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.

Read the article.

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

Read the article.

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.

Read the article.

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.

Read the article.

 

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.

Across the globe, competition authorities and legislators are keenly exploring new curbs on powerful, US ‘big tech’ companies – most prominently, Google, Apple, Facebook and Amazon. In the EU, there is a particular focus on developing regulation of “digital platforms” – search engines, social media, app stores, online market places, and price comparison websites that link sellers with customers.

The European Commission, and in particular, the Directorate General for Communications Networks, Content and Technology (DG CNECT) and the Directorate General for the Internal Market, Industry, Entrepreneurship and SMEs (DG GROW) recently put together an informal working document with ideas for extending regulation.

The Commission’s working document can be seen as building on a number of papers that have been written in the last year or so considering whether and how existing laws dealing with competition should be developed to meet the challenges posed by digital platforms. Those papers universally recognise the immense benefits that digital platforms have brought to users. Many also tend to suggest that there is a consensus on the need for regulatory change.

Meredith Pickford QC is a barrister at Monckton Chambers in London who specialises in competition law and economic regulation. He was asked by Google to provide his personal, independent view of the Commission’s proposals, based on his experience in this area of law of over 20 years. He has produced a paper, which seeks to examine the foundations for the so-called consensus for further regulation. He does so by reference to specific examples such as ‘self-preferencing’ – when companies provide themselves with advantages that they withhold from their rivals. He assesses the need for, and appropriate content of, new regulatory rules in the light of established jurisprudence and competition policy.

Meredith concludes that there may be scope for development of competition law and regulation to make it more effective in connection with digital platforms in particular. Measures worth proper consideration include:

• strengthening personal data ownership and portability;
• developing a procedure for designating market power in certain digital markets to allow swifter action to tackle competition problems;
• making greater use of measures that allow action before the conclusion of a full competition law investigation; and
• developing existing case-law that prevents companies from misleading consumers by, for example, presenting search results as more relevant to them than could fairly be claimed.

However, Meredith also concludes that there is no need for a radical departure from established principles enshrined in existing, orthodox competition law in the context of digital platforms. Suggestions that ‘technology is different’ are overstated. There is no evidence that innovation is suffering in the technology sector – far from it: companies such as Google, Apple and Amazon are the world’s biggest innovators and investors in R&D. Moves to develop special rules for digital platforms therefore need particularly careful scrutiny. They threaten to undermine innovation that has led to technology companies bringing immense benefits to people’s lives – benefits made all the more important as a result of the restrictions brought about due to the Covid pandemic.

Meredith’s paper is available here.