The Court of Appeal has today overturned the CAT’s ruling that that CMA’s market investigation into mobile browsers and cloud gaming was commenced out of time.

Apple challenged the CMA’s decision to initiate a market investigation. By way of background, the CMA had previously carried out a market study in relation to mobile ecosystems between June 2021 and June 2022 during which the CMA decided not to make a market investigation reference. The CMA reached that conclusion because it took the view that the competition concerns it had identified were better addressed using new powers to be vested in the Digital Markets Unit (under the Digital Markets, Competition and Consumers Bill).  However, following delays to the introduction of those new powers, the CMA decided that it should consult on a market investigation reference in relation to two particular topics, mobile browsers and cloud gaming. That consultation led to a market investigation reference in November 2022. Apple brought proceedings before the CAT arguing that the reference did not comply with the time limits in sections 131A and B of the Enterprise Act 2002.  The CAT upheld Apple’s challenge in a ruling dated 31 March 2023.

The Court of Appeal has reversed the CAT’s ruling. It held that the time limits relied on by Apple apply to the process of consultation within a market study, and do not otherwise limit the CMA’s power to make a reference under section 131 of the Enterprise Act 2002. The Court of Appeal noted that there are express limits on the CMA’s power to make a reference under section 131(4) of the Enterprise Act 2002 which did not apply in the circumstances. The only applicable condition for the making of a reference was the threshold test in section 131 that there are reasonable grounds for suspecting that a feature of the market prevents, restricts or distorts competition, and that condition was met. The CMA’s construction of the Act was also consistent with its purpose which was to promote competition and protect consumers.

Rob Williams KC was instructed by the CMA to challenge the CAT’s judgment in the Court of Appeal. The judgment can be found here.

In Joined Cases C-29/22 P and C-44/22 P KS and KD v Council & Others, Advocate General Ćapeta concluded that the Court of Justice of the European Union (CJEU) has jurisdiction in an action for damages against the EU based on alleged breaches of fundamental rights in the EU’s Common Foreign and Security Policy (CFSP).

The case concerns two individuals who lost family members in 1999 in the aftermath of the Kosovo conflict. The murders and disappearances remained unsolved. In 2008, the EU established the EU Rule of Law Mission in Kosovo (Eulex Kosovo) tasked, amongst others, with the investigation of such crimes. Considering that Eulex Kosovo did not properly investigate the crimes involving their family members, the two individuals claimed a breach of their fundamental rights. They brought an action for damages requesting compensation before the General Court of the EU. The General Court held that it lacked jurisdiction and dismissed their action. The individuals and the EU Commission appealed the General Court’s decision.

In her Opinion, Advocate General Ćapeta concludes that EU law does not limit the jurisdiction of the EU Courts to hear an action for damages brought by individuals based on an alleged breach of fundamental rights by CFSP measure. Such an interpretation follows from the constitutional principles of the EU legal order, principally the rule of law that includes the right to effective judicial protection and the principle requiring respect for fundamental rights in all EU policies. The constitutional role of the EU Courts that follows from those principles can be limited only exceptionally. The violation of fundamental rights cannot be a political choice in the European Union, and the EU Courts must have jurisdiction to ensure that CFSP decisions do not cross ‘red lines’ imposed by fundamental rights.

Advocate General Ćapeta proposes that the Court should find that the General Court erred in law when it found that it lacked jurisdiction to hear the action for damages.

Professor Panos Koutrakos is instructed by Savic Solicitors on behalf of KS and KD and is led by Fergus Randolph KC of Brick Court Chambers.

In her Opinion, Advocate General Ćapeta refers to two books by Professor Koutrakos, namely his monograph The EU Common Security and Defence Policy (Oxford University Press, 2013) and his co-edited book Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018).

To view a copy of the Opinion, please click here.

The Supreme Court has upheld the taxpayers’ arguments that they were not transferors for the purposes of the Transfer of Assets Abroad Regime (section 739 ICTA 1988 and section 720 ITA 2007). The case concerned the transfer of a business by a UK company of which the taxpayers were each minority shareholders to a company resident in Gibraltar. The Court has held that, in circumstances in which the taxpayers were each minority shareholders in the company that made the transfer of assets, they were not either singly or collectively the transferors of the business.

Brendan McGurk represented HMRC and was led by David Ewart KC of Pump Court Tax Chambers.

To view a copy of the judgment, please click here.

