The Government’s ‘no deal’ Brexit paper on mergers and antitrust

The Government has today published 28 new planning documents explaining what will happen in the event of a ‘no deal’ Brexit, including this one covering the merger and antitrust regimes.

Some of the key points are as follows:

  • The Government says that the only changes to the competition regime will be those necessary to manage Brexit, and they will be made through SIs under the EU Withdrawal Act 2018.
  • The CMA and UK courts will no longer be bound to follow future CJEU case law. The Government is here presumably contemplating amendments to s.60 CA98.
  • EU block exemptions will be maintained as parallel exemptions (with any necessary modifications, e.g. converting figures in euros to sterling).
  • Businesses will need to seek their own legal advice as to the implications of Brexit for current EU merger and antitrust cases covering UK activities.
  • Commission decisions that pre-date Brexit will continue to be binding as to liability in follow-on actions.
  • Commission decisions that post-date Brexit will not bind UK courts as to liability. As stated, it appears that this will be the case even insofar as post-Brexit Commission decisions cover pre-Brexit conduct and agreements.
  • If a claimant wishes to bring an action for an alleged breach of EU competition law that took place after Brexit, they will need to bring a standalone claim for breach of a foreign tort.
  • UK companies may find themselves being investigated by both the UK and EU competition authorities (both for mergers and antitrust violations).

The proposed change to s.60 CA98 arguably goes beyond what is strictly needed to cope with Brexit. One could have taken the view that domestic competition law should continue to develop in parallel with EU competition law in order to minimise the additional compliance costs that will result from the two regimes substantively diverging.  But this was presumably considered politically unpalatable.

Overall, though, the Government’s approach is to minimize the number of changes, consistent with its general approach under the Withdrawal Act, disappointing those who had advocated for more fundamental reform.  The reality is there is no legislative time for this at the moment; any wider reforms will need to wait until things have settled down after Brexit.

These ‘no deal’ proposals assume there will be no Withdrawal Agreement. If there is a deal (as hoped), there will be a transition period until 31 December 2020 during which everything will (more or less) remain as it is now.

If the Government and EU also manage to reach agreement over the terms of their future relationship, some of the proposals for a ‘no deal’ scenario will never be implemented.  Any longer-term deal will almost certainly put in place co-operation arrangements, for example in respect of mergers.

Further, a response paper published by the Government in March stated that “the Government may choose to commit some areas of our regulations, including competition and State aid, to remain in step with the EU’s”.   This raises the possibility that the UK might ultimately decide not to make any significant amendments to s.60 CA98 and the current regime governing follow-on damages claims.

Julian Gregory is a competition practitioner who assisted the Brexit Competition Law Working Group (including Jon Turner QC) with its report on the implications of Brexit for competition law.

Chambers UK Bar Awards 2018 – Monckton Chambers and its members in the shortlists for Competition, Tax and Client Service

The shortlist for Chambers UK Bar Awards 2018 has been announced and Monckton Chambers and its members are up for five awards.

Monckton is nominated for the Set award for Competition with Meredith Pickford QC in the final three for Silk of the Year and Anneli Howard for Junior of the Year for the same category. Valentina Sloane has been shortlisted for Junior of the Year in the Tax category. Monckton is also nominated, one of only six shortlisted, for Client Service Set of the Year.

The winners will be announced at a ceremony on Thursday, 25th October at The London Hilton on Park Lane.

The awards are based on research for the 2019 edition of Chambers UK Bar. These awards reflect a set’s pre-eminence in key practice areas. They also reflect notable achievements over the past 12 months including outstanding work, impressive strategic growth and excellence in client service.

Who’s Who Legal (WWL) 2018 recognises Monckton Chambers as the leading set for Government Contracts

In the recently published research by Who’s Who Legal (WWL), Monckton Chambers is the only barristers chambers recognised in the table of nine “Leading firms and sets in WWL: Government Contracts 2018 by number of listings”. Monckton Chambers is second in the table; however, if looking at EMEA listings only, Monckton tops the table.

In addition Michael Bowsher QC is recognised as one of nine “Thought Leaders” and the only English barrister for EMEA.

This is what the researchers say about Monckton Chambers and some of its listed members:

“An outstanding set that is home to some of the highest ranked names in our listings.”

The “super brainy” Michael Bowsher is a Thought Leader who is praised by sources as “a leading practitioner in the field” and one of the “strongest for procurement know-how”. He is “very approachable and very bright” with “excellent experience” in public-sector project disputes and state aid issues.

Ewan West is a distinguished barrister in the government contracts field; market observers in our research think highly of him. One of the top juniors in our list, his expertise includes public infrastructure matters in industries such as transportation and nuclear decommissioning.

