1298/5/7/18 Achilles Information Limited v Network Rail Infrastructure Limited

The Competition Appeal Tribunal has found that Network Rail had acted unlawfully in accepting only supplier assurance provided by the Rail Safety Standard Board’s RISQS scheme for the purposes of its Sentinel and On Track Plant Operating Schemes which govern physical access to its infrastructure by providers of infrastructure maintenance and construction services.

In a judgment handed down in July, the Tribunal found that relevant terms in the scheme rules constituted both an anticompetitive agreement and an abuse of Network Rail’s dominant position. As the trial had proceeded as a trial of liability as a preliminary issue, the latter finding was based on an assumption of dominance yet to established at a later hearing.

The Tribunal held that it was only legitimate for Network Rail to impose a requirement of a specific assurance provider in relation to suppliers it contracted with directly, not in relation to the wider supply chain of sub-contractors which equally required access to its infrastructure.

The Tribunal this week ordered that Network Rail cease to impose the offending requirement and put in place as soon as practicable arrangements for the acceptance of supplier assurance provided through alternative schemes, including that provided by Achilles. The Tribunal refused Network Rail’s application for permission to appeal, but suspended the effect of its order pending a renewal of that application to the Court of Appeal.

Proceedings in front of the Tribunal had been expedited following a successful application by Achilles, and the matter had proceeded to a trial of the preliminary issue of liability within 4 months from the application for expedition. A trial of the issue of dominance and of a claim for damages is to follow.

Read a case note about the judgment by Alfred Artley.

Philip Woolfe and Stefan Kuppen acted for Achilles Information Limited.

Google vs Commission nationale de l’informatique et des libertés (CNIL)

In a landmark judgment for freedom of expression and access to information, the Court of Justice of the European Union has today held that the ‘Right to be Forgotten’ under EU law does not require search engines to de-list search results on a global basis.

The case, C-507/17 Google Inc v Commission nationale de l’informatique et des libertes (CNIL), concerned a complaint brought by Google against CNIL, the French data protection regulator, in relation to a number of de-referencing requests made in the wake of the CJEU’s decision in Case C-131/12 Google Spain – the so-called ‘Right to be Forgotten’. CNIL had ordered Google to de-index links to news reports by reference to certain named individuals in order to protect their personal data, not only on the Google.fr domain name extension but also worldwide. Google challenged the scope of the de-referencing orders, following which the Conseil d’État made a preliminary reference to the CJEU.

In today’s judgment, the CJEU held that the Right to be Forgotten – now enshrined in article 17 of the GDPR – did not require a search engine to carry out a request for de-referencing on a global basis but only within the territory of the EU itself. Among other things, the Court observed that “the balance between the right to privacy and the protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world” (para 60) and that EU law did not provide any mechanism for balancing those interests outside its territory. The right to personal data, the Court held, was “not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality”.

Gerry Facenna QC, Eric Metcalfe and Guillaume Tapie of the French Bar acted for ARTICLE 19, Human Rights Watch, the Electronic Frontier Foundation, Derechos Digitales, the Centre for Democracy and Technology, the Clinique d’intérêt public et de politique d’Internet du Canada, Open Net Korea and Pen International – a coalition of 7 international digital rights organisations who were granted permission to intervene in the proceedings, arguing that global de-referencing orders were an inherently disproportionate interference with the rights to freedom of expression and access to information.

The CJEU judgment is available here and ARTICLE 19’s press release can be read here. The judgment has already received considerable media attention, including from the Wall Street Journal, the New York Times, the Los Angeles Times, the Daily Telegraph, the Financial Times, and the BBC.

The High Court has today begun hearing a judicial review challenge brought on behalf of 5-year-old Tafida Raqeeb in reliance on EU free movement law.

Tafida is a patient at a London NHS hospital. She is in what is described by the hospital as a “minimally conscious state” after suffering serious injury to her brain injury in February as a result of a rare condition, arteriovenous malformation, where a tangle of blood vessels causes blood to bypass the brain tissue.

The doctors treating Tafida in London believe that there is no hope for improvement in Tafida’s condition and that life-sustaining ventilation should be withdrawn. Tafida’s parents disagree: their fervent wish, informed by their Muslim faith, is that ventilation be maintained. They wish to move Tafida to a specialist paediatric hospital in Italy which is willing to continue life-sustaining treatment. In Italy, life-sustaining treatment is normally maintained for patients who have not suffered brain stem death. The medical consensus is that Tafida’s life expectancy, if ventilation is maintained, could be 10-20 years.

The London hospital refused to co operate with arranging the transfer to Italy. It did so pending its own application to the High Court under the Children Act seeking a declaration that Tafida’s best interests would be for ventilation to be withdrawn, leading to her death. The hospital did not obtain an interim injunction or care order to prohibit the transfer. As a result of the hospital’s refusal to co operate with the transfer, Tafida remains in London and has not been transferred to Italy to receive treatment there in accordance with her parents’ wishes.

