Alan Bates

Call 2003
Education
MA Law (Cambridge) First Class; LLM (Pennsylvania) Thouron scholar
Contact

+44 (0)20 7405 7211

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Alan specialises in competition, procurement, public/administrative and EU law.  He is ranked in the directories as a leading junior in EU, competition and telecoms, and has particular experience in dealing with complex regulatory disputes involving combinations of public and EU law and economic issues.

Alan is also regularly instructed in procurement law proceedings (both for claimants and for defendants), including in relation to claims under the Utilities Contracts and Defence Contracts Regulations, and applications to lift automatic interim suspensions affecting contract awards.

He has a particular interest in State aid law, and is the author of the State aid chapter of Bellamy & Child European Union Law of Competition (7th edition, 2013) and the ‘compatibility of aid’ chapter in European Union Law of State Aid (2nd edition, 2013).  He also has a breadth of experience in Administrative Court proceedings involving EU law issues, including compatibility with EU directives, equal treatment, proportionality and notification under the Technical Standards Directive.

‘Incredibly bright and clear thinking.’  – Legal 500, 2014

first rate” – Chambers UK, 2013

  • Competition Law

    Another junior impressing market commentators is Alan Bates, whose ‘understanding of UK competition law and the mindset of the OFT is excellent.’ He juniored to Daniel Beard QC on behalf of the Competition Commission when defending a challenge brought by BAA before the CAT. He also represented the European Commission as sole counsel against an appeal brought by British Airways.” – Chambers UK, 2013

    The ‘super-bright’ Alan Bates is also recommended [as a leading Junior in EU & Competition Law]” – Legal 500, 2013

     

    Alan’s practice in this area draws on a wealth of accumulated experience of working for both commercial enterprises and regulators in matters of UK and EU competition law.  He has been instructed for and/or against all the main economic regulators, including OFCOM, OFWAT, OFGEM, the European Commission, the Competition Commission and the OFT.

    Alan’s experience of litigation in the UK Competition Appeal Tribunal has included challenges to infringement and penalty decisions under the Competition Act, determinations under the Communications Act, and final remedies decisions of the Competition Commission.  He has also acted in a number of High Court private damages claims.

    He also has considerable experience in competition proceedings in the EU courts, and is currently instructed, both for and against the European Commission, in proceedings before the EU General Court relating to fines imposed for participation in cross-border cartels.

    Recent work and significant cases include: 

    • A C Nielsen v. Competition and Markets Authority (Competition Appeal Tribunal, ongoing): Challenge to decision not to refer a completed merger for detailed review.
    • Advising TNT Post UK on its submission of a complaint to Ofcom regarding alleged abuse of dominant position by Royal Mail (investigation ongoing).
    • Pilkington v European Commission (Case T-72/09, EU General Court): Instructed on behalf of Pilkington in its challenge to the €357m fine imposed on it by the European Commission in the Car Glass case.
    • British Airways v European Commission (Case T-48/11, EU General Court): Instructed on behalf of the European Commission to resist British Airways’ appeal against the €104m fine imposed on it in the Airfreight case.
    • BAA Ltd v Competition Commission [2012] CAT 3 and, on appeal, [2012] EWCA Civ 1077: Successful defence of the Competition Commission’s decision requiring the airport operator BAA to sell Stansted Airport.
    • IPCom v HTC Corporation (Chancery Division, ongoing): Instructed on behalf of HTC in proceedings concerning the obligation of an owner of ‘standard essential’ patents to grant a licence on FRAND terms, and the principles to be applied by the Court for the assessment of a FRAND royalty for a patent.
    • The Construction Industry Collusive Bidding and Recruitment Agencies appeals (Competition Appeal Tribunal): Representing the OFT in these appeals, in which a total of 28 appellants challenged the OFT’s approach for setting penalties for infringements of the Chapter I prohibition.
    • Independent Media Support v Ofcom [2007] CAT 29 and [2008] CAT 13: Successful defence of regulator in proceedings concerning (a) the appealability of case closure decisions, and (b) the lawfulness of long term exclusive contracts to supply subtitling services to UK broadcasters.
    • Advising the OFT and other regulators in relation to the taking and drafting of decisions under the Competition Act (Chapter I and Chapter II cases) and Part IV of the Enterprise Act (market investigation references).