Philip Moser QC is praised by colleagues for his “outstanding” and “excellent” work in the field. He is “user-friendly and good on novel procurement issues” according to sources, who note that he is “very popular with clients”. He offers a wealth of knowledge on defence procurement.

Valentina Sloane is “a great lawyer” with a distinguished reputation for her EU procurement work as well as on domestic matters such as damages claims and challenges to automatic suspensions.

The “brilliant” Anneliese Blackwood is an impressive junior at the UK Bar. She has a broad practice including experience of matters concerning the protection of confidential information and regulatory breaches.

Ben Rayment, Rob Williams and Ligia Osepciu, are also listed for this practice area for EMEA with Fiona Banks listed in the UK Bar section.

For further information see WWL Government Contract Analysis 2018.

Drew Holiner appointed to panel of arbitrators of AIFC International Arbitration Centre in Kazakhstan

The International Arbitration Centre (IAC) in Astana, Kazakhstan, began its operations on 1 January 2018 to provide an independent, economical and expeditious alternative to court litigation, operating to the highest international standards to resolve civil and commercial disputes in the Astana International Financial Centre (AIFC).

The IAC currently has a panel of 24 independent, highly qualified international arbitrators and mediators, drawn from a variety of jurisdictions. The IAC seeks to empower regional commerce by increasing confidence in the administration and accessibility of dispute resolution throughout the Astana International Financial Centre, Kazakhstan, the Eurasia region, and globally.

Drew, who is admitted to practise in Russia, the UK (England and the Territory of the Virgin Islands) and the United States (California) is also available as a mediator. Members of the panel are approved by the Chairman of the IAC in accordance with Article 55(1)(b) of the AIFC Arbitration Regulations 2017.  Drew joins Michael Collins SC (Ireland) as the second member of Monckton Chambers on the IAC’s panel.

Drew Holiner also serves on the panels of arbitrators of the Hong Kong International Arbitration Centre and the Asian International Arbitration Centre (formerly known as the Kuala Lumpur Regional Arbitration Centre).

Alexandra Littlewood returns to Monckton from the Supreme Court

We are pleased to welcome Alexandra Littlewood back to Monckton Chambers following her year as a Judicial Assistant to Supreme Court Justices Lord Reed (Deputy President) and Lord Briggs.

Whilst at the Supreme Court, Alexandra assisted the Justices on a variety of high-profile cases, including R (on the application of Gallaher Group Ltd) v Competition and Markets Authority [2018] UKSC 25 (public and competition law), Prudential Assurance Co Ltd v Revenue and Customs Commissioners [2018] UKSC 39 (tax, restitution and EU law), Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 (contract law), and Re an application by the Northern Ireland Human Rights Commission for Judicial Review [2018] UKSC 27 (human rights compatibility of Northern Irish abortion law).

Alexandra is now accepting instructions in all areas of Chambers’ work.

Who’s Who Legal (WWL) Competition – Monckton in table for Leading Lawyers

The recently published 19th edition of WWL: Competition covers a total of 1,069 lawyers, including 76 EU-based state aid experts. The lawyers selected advise and defend clients in internal, regulatory and criminal investigations as well as assisting with merger filings, civil and criminal litigation and cartel matters.

Monckton Chambers’ members received 12 nominations. Monckton is one of only two barristers’ Chambers included in WWL’s selection of “Leading firms and sets : Competition by number of listed practitioners”, which is predominantly made up of the major international law firms.

In addition Daniel Beard QC is given special recognition as a “Thought Leader” for Competition (London) and George Peretz QC is recognised for State Aid (London)

The other members nominated are:

This is what they say about Monckton Chambers:

“Another powerhouse group at the Bar with 12 barristers highlighted for their expertise.The “outstanding” Daniel Beard QC is an “incredibly popular” name for competition who is particularly well regarded for his telecoms expertise. He provides “sound, strategic advice” and is “an incredibly effective silk, particularly in the Competition Appeal Tribunal”, say sources.“Excellent barrister” Josh Holmes QC is praised as a “very smart” practitioner who “sees the bigger picture”. “He is cool, equanimous and has astonishing knowledge,” comments a fellow barrister.George Peretz QC is a “superb state aid lawyer” who is regularly seen on complex matters in the area before the General Court and European Court of Justice.”

Michael Collins SC appointed to panel of Arbitrators of newly launched International Arbitration Centre in Astana, Kazakhstan

The International Arbitration Centre (IAC) in Astana began its operations on 1 January 2018 to provide an independent, economical and expeditious alternative to court litigation, operating to the highest international standards to resolve civil and commercial disputes in the Astana International Financial Centre (AIFC).

The IAC has its own panel of independent, highly qualified international arbitrators and mediators, drawn from a variety of jurisdictions.

