which period customers cannot terminate without penalty.

41. The Sky contract clearly indicates a minimum term or period of either 12 or 18 months which is communicated to customers at the time of entering into their contract. The relevant minimum term starts on the date that the services are activated.

42. Only after this minimum term ends can the customer cancel on 31 days’ notice without paying an early termination charge.1 If the customer cancels during the minimum term they have to pay an early termination charge. The amount of that charge will depend on how long is left to run on the minimum term, what the customer has been billed in advance and the products the customer subscribes to when their subscriptions end.

43. This arrangement mirrors in practical terms what is offered to customers of other providers in the Irish market. While I was referred to the contracts of multiple providers, given the degree of similarity between them, it is sufficient to refer to only one by way of example. The contract offered by Three provides as follows: “You may end this agreement in the following ways:… (c) On 30 days’ notice, outside the Minimum Term. You can end the agreement if your Price Plan does not contain a Minimum Term, or if you want to end the agreement at the end of your Minimum Term or any time after your Minimum Term has expired, provided you give written notice to Three Customer Very limited exceptions may apply to this such as those set out in clause 10.3 of Sky’s terms and conditions for Sky broadband and Sky talk contracts – these exceptions are not relevant for present purposes.

Services at least 30 days before the date you want to end the agreement.”2 Summary of the positions adopted by the parties

44. Sky’s view is that, because its customer contracts are subscription contracts of indeterminate duration, they are not “fixed duration contracts” within the scope of Regulation 89(6), “and in particular due to Sky contracts having no end date from the outset.”3

45. Sky says that fixed duration contracts are legally distinct from minimum term contracts. Sky argues that Regulation 89(6) only applies to contracts with a fixed term, specified at the outset, where on expiry of that fixed term the contract does not terminate but is automatically prolonged. Sky had initially focussed on the rollover of one fixed term to another fixed term but it clarified at the hearing that it accepted that any period of prolongation after the fixed term was sufficient for the purposes of Regulation 89(6), and indeed that much appears clear on the express wording of Regulation 89(5)(a) of the 2022 Regulations.

46. In his affidavit, Mr Carpenter describes Sky’s contract structure as being characterised by three key features: (1) It has no pre-defined end date and continues indefinitely unless terminated by either party; (2) it continues on a month-to-month basis under the same contractual terms throughout the life of the contract – whether before or after the end of any applicable minimum term or price guarantee period; and (3) after any minimum term, the customer can terminate the contract without any charge by giving 31 days’ notice.4 Clause 10.1 of Three’s terms and conditions as exhibited in Exhibit MK3 to the affidavit of Miriam Kilraine sworn 17 September 2025. Those terms and conditions define “Minimum Term” as “...the agreed contract duration for the supply of Three Services as defined by the tariff plan (e.g.30 days up to 12 months (SIM only) and up to 24 months for Bill Pay tariff plans – see details of the Price Plan selected by you for your Minimum Term)”. Para 20 Affidavit of Mark Carpenter sworn 25 July 2025. Para 21 Affidavit of Mark Carpenter sworn 25 July 2025.

47. It is Sky’s evidence that its contract language has consistently made clear that its subscription agreements do not terminate automatically at the end of a minimum term or the expiry of a discount period, nor do they extend or renew into a further fixed term. Instead, the ongoing nature of the agreement – that it will continue on an indeterminate basis until cancelled by the customer – is, it says, clearly and transparently communicated before the contract is entered into including in both the contract summary and Sky’s terms and conditions. Sky says that the wording added to its terms and conditions in February 2021 was added for the purposes of clarification only and did not modify or change the nature of the agreements it had with its customers. Accordingly, Sky says that no Contract Change Notification was required to be (or was) issued to customers outlining this new wording.

48. ComReg says that Sky’s contract of a minimum term followed by a continuation on the same terms and conditions terminable by the customer on one month’s notice is precisely the same contractual nexus between customer and service provider as applies throughout the Irish market. By using the term “indeterminate duration”, when others have not, ComReg argues that Sky does not change the reality that there is prolongation after a minimum or fixed term. This prolongation after the fixed or minimum term is what triggers the requirement to provide customers with the information specified in Regulation 89(6).5

49. ComReg says that a contract with a contractual commitment period that automatically continues after that period expires comes within the scope of Regulation 89(6) and Article 105(3). ComReg also says that “fixed duration” and “minimum term” are essentially synonymous and, practically, operate to define a period of time whereby customers may be subject to early termination charges and other penalties should they seek to terminate the contract prior to the expiry of the fixed or minimum term specified. ComReg relies on the use of the phrase “contractual commitment” which is specified in both the Directive and the 2022 Para 7 Second Affidavit of Miriam Kilraine sworn 17 September 2025.