    Alan’s experience of competition litigation makes him well-placed to advise both businesses and regulators in connection with ongoing Competition Act investigations.  Further, his experience of assisting UK regulators both in carrying out their investigations and in drafting their decisions provides him with the insight to help each business client (whether a complainant or an investigated undertaking) make the right strategic choices.

    Alan has also advised businesses and trade associations in relation to the compatibility of a wide range of horizontal and vertical agreements and trade practices with UK and EC competition law. Clients value his user-friendly and practical approach to providing advice on current or proposed commercial arrangements.  He is always happy to provide cost-effective advice by telephone so as to indicate the likely degree of risk presented by the commercial arrangement in question, and to identify whether more detailed analysis is needed.

    He is a contributor to Bellamy & Child’s European Law of Competition (2013) and has also written for the Competition Law Journal. He has a particular interest in the potential for competition law and sectoral regulation to contribute to poverty reduction strategies in less developed countries, and he advised the Government of Malaysia on the drafting of its competition and consumer protection legislation.

  • Procurement

    Alan is frequently instructed by both bidders and contracting authorities in cases concerning the application of the EU procurement regime.  His accumulated experience in this area includes claims under the Utilities Contracts and Defence Contracts Regulations, ‘below threshold’ contracts, service concessions, disclosure, and applications to lift automatic interim suspensions affecting contract awards.  In the vast majority of cases in which he has been instructed by contracting authorities, his timely strategic advice has contributed to achieving a prompt lifting of the automatic suspension (usually by consent), and subsequently the withdrawal of the claim prior to trial.

    Alan has a particular interest in the application of the procurement rules in the contexts of supplies between NHS bodies, reorganisations of public services, social impact bonds, ‘payment by results’, software contracts, use of social criteria, and ‘externalisations’ of public services to charities and other ‘third sector’ providers.

    Recent work and significant cases include:

    • Bromcom Computers Pls v Cambridgeshire County Council (TCC, 2013) : Challenge to local authority’s direct award of contracts for schools’ information management system.
    • Army Parachute Aircraft Company v Ministry of Defence (2013): Instructed by the MoD in relation to a challenge to their award decision for a contract to supply parachute training services – claim withdrawn.
    • Medacs v Cabinet Office; Service Care Solutions v Cabinet Office (2013): Instructed by the Cabinet Office in relation to a challenge to their award decision for framework contracts to supply bank nursing services to the NHS – claims withdrawn.
    • Purdy Contracts Ltd v London & Quadrant Housing Trust (ongoing): Acting on behalf of the UK’s largest housing association in relation to its process for awarding gas maintenance contracts covering 44,000 homes.
    • Advising local authorities on inter-related procurement and State aid law issues arising in connection with the transfer of public assets to community organisations under the Localism Act.
    • Advising software companies on procurement law issues relating to rolling contracts for the supply to contracting authorities of software licences and associated support services.
  • State Aid Law

    Alan is a leading State aid lawyer who has built up a wealth of knowledge in this growing practice area.  He is the author of the State aid chapter of Bellamy & Child’s European Law of Competition (7th ed., 2013) (having co-authored the same chapter in the previous edition), as well as of the ‘compatibility of aid’ chapter in Bacon, European Union Law of State Aid.

    He has provided advice in numerous State aid matters, to clients who have included UK government departments, local authorities, lottery fund distributors, aid recipients, and potential complainants about unlawful aid.  The industry sectors covered by his work in this field have included public broadcasting, aviation, healthcare, telecoms, banking, social care, tourism, road transport, community advice, and energy.

