Landmark Judgment on Western Sahara

The Court of Justice of the EU has found unlawful the application of the EU – Morocco Fisheries Partnership Agreement (“FPA”) to Western Saharan territory. In a decision with broader significance for agreements between the EU and third countries, the Court found that the implementation of the FPA in Western Sahara would contravene the right of the people of Western Sahara to self-determination and, therefore, infringe Article 3 (5) of the Treaty on European Union.

Conor McCarthy, instructed by Leigh Day, acted for Western Saharan Campaign UK (led by Kieron Beal QC)

For further detail see Leigh Day news release.

No Exemption for Interchange Fees

Sainsbury’s Supermarkets Ltd -v- Visa Europe Ltd and Or – Latest decision

In a judgment of 30 November 2017 [2017] EWHC 3047, Phillips J held that Visa’s UK MIFs did not restrict competition within the meaning of Article 101(1). In a subsequent judgment dated 23 February 2018 [2018] EWHC 355 Phillips J held that if Visa’s UK MIF did in fact infringe Article 101(1), Visa’s UK MIF did not merit exemption under Article 101(3) and would not have been exempt “at any level.”

The basis for the conclusion in the exemption judgment was the failure by Visa to prove that the first condition in Article 101(3) was satisfied. This was interpreted by the CJEU in Case C-382/12 P MasterCard v Commission as meaning that there must be “appreciable objective advantages arising specifically from the MIF and not merely from the …system as a whole”(para 232).

Phillips J concluded that there was “a complete absence of evidence of a real, observable and measurable link” between the MIF and the alleged efficiencies that were said by Visa to simulate card use. Phillips J pointed out that there was no real evidence to show that the MIF was linked to any specific efficiency as opposed to improving the banks’ profitability. Phillips J also pointed out that the banks already obtain considerable revenue in the form of interest payments through the use of payment cards which already incentivised the banks to stimulate card use.

Phillips J rejected the contention that exemption can be obtained using a broad-brush approach often applied in assessment of damages. The Judgment, which reflects established EU law, required a more robust and empirical analysis.

Both judgments will be the subject to further scrutiny by the Court of Appeal for 3 weeks commencing 9 April 2018. At the same time the Court of Appeal will hear appeals from two other judgments relating to MasterCard’s UK MIFs:  an appeal by MasterCard in Sainsbury’s Supermarkets v Mastercard [2016] CAT 11: and an appeal by Asda and other retailers in Asda Stores v MasterCard [2017] EWHC 93 Comm.

Highlighting the importance of the three appeals to the correct interpretation of Article 101 the European Commission submitted written Observations to the Court of Appeal on 21 February 2018 and has applied to make oral submission at the hearing.

Mark Brealey QC, instructed by Morgan, Lewis & Bockius UK LLP, represented the Claimant, Sainsbury’s Supermarkets Ltd.

See judgment here.

High Court to review Muslim graves case

The High Court has granted permission for a judicial review of Walsall Council’s cemeteries policy, deeming it a matter of public interest.

The Claimant’s late father is buried in the lawn area of Streetly Cemetery, which is reserved for Muslim burials. The Council’s policy prohibits edging around graves in that area. The Claimant argues that appropriate edging is a religious requirement (to prevent people from stepping on graves) and that the ban is in breach of the right to freedom of religion under Article 9 ECHR and contrary to the Equality Act 2010.

Nikolaus Grubeck is acting for the Claimant.

For the media coverage see BBC and the Guardian.

Melanie Hall QC in landmark case for the timeshare sector

The Upper Tribunal has allowed an appeal in Fortyseven Park Street Limited v HMRC concerning the purchase of fractional interests in a luxury property in Mayfair comprising 49 self-contained apartments. The Tribunal endorsed the First tier Tribunal’s finding that the interests fell within the land exemption. However, it overturned the Tribunal’s finding that exemption from VAT was not available because the grants of the fractional interests were made in the hotel sector.

Melanie Hall QC acted for the Appellant. Click here for a copy of the judgment.


High Court rules that damages are inadequate for NHS claimants

The TCC has refused an application by Lancashire County Council to lift the suspension of a procurement relating to Children’s Services in Lancashire. The procurement is challenged by two local NHS Trusts – Lancashire Care NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust – who are the incumbent providers of the services. The contract has been awarded to Virgin Care Services Limited.

The judgment is notable in a number of respects:

  • The Court held that the constraint on the availability of damages to a “sufficiently serious breach” was a factor which could be taken into account in deciding whether to lift the suspension.
  • The Court held that damages were not an adequate remedy for the claimants given that the loss of the contract would require them to restructure their operations and would affect the way in which they provided other public services
  • The Court rejected an argument that the Court should lift the suspension because a contract extension would be illegal
  • The Court made observations confirming that contracting authorities should not unreasonably resist applications for specific disclosure of core evaluation and bid material

The Court ordered an expedited trial of the claim in April 2018.

Rob Williams acted for the successful Claimants instructed by Hempsons. The judgment can be found here.

Two of The Lawyer’s Top 20 Cases for 2018 feature four Monckton Chambers’ members

The Lawyer has published the Top 20 Cases due to be heard in 2018, which this year has “public interest cases take centre stage” and is described as “a plethora of headline-grabbers.” Four members of Monckton Chambers are highlighted in this year’s list relating to two cases:

Peugeot SA & Ors v NSK Ltd & Ors

Competition Appeal Tribunal,

16 April, six weeks

Peugeot has launched a claim for damages against automotive parts supplier NSK Ltd and others that will reach court in April, following a March 2014 European Commission decision that identified cartel behaviour. The commission found the defendants guilty of collusive behaviour relating to their supply of automotive bearings to claimant the Peugeot group between 2004 and 2011. The upcoming hearing will examine the remaining technical issue surrounding the ‘overcharge’ resulting from anti-competitive behaviour.

