In the UK, the ECJ had been called a foreign court in the Brexit debate. However, the term comes from Switzerland. The notion of a foreign court was used to refer to an international court that includes judges from other states. However, this notion is fallacious, argues Carl Baudenbacher (LSE). The decisive factor is whether a court is neutral. If a state belongs to an international organisation, the international court in question is neutral towards that state. This applies to the ICJ, for example, regardless of whether a state provides a judge or not. The ECJ, on the other hand, is not neutral for post-Brexit Britain and for Switzerland; it is the court of the other party and thus not impartial.

Please click here to read the article published by the LSE Blog.

Christopher Vajda QC stepped down from his role as a judge at the European Court of Justice following the UK’s withdrawal from the European Union on 31 January 2020. He returned to Monckton Chambers in October, where he began his legal career. Janith Aranze spoke to Vajda about streamlining the General Court’s procedures, the UK’s approach to digital markets and whether further guidance is needed at an EU-level on competition-related SEP matters.

To read the Q&A please click here.

In Colchester Institute Corporation v HMRC, the Upper Tribunal held that state-funding did have a sufficient link to the provision of education and vocational training provided by a college to constitute supply of services for consideration and economic activity. Nevertheless, HMRC was entitled to set-off input tax to reduce the taxpayer’s repayment claim. The implications of the case are likely to be profound: many businesses – educational and otherwise – supplying services that are funded by state agencies are now likely to argue that their provision of services does, in fact, constitute the supply of services for consideration and economic activity. That being so, there would be no need to account for output tax on those services and any accounted for with HMRC may be recoverable.

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Khatija Hafesji considers the Department for Education’s latest school closure and mass testing decisions and their implications for the right to education.

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The First-tier Tribunal has released its long-awaited decisions in three cases concerning the VAT treatment of fees charged by local authorities across the UK for access to sports and leisure facilities, holding that while the activities constituted economic activity, they were nevertheless exempt from VAT on the grounds that they were carried out under a special legal regime. These decisions will have wide-ranging implications for the VAT treatment of a large number of activities carried out by local authorities or other statutory bodies under a statutory regime which imposes conditions or obligations on the body when providing the services.

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The development of what appear to be three effective vaccines against Covid-19 is excellent news. But every silver lining has a cloud, and there is no news so good that it does not cause lawyers to ask themselves about what happens if things go wrong.

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Dispute Resolution analysis: This case concerned the application of the common law doctrine of abuse of process in claims for damages arising from an infringement of competition law. The Court of Appeal upheld a judgment of the Competition Appeal Tribunal (CAT), finding that it would be an abuse of process for the defendants in such a case to contest findings contained in the decision of the European Commission (the Commission), where those findings reflected admissions by the defendants, unless there was some justification for doing so.

Written by Ben Lask, barrister at Monckton Chambers.

This analysis was first published on Lexis®PSL on 18 November 2020 and can be found here.