1. Introduction

This decision addresses whether Sky Ireland Limited (“Sky”), an authorised provider of electronic communications services, must provide “end-of-contract” notifications and “best tariff” communications to Irish customers when their contractual minimum commitment period expires.

The applicant, the Commission for Communications Regulation (“ComReg”), sought injunctive-type relief under s. 46 of the Communications Regulation Act 2002 (as amended), alleging that Sky was contravening Regulation 89(6) of the European Union (Electronic Communications Code) Regulations 2022 (as amended) (“the 2022 Regulations”). Regulation 89(6) transposes Article 105(3) of Directive (EU) 2018/1972 establishing the European Electronic Communications Code (“the Directive” / “EECC”).

Sky accepted it was not providing Irish customers with end-of-commitment notices, best tariff advice, or annual best tariff information. Its defence was purely jurisdictional/interpretative: Sky argued its consumer contracts are of indeterminate duration (no pre-defined end date), and therefore are not “fixed duration contracts” capable of “automatic prolongation” within Regulation 89(6)/Article 105(3).

The core legal issue was therefore one of EU-consistent interpretation: does Regulation 89(6)/Article 105(3) apply only to fixed-term contracts with a specified end date, or also to contracts of indeterminate duration that impose a fixed minimum commitment period (typically 12/18/24 months) after which the relationship continues until cancelled?

2. Summary of the Judgment

The High Court held that Sky’s contracts, notwithstanding being labelled “contracts of Indeterminate Duration”, fall within the scope of Regulation 89(6) and Article 105(3) because they contain a fixed minimum commitment period, after which the contract continues automatically unless terminated.

The Court found that the “end of the contractual commitment” occurs when the minimum term ends; at that point Sky must provide (i) end-of-commitment/termination information and (ii) best tariff advice, and must then provide best tariff information at least annually thereafter.

ComReg’s application for relief under s. 46(7) and s. 46(11) of the 2002 Act was granted, and the matter was listed for final orders (including costs).

3. Analysis

3.1 Precedents Cited

The judgment is notable for synthesising orthodox Irish statutory interpretation with EU law’s conforming (teleological) interpretative duty, and for assessing the evidential/status value of EU Commission “guidance” materials.

• Heather Hill Management Company v An Bord Pleanála [2024] 2 IR 222 (citing DPP v Brown [2019] 2 IR 1): relied upon for the structured approach to interpretation— starting with text, then context, canons, and (if ambiguity remains) purpose/mischief. The Court applied this framework to Regulation 89(6) and the wider Regulation 89/Article 105 context.
• Marleasing SA v La Commercial Internacional de Alimentacion SA [1990] ECR 4135: used to affirm the national court’s duty to interpret domestic implementing measures “as far as possible” in light of the directive’s wording and purpose, to achieve the directive’s intended result.
• Case C-268/06 Impact [2008] ECR I-02483: used to frame both the strength and limits of conforming interpretation (legal certainty, non-retroactivity, and the prohibition on interpretation contra legem), while emphasising that courts must do “whatever lies within their jurisdiction” using domestic interpretative methods to ensure directive effectiveness.
• National Asset Management Agency v Commissioner for Environmental Information [2015] 4 IR 626: relied upon twice—first to endorse a teleological approach for Irish measures implementing EU directives, and second to underline a constitutional limit: statutory instruments made under the European Communities Act 1972 cannot go beyond what the directive requires (otherwise they risk unconstitutional law-making by the executive). This featured in the Court’s caution not to “expand” Article 105(3) beyond its lawful scope, while still giving it effective meaning.
• Case C-308/11, Kreussler EU:C:2012:548 and Case C-410/13, Baltlanta EU:C:2014:2134: invoked by ComReg to argue that Commission guidance can be considered by national courts. The Court accepted the general principle but distinguished the particular “EC Guidance” here as having limited utility and status (explicitly “not adopted or endorsed” and “preliminary views” only).
• Case C‑514/24, Magyar Telekom EU:C:2025:715 (Advocate General commentary): used to situate Article 105 within Title III’s end-user protective purpose and to support an end-user-favourable reading of contract duration/termination rules.

3.2 Legal Reasoning

(a) Text, structure, and internal signals within Article 105(3)/Regulation 89(6))

Sky’s argument turned on a narrow reading of “fixed duration contract” and “automatic prolongation”: only a contract with a fixed term end date that then renews/prolongs would qualify. The Court rejected this by focusing on how the provisions are actually drafted:

• The operative notice obligation is triggered “of the end of the contractual commitment”, not merely “the end of the contract”. The Court treated the “contractual commitment” as the commercially and legally meaningful lock-in period—i.e., the minimum term during which early termination fees apply.
• Regulation 89(6) is part of a wider “Contract duration and termination” scheme (Regulation 89 / Article 105), which also includes the general anti-disincentive rule (Regulation 89(1)/Article 105(1)) and the cap on commitment periods (Regulation 89(2)). The Court considered it coherent that Article 105(3) addresses the sub-category of contracts that deploy commitment periods (up to 24 months) and then continue unless terminated.

(b) The “indeterminate duration” label could not defeat substance

The Court treated Sky’s February 2021 wording (“contract of Indeterminate Duration… continue indefinitely until you cancel”) as non-determinative. The decisive feature was that Sky:

• clearly imposes a fixed minimum term (e.g., 12 or 18 months);
• charges early termination fees if the customer cancels during that period; and
• permits penalty-free cancellation only after the minimum term (on 31 days’ notice).

For the Court, this meant the contract has an identifiable “end of the contractual commitment”, even if the overall contractual relationship continues until cancellation.