Regulations and says that the Sky contracts clearly have such a contractual commitment period built into them.

50. Sky disagrees that the inclusion of a minimum commitment period makes its contracts one of a “fixed duration”. Furthermore Sky says its contracts do not continue or prolong after a minimum term but rather continue from month to month on the same basis throughout the entire indefinite contract period – there is no new contractual phase or prolongation after expiry of the minimum term.

51. ComReg says that all other electronic communications service providers in the Irish market (and indeed Sky in the UK) are sending their customers end of contract notifications, best tariff advice and best tariff information. Those other providers have a similar contract structure to Sky i.e. a minimum term at the end of which the contract is automatically prolonged for an indefinite period until either party terminates on one month’s notice.

52. ComReg says that issuing the end of contract notification and best tariff advice and information notifies the customer that their minimum term is coming to an end which means the customer can thereafter cancel their service without incurring any early termination fees. The ending of the minimum term also generally results in the customer price discount coming to an end with the customer thereafter being charged increased rates by the provider. Giving this information at that time allows a customer to make an informed choice whether to move to another provider or to move to a better tariff with the same provider, if that is an option. ComReg argues that failing to provide this information could hinder consumers’ ability to switch providers effectively. ComReg says that Sky’s non-compliance with this requirement, when all other providers are doing so, is distorting that market structure, making it more difficult for customers to change provider and take full advantage of the competition in the market.

53. Sky does not accept that there is any evidence of customer detriment or that the market is distorted. On the contrary, it says that the market is very competitive. There was no evidence provided to the court of actual customer harm in this case. I accept that ComReg is not required to establish harm in actions for relief under s. 46 of the 2002 Act.

54. Citing the importance of achieving maximum harmonisation of the relevant provisions of the Directive, ComReg adduced evidence of the responses of 17 National Regulatory Agencies in other EU Member States about their interpretation of Article 105(3) (the “ComReg Questionnaire”). ComReg claimed that all Member States answered in the affirmative that a contract with a minimum term was covered by Regulation 89(6).

55. Sky took issue with this evidence. Sky says the responses from other member states to the ComReg Questionnaire do not establish the outcome or consistency claimed and that the process was fundamentally flawed by reason of the manner in which the questions were posed. I consider this matter later in this judgment.

Analysis

56. There was broad agreement as to the principles of statutory interpretation which the court should apply in this case. The principles were summarised by Murray J as follows in Heather Hill Management Company v An Bord Pleanála [2024] 2 IR 222 (citing DPP v Brown [2019] 2 IR 1) (at 269): “(i) The first and most important port of call is the words of the statute itself, those words being given their ordinary and natural meaning....

(ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include “the immediate context of the sentence within which the words are used; the other subsections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; any legislative antecedents to the statute/the legislative history of the Act, including ... [Law Reform Commission] or other reports; and perhaps … the mischief which the Act sought to remedy”.…

(iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language.…

(iv) If that exercise in interpreting the words (and this includes interpreting them in light of that context) yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted.…”

57. Accordingly, the text of the provision remains of primary importance. However, a court is not looking for the literal meaning of that text in isolation but rather must view it in its relevant context.

58. Furthermore, and of particular relevance in this application, is the principle that domestic legislation transposing EU directives must, so far as possible, be interpreted so as to give effect to the aims and objectives of those directives. In Marleasing SA v La Commercial Internacional de Alimentacion SA [1990] ECR 4135, the Court of Justice of the European Union (the “CJEU”) stated, at para. 8, that when applying national law, national courts must do so “as far as possible, in the light of the wording and the purpose of the directive” to achieve the result of the directive.

