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THE TRIBUNAL RESUMED ON THE 10TH NOVEMBER, 2005,

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AS FOLLOWS:

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OPENING STATEMENT

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MS. O'BRIEN:

In the course of these sittings, the Tribunal

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intends to hear further evidence pursuant to paragraph G of

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its Terms of Reference in relation to the second GSM mobile

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telecommunications evaluation and licensing process.

10 11

With the exception of one other possible witness from whom

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the Tribunal has not yet conclusively determined to hear

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evidence, the evidence to be heard at these relatively

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short sittings should complete the Tribunal's inquiries

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into the process, save for any other matters that may

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arise, either in the course of the evidence to be heard at

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these sittings or otherwise, and which may render it

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necessary for the Tribunal to hear additional evidence.

19 20

Before proceeding to outline briefly the matters into which

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the Tribunal will be inquiring in these sittings, I should

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indicate that the Tribunal had intended to hear this

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evidence at sittings which commenced with an Opening

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Statement on 15th September, 2004.

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that the subject matter of that Opening Statement was the

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Tribunal's inquiries in relation to the Doncaster Rovers

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football club property.

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proceeded at that time, would have necessarily involved the

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Tribunal hearing evidence from Mr. Denis O'Brien and from

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Mr. Michael Lowry.

It will be recalled

Those inquiries, had they

In order to confine their further


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1

attendances at public sittings of the Tribunal, it was

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considered sensible and fairer to both Mr. O'Brien and Mr.

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Lowry to hear the entire balance of their evidence on the

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one occasion.

5 6

In the event, the Tribunal was unable to proceed with its

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sittings at that time.

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in a position to take up the Doncaster Rovers Football Club

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material and to complete substantially its inquiries into

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the second GSM licence without further significant delay,

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due to factors outside the control of the Tribunal, that

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did not prove possible.

While the Tribunal had hoped to be

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Following the decision of the Supreme Court in May of this

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year in proceedings instituted by Mr. O'Brien which

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enjoined the Tribunal from proceeding with public sittings

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in connection with the Doncaster Rovers Football Club

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matter until the completion of Mr. O'Brien's application

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for Judicial Review, the Tribunal felt that it would not be

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feasible to postpone hearing the balance of the evidence in

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relation to the second GSM licence pending the final

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disposal of those proceedings, and decided it should hear

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the further evidence independent of the Doncaster Rovers

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Football Club matter.

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already assembled material connected with other aspects of

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its Terms of Reference involving decisions of the Revenue

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Commissioners, and decided to proceed with public hearings

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in relation to those matters in June and July last.

By that time, the Tribunal had

29 30

The Tribunal had scheduled the commencement of these


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1

sittings for 20th September last.

Prior to that date, on

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the 13th September, the Tribunal heard submissions from

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interested persons in connection with an issue which had

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arisen from the nonavailability of Mr. Michael Andersen,

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the managing director of Andersen Management International,

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who had been the technical experts appointed by the

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Department to assist the Project Group in its evaluation of

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the second GSM licence as a witness to the Tribunal.

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number of matters were raised in the course of those

As a

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submissions which were unrelated to the issue under

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consideration, but which the Tribunal, nonetheless, felt

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appropriate to comment on in the course of its ruling, it

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was necessary to defer the commencement of these sittings

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until after the Tribunal's ruling.

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its ruling on 29th September last.

The Tribunal delivered

16 17

In the course of these short sittings, the Tribunal intends

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to hear some further evidence from Mr. Martin Brennan and

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from Mr. Fintan Towey.

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Brennan was the Chairman of the Project Group established

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by the Department of Transport, Energy and Communications,

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as it then was, to conduct the evaluation of the

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applications for the second GSM licence.

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was a member of the Project Group and assumed much of the

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responsibility for the operational aspects of the

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evaluation and licensing process, and he reported to

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Mr. Brennan.