Brendan McGurk successfully acted for the Commissioners in their defence of an appeal brought by Vision Dispensing Limited (“VDL”). VDL supplies services in connection with the online sale of contact lenses and this appeal was concerned with the question whether those supplies ought to be standard rated (as HMRC contended) or exempt on the basis that they involved the provision of medical care (as VDL contended). More particularly, VDL argued that it provided an online supply of exempt ‘dispensing services’ that were made in relation to the online supply (by another company in the group of which VDL was a member) of contact lenses. VDL needed to satisfy the Tribunal on two issues: (1) First, that its supplies constituted medical care and (2) second, that those supplies were wholly performed or directly supervised by appropriately medically trained persons. VDL failed on both grounds.

The appeal and the Tribunal’s analysis will be of wider relevance to suppliers of online services who seek to rely upon the medical exemption in schedule 9 of the VAT Act.

The Tribunal’s judgment is here.

The CAT has certified collective proceedings brought on behalf of 8.9 million Sony PlayStation UK customers for damages as a result of alleged supra-competitive pricing of games and add-on content purchased through the PlayStation Store.

The judgment is the first to address a PCR’s funding arrangements following the judgment of the Supreme Court in PACCAR. The CAT found the PCR’s revised funding arrangements would be enforceable.

The CAT also ruled for the first time that its jurisdiction to make a CPO pursuant to section 47B of the Competition Act 1998 is limited to claims which exist as at the date of the Claim Form. Certification is therefore subject to amendment of the class definition to remove so-called “future claimants” whose alleged losses post-date the filing of the Claim Form.

Robert Palmer KC, Fiona Banks and Antonia Fitzpatrick represented the Class Representative, Alex Neill Class Representative Limited, instructed by Milberg London LLP.

Daniel Beard KC represented the Defendants, Sony Interactive Europe Limited and Sony Interactive Entertainment Europe Limited, instructed by Linklaters LLP.

The judgment is available here.

The Competition Appeal Tribunal has handed down judgment in Sky v Ofcom [2023] CAT 70.

The Tribunal upheld Ofcom’s construction of section 32(2) and (2A) of the of the Communications Act 2003, which underpinned Ofcom’s Decision that Sky’s pay TV services, which rely in whole or in part on a digital satellite transmission service, constitute an electronic communications service (“ECS”) within the meaning of that section, and that Sky was therefore required to send end-of-contract notifications to customers of its pay TV services. It found that “as a matter of construction of section 32(2) and (2A), it is necessary first to exclude the element of a service which is a “content service” before considering whether the rest of the service falls within the definition of section 32(2A)(c) as “consisting in, or having as its principal feature, the conveyance of signals”.”

On that basis, the Tribunal concluded that Sky’s pay TV service is an ECS within the meaning of section 32(2) and (2A)(c) of the 2003 Act. It held that Ofcom erred in not considering in the Decision whether the element of conveyance of signals predominates over the Other Non-Content aspects of the Sky Pay TV service, but that, in any event, it does so predominate. As such, the overall conclusion in the Decision was correct.

The judgment is available here.

Meredith Pickford KC and David Gregory acted for Sky.

Josh Holmes KC, Julianne Morrison and Nikolaus Grubeck acted for Ofcom.

In a judgment handed down on Friday 10 November 2023, Mr Justice Roth has dismissed the claims made by Phones 4U against the mobile network operators EE, Telefonica and Vodafone, and those made against EE’s former parent companies Orange and Deutsche Telecom. The Judgment is a rare judgment on a standalone competition claim, and follows a trial in the Competition List of the High Court which ran from May to July 2022. The Judgment, which runs to 208 pages, contains discussion of a number of important topics for competition lawyers including the extent to which collusion may occur in a bilateral exchange where one party declines to participate, public distancing, the rebuttal of the presumption of conduct on the market, document preservation, the drawing of adverse inferences from the absence of witnesses and the importance of competition law compliance policies.

Monckton members acted for two of the successful defendants: Meredith Pickford KC and David Gregory for EE and Rob Williams KC for Vodafone. The judgment and the judge’s short summary of the judgment can be found here and here.