59. There are of course limitations. The CJEU has indicated that the interpretive obligation is limited by the general principles of legal certainty and non-retroactivity and the obligation not to adopt an interpretation contra legem (i.e. against the law). In Case C-268/06 Impact [2008] ECR I-02483 at paras 98-101, the CJEU summarised the applicable principles as follows: “[W]hen applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, national courts are bound to interpret that law, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result sought by it and thus to comply with the third paragraph of Article 249.… The requirement that national law be interpreted in conformity with Community law is inherent in the system of the EC Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of Community law when they determine the disputes before them.… However, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem.… The principle that national law must be interpreted in conformity with Community law nonetheless requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it.…”

60. The obligation of national courts to interpret national law, so far as possible, in conformity with European Union law, has been affirmed on a number of occasions by the Supreme Court. In National Asset Management Agency v Commissioner for Environmental Information [2015] 4 IR 626, O’Donnell J (as he then was) stated (at page 637): “There are rules for the interpretation of legislation introduced implementing an international treaty. In particular, this specific obligation undertaken by Ireland as a member of the EU requires that the courts approach the interpretation of legislation in implementing a directive, so far as possible, teleologically, in order to achieve the purpose of the directive.”

61. The practical consequences of a teleological approach to interpretation appear to include the following (subject to such interpretations not directly violating existing legislation or established legal principles):

(1) Alternative interpretations may be evaluated not only by reference to the text in question but also by reference to identified objectives and the consequences that arise from each interpretation.

(2) A strictly literal meaning may be departed from where it is inconsistent with, or fails to give effect to, the identified objectives.

(3) Where legislation is silent on a point, interpretations consistent with the relevant purpose may be ascribed.

62. It is also worth noting that the 2022 Regulations were made under s. 3 of the European Communities Act 1972 and thus cannot go further than what is required by the Directive. In NAMA v. Commissioner for Environmental Information [2015] 4 IR 626 O’Donnell J (as he then was), noting that the power that exists for the making of Regulations in exercise of EU law obligations creates an exemption to the normal rule against the executive making laws, said at para 11 that: “If, however, a statutory instrument goes further than the implementation of the directive necessitates, it would, to that extent, be unconstitutional since it would be the making of law by a body other than the Oireachtas and not protected by the provisions of Article 29.”

63. There was less consensus between the parties as to the appropriateness of the court being influenced by the EC Guidance. It was accepted that the EC Guidance has not been adopted or endorsed by the EU Commission and has been shared with Member States “solely for information purposes”. ComReg nevertheless urged the court to have regard to it in interpreting the provisions at issue, citing CJEU decisions in Case C-308/11, Kreussler EU:C:2012:548, and Case C-410/13, Baltlanta EU:C:2014:2134. In Kreussler the CJEU held that a national court could take account of a guidance document adopted by the European Commission’s Directorate-General for Enterprise and Industry. In Baltlanta the CJEU noted that even if Commission guidelines are not intended to produce binding effects, the national courts are bound to take them into consideration, in particular where they cast light on the interpretation of relevant national measures.

64. Sky urged the court to ascribe little or no weight to the EC Guidance arguing that the authorities cited above could be distinguished as they referred to guidelines of a stronger status than the EC Guidance. In Kreussler the guidance in question had in fact been adopted by the European Commission’s Directorate-General for Enterprise and Industry and had been agreed between the commission service and the competent authorities of the Member States. In Baltlanta the guidelines had been adopted by the Commission. In any event Sky says that the EC Guidance does not clearly support ComReg’s position, as the EC Guidance itself refers to fixed duration contracts. The question posed related to a customer on a 24 month contract and presupposed that Article 105(3) applied. Sky says the issue before the court in this case was not in fact addressed at all in the EC Guidance.

65. Ultimately I believe that the EC Guidance is of limited assistance to this court on the matter it has to determine – both because the issue is not directly addressed in clear terms and also because of the status of the EC Guidance which expressly notes that any views outlined are the preliminary views of the Commission services and may not in any circumstances be regarded as stating an official position of the Commission nor prejudice the Commission or its services. The court can and does however note the EC Guidance and has considered it in the round.

66. The relevant question posed in the EC Guidance in relation to Article 105(3) refers to “a consumer in a 24 month contract for electronic communications service to which Article 105(3) EECC applies”. The scenario goes on to provide that neither national law nor the contract provide for “automatic prolongation” but the contract says it will continue on the same terms as before on expiry of the 24 months but can be terminated on one month’s notice. If not terminated, the contract will continue indefinitely.