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material which came to the attention of the Tribunal after

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the completion of their earlier evidence and from a matter

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to which reference was made in evidence heard by the

It will be recalled that Mr. Martin

Mr. Fintan Towey

There, further evidence arises both from


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Tribunal from Mr. Owen O'Connell, solicitor to Esat

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Digifone Limited.

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Those further matters on which the Tribunal expects to hear

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evidence are as follows:

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Firstly, following the completion of Mr. Denis O'Brien's

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evidence on 11th December, 2003, and in response to a

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request made by the Tribunal on the 4th November, 2003,

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prior to the commencement of his evidence, Mr. O'Brien's

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solicitors, William Fry, notified the Tribunal, by letter

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of 29th January, 2004, that they had concluded a lengthy

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process of reviewing their client's documents in order to

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comply with the Tribunal's request, and that, as a result

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of that review, they had identified further relevant

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documents of which they had previously been unaware.

17 18

These documents included a copy fax dated 5th April, 1995,

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from Mr. Denis O'Brien to Mr. Massimo Prelz of Advent

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International.

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International, a venture capital company based in London,

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was a shareholder in Esat Telecom Limited, the company

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which was ultimately a member of the Esat Digifone

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consortium which bid for the licence.

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already heard evidence that negotiations between Esat

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Telecom and Datacom and Southwestern Bell did not come to

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fruition, and that, as of April 1995, Esat Telecom had yet

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to secure a partner or partners to form a consortium to bid

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for the licence.

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It will be recalled that Advent

The Tribunal has


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Now, the fax which was produced by Mr. O'Brien reads as

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follows:

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It's dated the 5th April, 1995.

It's from Mr. Denis

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O'Brien to Mr. Massimo Prelz, Advent International, and it

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states:

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"Dear Massimo,

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"Here is the up-to-date position regarding GSM partners.

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"1.

Bell South cannot move in the time frame we want them

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to as they are bidding on the Belgian licence.

There

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is a long-shot chance that they will come in at some

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stage.

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"2.

France Telecom - the Minister spoke to me yesterday

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and suggested I contact France Telecom as they have no

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partner and I am meeting them tonight in Paris for

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dinner.

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"3.

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Mannesmann - still no reply.

Decision with their

Chairman.

24 25 26

"4.

Airtouch - they think operation is too small in Ireland.

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"We expect to hear from Barbara Manfrey tomorrow re written

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proposal.

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there" at the number given.

I will be in Prague all day and can be contacted


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"Best wishes,

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Denis O'Brien."

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It appears from what was stated by Mr. O'Brien to his

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partner, Mr. Prelz, on the 5th April, 1995, that, on the

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previous day, the 4th April, 1995, Mr. Denis O'Brien had

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discussed the formation of his consortium to bid for the

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second GSM licence with the Minister, Mr. Michael Lowry.

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It also appears that Mr. O'Brien had informed Mr. Lowry

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that he did not yet have a partner or partners with whom to

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form a consortium.

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informed Mr. O'Brien that France Telecom had no partner,

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and finally, it appears that the Minister had suggested to

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Mr. O'Brien that he contact France Telecom.

It further appears that the Minister

16 17

It will be recalled from evidence already heard that on 2nd

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March, 1995, the Minister had formally announced the

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competition; that on the same date, the Request For Tenders

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document had been issued; that on 6th March, 1995, the

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Project Group had adopted a protocol to regulate contact

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with potential bidders, and that Mr. John Loughrey brought

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that protocol to the attention of the Minister.

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It does not appear to the Tribunal that the contact

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suggested by the fax of 5th April, 1995, constituted other

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than, perhaps, a technical breach of the protocol adopted

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by the Project Group.

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might well have been inevitable at that time, that is

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during the period after the announcement of the competition

Contacts and exchanges of this type


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on 2nd March, 1995, and the publication of the RFP document

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and before the receipt of applications on 4th August, 1995.

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However, this may underline a distinction that should,

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perhaps, be drawn between contact and interaction prior to

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4th August, 1995, and contact or interaction between 4th

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August, 1995, and 25th October, 1995, when the result of

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the process was announced, and which period was

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characterised by civil servants from whom the Tribunal has

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heard evidence as the "closed period".