In the judicial review claim being heard from today, the legal team instructed by Tafida’s litigation friend to represent Tafida contend that the hospital’s refusal to transfer her to Italy was an unlawful infringement of her EU right to travel within the EU to receive services (Article 56 of the Treaty on the Functioning of the EU). They further argue that, insofar as the hospital trust’s reasons for refusal to co operate with the transfer was that Italy has different laws, and a different medico-ethical culture, in relation to the continuation of life-sustaining treatment, such reasons involve impermissible discrimination. As Italy is an EU country, Tafida’s human rights would not be jeopardised by transferring her to a specialist hospital in Italy, albeit that the Italian legal and medical systems are not identical to their UK counterparts in relation to their approach to ‘best interests’.

The judicial review claim will be heard on the first two days of a 5 day hearing, with the remaining days being reserved for the hearing of the hospital trust’s application for a determination as to Tafida’s best interests. The judge, Mr Justice MacDonald, is sitting as a judge of both the Administrative Court and the Family Division.

Monckton barrister Alan Bates is instructed on behalf of Tafida (acting through her litigation friend).

The case is attracting widespread media attention. See BBC News; Sky News; The Guardian.

In what is described as the first time any court in the world has considered the use of Automatic Facial Recognition (AFR), the Divisional Court in Cardiff has today dismissed an application for judicial review brought by a civil liberties campaigner against South Wales Police’s use of AFR.

In 2017, South Wales Police began a trial of AFR, deploying cameras at a range of public events including shopping centres, football matches and an arms fair exhibition. The trial involved capturing the facial biometric data of thousands of members of the public and using AFR software to match the captured data against police watchlists in order to identify persons of interest.

The Claimant, supported by the human rights group Liberty, was granted permission to judicially review the use of AFR on the basis that it was a breach of his rights under the Data Protection Act 1998 and article 8 of the European Convention on Human Rights. The Claimant also argued that the use of AFR was contrary to the police’s Public Sector Equality Duty under the Equality Act 2010.

The Divisional Court held that, although the police’s use of AFR engaged the right to privacy under article 8 and amounted to the processing of sensitive personal data, its use was nonetheless lawful on the basis that the interference struck a fair balance and was not disproportionate.

The judgment has attracted widespread media coverage, including the Financial Times, the Guardian, the BBC and the New York Times.

Gerry Facenna QC and Eric Metcalfe acted for the Information Commissioner who was granted permission to intervene in the proceedings.

In a judgment released earlier today, the High Court dismissed Credit Suisse’s claim that the UK infringed EU State aid rules when it implemented Bank Payroll Tax (the “bankers’ bonus tax”) in 2009-2010.

Bank Payroll Tax was a tax paid by banks on non-contractual bonuses paid to their employees during the period that the tax applied. Credit Suisse argued that, because the tax took effect from December 2009 and ceased to have effect in April 2010, there was a State aid to banks that generally paid their bonuses at other times of the year. It further argued that, if it was right about that, it was entitled to damages including all the Bank Payroll Tax that it had paid (an amount of over £200 million) as well as other alleged losses.

Dismissing the claim, Falk J held that there was no State aid. Banks that paid bonuses during the period of application of the tax were not in a legally or factually comparable situation to that of banks who paid bonuses at other times of the year: the tax was intended to operate only during a short period, pending the coming into force of regulatory measures designed to reduce the risk of bank failures. There was therefore no element of selectivity and hence no State aid. The Judge also noted that Credit Suisse had failed to adduce any evidence as to the effect of the measure on competition or effect on trade.

The Judge also held that, even if she had been wrong about the existence of State aid, any breach of the State aid rules would not have been manifest or serious, and therefore would not have given rise to a claim for damages: moreover, Credit Suisse was not entitled under the State aid rules to claim as damages the amount paid by it in tax. She did not need to decide a further defence by HMRC based on a statutory time-bar.

George Peretz QC and Alan Bates represented HMRC

Zhdanov and Others v. Russia (application nos. 12200/08, 35949/11 and 58282/12)

The European Court of Human Rights has found in Zhdanov and Others v. Russia (application nos. 12200/08, 35949/11 and 58282/12) to register the applicant organisations – and thereby obtain legal-entity status – because they promoted LGBT rights had been in violation of Articles 11 (freedom of assembly and association) and 14 (prohibition of discrimination) of the European Convention on Human Rights. In the Court’s view this decisive ground for the refusals could not be reasonably or objectively justified and had, moreover, amounted to discrimination on the grounds of sexualorientation.

In reaching this conclusion, the Court took account of the third party intervention prepared by Jeremy McBride on behalf of the European Human Rights Advocacy Centre (EHRAC), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and the International Commission of Jurists (ICJ).