67. The EC Guidance opines that such a contract “has a fixed duration (24 months) and is automatically prolonged (continues on the same terms and conditions) even if the term “automatic prolongation” is not used”. The EC Guidance goes on to say that “[t]he aim of Art 105(3) is to ensure protection of end-users when contracts of fixed duration are automatically prolonged”. It expresses the view that in the scenario outlined the customer would have to be provided with the information specified in Article 105(3).

68. Elsewhere the EC Guidance confirms that “Article 105(3) is on automatically prolonged fixed duration contracts and the requirement on giving best tariff information at least annually is also related (only) to these contracts”.

69. The impact of the EC Guidance thus confirms that Article 105(3) only refers to fixed duration contracts that are automatically prolonged. However it does not specify that such a contract must be a fixed term contract with a pre-defined end date as argued by Sky. The EC Guidance accepts that the concept of automatic prolongation does not have to be so expressly specified – and is satisfied by the contract continuing on the same terms and conditions after the fixed duration period ends.

70. I accept that the EC Guidance is not as clear as it might have been on the particular point at issue here. Sky says the question asked presupposed that the 24 month contract is one to which Article 105(3) in fact applies so the answer given is not on point and in any event does not support ComReg’s argument. I have considered the EC Guidance as being of limited assistance to me on the interpretation exercise but somewhat more helpful in identifying the aim of Article 105(3).

71. As to the Regulatory Guidance, I do not believe this court can attribute any weight to it in interpreting the relevant provisions. This document is not legally binding and, on its face, ComReg clearly accepts that to be so.6 At best this document sets out ComReg’s own views on the matters identified.

72. The Regulatory Guidance expressly refers to contracts of indeterminate duration but describes these as “contracts with no initial fixed term/minimum commitment period”.7 The Regulatory Guidance confirms ComReg’s view that: “[a] contract which never had a fixed term or was for an indeterminate duration from the outset, would be outside scope [of Article 105(3)]. (Note: if the contract had a fixed term, but after prolongation became an indefinite duration contract ... then it would be within scope).”

73. The Regulatory Guidance does not directly address the present situation of a contract described as one of indefinite duration which has a minimum commitment period. It seems from the evidence that providers have a choice of offering fixed duration contracts or contracts of indefinite duration and they can offer minimum commitment periods in combination with either contract type. The question is not whether a fixed duration contract is legally the same as an indefinite contract with a minimum commitment period but is rather whether the inclusion of a minimum commitment period in a contract of indeterminate duration brings it within the scope of Article 105(3).

74. In relation to the ComReg Questionnaire, I note that it was intended to elicit the views of other regulators on how the Directive had been implemented in their Member States. That exercise could have been more useful had the question on the point at issue in this case been more clearly drafted by referring specifically to a contract of indeterminate duration which See page 5 under heading “Legal Disclaimer”. See para 180 b. (pg. 62).

contains a minimum commitment period, and Sky says this is how the question should have been framed, but was not.

75. The ComReg Questionnaire asked whether Article 105(3) applied in the following circumstances: “a. A customer enters into a contract with a provider on the basis of a minimum term of 24 months that is auto prolonged after 24 months on a rolling basis and indefinitely until the customer terminates the contract.”

76. Sky says that the question is ambiguous. While it does refer to a “contract” with a minimum term (rather than a contract to which Article 105(3) applies), the reference to the contract being “auto prolonged” is, Sky says, a reference that excludes a contract of indefinite duration. Sky also argues that many of the responses received presupposed the existence of a fixed term contract in their answers.

77. There were 17 responses to the ComReg Questionnaire. In all the circumstances outlined and bearing in mind how the question was framed and the understandable language issues with many of the responses, I do not ascribe much weight to this evidence.

78. I also accept Sky’s argument that the responses to the ComReg Questionnaire cannot be considered evidence of foreign law and I do not treat them as such.

79. It is worth noting however the response received from the UK Regulatory Authority OfCom because Sky operates in that jurisdiction on the basis of the same customer contract (albeit without the more recently added indeterminate duration wording). In response to the above question OfCom responded as follows: “Yes. End-of-contract notifications, including best tariffs, must be sent to subscribers before the expiry of a fixed commitment period if the contract will be automatically prolonged. Annual best tariff notifications should also be sent to customers who are beyond their fixed commitment period.”