The defendants claim this overcharge was passed onto Peugeot’s customers and, as such, it is not their responsibility to pay further damages. There is also confusion as to the extent of Peugeot’s loss resulting from the defendants’ cartel behaviour, and whether it is possible to monetise that loss.

Monckton Chambers’ Josh Holmes QC and James Bourke, instructed by Macfarlanes partner Geoff Steward is acting for the fifth defendant, AB SKF


Liberty v Secretary of State for the Home Department & Ors

High Court,

27 February, two days

Liberty is seeking a judicial review of the Investigatory Powers Act 2016, otherwise known as the ‘Snooper’s Charter’, which was brought into law while Theresa May was home secretary in 2015.The bill granted the security services and the police powers to hack devices such as mobile phones and computers, and to retain data that might help them combat an increased terror threat. The legislation provoked an immediate backlash from civil rights campaigners who said it compromised citizens’ right to privacy and journalists’ ability to do their job.

The powers granted by the bill, including a requirement for telecoms operators to retain data, thematic hacking, the bulk interception of communications and the bulk acquisition of data, are (according to Liberty) incompatible with EU law and in contravention of the terms of the 1998 Human Rights Act.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, alongside Blackstone Chambers’ James Eadie QC and 11 KBW’s Julian Milford, are instructed by the Government Legal Department for the defendant, the Secretary of State for the Home Department & Ors.

Please click here to view the full article, if a subscriber of premium content.

CMA provisionally finds Fox/Sky deal not in the public interest

On 23 January 2018, the CMA published its provisional decision that Fox taking full control of Sky is not in the public interest due to media plurality concerns, but not because of a lack of a genuine commitment to meeting broadcasting standards in the UK.  The media plurality concerns identified mean that, overall, the CMA provisionally concluded that the proposed transaction is not in the public interest.  The public interest issues had been referred to the CMA by the Secretary of State for Digital, Culture, Media and Sport.  The CMA’s final view is due in summer 2018, when the matter will be referred back to the Secretary of State for a final decision on the merger.

The CMA provisionally found that if the deal went ahead, as currently proposed, it would be likely to operate against the public interest. It would lead to the Murdoch Family Trust (MFT), which controls Fox and News Corporation (News Corp), increasing its control over Sky, so that it would have too much control over news providers in the UK across all media platforms (TV, Radio, Online and Newspapers), and therefore too much influence over public opinion and the political agenda.  The MFT’s news outlets are watched, read or heard by nearly a third of the UK’s population, and have a combined share of the public’s news consumption that is significantly greater than all other news providers, except the BBC and ITN.  Due to its control of News Corp, the Murdoch family already has significant influence over public opinion and full ownership of Sky by Fox would strengthen this even further.  While there are a range of other news outlets serving UK audiences, the CMA provisionally found that they would not be sufficient to moderate or mitigate the increased influence of the MFT if the deal went ahead.

The CMA’s investigation also examined a range of evidence to understand whether Fox, Sky and the MFT have a genuine commitment to broadcasting standards in the UK. Here, it provisionally found that Fox taking full control of Sky was not likely to operate against the public interest.

Kassie Smith QC and Julian Gregory are acting for the Secretary of State in this matter.

George Peretz QC and Azeem Suterwalla are acting for Avaaz, who are objecting to the transaction.

This has been widely covered by the press: BBC, The Guardian, The Independent, The Times.

Supreme Court grants permission to appeal in SAE Education Ltd

On 22 January 2018, the Supreme Court granted permission to appeal against the Court of Appeal’s judgment in SAE Education Ltd v HMRC [2017] EWCA Civ 1116. Melanie Hall QC and Elizabeth Kelsey represent the Appellant and will argue that its supplies of university education are exempt from VAT because it is a college of a university.

To read the judgment please click here.

Melanie Hall QC secures a win for the UK in the European Court – Avon Cosmetics Ltd v Revenue and Customs Commissioners

As reported in The Times the European Court has rejected the claim made by Avon Cosmetics plc that a derogation from EU law which authorised the UK to charge VAT on sales by direct selling companies based on their open market value, was unlawful. The Court accepted all arguments advanced on behalf of the UK and concluded that the derogation was lawful, proportionate and did not breach the principles of fiscal neutrality by failing to allow Avon ladies a VAT credit in relation to the purchase of demonstration items. Avon’s inability to claim such a credit was merely the consequence of its commercial decision to use the direct selling marketing model. Melanie Hall QC represented the UK. This judgment brings to an end litigation which has spanned over a decade.

Click here for a copy of the judgment.

EU Advocate General delivers landmark Opinion in Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs

Advocate General Wathelet has delivered a landmark opinion in Case 266/16 on the validity of the Fisheries Partnership Agreement between the EU and Morocco. The case raises potentially far-reaching issues regarding the relationship between the EU and third counties and the extent to which such agreements must respect public international law and human rights obligations incumbent on EU institutions.

In his opinion, the Advocate General found that “the European Union has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination by the Kingdom of Morocco and also not to render aid or assistance in maintaining that situation”. The AG further found that  in so far as they apply to the territory of Western Sahara and to the waters adjacent thereto, the Fisheries Agreement and a 2013 Protocol to that agreement are incompatible with EU law which imposes on the European Union “the obligation that its external action is to protect human rights and strictly respect international law”.

Conor McCarthy acts for the Claimant. He was instructed by Leigh Day and was led by Kieron Beal QC.

The opinion can be found here.