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In the course of its private investigations, the Tribunal

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raised queries with both Mr. O'Brien and Mr. Lowry in

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connection with this matter, and Mr. O'Brien has informed

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the Tribunal as follows:

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"Mr. O'Brien believes, based on the contents of a fax dated

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5th April, 1995, from Mr. O'Brien addressed to Mr. Massimo

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Prelz of Advent International, and a perusal of his diary,

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that he did have a conversation with Mr. Michael Lowry at

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Comms 95 on 4th April, 1995.

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"2.

Mr. O'Brien's diary shows an entry for 4th April

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marked '10.30 Comms 95 Lowry'.

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"Mr. O'Brien has a recollection of attending Comms 95 on

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behalf of Esat Telecom.

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confirm that Mr. Michael Lowry made a speech at Comms 95

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relating to the liberalisation of the telecommunications

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industry in Ireland.

Contemporaneous news reports


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"Mr. O'Brien accepts, based on his fax to Massimo Prelz,

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that he must have had a conversation with Mr. Lowry and

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that Mr. Lowry must have made some mention of France

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Telecom.

Mr. O'Brien does not recall the conversation.

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"Mr. O'Brien has no notes of this conversation, other than

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the diary entry referred to above.

9 10

"Communicorp's relationship with Southwestern Bell

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Telecom/DETECOM, terminated in mid-March 1995.

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immediately took steps to identify a list of approximately

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ten potential international Telecom partners for the GSM

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project.

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arrangements to meet the various potential partners at this

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time.

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March, and certainly prior to 4th April, 1995.

These included France Telecom.

Mr. O'Brien

Mr. O'Brien made

Such arrangements would have been in mid to late

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"Mr. O'Brien recalls meeting with representatives of France

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Telecom for dinner in Paris, which he believes (based on

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his diary entries) took place on the evening of 5th April,

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1995.

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believes that Lucy Gaffney and John Callaghan may have been

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present for this dinner.

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relevant entries for 5th April, 1995.

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"4pm EI to Paris" and "8pm dinner."

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to Prague from Paris the following morning.

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notes of this dinner engagement.

Although he cannot be certain at this remove, he

A perusal of his diary shows two These entries are Mr. O'Brien travelled He has no

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"Mr. O'Brien believes that he had a subsequent lunch


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meeting with France Telecom representatives at a later date

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in April 1995.

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Massimo Prelz may have attended at this meeting.

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notes of this meeting.

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diary which assist his recollection in this regard."

He understands that John Callaghan and He has no

There are no diary entries in his

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Mr. Lowry, in response to the Tribunal's inquiries, has

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informed the Tribunal that he has no recollection of ever

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having met Mr. O'Brien and suggesting to him that he should

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contact France Telecom.

Furthermore, Mr. Lowry does not

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believe that he would have ever made any such suggestion to

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Mr. O'Brien.

13 14

In addition to Mr. O'Brien's diary which records the

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Communications Exhibition 95 on 4th April, 1995, the

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Tribunal has noted that both Mr. Lowry's official diary and

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his personal diary also contain entries for "Communications

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95 Exhibition RDS", for 4th April, 1995.

19 20

In the course of its private investigations, the Tribunal

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has also made inquiries of both Mr. Brennan and Mr. Towey

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regarding dealings between the Department and France

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Telecom in relation to the second GSM process, dealings

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between departmental officials and Mr. Lowry in connection

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with France Telecom's interest in the licence, and details

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of their knowledge of any contact between Mr. Lowry and

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Mr. O'Brien on 5th April, 1995.

28 29

In response to these queries, Mr. Martin Brennan has

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informed the Tribunal that he has no particular


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recollection of such dealings, but that the Department's

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records show that the then Secretary General of the

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Department, Mr. John Loughrey, and Mr. Martin Brennan, met

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with a delegation from France Telecom at the French Embassy

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in Dublin on the 30th March, 1995.