80. Sky confirmed that it provides its UK customers with the relevant information referred to in Article 105(3). The justification for doing so, Sky says, is that the UK , unlike Ireland, transposed the Directive in terms expressly requiring providers to provide the relevant information at the end of a contractual commitment period. Because the UK, following Brexit, is free to adopt its own national rules, Sky says it accepted the situation under UK national law, although Sky’s view is that this transposition would not be in compliance with the Directive. It was not disputed however that the relevant UK legislation was designed explicitly to implement the Directive in the period prior to the UK leaving the EU.

81. Turning then to the relevant statutory provisions, neither the Directive nor the 2022 Regulations provide a definition of a “fixed duration contract”. The only time that phrase appears in Title III to the Directive is in Article 105(3), which is mirrored in Regulation 89(6).

82. Nor does the Directive or the 2022 Regulations define the phrase “automatic prolongation”. There is however an important explanation of what is meant by the prolongation of a fixed duration contract in Regulation 89(5) to which I will return. The phrase “commitment period” is also not defined in either the 2022 Regulations or the Directive

83. Neither the 2022 Regulations nor the Directive refer at all to contracts of “indeterminate duration”. That phrase and indeed the phrase “a contract of fixed duration” both appear in Council Directive 93/13/EEC on unfair terms in consumer contracts (the “Unfair Terms Directive”) although, again, neither is defined. The annex to the Unfair Terms Directive provides at sub-para 1(g) that a term is unfair if its object or effect is to enable a seller to “terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so”. Sub-para 1(h) of the same annex refers to a term being unfair if it has the object or effect of “automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early”. The Unfair Terms Directive was succeeded by Directive 2011/83/EU (the “Consumer Rights Directive”) which is cited in Article 102 of the Directive. Article 6 of the Consumer Rights Directive deals with consumer information and the right of withdrawal from distance contracts. Article 6(1)(e) provides that “[i]n the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period”. Sky also refers to sub-para 6(1)(p) which requires disclosure of “the minimum duration of the consumer’s obligations under the contract”. Sky argues that these separate references show that a distinction is made under EU law between fixed duration contracts and contracts of indefinite duration and indeed the minimum duration of a consumer’s obligations. It is hard to see the relevance of any such distinction however for present purposes. The question at issue is not whether there is a difference in legal terms between these types of contracts – but rather whether a minimum contractual commitment in an indefinite duration contract brings that contract within the scope of Article 105(3) and Regulation 89(6).

84. In fact, Sky has not claimed that the wording in Regulation 89(6) is ambiguous. They say that a “fixed duration contract” is legally distinct from the Sky contract in the following material respects. First the Sky contract has no defined end date. Second there is no new mechanism for automatic renewal which only comes into effect at the end of the fixed term. Third, the Sky contract doesn’t pose the risk of renewal of fixed terms and the risk of a customer being locked in to a different future fixed-term.

85. It is worth looking closely at these pleaded distinctions. It is true that Sky’s contract does not have a defined end date on which it will expire without being terminated. However, and what seems to me to be critical, it does have a defined end date on which the relevant minimum term will end. That end date is of significance for a Sky customer. It represents the date when the customer becomes free to terminate their contract without any financial penalty and (usually) the date on which their discounted tariff comes to an end. This is precisely the same position for customers of other providers when their “fixed term” comes to an end.

86. The Sky contract rolls over from month to month indefinitely unless and until terminated by 31 days’ notice. However so too do the contracts of other providers after the expiration of the relevant fixed period. There is no practical difference to the customer in either case. I fail to see how it can be said that a contract which continues after the expiry of a minimum commitment period is not “automatically prolonged” when it continues on past that date, simply because it was described upfront as being of indeterminate duration. No action is necessary by any party to keep the contract in place after the commitment period – it is extended or continued or prolonged automatically. “Automatic prolongation on the same terms and conditions and irrespective of the term of the prolongation” cannot, in my view, be interpreted as being confined to requiring some new regime or contractual phase to come into effect at the end of the fixed or minimum term, as Sky contends.

87. On the third point it was argued by Sky that the mischief designed to be addressed by Article 105(3) was that a fixed duration contract gives the impression to a consumer that they are only signing up for its fixed term. But if that contract rolls over automatically, a consumer may in fact be locked in when they did not expect to be when they signed up. Sky says that, in contradistinction to this situation, a minimum commitment period contains no such risk and the customer knows from the outset that the indeterminate contract will continue beyond the minimum commitment period. This argument does not however take account of the fact that customers are told by other providers at pre-contract stage that at the end of their fixed term the contract will continue on the same terms unless terminated with 30 days’ notice.8 Article 105(3) in effect assumes that customers might either fail to read or understand information provided to them at the outset regarding the terms of their contractual commitment or they may have forgotten that information by the time they are free to terminate without penalty – often 12, 18 or 24 months later.