(c) “Automatic prolongation” includes automatic continuation

Sky argued that its month-to-month continuation is not a “prolongation” because there is no “new phase” or renewal mechanism activated after the minimum term. The Court rejected that as an artificial distinction:

• No party needs to do anything to keep the relationship in place after the minimum term; it continues “automatically”. The Court held that “renewal” and “continuation” are both forms of prolongation in this regulatory context.
• The Court found support in Regulation 89(5)(a), which describes prolongation as 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”.

(d) Teleological reading: end-user choice at the moment it matters

The Court’s purposive analysis relied on Directive recitals emphasising informed choice and switching, and the practical significance of the point when minimum-term lock-in ends (often coinciding with discount expiry and price rises). The Court considered it foreseeable that consumers may have forgotten pre-contract information 12–24 months later, so timely prompts are central to the scheme.

(e) Maximum harmonisation and avoiding overreach

The Court accepted that the Directive is a maximum harmonisation measure (Article 101), and that Irish regulations cannot exceed the Directive’s scope. However, it held that applying Article 105(3)/Regulation 89(6) to minimum-term indeterminate contracts does not “expand” EU law; rather, it gives effect to the Directive’s own language about the “end of the contractual commitment” and prevents easy avoidance by contractual labelling.

(f) Guidance materials and comparative regulatory practice

• EC Guidance (2020 “Questions and Answers on the EECC”): the Court treated it as of limited assistance, both due to its non-binding/preliminary status and because it did not squarely resolve the precise “minimum term in an indeterminate contract” question—though it did support a broad understanding that “automatic prolongation” can exist even if not labelled as such.
• ComReg Regulatory Guidance: given no interpretative weight (expressly non-binding), treated as ComReg’s view only.
• ComReg Questionnaire (other regulators’ responses): given little weight due to drafting ambiguity, language issues, and because it was not evidence of foreign law; nevertheless, the Court noted the UK regulator Ofcom’s practical stance.
• Ofcom response / UK practice: while not determinative of EU law, it was a relevant data point showing a regulator applying end-of-commitment notifications to contracts with fixed commitment periods that then continue, which aligned with the Court’s functional approach.

(g) No preliminary reference under Article 267 TFEU

Despite the absence of directly on-point CJEU authority, the Court declined to make a preliminary reference, holding that it could interpret Article 105(3) using established interpretative principles and the provision’s purpose and wording.

3.3 Impact

• Substance-over-form precedent in EECC end-user rights: Providers cannot escape Regulation 89(6) obligations by drafting contracts as “indeterminate duration” while retaining a fixed lock-in minimum term. The operative trigger is the expiry of the contractual commitment (minimum term), not the label attached to the contract.
• Market-wide compliance pressure: The Court recognised Sky’s structure as practically mirroring other Irish providers. The decision therefore consolidates a uniform compliance expectation across the sector where minimum terms exist.
• Regulatory enforcement clarity under s. 46 of the 2002 Act: The case demonstrates that ComReg can obtain court orders to restrain “repeated or apprehended” contraventions without proving customer harm, once a breach of the regulatory obligation is established.
• Consumer communications as a switching facilitator: By fixing the notification moment at the expiry of the minimum term, the judgment strengthens the EECC’s switching/informed-choice architecture and may influence how Irish courts treat other “trigger-based” consumer information duties in regulated markets.
• Criminal exposure reminder: Regulation 89(6) expressly makes failure to notify/give tariff advice a “hybrid offence”; while the proceedings were civil (s. 46), the finding heightens compliance and governance risk.

4. Complex Concepts Simplified

4.1 “Fixed duration contract” vs “indeterminate duration”

A “fixed duration” contract is often understood as one that lasts for a set period. Sky argued that unless the entire contract ends at a pre-set date, it is not “fixed duration”. The Court instead looked at what matters for consumers: whether they are locked in for a set period (the “contractual commitment”) and what happens when that period ends.

4.2 “Minimum commitment period”

This is the initial period (up to 24 months under EU rules) during which the consumer cannot leave without paying an early termination charge. The Court treated this as the “contractual commitment” whose end triggers the notice duties.

4.3 “Automatic prolongation”

If a contract continues after the commitment ends unless the customer cancels (and without any fresh action needed by the provider), the Court treated that as “automatic prolongation” even if the contract is described as monthly/rolling or “indefinite”.

4.4 “Best tariff advice” and “best tariff information”

These obligations require providers to tell customers—at the end of the commitment and at least annually thereafter—about tariff options that are better suited to them. The goal is to enable informed switching or re-contracting decisions.

4.5 “Maximum harmonisation”

Article 101 of the Directive means Member States generally may not add higher or lower end-user protections than the Directive prescribes. The Court’s approach was to ensure Ireland neither under-implements nor over-extends: it read Regulation 89(6) as capturing minimum-term lock-in contracts because that is consistent with Article 105(3)’s own language and purpose, not an “extra” national protection.

5. Conclusion

Commission for Communications Regulation v Sky Ireland Ltd (Approved) [2026] IEHC 12 establishes that, for EECC end-user rights, a contract described as “indeterminate duration” will still fall within Article 105(3) / Regulation 89(6) where it imposes a fixed minimum commitment period and then continues automatically unless terminated.

The decision is a clear substance-over-form application of EU-consistent interpretation: the “end of the contractual commitment” is the end of the minimum term, and that is the point at which end-users must receive durable-medium termination information and best tariff advice, followed by annual best tariff information. It strengthens the practical effectiveness of switching rights in Ireland’s electronic communications market and reduces the scope for regulatory arbitrage by contract drafting.