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report of that meeting, which is dated 30th March, 1995,

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and it's headed "Report of meeting" and it states:

Mr. Brennan prepared a

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"The Secretary, accompanied by the undersigned, met with

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Madame Brigitte Bourgoin, Director General, France Telecom

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Mobile; Mr. Pierre Jandot, Area Manager, France Telecom

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International, responsible for a group of countries,

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including Ireland; and Mr. Charles B. Jeanlot of the French

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Embassy.

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"Their purpose in coming to Ireland was to outline the

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strengths of France Telecom Mobile in the context of their

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interest in the Irish GSM second licence.

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went through a brochure of slides for that purpose which is

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on file.

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raised a number of questions of detail.

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to her that even though they were not in in time for the

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closing date of the information round, that the memorandum

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which would flow therefrom would be made available to all

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who had formally joined the competition by purchasing the

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documentation.

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documentation in the next few days.

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it seemed to us that all possible questions had been raised

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in one way or another by the various consortia who had sent

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in long lists of questions.

Madame Bourgoin

She had a copy of the GSM documentation and It was made clear

She will certainly purchase the She was assured that

It was made clear by the


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visitors that France Telecom had no interest in direct

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equity investment in PTOs in Europe.

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interested in alliances on individual services.

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themselves as a bidder for the GSM2 with no conflict of

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interest in the Telecom Eireann race.

They were only They saw

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"The Secretary made it clear that their being late coming

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into the GSM operation was of no disadvantage and that we

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welcomed the French interest in the emerging Irish Telecom

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situation."

11 12

And it's signed Martin Brennan, and it's dated 30th March,

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1995.

14 15

Mr. Brennan has noted from his handwritten annotation at

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the top of the page that he forwarded a copy of this report

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to Mr. Fintan Towey, and he has informed the Tribunal that

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he cannot rule out that he sent a copy to Mr. Loughrey as

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the other participant at the meeting.

20 21

Mr. Towey has informed the Tribunal that he has no

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particular recollection of interest expressed by France

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Telecom in bidding for the second GSM licence or in forming

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a consortium to bid for the licence.

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or Mr. Towey have any recollection of any dealings between

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the departmental officials and Mr. Lowry in connection with

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the France Telecom interest, nor have they any knowledge of

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any contact between Mr. Lowry and Mr. Denis O'Brien on 5th

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April, 1995.

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Neither Mr. Brennan


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The Tribunal would intend taking these matters up with

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Mr. Brennan, Mr. Towey, Mr. Lowry and Mr. O'Brien during

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their evidence in the course of these sittings.

4 5

The second matter which the Tribunal intends to raise with

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both Mr. Brennan and Mr. Towey is a document entitled

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"Possible questions arising at press briefing on second GSM

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licence, Friday 19th April, 1996," and in particular the

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contents of the 7th bullet point on the second page of the

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document.

11 12

Now, the document which is on the overhead screen is headed

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"Possible questions arising at press briefing on 2nd GSM

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licence - Friday, 19 April, 1996."

15 16

"These points have struck me on a totally random basis and

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are not listed in any particular order of priority.

18 19

" -- How many times did Denis O'Brien meet a) the Minister,

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b) the Secretary c) senior officials before the award

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of the licence?

22 23

" -- Was Padraig O'hUiginn at any of these meetings?

24 25 26

" -- Were any other board members from Esat at these meetings?

27 28 29 30

" -- Did any of the Semi-state Bodies involved in the consortia lobby the Department?


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" -- Have you leaned on any Semi-State to back off?

2 3 4

" -- How can the Department issue a licence when Esat are flaunting the law with these auto-diallers?

5 6

" -- Surely Esat's financial standing was dependent on

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their own corporate business plan predicated on these

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auto-diallers?

9 10

" -- Did the unilateral action taken by the Department

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instructing Telecom Eireann to calm down on the

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auto-dialer arise from a desire to maximise the price

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of Telecom Eireann?