88. In light of the interpretation principles I have previously outlined, it is clear that the Directive must be interpreted so as to give effect to its scheme and general purpose. ComReg says that their interpretation complies with the objectives of the 2022 Regulations introduced to give effect to the Directive. They refer to the express references in Article 1 of the Directive (dealing with subject matter, scope and aims) confirming that the Directive establishes a framework to ensure the harmonised application of a regulatory framework throughout the Union and aims to ensure effective and sustainable competition and choice and to lay down the “necessary end-user rights”.

89. ComReg also refers to the recitals to the Directive, to which I am satisfied I can have regard in understanding the purpose which the EU legislature had in mind in enacting the Directive.

90. The following recitals of the Directive were identified by the parties as particularly relevant: “(257) … A calibrated full harmonisation of the end-user rights covered by this Directive should considerably increase legal certainty for both end-users and providers of electronic communications services, and should significantly lower entry barriers and unnecessary compliance burden stemming from the fragmentation of the rules.… See for example clause 10(c) of Threes’ terms and conditions or clause 2.2 of Eir’s terms and conditions. Also, the provisions of Article 102 of the Directive expressly require all providers to provide information on the duration of the contract and the conditions for its renewal and termination.

(258) Contracts are an important tool for end-users to ensure transparency of information and legal certainty. Most service providers in a competitive environment will conclude contracts with their customers for reasons of commercial desirability.…

(260) The specificities of the electronic communications sector require, beyond horizontal contract rules, a limited number of additional end-user protection provisions. End-users should be informed, inter alia, of any quality of service levels offered, conditions for promotions and termination of contracts, applicable tariff plans and tariffs for services subject to particular pricing conditions….

(273) In order to take full advantage of the competitive environment, consumers should be able to make informed choices and to change providers when it is in their best interest to do so. It is essential to ensure that they are able to do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures and charges. That does not preclude providers from setting reasonable minimum contractual periods of up to 24 months in consumer contracts.…

(274) Automatic prolongation of contracts for electronic communications services is also possible. In those cases, end-users should be able to terminate their contract without incurring any costs after the expiry of the contract term.…

(277) The possibility of switching between providers is key for effective competition in a competitive environment. The availability of transparent, accurate and timely information on switching should increase the end-users’ confidence in switching and make them more willing to engage actively in the competitive process.…”

91. While accepting that recitals are relevant as an aid to interpretation, Sky focuses on the multiple aims of the EECC which they say seek to strike a balance between the interests and burdens of the operators (avoiding an unnecessary compliance burden)9 and the rights of Relying on recital 257.

consumers. Sky refers to Recital 23 which states that: “[t]he regulatory framework should, in addition to the existing three primary objectives of promoting competition, the internal market and end-user interests, pursue an additional connectivity objective, articulated in terms of outcomes: widespread access to and take-up of very high capacity networks for all citizens of the Union and Union businesses on the basis of reasonable price and choice, effective and fair competition, open innovation, efficient use of radio spectrum, common rules and predictable regulatory approaches in the internal market and the necessary sector-specific rules to safeguard the interests of citizens of the Union.”

92. Sky also refers to the use of the phrase “limited number of end-user provisions” in Recital 260 (quoted above). I am satisfied however that the use of the word “limited” in that context is not designed to reduce or down-play the importance of end-user protections but rather is designed to identify the specific provisions being addressed in the Directive for endusers, including those set out in Article 105(3) regarding being informed of their termination entitlements and relevant tariff information.

93. Sky relies on the wording in Recital 274 quoted above to distinguish the “contract term” from a minimum commitment period and argues that this must mean the phrases mean something different. I am not convinced on this argument.

94. It is clear that a central purpose of the Directive, as demonstrated by the Recitals, is to ensure that consumers, with the benefit of transparent information, are in a position to take full advantage of a competitive market. The timing of that information and advice is significant for customers who have been tied into a contractual commitment period for anything up to 24 months. Such customers may well have forgotten whatever information they received at the start of their contract about their entitlement to terminate without penalty after that minimum period. It is not an answer in my view for Sky to say that it provided this information at the pre-contract stage. All providers are required to provide this information at that time – even those whose contracts are clearly within the scope of Article 105(3).