The Competition Appeals Tribunal (CAT) has today certified opt-out collective proceedings brought on behalf of millions of iPhone users against the Apple corporate group. The Class Representative, consumer champion Justin Gutmann, alleges in summary that Apple abused a dominant position in the way it introduced software updates for approximately 34 million iPhones. These updates were designed to reduce the rates of “unexpected power offs” experienced by users. It is alleged that Apple concealed from users that the updates considerably slowed down the iPhones in certain circumstances. The claim is estimated to be worth at least £853 million and follows similar class actions and regulatory proceedings brought against Apple around the world.

The CAT’s unanimous judgment concludes that Mr Gutmann has a realistic prospect in making good his case at trial and that the claims should be certified (subject to the resolution of any funding issues arising from the Supreme Court’s judgment in PACCAR). In reaching this conclusion, the CAT dismissed Apple’s strike out and summary judgment applications concerning the evidential basis for the claim and the period following an Apple apology published in December 2017, challenges to Mr Gutmann’s methodology for assessing loss, and a challenge to the suitability of Mr Gutmann to bring the claim.

Philip Moser KC, Anneli Howard KC, Stefan Kuppen, Will Perry and Natalie Nguyen represented the successful Class Representative, Justin Gutmann, and were instructed by Charles Lyndon.

The judgment is available here, and has been covered by Forbes, Reuters, Sky News, the Evening Standard and the Independent.

Karpichkov v National Crime Agency [2023] EWHC 2653 (KB)

The King’s Bench Division today dismissed an application by the National Crime Agency to strike out the claim brought by a former KGB double agent for breach of his data protection rights and misuse of his private information.

The Claimant – who the Court has directed may only be identified by his former name Boris Karpichkov – formerly worked for the KGB and, following the end of the Cold War, for the KGB and Latvian security services as a double agent. Fearing for his life, he fled Latvia with his family in 1998 and claimed asylum in the UK. He was granted British citizenship in 2010 under a new, undisclosed identity.

In 2019, Mr Karpichkov was arrested by Kent Police pursuant to a European Arrest Warrant issued by the Latvian authorities. In 2020, the Westminster Magistrates’ Court dismissed refused his extradition on the basis that it would breach his Convention rights, noting, among other things, that Mr Karpichkov had “an abundance of dangerous enemies in both Latvia and Russia“. In the course of processing the extradition request, however, the National Crime Agency disclosed Mr Karpichkov’s current name and address to the Latvian authorities.

In 2022, Mr Karpichkov brought a claim against the National Crime Agency, arguing that its disclosure of his current name and address to the Latvian authorities was not only unnecessary under the Schengen Information System then in force but also in breach of his Convention rights, his right to protection of his personal data and a misuse of his private information. Earlier this year, the Agency applied to strike-out Mr Karpichkov’s claims and obtain summary judgment against him, arguing that it was bound by the terms of EU law to disclose details of his current identity and address.

In today’s judgment, High Court Master McCloud dismissed the Agency’s applications, ruling that it was at least arguable that the Agency should have first considered whether its disclosures were truly “required”, taking into account Mr Karpichkov’s rights under the EU data protection legislation, the ECHR and EU Charter of Fundamental Rights.

Eric Metcalfe is instructed by Deighton Pierce Glynn for the Claimant, Mr Karpichkov.

Julianne Kerr Morrison was instructed on behalf of Mr Karpichkov at an earlier stage of the proceedings.

The judgment is available here and has been reported by Reuters and Yahoo news.

On 17 October 2023, the Competition Appeal Tribunal approved the consolidation of two applications for a collective proceedings order against Google, thereby avoiding a carriage dispute. The two proceedings concerned Google’s conduct in the ad tech sector and sought substantial damages on behalf of publishers. The proposed class representatives, Mr Arthur and Mr Pollack, agreed to consolidate their applications following negotiations between themselves and their teams, including their funders and insurers, and this step has now been approved by the CAT, subject to certification of the claims which the CAT will decide next year. The consolidated application will be pursued by Ad Tech Collective Action LLP, of which both the individual representatives are members, along with Kate Wellington. This is the first time in the UK that a carriage dispute has been resolved through a negotiated settlement, though the practice is common in other countries such as Canada that have class action regimes.

Gerry Facenna KC, Julian Gregory, Alison Berridge and Nik Grubeck represent Ad Tech Collective Action LLP, instructed by Hausfeld & Co. LLP, Humphries Kerstetter LLP and Geradin Partners Limited. The consolidated claim is being funded by Fortress. Meredith Pickford KC represents Google, instructed by Herbert Smith Freehills LLP.