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.

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.