14 15 16

" -- What involvement had the Minister in the whole process?

17 18 19

" -- Did any other Minister make any lobby or preparation to the Department's team or officials?

20 21

" -- Did the IDA lobby on behalf of America, US

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multinationals and others who would be existing or

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potentially important investors in Ireland?

24 25

" -- Why did the Department spurn 'the pot of gold' up the

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more than ÂŁ100 million which could have bid for this

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licence?

28 29 30

" -- Why not admit that this is just a mere skin-deep beauty contest and, at best, it was a flip of the coin


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between the leading contenders?

2 3

" -- Has the Department warned Esat that its licence was at

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risk if it pursued an aggressive stance on

5

auto-diallers?

6 7

" -- If the Department advice was always for the lowest

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possible entry fee, who decided to seek a larger

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cheque which was subsequently struck down by the

10

Commission?

11 12 13

" -- Is it true, as reported in the papers, that the Secretary met with SBC?

14 15

" -- Why did the Secretary give an undertaking for feedback

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which was subsequently countermanded by Martin

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Brennan?

18 19

" -- All the consortia have made it quite clear that they

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are waiving any confidential clauses, why not publish

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the final report on that basis?

22 23

" -- Given Dermot Desmond's checkered history in the

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telecommunications area, surely the Department would

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have reservations about this investment?

26 27 28

" -- Has the Minister, secretary -- any official -- had contact with Dermot Desmond on this matter?

29 30

" -- What sort of process is this that you didn't know who


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the identity of some elements of the consortia?

2 3 4

" -- When did DG IV first initiate action against Belgium/Italy?

5 6

" -- Who nobbled DG IV to reduce the price?

7 8 9

" -- How much does the Department think/believe we could have received for the licence on an auction basis?

10 11

" -- How would this have affected Eircell?

12 13

" -- Surely the Department had nobody to blame but itself,

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having sat on the fence when genuine feedback should

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have been given long ago?

16 17

" -- What sort of process would allow Esat, a company of,

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at best, very thin resources and very shallow pockets,

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to perhaps carry out perhaps one of the most important

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developments in the history of Irish infrastructure?

21 22

" -- The Department obviously lives in an ivory tower when

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so many important jobs and other benefits were

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associated with some of the other bids?

25 26

" -- How much contact/pressure came from a) Telecom b)

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Alfie Kane c) Department of Finance to bid up the

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entry fee?

29 30

"Strengths to be used in the press statement, the only


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process that has the full stamp of approval from the

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Competition Commissioner, Karel van Miert.

3 4

"Further questions which could be thought about:

5 6 7

" -- questions planted by say Persona in general and Tony Boyle of Sigma in particular.

8 9 10

" -- questions suggested by John Riordan and The Irish Independent in general.

11 12

" -- any other possible wild card entries."

13 14

"NB, we are all very familiar with concepts and process.

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Let's not assume others are.

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essential settlements of the competition notably the

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criteria for completeness and journalistic ease of

18

reference."

Statement should revisit

19 20

It will be recalled that Mr. Brennan stated in evidence

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that he was not aware of the Glackin Report or its

22

conclusions and he had no recollection of any discussion of

23

the report in the context of the licensing process, and in

24

particular in the weeks between the receipt of a letter

25

dated 17th April, 1996, from Mr. Owen O'Connell of William

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Fry solicitors, notifying the Department of the involvement

27

of IIU/Mr. Dermot Desmond on the 16th May, 1996, the date

28

on which the second GSM licence was issued to Esat Digifone

29

Limited.

30


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Mr. Fintan Towey, in his evidence, stated that he had a

2

general familiarity with the Glackin Report, and, while he

3

did not recall discussing it with colleagues in the context

4

of the licensing process, he could not rule out that such

5

discussions might have taken place.

6 7

This document came to the attention of the Tribunal

8

following a further review of the files produced to the

9

Tribunal by the Department of Transport, Energy and

10

Communications.