    Recent work and significant cases include:

    • Vtesse Networks [2010] EWCA Civ 16: Successful defence of the method used for making rating valuations of underground fibre-optic cables, against a challenge under that the method involved a provision of unlawful State aid to British Telecom.
    • R (Leyton Orient FC & Tottenham Hotspur FC) v Secretary of State for Culture Media & Sport (2011): Instructed on behalf of the Secretary of State to resist challenges, under State aid law, to the selection of West Ham FC as the preferred bidder for the Olympic Stadium.
    • R (British Association of Social Workers) v Secretary of State for Education (2012, resolved): Successful challenge the decision of the Secretary of State to enter into an arrangement with a trade union for the setting up of the new College of Social Workers.  The challenge alleged breaches of State aid and procurement law.
    • Advising UK government departments regarding State aid notifications to, and ongoing enquiries and investigations by, the European Commission, and attending meetings with Commission officials to make representations.
    • Assessing the compatibility with State aid law of Regional Growth Fund and European Regional Development Fund grants.
    • Advising a mobile phone operator on State aid issues arising in relation to the distribution of radio spectrum for 4G mobile services.
    • Advising lottery funded bodies, and bodies distributing funds from dormant bank accounts, on their obligations under, and the distribution of funds compatibly with, State aid law.
    • Advising local authorities on the State aid compatibility of transfers of public assets to community organisations, commercial enterprises and ‘spin off’ companies.

    Alan is the UK rapporteur for the European State Aid Law Institute and contributes to their journal, European State Aid Law Quarterly. He is also a member of the executive committee of the UK State Aid Law Association.

  • EU Law

    Alan frequently advises on matters involving complex points of European Union law, including in the contexts of environmental protection, free movement of goods and services, public procurement, State aid, fundamental rights, employment, TUPE and VAT.  He is particularly interested in the potential for Community law to be relied upon before the English courts to protect fundamental rights in situations where reliance on the Human Rights Act alone would not provide an adequate remedy.

    He was instructed on behalf of the Secretary of State in the Digital Economy Act case, in which legislation directed at reducing the extent of illegal peer-to-peer file-sharing survived challenges under, inter alia, the Authorisation Directive, the E-commerce Directive, the Data Protection Directive, the Technical Standards Directive, and the principle of proportionality: R (British Telecom & TalkTalk) v Secretary of State for Culture [2011] EWHC 1021 (Admin) & [2012] EWCA Civ 232.

    Alan is a member of the Bar Council European Law Committee and the editorial board of the journal European Advocate.

  • Telecoms and Utilities Regulation

    Alan Bates “is viewed as being first rate for someone so relatively junior. A lawyer of great thoroughness, he is praised for the insight into the telecoms industry he gained when being placed on secondment to Ofcom.” – Chambers UK, 2013

    Alan’s combination of expertise in competition and EU law, economic regulation, and public & administrative law makes him a popular choice for clients challenging or defending regulatory decisions, or finding themselves under the microscope of regulatory investigations.  He has been instructed by, or in relation to decisions of, all of the main UK competition and utilities regulators, and has gained detailed knowledge of the inter-relating technical and economic features of regulated industries.

    Alan is frequently instructed in telecoms regulation matters.  The matters on which he has advised telecoms companies or OFCOM include: the General Conditions of Entitlement, Significant Market Power conditions, Competition Act investigations, Telecommunications Code disputes, dispute resolution under section 135 of the Communications Act, premium rate services regulation, telecoms ombudsman schemes, number portability, the E-commerce Directive, data privacy, the media ownership rules, cross‑border regulation issues, and notification under the Technical Standards Directive.  Clients particularly value the insights and breadth of knowledge he obtained while on secondment to OFCOM for a year at the beginning of his practice.

    Alan has also acted both for and against the premium rate phone lines regulator Phonepay Plus, and also has experience of disputes under various industry codes of practice and ombudsman schemes.

    Recent work and significant cases include:

    • Advising TNT Post UK on its submission of a complaint to Ofcom regarding alleged abuse of dominant position by Royal Mail (investigation ongoing).
    • Carphone Warehouse v OFCOM (Competition Commission, on a reference from the CAT): Price control proceedings concerning the prices that BT Openreach may charge broadband providers for use of the local loop.
    • Vtesse Networks [2010] EWCA Civ 16: Use of different valuation methods for valuing the physical network assets of BT Group and Vtesse for rating purposes – compatibility with Directive 2002/77 and State aid law.
    • Vodafone v Ofcom [2008] CAT 22: Challenge to the reliability of OFCOM’s cost-benefit analysis underlying its decision to mandate changes to inter-network arrangements for the routing of phone calls.
    • E.ON UK Plc v GEMA (CC02/07): The first appeal to the Competition Commission against an energy code modification decision.
    • R (British Telecom & TalkTalk) v Secretary of State for Culture [2011] EWHC 1021 (Admin) & [2012] EWCA Civ 232: Challenges to legislation requiring ISPs to take action to reduce illegal peer-to-peer file-sharing.  The challenges were brought under the Authorisation Directive, the E‑commerce Directive, the Data Protection Directive, the Technical Standards Directive, and the principle of proportionality.
    • Cheers Telecom v Phonepay Plus (2012): Challenge to penalties imposed on an operator of premium rate phone lines in respect of revenues from mis-dialling by consumers wishing to call the ‘Big Brother’ TV voting lines.
    • Advising a mobile phone network in relation to proposed challenges to the process for ‘liberalising’ radio spectrum for 4G mobile services.
    • Advising a major electricity generating company in relation to an ongoing investigation by OFGEM of generators’ failures to meet statutory targets for installing energy efficiency measures.
    • Advising a regulator on the imposition of fines on regulated utility companies for providing misleading information.
  • Public & Administrative Law and Human Rights

    Alan combines his thorough knowledge of public law with a pragmatic and client-focused approach.  A high proportion of the cases in which Alan is instructed across his other areas of practice are fought out in the Administrative Court and, as a result, he has an intimate knowledge of Administrative Court practice and procedure.  He is a particularly sought-after choice for challenges to price control and other regulatory decisions turning on complex technical and economic issues, impact assessments or cost-benefit analysis.

    He also has a particular interest in local government law, and has advised public bodies on complex reorganisations of public services provision raising multiple legal issues including procurement, State aid, TUPE, local government, general public law, and equality impact assessment.

    Alan has an easy familiarity with the Human Rights Act and the case-law of the European Court of Human Rights (including as applied in the commercial context), as well as with the protections of fundamental rights under EU law.  From 2000-2001 he worked at the Law Commission, auditing the compatibility of legislation with the European Convention on Human Rights, contributing to guidelines that were subsequently issued to judges in advance of the coming into force of the Human Rights Act.

    In addition, he has advised campaigning organisations on Parliamentary procedure and the legal aspects of their lobbying strategies, and has drafted submissions to Parliamentary select and standing committees. He recognises that judicial review proceedings are often only part of a client’s wider political or commercial strategy, and is therefore keen to work with clients to develop a multi-pronged approach that is best adapted to achieve their objectives.

    Alan is a member of the executive committee of the Constitutional & Administrative Law Bar Association (ALBA).

  • Information Law

    Alan’s experience in this growing area of legal practice spans both freedom of information and data protection.  He has advised both public authorities and commercial organisations on a wide range of data protection issues, including data storage, cross-border data sharing, the Data Retention Directive, the Privacy and Electronic Communications Regulations, and Data Protection Act requests.  Alan also has considerable experience of litigating freedom of information disputes in the First-tier and Upper Tribunals.  He provides training for NGOs on how to make most effective use of the Freedom of Information Act, the Environmental Information Regulations, and the right to request documents from the EU under Regulation 1049/2001.

    Recent work and significant cases include:

    • Department for Communities & Local Government v Information Commissioner and WR [2012] UKUT 103 (AAC): Acting for the successful appellant to the Upper Tribunal in what is now the leading case on the treatment under the Environmental Information Regulations of documents subject to legal professional privilege.
    • Ryanair v Information Commissioner and OFT (EA/2012/0088): Interpretation and scope of the statutory prohibition on information disclosure in sections 237 & 238 of the Enterprise Act.
    • People for the Ethical Treatment of Animals v Information Commissioner and Oxford University (EA/2009/0076): Scope of right to access to information about scientific procedures using animals.
    • Advising a NGO on a complaint to the European Ombudsman in relation to access to EU documents.
  • What the Directories Say

    Competition Law: “He is our counsel of choice for state aid matters – he is extremely knowledgeable, practical and offers authoritative guidance.”Chambers UK, 2018

    Telecommunications: “Alan is wonderfully likeable and has an easy manner; he is quietly impressive.”Chambers UK, 2018

    Leading junior in Competition: ‘‘An exceptional performer with a winning personality.’’ – Legal 500, 2017