Michael Collins SC (Ireland) is one of five arbitrators from the EU approved by Barbara Dohmann QC, the Chairman of the IAC in accordance with Article 55(1)(b) of the AIFC Arbitration Regulations 2017. The launch of the IAC is being celebrated in London this week with a reception at the Kazakhstan Embassy, hosted by Barbara Dohmann.

Court of Justice rules against the UK in gender reassignment case – MB v Secretary of State for Work and Pensions

In an important ruling issued today, the Court of Justice has held that, in requiring a transgender person to be unmarried in order to be recognised in her acquired gender for the purposes of claiming a state retirement pension (SRP), UK legislation gave rise to discrimination on grounds of sex, contrary to EU law. The case will now return to the Supreme Court to apply the ruling.

Prior to the legalisation of same sex marriage, the Gender Recognition Act 2004, which establishes a mechanism for the legal recognition of changes in gender, required a transgender person to be unmarried in order to be legally recognised in her acquired gender. Any pre-existing marriage therefore had to be annulled before a gender recognition certificate could be issued. As a result, a person who remained married to a person of the same sex as her acquired gender was prevented from claiming a SRP from the pensionable age for persons of that gender.

MB was a male-to-female transgender person who had been denied her SRP from the pensionable age for women on the basis that she remained married to her wife. Whilst the refusal was in accordance with domestic legislation, MB claimed that it was contrary to EU Directive 79/7/EEC on equal treatment in matters of social security. Whilst her claim was dismissed by both the Upper Tribunal and the Court of Appeal, the Supreme Court was divided on the point and referred the issue to the Court of Justice.

In today’s ruling, the Court of Justice has found in MB’s favour, holding that the relevant provisions of the 2004 Act gave rise to direct discrimination on grounds of sex. In particular, it found that Article 4(1) of the Directive precluded: “national legislation which requires a person who has changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she has acquired as a result of that change, in order to be able to claim a State retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender”.

The relevant provisions of the 2004 Act were amended in 2014, to reflect the legalisation of same sex marriage. The Court of Justice’s ruling will, however, be welcomed by the transgender community in the UK and may have significant wider implications for the rights of transgender people across the EU.

Ben Lask is acting for the Secretary of State for Work and Pensions.  The Court of Justice’s judgment can be read here.

This case has been covered by BBC News and The Guardian.

Please click here to read the news item on the Upper Tribunal ruling, and here for the news item on the Court of Appeal judgment.

Award of Lancashire Children’s Services Contract to Virgin Care Set Aside

Lancashire Care NHS Foundation Trust v Lancashire County Council [2018] EWHC 1589 (TCC)

The High Court (Mr Justice Stuart Smith) has today handed down a judgment setting aside the award of a contract for public health nursing services by Lancashire County Council to Virgin Care Services Limited.  The Court has upheld a challenge made by the Claimants, two local NHS Trusts, to the Council’s decision on the basis that the Council failed to give adequate or sufficient reasons for the scores it awarded to the two bidders in the evaluation. The Court held that:

“I am satisfied that the notes do not provide a full, transparent, or fair summary of the discussions that led to the consensus scores sufficient to enable the Trusts to defend their rights or the Court to discharge its supervisory jurisdiction.”

The Court held that the inadequacy of the reasons given by the Council was such that the Court was not able to determine whether the scores awarded by the Council contained manifest and material errors.  The Court did not accept certain other criticisms which the Trusts made of the conduct of the procurement.

The trial took place over 5 days concluding on 1 May 2018. The Judgment follows an earlier ruling of the High Court in February 2018 suspending the conclusion of the contract with Virgin pending trial – see link here.

Rob Williams acted for the successful Claimants throughout the proceedings, instructed by Hempsons.

A copy of the Judgment can be found here.

MPs’ arguments on revocability of Article 50 notice – petition refused by Court of Session in Edinburgh

Monckton Chambers’ Gerry Facenna QC and Anneli Howard provided pro bono assistance to Morag Ross QC (instructed by Bindmans and Harper Mcleod) representing Lib Dem Brexit Spokesperson Tom Brake MP and Labour’s Chris Leslie MP in their intervention before the Court of Session in Scotland to get a preliminary reference to the CJEU on whether the Article 50 notice could be unilaterally pulled back by the United Kingdom Government in the event of a unsatisfactory deal or no deal scenario.

Permission for judicial review had been initially refused but was granted on appeal by the Lord President of the Inner House in April 2018 ([2018] CHIH 18). The Court of Session in Edinburgh then went on to hear arguments on 22nd May 2018 regarding the petition for a preliminary reference on this “issue of great constitutional importance”. Judgment from the Court of Session was handed down by Lord Boyd on 5 June 2018, refusing to make the reference on the basis that it was hypothetical as the facts upon which the CJEU would be asked to give an answer had not occurred and could not be ascertained. The judgment can be read here.