In 2022, Daniel Beard K.C. and Jack Williams acted for Intel before the General Court, securing the annulment of a €1.06 billion fine for an alleged abuse of dominance. See here.

The Commission appealed to the CJEU against that decision.

Today, Advocate General Medina has advised the Court of Justice (CJEU) to dismiss the European Commission’s appeal against that General Court judgment. At the Court’s request, the AG focusses upon two of the six grounds of appeal. Those two grounds alleged that the General Court had committed a series of errors and infringed the Commission’s rights of defence in the context of its examination of the as-efficient-competitor (AEC) test regarding two customer accounts.

In particular, AG Medina concludes that:

• None of the Commission’s submissions are capable of calling into question the General Court’s conclusion that the Commission’s decision failed to demonstrate the foreclosure effect of certain rebates granted by Intel
• The General Court did not commit any error by concluding that the Commission had proceeded on the basis of an assumption which was contrary to the foundation of the AEC test set out in the Commission’s decision.

Daniel and Jack act for Intel on the appeal and are also instructed by Intel in its interest claim, arising from the Commission’s failure to pay default interest following the General Court’s annulment of the fine. See here.

The Lawyer’s “Top 20 cases of 2024” has been published, highlighting the biggest disputes of the year based on profile and value. Six members at Monckton Chambers feature in one of these cases: the very first opt-out competition law class action to reach trial since the introduction of the new regime under the Consumer Rights Act 2015:

• Justin le Patourel v BT – Competition Appeals Tribunal, 29 January, seven weeks.

Ronit Kreisberger KC, Michael Armitage and Jack Williams are instructed by Mishcon De Reya partner Sarah Houghton and managing associate Gwen Ballin-Reeler on behalf of the Class Representative, Justin Le Patourel.

Daniel Beard KC, Daisy Mackersie, Natalie Nguyen are instructed by Simmons and Simmons LLP partners Patrick Boylan and Satyen Dhana and managing associate Eleanore Di Claudio for the Defendant, BT.

The Competition Appeal Tribunal has handed down judgment in relation to an application under section 179 of the Enterprise Act 2002 by Motorola for review of the Competition and Markets Authority’s (“CMA”) Final Report on “Mobile radio network services” dated 5 April 2023.

The Decision concerns the supply of communications network services for emergency personnel via the “Airwave network”. It determined that there are features of the relevant market which cause an “adverse effect on competition” (“AEC”) within the meaning of section 134 of the Act, and imposed a charge control remedy that will reduce the price payable by the Home Office and other governmental departments for the services below the contractually agreed price.

The Home Office is the main contracting party with Motorola and the primary customer for the supply of the relevant network services for public safety (and ancillary services) in Great Britain.

Motorola sought an Order that the Decision be quashed and remitted to the CMA on the following grounds:

• Ground 1: The CMA erred in its approach when finding that there was an AEC, and failed to take its own findings on competitive constraints into account when conducting its competitive assessment.
• Ground 2: The CMA relied on an unlawful “profitability analysis” in reaching its conclusions on both the existence of an AEC and its proposed remedy.

The Tribunal dismissed both grounds of appeal, holding that:

• Ground 1: There had been no failure by the CMA to take into account a relevant consideration, nor was there any inconsistency between its findings on market definition and those made in its competitive assessment.
• Ground 2: The CMA was entitled to a degree of latitude in how it approached its profitability assessment; the approach it adopted was not irrational or inconsistent.

Anneli Howard KC, Jack Williams and Suzanne Rab from Serle Court instructed by TLT LLP acted for the Home Office, intervening in support of the CMA’s Decision. Josh Holmes KC acted for the CMA at an earlier stage of the proceedings.

In a historic achievement for animal welfare, Save The Asian Elephants (“STAE”) has succeeded in its mission to prohibit the domestic promotion of brutal animal-related tourism practices worldwide. The Animals (Low-Welfare Activities Abroad) Act 2023 aims to stop the advertising and sale of unethical tourist activities involving animals abroad.

Duncan McNair, CEO of STAE and City law firm solicitor, expressed his gratitude to the millions supporting the campaign, calling the law a “momentous day for animals everywhere.” He emphasised the Act’s potential to protect endangered species globally, urging a transition from harmful practices to ethical sanctuaries and wildlife reserves. The ultimate goal is to redirect the market toward ethical tourism.

The Act marks a significant step towards ending the suffering of the millions of animals used for global animal entertainment. Travel companies will be prohibited from advertising and selling tickets for certain low welfare activities abroad to customers in England and Northern Ireland. STAE identified over 1,200 UK companies profiting from advertising nearly 300 brutal elephant venues alone. Duncan McNair and STAE’s tireless advocacy have resulted in a significant advance towards a future where animals are spared from the cruelty of exploitative tourism practices. The measures, resolutely implemented and enforced, will help protect endangered and vulnerable species across the world from extreme exploitation, harm and death.

STAE’s eight-year-long campaign has resulted in pioneering legislation that can be considered a world first, with the law having a global reach providing hope for numerous iconic species, not only Asian elephants, suffering for the sake of tourism worldwide. Other countries may now consider following the lead of this carefully drafted legislation, which received close Parliamentary scrutiny.

DEFRA will now compile a list of prohibited activities, with STAE coordinating efforts to present evidence.

In an example of how the instruction of counsel can assist in the Parliamentary process, Ian Rogers KC was instructed by STAE to advise and prepare materials on the Bill during its passage through Parliament, dealing with the legal issues which had arisen in Parliamentary debates.

A link to the Animals (Low-Welfare Activities Abroad) Act 2023 can be found here.

The First-tier Tribunal (Tax) has released its decision allowing the appeal of Bolt against a decision of HMRC that ride-hailing services do not fall within the Tour Operators Margin Scheme (“TOMS”). The Tribunal has ruled that the single supply of ride-hailing falls within TOMS.

Valentina and Jenn were instructed by Deloitte LLP. A copy of the decision is available here.

 

 

The Court of Appeal has handed down judgment in R (the3million and Open Rights Group) v Secretary of State for the Home Department and Secretary of State for Science, Innovation and Technology [2023] EWCA Civ 1474. It dismissed the Defendants’ appeal against the judgment of Saini J in [2023] EWHC 713 (Admin), ruling that the Government’s second attempt to produce an immigration exemption from certain rights of data subjects conferred by the United Kingdom General Data Protection Regulation was unlawful.

The Court of Appeal had previously held that the first attempt to introduce an Immigration Exemption was unlawful ([2021] EWCA Civ 800), but gave the Government time to remedy the defects by way of secondary legislation. The statutory instrument seeking to do so was again subject to challenge.

In the present proceedings, the Court of Appeal concluded that the revised Immigration Exemption is still incompatible with Article 23 of the UK GDPR and therefore unlawful.

The judgment is available here.

Nikolaus Grubeck, instructed by Leigh Day Solicitors, acted for the successful Claimants / Respondents.

Julianne Kerr Morrison also acted in the successful challenge to the earlier version of immigration exemption.

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.