Merricks v Mastercard [2019] EWCA Civ 674: collective proceedings in competition law revitalised by the Court of Appeal

On 16 April 2019, the Court of Appeal allowed Mr Merrick’s appeal from the Competition Appeal Tribunal’s (“CAT”) refusal to grant a collective proceedings order (“CPO”). The CAT’s order is, accordingly, set aside and the application for certification is remitted to the CAT for a re-hearing.

Given the infancy of the collective actions regime, the Court of Appeal’s judgment is of significant importance. This case note discusses the judgment and summarises its implications for those bringing and defending collective proceedings.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Case note: SAE Education Ltd v Commissioners for Her Majesty’s Revenue and Customs

The Supreme Court’s judgment in SAE represents the end of a story that can be traced back to at least 2001, and the decision of Burton J in Customs and Excise Comrs v School of Finance and Management London Ltd [2001] STC1960 (‘SFM’). That case, like SAE, concerned whether a body making supplies of higher education was entitled to exemption from VAT under the provisions of the Value Added Tax Act 1994 (‘the VAT Act ‘) . In both cases, exemption turned on whether the supplying body could be categorised properly as a ‘college of a university’ for the purposes of the Act, under the so-called ‘education exemption’.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

The Wellcome Trust Ltd v HMRC

In the recent case of The Wellcome Trust Ltd v HMRC [2018] UKFTT 599 the First-tier Tribunal (“FTT”) considered the interpretation of “a taxable person acting as such” in Article 44 of the Principle VAT Directive (“PVD”).

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

This case note was first featured in the December 2018 issue of De Voil.

Input Tax Under Post Brexit Postponed Accounting

There is some uncertainty is over the mechanism for input tax recovery on EU and non-EU imports of goods following Brexit. Although a welcome relaxation that VAT will not have to be paid at borders on EU and non-EU imports has been announced, how input tax recovery will work remains to be clarified.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

This case note was first featured in the October 2018 issue of De Voil.

Zipvit v HMRC [2018] EWCA 1515

It is often easy to get VAT law wrong. Both parties to a transaction, each registered for VAT, take good advice and consider that a supply made for both sides’ business purposes is exempt. No VAT is charged or accounted for and no VAT invoice is issued. But, a year or two later, a court decides that the supply is standard-rated.

Unpicking the consequences of such mistakes has generated a rich seam of case-law, of which the Court of Appeal’s judgment in Zipvit (a single judgment given by Henderson LJ) is the latest instalment. The effect of Zipvit is that the key requirement is a VAT invoice, and without that, the purchaser is in trouble.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

This case note was first featured in the August 2018 issue of De Voil.

Note on (1) Lancashire Care NHS Foundation Trust and (2) Blackpool Teaching Hospitals NHS Foundation Trust v Lancashire County Council

This case concerned the procurement by the Defendant of a public contract relating to the provision of Public Health Nursing Services for persons aged 0-19 in Lancashire. The Claimants were the incumbent providers. On the procurement (which was conducted under the light touch procedure and which therefore was required to comply with Regulations 74-76 of the PCR 2015) the contract was awarded to Virgin Care Services Ltd. In essence, the Trusts challenged the Authority’s evaluation of the bids, the scoring methodology applied, and the transparency of the award criteria. The TCC (Stuart-Smith J) found that the reasons given by the Authority for the scores awarded to the Claimants and to Virgin were insufficient in law. That finding was itself sufficient for the contract to Virgin to be set aside.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

The right to deduct in Luxembourg – (VAT) world domination continues

Case C-159/17, Întreprinderea Individuală Dobre M. Marius, ECLI:EU:C:2018:161 (judgment of 7 March 2018)

Case C-533/16, Volkswagen AG, ECLI:EU:C:2018:204 (judgment of 21 March 2018)

Case C-8/17, Biosafe v Flexipiso, ECLI:EU:C:2018:249 (judgment of 12 April 2018)

Case C‑81/17,  Zabrus Siret SRL, ECLI:EU:C:2018:283 (judgment of 26 April 2018)

The Court of Justice (CJEU) has released four recent judgments concerning compatibility with EU law of national restrictions on the right to deduct input VAT. The judgments confirm the “dominant position” of the right to deduct in the common system of VAT.

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The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

This case note was first featured in the June 2018 issue of De Voil.

Flynn and Pfizer v Competition and Markets Authority [2018] CAT 11: the test for excessive pricing

The Competition Appeal Tribunal (‘the Tribunal’) handed down its judgment in Flynn and Pfizer v CMA [2018] CAT 11 on 7 June 2018. The Tribunal has set aside parts of the Competition and Markets Authority’s (‘CMA’) decision imposing combined fines on the pharmaceutical companies, Pfizer and Flynn, of approximately £90 million for charging (allegedly) unfairly high prices for the anti-epileptic drug (phenytoin sodium capsules) in breach of Article 102 TFEU / the Chapter II prohibition. In doing so, the Tribunal conducted a significant review of the relevant law relating to the test for identifying unfair pricing.

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Mark Brealey QC acted for Pfizer and Ronit Kreisberger acted for Flynn.

The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Two wrongs don’t make a right or Public law orthodoxy rules again

Overview

On 16 May 2018, the Supreme Court handed down judgement in an appeal concerning the way in which the Office of Fair Trading (the “OFT”) conducted settlement negotiations under its so-called “Early Resolution Process” (“ER Process”) with parties subject to its tobacco investigation. It held that a mistake made to the benefit of one party during settlement negotiations is not required to be replicated to the benefit of other parties. It reached this conclusion, overturning the Court of Appeal’s decision, on the basis of traditional principles of public law rationality and legitimate expectation. The Supreme Court rejected the argument that there are distinct legal criteria of “equal treatment” and (substantive) “fairness” amongst the traditional principles of judicial review.

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Daniel Beard QC and Brendan McGurk were instructed by CMA Legal for the successful appellant.

The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.

Astellas – Pharmaceutical Regulation – is communal cooking in the kitchen too hot to handle?

The extent to which one NCA can depart from an MA that has been previouslygranted by another Member State raises rather dry and technical questions ofEuropean law. However, it has huge commercial significance for the entitiesinvolved, ie the actual or would be holder of the MA, on the one hand, andgeneric manufacturers on the other that would like to market and sell theirequivalent medicines based on the original relevant medicinal product.

The enforcement of the competing rights given to innovators and genericmanufacturers has become increasingly adversarial, either with genericsseeking multiple authorisations in different Member States or challenging theinitial MA that had been granted in favour of the MA holder or the innovator MA holder seeking to protect its rights conferred in terms data exclusivity.

Astellas was one example of such a case. Astellas challengeda generic MA that had been granted by the Finish NCA and the Supreme Administrative Courtreferred two questions for preliminary ruling to the CJEU. The first question waswhether a concerned Member State under the decentralised procedure wascompetent to determine the time at which the data exclusivity period startedto run. The second question was, assuming it was not, whether the nationalcourts could determine the period of data exclusivity and whether the principleof effective legal protection under Article 47 of the Charter required the nationalcourt to scrutinise the original MA granted in another Member State and/ordepart from it in order to give effect to the MA holder’s rights.

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George Peretz QC acted for the United Kingdom Government.

The comments made in this case note are wholly personal and do not reflect the views of any other members of Monckton Chambers, its tenants or clients.