95. Advocate General Sanchez-Bordona opined at para 74 in Case C‑514/24, Magyar Telekom EU:C:2025:715 by way of general commentary on Article 105 that: “As a whole, Title III of the EECC, dealing with the rights of end-users, aims to protect the legal position of end-users in their contractual relationship with the service providers. That is particularly true of Article 105 of the EECC which, by regulating the duration and termination of contracts, adopts a general approach that is favourable to the end-user.”

96. I accept Sky’s argument that the Directive does not just deal with end-user protections and that there are other objectives also addressed. Indeed it would be most unusual if the Directive, which operates in such a complex market, did not address multiple objectives. However, I have been provided with no persuasive evidence that any other objective such as interconnectivity or promotion of competition in the market are served or achieved by Sky’s interpretation of the scope of Article 105(3). On the other hand there are strong arguments that ComReg’s interpretation assists the objective of enabling consumers to take full advantage of the competitive market by facilitating an informed change of provider or tariff at the end of a period of contractual commitment if consumers wish to make such a change. Recitals 260, 273 and 277 are particularly relevant in that regard.

97. Sky’s position ignores the close linguistic connection between Article 105(1) and Article 105(3) and that they are part of the same Article. Sky argues that Article 105(1) has a much broader application than Article 105(3). Sky also says that there is an express reference to contracts of a fixed duration in Article 105(3) and there isn't in Article 105(1) and so there must be some distinction between the two on this point. But Sky accepts that Article 105(1) applies to all contracts, whether of fixed duration or otherwise. Article 105(3) refers to a subset of those contracts, namely those contracts which take advantage of the ability of providers to apply a contractual commitment period not exceeding 24 months. That explains the distinction and how both Article 105(1) and Article 105(3) subsist together.

98. Article 105(3) uses the same language as Article 105(1), namely the language of “contractual commitment”. Sky’s interpretation focusses on the phrase “automatic prolongation of a fixed duration contract” which it says limits the later wording in Article 105(3). But it is clear on the plain wording and from a purposive interpretation of Article 105 as a whole, that the express reference to “contractual commitment” is not limited only to fixed duration contracts as Sky describes them. A contract which specifies a fixed contractual commitment period which later automatically continues until terminated is just as much in scope of Article 105(3) and Regulation 89(6) as a contract specified to be for a fixed duration which later automatically continues until terminated. Both contracts tie in a customer contractually for a specified period of time and then automatically continue (or are automatically prolonged) unless and until terminated on the requisite notice. Sky’s interpretation ignores the fact that the reality of the contract it offers is a contract for a minimum fixed period which automatically continues after the expiry of that period.

99. Sky says the phrase “fixed duration contract” was chosen by the legislature and so this phrase must have a distinct meaning as a matter of EU law. It is not however a defined term nor was I referred to any EU authority explaining its allegedly distinct meaning in the present context. It is also important to note that the entire phrase in Article 105(3) refers to “[w]here a contract or national law provides for automatic prolongation of a fixed duration contract.” This phrase is seeking to identify those contracts where either the contract itself provides for prolongation after a fixed period or the national law does so. To simply focus on the words “fixed duration contract” and say these mean that Article 105(3) only applies to the ending of contractual commitments in contracts described in express terms as a fixed duration contract is not, in my view, what was intended by the wording used or what the plain reading of the full sentence means.

100. What is essential from an interpretation perspective is that the court look at the entire of the provision it is seeking to interpret. Considering individual words or phrases on their own out of the context of the entire provision in which they appear is not the appropriate approach to be taken. In fact the phrase “fixed duration contract” only appears in Article 105(3) in the specific context of the sentence referring to where the contract itself or national law provides for “the automatic prolongation of a fixed duration contract”. Elsewhere in Article 105(3) reference is made to “the contract” and to end-users being advised “of the end of the contractual commitment”. Sky says that this phrase, and indeed Article 105(3) as a whole, must be read as only applying to fixed term contracts properly understood as such, and not contracts with a minimum contractual commitment period. However Article 105(3) on its face does not say that or limit its application in that way. The drafters could easily have stated this if that was their intention. They did not do so but rather chose to refer to the ending of “the contractual commitment”. This language correlates closely with the language of “minimum contractual periods”[(of up to 24 months)] in Recital 273 quoted above.

