Abstract: Following the end of the transition period after the UK’s exit from the European Union, the UK courts and the Competition Tribunal may, in certain circumstances, depart from the pre-exit case law of the EU courts. This article considers, by reference to the Court of Justice’s judgments in Generics (UK) v. Competition and Mar-kets Authority and Budapest Bank and the Tribunal’s Supplementary Judgment in Generics (UK) v. Competition and Markets Authority, whether it would be appropriate for the UK courts and the Tribunal to depart from the case law on when an agreement has the object of restricting competition by object, so as to develop a more holistic approach to the concepts of a restriction of competition ‘by object’ and ‘by effect’, by considering together the object and effect of an agreement.

The article was published on Elgaronline on 29 April 2022.

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EU Law analysis: These judgments uphold the legality of the rule of law conditionality mechanism laid down in Regulation 2020/2092. Under the relevant rules, the Council may restrict access to the EU budget (for instance by suspending payments) where a Member State violates the rule of law in a manner that affects or seriously risks affecting the sound financial management of the EU budget or the protection of the financial interests of the EU in a sufficiently direct manner. Central to the judgments is the status of the rule of law as one of the founding values of the EU under Article 2 TEU. The judgments are of practical significance given the disputes about judicial independence in Poland (as well as the recent judgment of the Polish Constitutional Tribunal rejecting the primacy of EU law in relation to the organisation of the judiciary) and rule of law and corruption allegations in Hungary. In fact, the European Parliament has already launched an action against the Commission for failure to rely on the Regulation prior to the two judgments (Case C-657/21).

The full article, written by Professor Panos Koutrakos, was first published by Lexis®PSL on 14 March 2022 and can be read here.

Azeem Suterwalla and John Cleverly consider the potentially far-reaching & unexpected effects of proposals in the Judicial Review and Courts Bill.

The full article was first published by New Law Journal (LexisNexis) on 11 February 2022, and can be read here.

Brendan McGurk, Will Perry and Antonia Fitzpatrick have co-authored the competition law chapter of the Second Edition of the ‘Blockchain Legal & Regulatory Guidance’, which is published by Tech London Advocates and the Law Society. The chapter considers potential competition harms arising in the blockchain context and enforcement issues for competition regulators. A copy of the guidance can be found on the Law Society website.

EU Law analysis: This judgment is about the rights of an EU citizens who is a minor, born and resident in a Member State other than that of their nationality and whose parents are persons of the same sex. The Court of Justice, Grand Chamber, held that the home Member State must recognise the birth certificate issued by the host Member State and which refers to the two parents as mothers and issue an identity document, even though domestic law does not allow marriage and parenthood for persons of the same sex. On the one hand, the judgment acknowledges the right of each Member State to lay down the rules that govern the right to marry and the right to found a family. On the other hand, it makes it clear that, in exercising this right, domestic law must comply with EU law, including the right of EU citizens to move and reside in another Member State and lead a life there with their family. The judgment is of interest to practitioners as it highlights the significance of EU citizens’ rights in the context of Member States whose regulation of institutions such as marriage and parenthood may vary widely

The full article written by Professor Panos Koutrakos, was first published by Lexis®PSL on 22 December 2021, and can be read here.

Arbitration analysis: A recent judgment of the Grand Chamber of the Court of Justice of the European Union (ECJ) held that in cases where an arbitration clause in an intra- EU Bilateral Investment Treaty (BIT) is contrary to EU law, domestic Member State law may not allow a Member State and a private party to conclude an ad hoc arbitration agreement with the same content and submit that dispute to an arbitral body with the same characteristics as that envisaged under the BIT, extending the principles established in Achmea v Slovakia (Achmea). The judgment confirms the significance of the Achmea decision and buttresses it so that it may not be circumvented by means of Member State domestic law. It also builds on the approach illustrated in another recent Grand Chamber judgment (Moldova v Komstroy) and makes it clear that Member State domestic courts are under a duty to set aside an arbitration award made on the basis of an arbitration agreement that would violate the Achmea principle. Given the narrow legal context of the case, the judgment also raises questions about the scope of the applicability of the above principle.

The full article written by Professor Panos Koutrakos, was first published by Lexis®PSL on 2 November 2021, and can be read here.

EU Law analysis: This judgment by the Court of Justice, Grand Chamber, is about the preliminary reference procedure (Article 267 TFEU) and the power of courts of last instance in EU Member States not to refer, provided that certain conditions are met. It reaffirms existing case-law and provides further guidance about how domestic courts must decide whether the interpretation of EU law is so obvious as to render a reference unnecessary—on the one hand, they are not required to examine all language versions of EU law and may decide not to refer even in cases where different interpretations are possible but not sufficiently plausible; on the other hand, they must be particularly vigilant, given the objective of uniform interpretation of EU law, and must provide reasoning for their decision not to refer. The judgment confirms the significance of courts of EU Member States in the process of interpretation of EU law while it makes it clear that their power is neither unlimited nor unchecked. It is also helpful for practitioners, as it highlights the relevance of the information they may provide domestic courts in order to argue that a reference to the Court of Justice be made. Written by Professor Panos Koutrakos, barrister at Monckton Chambers and Professor of EU Law, and Jean Monnet Professor of EU Law at City, University of London.

This analysis was first published on Lexis®PSL on 14 October 2021 and can be found here.

The scope of the new UK subsidy control regime, set out in the Subsidy Control Bill that is currently before parliament, differs little from the EU state aid regime, apart from its non-application to UK primary legislation. The question of whether a tax ruling is a ‘subsidy’ will therefore typically depend on whether it is ‘specific’ – and the answer to that question in a tax context involves applying effectively the same principles as are used to decide whether a tax ruling or tax rule confers a ‘selective advantage’ in EU state aid law. However, while its scope is similar, enforcement and remedies under the new UK regime will be very different to the position under the EU regime: in particular, a substantial enforcement gap is created by the absence of an independent body with powers to initiate investigations of non-published subsidies and the restrictive rules on standing.

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Local Government analysis: The High Court dismissed a claim for recovery of tuition fees which the Secretary of State for Education (via the Student Loans Company) had paid to an Alternative Education Provider which enrolled students onto one particular course but registered them to the relevant awarding body for a different type of qualification. The case is of substantive significance as it clarifies the parameters of use of the Education (Student Support) Regulations 2011 (the Regulations) for recovering overpayments of fee loans. The judgment also clarifies the appropriate sanctions for failure to meet the requirements of course designation under DfE issued guidance entitled ‘Alternative Providers: Specific Course Designation. Guidance for Providers: Criteria and Conditions’ (the 2013 Guidance). The Secretary of State has lodged an appeal at the Court of Appeal.

The full article written by Imogen Proud, was first published by Lexis®PSL on 16 September 2021, and can be read here.