The judgment is also interesting for the ruling decided, by a majority of the Court, to declare inadmissible the complaints lodged by one of the applicants, namely the well-known LGBT activist Nikolay Alekseyev, as an abuse of the right of application because of his offensive and threatening statements about the Court and its judges on social networking accounts

To view the judgment, please click here.

Big Brother Watch and Others v. the United Kingdom

The Grand Chamber of the European Court of Human Rights (ECHR) has heard the case brought by the Bureau of Investigative Journalists (TBIJ) against the government’s use of mass surveillance. The case deals with, among other issues, the rights of journalists to protect their sources and journalistically privileged information.

TBIJ, alongside a number of organisations, including human rights groups, brought their case against the UK’s mass surveillance programme following revelations by whistle-blower Edward Snowden that GCHQ was undertaking extensive surveillance of internet communications.

Conor McCarthy is instructed by Rosa Curling of Leigh Day. The judgment of the court will be reserved to a later date.This follows the ECHR’s first ruling on UK mass surveillance programmes in September 2018. See website news here.

Marks & Spencer plc v HM Revenue and Customs [2019] UKUT 0182 (TCC), 27 June 2019

The Upper Tribunal has dismissed Marks & Spencer’s appeal against the decision of the First-tier Tribunal [2018] UKFTT 238 (TC). Marks & Spencer’s appeal concerns the correct VAT treatment of its “Dine In for Two for £10 with Free Wine” promotion. The promotion allowed a customer to choose three food dishes on payment of £10 and obtain a bottle of wine (or other non-alcoholic beverage) which was described as being provided “free”. The Upper Tribunal, upholding the First-tier Tribunal, decided that, under the promotion, the customer paid £10 in order to receive the three food items (all zero-rated) and the wine (standard rated), with the result that the £10 consideration must be allocated across all four items for VAT purposes, not just across the three food items, as Marks & Spencer contended.

Andrew Macnab represented HMRC in the First-tier Tribunal and the Upper Tribunal.

Read the full decision here.

Secretary of State for Health and others v Servier Laboratories [2019] EWCA Civ 1096

The Court of Appeal has today handed down judgment in Secretary of State for Health and others v Servier Laboratories [2019] EWCA Civ 1096. The Court dismissed Servier’s appeal against Roth J’s decision that findings of fact made by the General Court in its judgment in Servier v Commission Case T-691/14 handed down on 12 December 2018 would be binding in the preliminary issues trial in the High Court.

After an authoritative survey of the authorities on the effect of the res judicata principle in EU law, Rose LJ concluded that a purposive approach was to be applied to determine the scope of the principle. The principle prevents any person from seeking to challenge a decision which has been adopted in compliance with an earlier annulling judgment of an EU court invalidating an unlawful measure previously adopted by that institution. The result of an annulling judgment is that the institution is bound to decide the issue in the way that the annulling Court has concluded it should be decided. Hence any Court reviewing that new decision cannot entertain a challenge on that issue; the matter is res judicata erga omnes. However, the underlying facts were to be separated from the binding effect of the decision. There was no support in the European cases for the idea that factual findings made by the Court in an annulling judgment as part and parcel of its analysis of the impugned measure can be borrowed in domestic proceedings and treated there as being binding, in the way suggested by Servier.

The Claimants are therefore not precluded in the preliminary issues trial from adducing their own evidence and arguing that the High Court should make factual findings which are contrary to those reached by the General Court, as the question arises in a different context.

Robert Palmer QC acted for all the NHS claimants, with Julian Gregory for the Scottish and Northern Irish claimants and Laura John for the Welsh claimants.

The full text of the judgment is here.

Campaign Against Arms Trade v. Secretary of State for International Trade

The Court of Appeal has today handed down judgment in Campaign Against Arms Trade v. Secretary of State for International Trade, in a ruling with major ramifications for the licensing of military equipment for use in conflict zones by the United Kingdom and other EU Member States.

The case concerned the sale or transfer of arms from the United Kingdom to the Kingdom of Saudi Arabia for possible use in the on-going conflict in Yemen. In its judgment, the Court of Appeal found that the government’s approach to assessing whether there is a “clear risk” that military equipment “might be used in serious violations of international humanitarian law”, was irrational and therefore unlawful. In particular, the government had failed to assess whether there was a pattern of violations of international humanitarian law so as to inform its decision on the clear risk test. The Court accepted the Claimant’s argument that the question whether a violation had occurred could and must “properly be answered in respect of many incidents” of concern.

Conor McCarthy was instructed as junior counsel for the Claimant.

Nikolaus Grubeck acted for the First Interveners, Human Rights Watch, Amnesty International and Rights Watch UK.

Gerry Facenna QC and Julianne Kerr Morrison were instructed by the Second Intervener, Oxfam.

The case has already been covered by the BBC, Independent and FT.

The full text of the judgment is here.