    Competition Law: “He gives extremely good advice and delivers it in a user-friendly way.”Chambers UK, 2017

    Telecommunications: “He’s really intelligent but very unassuming; it’s very interesting seeing him as an advocate. He has a diffident manner but is actually extremely forceful.”Chambers UK, 2017

    Leading Junior in EU and Competition: ‘‘He thinks of every angle to provide well-balanced and measured advice.’’ – Legal 500, 2016

    Competition Law: “He’s extremely commercial, very knowledgeable and tactically adept.” “A very impressive barrister who manages to cut through things extremely quickly.”Chambers UK & Chambers Global, 2016

    Telecommunications: “He has a very nice manner with both clients and his instructing solicitors. He’s a very good team player and has a very good grasp of both the economic and legal principles behind competition law.” “On his feet he has a persistence about him.”Chambers UK, 2016

    ”Although softly spoken, his words punch hard.” Leading Junior in EU and Competition law. Legal 500, 2015

    Competition Law: “He is very knowledgeable and always extremely well prepared.” “He speaks plain English and gives incredibly clear advice.” – Chambers UK, 2015

    Telecommunications: “He has a terrific manner and is super-smart – he brings something new to every case.”Chambers UK, 2015

    ‘Incredibly bright and clear thinking.’ Alan is recommended as a leading Junior in Competition and EU Law – Legal 500, 2014

    Alan Bates is listed as an up & coming Junior in Competition Law: Sources attest to his increasing profile in the competition arena. Recently he has acted on behalf of competition regulators, and also resisted appeals on behalf of the EC. “Very nice to work with and highly responsive,” he is “highly knowledgeable when it comes to competition issues, and client-friendly.” Chambers UK, 2014

    Alan Bates is listed as an up & coming Junior in Telecommunications: Has sound knowledge of relevant statutes such as the Telecommunications Code and Communications Act. Acts in and advises on regulatory appeals. “Gives good, clear advice.” Chambers UK, 2014

    “The ‘super-bright‘ Alan Bates”, is recommended as a leading Junior in EU & Competition Law. Legal 500, 2013

    Alan Bates “is viewed as being first rate for someone so relatively junior. A lawyer of great thoroughness, he is praised for the insight into the telecoms industry he gained when being placed on secondment to Ofcom. He played a lead role in the team acting for the regulator in the high-profile mobile call termination case brought by Everything Everywhere.” Chambers UK, 2013

    “Another junior impressing market commentators is Alan Bates, whose “understanding of UK competition law and the mindset of the OFT is excellent.” He juniored to Daniel Beard QC on behalf of the Competition Commission when defending a challenge brought by BAA before the CAT. He also represented the European Commission as sole counsel against an appeal brought by British Airways.” Chambers UK, 2013

  • Additional Information

    Alan read Law at Christ’s College, Cambridge, graduating with first class honours.  He was awarded the University’s Clive Parry Prize for Public International Law, the De Hart Prize for Public Law (re-awarded twice) and was a scholar of his college.  He was subsequently awarded a Thouron fellowship at the University of Pennsylvania, where be obtained an LL.M. degree in 2002, and a Middle Temple Queen Mother scholarship for his year at Bar School.

    For the judicial year 2004-05, Alan was Judicial Assistant to the then Senior Law Lord, Lord Bingham.  He has also worked at the Law Commission of England & Wales, and interned with an organisation in India that was conducting DFID-funded research on the enactment and enforcement of competition law in developing countries.  More recently, Alan was awarded a Pegasus scholarship which enabled him to spend an extended period working on competition and regulatory disputes at leading New Zealand law firm Chapman Tripp.

    He is a strong believer in the need for the Bar to be modern, meritocratic, user-friendly and diverse, while staying true to its ethics and values, and he has sought to further that belief through membership of the Bar Standards Board’s Education & Training Committee and other Bar committees.

    Outside work, Alan’s interests include independent travel and learning to play the violin.  He is Chair of Governors of Barrow Hill Junior School and a trustee of a think-tank and an animal welfare charity.

    Education

    • MA Law (Cambridge) First Class
    • LLM (Pennsylvania) Thouron fellowship

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