It is clear that the document was

11

generated for the purposes of the press briefing convened

12

by the Department on 19th April, 1996, and attended by the

13

Departmental officials.

14

suggest that the person who prepared the document was aware

15

of the conclusions of the Glackin Report, and was live to

16

the possibility that the media might quiz the Department on

17

the appropriateness of the granting a licence to a

18

consortium of which Mr. Desmond was a member.

The contents of the document

19 20

In the course of its private investigations, the Tribunal

21

has asked both Mr. Brennan and Mr. Towey to comment on this

22

document.

23

virtually certain that the document was not prepared by him

24

and that he did not contribute to its preparation.

25

observed that the copy of the document available to him has

26

some manuscript annotations and that they are not in his

27

handwriting, nor does he recognise the handwriting.

28

not in a position to speculate as to who might have

29

prepared the document.

30

Mr. Brennan has informed the Tribunal that he is

He has

He is


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Mr. Fintan Towey has informed the Tribunal that he recalls

2

Mr. John Loughrey, then Secretary General, saying at some

3

point that he had dictated a number of questions for the

4

purposes of preparing for a press conference or perhaps a

5

Dail statement.

6

in question is the output of that exercise, but that may be

7

the case.

8

such questions himself, or of the document being produced

9

by any other person.

Mr. Towey cannot say whether the document

He has no specific recollection of preparing any

10 11

The Tribunal will wish to pursue its inquiries into this

12

matter, and in particular in the light of the evidence

13

which has already been heard.

14 15

The third matter which the Tribunal wishes to raise with

16

Mr. Brennan and Mr. Towey relates to evidence given by

17

Mr. Owen O'Connell on the 24th November, 2003, when he was

18

responding to inquiries raised with him regarding the

19

deletion from a draft letter dated 10th May, 1995 prepared

20

by him in response to a request made by the Department on

21

the 3rd May, 1996, for an explanation for the substitution

22

of IIU Limited and Mr. Dermot Desmond for Davy Stockbrokers

23

and the institutions named in the Esat Digifone bid

24

documents.

25

1996, contained no explanation for the substitution.

The letter, as finalised and dated 13th May,

26 27

In his evidence to the Tribunal, Mr. O'Connell stated that

28

he had no recollection of why the explanation for the

29

substitution of IIU/Mr. Dermot Desmond was deleted from the

30

draft letter, but that his supposition was that such


19

1

deletion was made either at the request of, or with the

2

agreement of, the Department.

3 4

The Tribunal has raised this matter with both Mr. Brennan

5

and Mr. Towey in the course of its private investigations.

6

Mr. Brennan has informed the Tribunal that he does not

7

believe that he either requested or acquiesced in any

8

omission or deletion from one draft to the next.

9

informed the Tribunal that it is clear and it has been

10

acknowledged by Mr. O'Connell that he was not directly

11

involved in the detailed interface with Mr. O'Connell and

12

his clients around that time, and that it is clear from

13

other evidence to the Tribunal that Ms. Regina Finn from

14

the Regulatory Division, and Mr. Towey from Mr. Brennan's

15

division were involved in the details.

He has

16 17

It appears to Mr. Brennan, from reading Mr. O'Connell's

18

evidence, that the question of whether the Department

19

requested or agreed the deletions from the letter is

20

speculative, and he has observed that Mr. O'Connell, in his

21

evidence, appears to have acknowledged that either

22

Mr. O'Connell or his clients, or both, may have had valid

23

reasons for not wanting to put an explanation about the IIU

24

involvement on record at that time.

25 26

Mr. Towey has informed the Tribunal that he has no specific

27

recollection of having previously seen the draft letter

28

dated 10th May, 1995.

29

as he thinks that he would recall if he had, and, as there

30

is no copy of the letter on the Department files, it is

He believes that he did not see it,


20

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clear that the draft letter was not sent to the Department.

2

Mr. Towey does not accept that there is any possibility, as

3

speculated upon in the evidence of Mr. Owen O'Connell, that

4

the Department, or Mr. Towey in particular, either

5

requested or agreed to the deletion of this information

6

from the letter finally sent to the Department.

