Michael Bowsher KC – The Government Contractor – No Man Is An Island In Defense Procurement: Developments In EU Defense Procurement Regulation And Its Implications For The U.S.

Introduction – The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States, what can be commonly procured, and how. The U.S. faces the obvious dilemma of needing to be seen to encourage EU initiatives which, if successful, would reduce reliance on the U.S. within the North Atlantic Treaty Organization (NATO) while also securing U.S. industry’s continued access to the European defense market(s). We explore the latest EU initiatives with a particular emphasis on implications for the U.S. For a useful introduction see Luke Butler, “Developments and Directions in EU Defense Procurement Regulation, and implications for the Defense Relationship between the EU and the UK.”

The article co-authored by Michael Bowsher KC, was published by Thomson Reuters.

To read full article please click here.

The Procurement Bill – A series of briefings

Monckton Chambers recently co-hosted an event with Freshfields Bruckhaus Deringer on how the Procurement Bill proposes to reform public procurement law in the UK.

Following the event we are publishing a series of briefings on the Bill – the first of which by Alexia Millet and Azeem Suterwalla, considers the provisions of Bill relating to contract performance.

The second briefing, by Elizabeth Forster and Michael Bowsher QC, looks at how the Procurement Bill would change the rules relating to exclusion and debarment.

In the third briefing, Alexia Millett and Azeem Suterwalla consider the changes to the rules on modifying existing contracts.

In the fourth briefing, Tom Hutchison and Ewan West address the provisions in the Bill relevant to direct awards and their likely effect.

You can view the briefings here:

George Peretz QC – Tax Journal – Invention is the mother of ‘necessity’: the Northern Ireland Protocol Bill

The Ireland/Northern Ireland Protocol was at the heart of the Withdrawal Agreement negotiated with the EU in 2019 and was, as required by that agreement, incorporated into UK law. It has important tax implications, especially in the areas of VAT, customs duties and state aid. The Northern Ireland Protocol Bill would remove most of the Protocol from UK law, despite the UK’s treaty obligation. The government claims that the principle of ‘necessity’ gives a legal basis for that action in international law, but its argument is unconvincing. The Bill is likely to run into considerable opposition in Parliament, especially in the House of Lords. And if passed it would threaten a trade war with the EU with major implications.

Read the article.

Christopher Vajda QC – EE Elgaronline – The concept of restriction of competition: time for a rethink?

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.

To read full article please click here.

Professor Panos Koutrakos – Lexis®PSL EU Law – The European Court of Justice affirms the legality of mechanism that restricts access to EU budget for  Member States that violate the rule of law (Hungary v Parliament and Council, Poland v Parliament and Council)

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.

Brendan McGurk, Will Perry and Antonia Fitzpatrick have co-authored the competition law chapter of the Second Edition of the ‘Blockchain Legal & Regulatory Guidance’

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.

Professor Panos Koutrakos – LexisPSL – EU rights in home Member State for child whose parents of same sex are designated in birth certificate issued by host Member State (VМА v Stolichna obshtina, rayon ‘Pancharevo’)

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.

Blackstone’s Guide to the UK Internal Market Act 2020 – now available

OUP has published Blackstone’s Guide to the UK Internal Market Act 2020 authored by Monckton members George Peretz QCAlan BatesBrendan McGurk and Jack Williams, experts with extensive experience in the relevant fields of EU internal market law, EU and UK competition law, UK constitutional law, and consumer law.

The Internal Market Act is of significant importance and interest to UK businesses, consumers, and professionals. It essentially replaces (and modifies) the large body of EU internal market law for the UK post-Brexit. This will touch on almost every area of domestic business and trade.

The book is the first to consider the UK’s newly-formed internal market post Brexit and the UK Internal Market Act 2020. The book explores the Act’s provisions in a succinct and practical manner, working through the provisions in the Act in a logical and cohesive manner to help the busy practitioner.

For further details and to order please click here.