101. Looking then at Regulation 89(5)(a) it is expressly stated in the 2022 Regulations that “… a reference to the prolongation of a fixed duration contract is a reference to a contract that following the expiry of a fixed term automatically continues on the same terms and conditions and irrespective of the term of the prolongation”. Sky says that Regulation 89(5)(a) contains language that is not in the Directive and so the court should be cautious in relying on it given that the Directive is an instrument of maximum harmonisation. It says the reference to a “fixed duration contract” has to be construed in the same way as in the Directive.

102. Sky’s argument means that the phrase “expiry of a fixed term” in Regulation 89(5)(a) expressly excludes the expiry of a fixed minimum contractual term or period but must be read as meaning only the expiry of the fixed term of the contract. This, Sky says, would make it consistent with the Directive. In my view the words should be given their ordinary meaning as used in the context of the entire provision in which they appear. I do not agree that Sky’s interpretation of Regulation 89(5)(a) is either the proper meaning of Regulation 89(5)(a) or required to make this provision consistent with Article 105(3) which itself refers to “the end of the contractual commitment”.

103. I was urged by ComReg to consider the rule against absurdity. ComReg says it makes no sense to stipulate in general terms that contracts can't have a commitment period of longer than 24 months but then go on to provide that the consumers in only some of those contracts would have the right to information about a renewal and alternative tariffs.

104. It is trite law that the parties to a legal relationship cannot alter the essential nature of that legal relationship simply by deciding to call it something different. The court must look to the essential nature of the legal relationship in order to determine what rights and liabilities arise in relation to it. How the parties chose to describe that relationship is not determinative

– the essential de facto position must prevail over any such nomenclature. In the present case I have considered if Sky, by calling their contract one of “indeterminate duration”, has taken that contract outside the scope of Regulation 89(6) and Article 105(3). In my view it has not. The reality is that whether or not the contract is one for an indeterminate duration, the imposition of a minimum commitment period brings this contract within the scope of Article 105(3). This is because such a contract contractually commits a customer to remain contracted to Sky for a fixed duration at the end of which the contract automatically continues until terminated. For the duration of the minimum commitment period any termination by the customer will give rise to a penalty. When that minimum period expires this represents the end of a contractual commitment period. This is the point at which customers must be notified of their options and provided with the information specified in Regulation 89(6) (and Article 105(3)).

105. It would be all too easy for providers to avoid compliance with the customer protections mandated by Article 105(3) if they could simply describe their contracts as ones of indeterminate duration while simultaneously having the ability to contractually lock in customers for a prescribed fixed duration. The court must look at the reality of the legal relationship, review it against the legislative requirements and apply a consistent approach to all providers.

106. Furthermore, irrespective of whether a contractual commitment period is renewed or continues, it is, in fact, prolonged. I do not accept that there is a difference contemplated in the relevant statutory provisions between a contract which is renewed automatically and one which continues automatically – both are automatically prolonged.

107. I have considered the question as to whether this court should exercise its discretion to request a preliminary ruling from the CJEU under Article 267 of TFEU noting that there are no complex facts in dispute and the case is one in which a question of EU law arises. In particular, I have considered whether a referral is necessary to enable this court to interpret the provisions of Article 105(3). While I recognise that there is no CJEU authority directly on point, I have decided not to request such a preliminary ruling in circumstances where I believe this court can properly interpret the EU provisions applying the recognised principles of interpretation of EU law and based on an analysis of the language used and the purpose of those provisions.

Conclusion and Orders to be made

108. For the reasons set out in this judgment, I am satisfied that Sky is required to comply with Regulation 89(6). Accordingly, Sky must provide its customers with the relevant information on the expiry of the customers’ relevant minimum periods of commitment (as set out in their contracts) and best tariff advice annually thereafter. As it is accepted that this information is not being provided by Sky to its customers, I grant ComReg’s application under s. 46(7) and s. 46(11) of the 2002 Act for the relief set out at paras 1 and 2 of their notice of motion filed on 9 June 2025.

109. I will list this matter for 10.30 am on Wednesday 21 January 2026 for the purposes of making final orders, including in relation to costs.