7 8

Mr. Towey cannot think of any possible reason why

9

Mr. O'Connell might speculate that the Department might

10

have an interest in such information being deleted.

11 12

The Tribunal will wish to pursue these inquiries with both

13

Mr. Brennan and Mr. Towey in the course of their evidence.

14 15

The final matter which the Tribunal intends to raise with

16

Mr. Brennan and Mr. Towey is a press release which appears

17

to have been issued by the Department on 5th December,

18

1996.

19

content to the terms of a letter dated 6th December, 1996,

20

from the then Minister, Mr. Alan Dukes, to Mr. Bobby

21

Molloy, TD.

The terms of the press release are similar in

22 23

If I refer, firstly, to the press release and then to the

24

letter.

25 26

"1.

The Esat Digifone application was on behalf of a

27

consortium owned as to 50% each by Telenor Invest AS and

28

Communicorp Group Limited (the holding company for Esat

29

Telecom).

30

20% would be placed with financial investors.

The application disclosed that, if successful, A list of


21

1

potential investors was submitted, all 'blue chip'

2

institutions whom we are specifically precluded from

3

naming.

4

bona fides or their financial capacity.

There was no room for doubt as to either their

5 6

"We can state that the names now being speculated upon in

7

media coverage were not on this list.

8 9

"2.

At the licensing stage, several months later, Esat

10

Digifone was in a position to announce that it had placed

11

the 20% with IIU Nominees Limited and it was certified to

12

the Department that Mr. Dermot Desmond was the sole

13

beneficial owner of the 20%.

14

capacity was disclosed."

Adequate evidence of his

15 16

And below that "Ends -- 5/12/96."

17 18

Then the letter on which the Tribunal has already heard

19

evidence was dated the 6th December, 1996, from the then

20

Minister, Mr. Alan Dukes, TD, to Mr. Robert Molloy, TD.

21 22

"Dear Bobby,

23 24

"There appears to be considerable confusion abroad about

25

the precise situation regarding ownership and investment in

26

Esat Digifone.

27

clarify the matter for you.

I hope the following information will

28 29

"The Esat Digifone application was on behalf of a

30

consortium owned as to 50% each by Telenor Invest AS and


22

1

Communicorp Group Limited (the holding company for Esat

2

Telecom).

3

successful, 20% would be placed with financial investors.

4

A list of potential investors was submitted, all of whom

5

are 'blue chip' institutions.

6

are specifically precluded from naming these, but there was

7

no room for doubt as to either their bona fides or their

8

financial capacity.

The application disclosed that, if it was

The Minister and Department

9 10

"I can, however, confirm that the names being speculated

11

upon in the last few days were not on this list.

12 13

"At the licensing stage, several months later, Esat

14

Digifone was in a position to announce that it had placed

15

the 20% with IIU Nominees Limited, and it was certified to

16

the Department at that time that Mr. Dermot Desmond was the

17

sole beneficial owner of the 20%.

18

capacity was disclosed.

19

beneficiary of the IIU shareholding.

Adequate evidence of his

Mr. Desmond is still the exclusive

20 21

"On 19 April, when the Department held a press briefing,

22

the fact that it was not in a position to give final

23

definitive information on the placement of the 20% minority

24

shareholding may have reduced the clarity of the exchanges.

25

My information is that when the licence was issued shortly

26

thereafter, the precise situation was clearly stated.

27 28

"If I can be of any further assistance to you, within the

29

constraints of the binding confidentiality agreements, I

30

would be delighted to do so.


23

1 2

"Yours sincerely,

3 4

Alan Dukes,

5

Minister for Transport, Energy and Communications."

6 7

It will be recalled that, in the course of evidence, Mr.

8

Martin Brennan stated that, while he had no recollection of

9

the letter of 6th December, 1996, he believed that, in all

10

probability, he would have drafted the letter to Mr. Molloy

11

and he would have then passed the draft to the then

12

Secretary General of the Department, Mr. John Loughrey.

13

The Tribunal has also raised this matter with Mr. Brennan

14

and Mr. Towey in the course of its private inquiries.

15

Mr. Brennan has informed the Tribunal that he has no idea

16

who prepared the press release.

17 18

It seems to him that the proposal for 25% shareholding by

19

IIU Nominees was one which only had a short life, was

20

excluded by the Department on the basis that it was not in

21

accordance with the original application, and that no

22

significance whatsoever was attached to it by the

23

Department after that event.

24

there was no conscious decision by anyone to omit a

25

reference to that 25% proposal.

26

no ongoing relevance in the minds of the people concerned

27

after it had been disallowed.

In his considered opinion,

It was simply that it had

28 29

Similarly, Mr. Towey has no recollection of the press

30

release, and he has informed the Tribunal that he imagines


24

1

that it was intended to provide clarification of the

2

investors in Esat Digifone following exchanges in the Dail

3

on the question.

4 5

The Tribunal will wish to further its inquiries with both

6

Mr. Brennan and Mr. Towey in relation to the press release,

7

and, in particular, the matters which prompted the

8

exclusion of any reference to IIU's entitlement to a 25%

9

shareholding in Esat Digifone Limited arising from the

10

agreements of 29th September, 1995, or to the fact that IIU

11

Limited was not within the list of potential investors

12

referred to in the Esat Digifone bid.

13 14

The Tribunal also intends to hear further evidence from

15

Mr. Tony Boyle, who was Chairman of the Persona Digital

16

Telephony Limited, one of the other consortia that entered

17

the competition for the second mobile phone licence.

18

Boyle gave evidence to the Tribunal on 24th March, 2004.

19

His examination by counsel for certain parties was deferred

20

at the request of those parties, and Mr. Boyle will be

21

attending for the purposes of the completion of such

22

examination.

Mr.

23 24

The Tribunal will also be hearing further evidence from Mr.

25

Denis O'Brien in connection with matters which are

26

outstanding from his earlier examination and which he

27

wished to have time to consider.

28

following:

These matters include the

29 30

1.

Sponsorship of ÂŁ4,000 for Esat Digifone of a Fine Gael


25

1

Golf Classic held in the K Club on 16th October, 1995.

2 3

2.

Mr. O'Brien's dealings or contacts, if any, with Mr.

4

Mark FitzGerald regarding such sponsorship.

5 6

3.

The letter dated 13th July, 1995, from Commissioner van

7

Miert addressed to Mr. Michael Lowry, setting out the terms

8

which had been agreed between the Department and the

9

Commission to resolve the Commission's intervention in the

10

licensing competition and a copy of the second page of

11

which was found within the files of Mr. Jarlath Burke,

12

legal and regulatory counsel to Esat Telecom.

13 14

As indicated earlier, the Tribunal also intends taking up

15

with Mr. O'Brien the contents of the fax of 5th April,

16

1995, from Mr. O'Brien to Mr. Massimo Prelz, and to which I

17

have already referred, and finally, there may be a small

18

number of matters arising from evidence heard by the

19

Tribunal after Mr. O'Brien completed his evidence in

20

December 2003.

21 22

Counsel on behalf of other interested parties, including

23

Mr. O'Brien's own counsel, may wish to examine him in

24

connection with all of the evidence which he has given to

25

the Tribunal in the context of the Tribunal's inquiries

26

into the second GSM process.

27 28

Finally, the Tribunal will also be hearing evidence from

29

Mr. Michael Lowry in relation to all of the matters which

30

the Tribunal wishes to raise with him regarding its


26

1

investigations of the second GSM process pursuant to

2

paragraph G of its Terms of Reference.

3

furnished the Tribunal with a considerable body of

4

information which has all been referred to in the course of

5

previous Opening Statements.

Mr. Lowry has

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

And that completes the Tribunal's Opening Statement, Sir.


SITECONTENT_10