The Court of Appeal has granted the Competition Commission permission to appeal against the Competition Appeal Tribunal’s findings that the participation in the market investigation into BAA’s supply of airport services in the UK of one member of the inquiry panel gave rise to apparent bias.
Ben Rayment is Junior Counsel to the Commission.
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Ben Rayment
The Court of Appeal has allowed an appeal by importers of sea fish and sea fish products into the UK against a levy imposed on their importations. The Court held that the Sea Fish Industry Authority (Levy) Regulations 1995 were ultra vires the Fisheries Act 1981 in so far as they imposed a levy on sea fish and sea fish products which were landed outside the UK and then imported into the UK. In addition, the Court held that the levy was contrary to the Treaty on the Functioning of the European Union as a charge having effect equivalent to a customs duty, in breach of Articles 28 and 30.
Valentina Sloane was junior Counsel for the Appellants.
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Valentina Sloane
Monckton Chambers is pleased to announce that Nicholas Paines QC has been appointed a Deputy High Court Judge.
This appointment will enable Nicholas to sit in the Administrative Court as well as the Upper Tier of the Tax and Social Security Tribunals.
Nicholas Paines QC was called to the Bar by Gray’s Inn in 1978 and took Silk in 1997. He is a member of the Bar of Northern Ireland and sits as a Recorder in the Crown Court and as a Deputy Judge of the Upper Tribunal.
Members and staff warmly congratulate Nicholas on this prestigious appointment.
Piers Gardner of Monckton Chambers represented Yukos Oil Company in the hearing on the merits of its application to the European Court of Human Rights held in Strasbourg on 4 March 2010. The Application concerns the lawfulness under the European Convention on Human Rights of the additional taxation of Yukos in Russia and the enforcement of the resulting liabilities of over €19.6Bn and of the freezing of all Yukos’ assets, leading to its bankruptcy. The enforcement involved the seizure and auction sale of Yuganskneftegaz, Yukos’ largest production subsidiary, which produced as much oil annually as Libya. Yukos’ claim to just satisfaction exceeds $98 Bn, the largest claim by value before any court or tribunal.
The hearing can be viewed in the RSS feed from the website of the European Court of Human Rights. Alternatively, please click here.
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Piers Gardner
Monckton Chambers warmly congratulates Andrew Macnab who has been elevated to the Attorney General’s A Panel of Treasury Counsel, along with Gerry Facenna and Anneli Howard, who have both been elevated to the B panel. These elevations continue to illustrate our expertise in VAT/indirect tax litigation and water regulation, public, civil and European Community law litigation. Chambers has a total of 19 panellists.
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Andrew Macnab
Gerry Facenna
Anneli Howard
The case concerned complaint referrals brought by the Competition Commission against Pioneer Foods (Pty) Ltd, in which Pioneer’s bread baking divisions, Sasko and Duens, are alleged to have formed part of bread manufacturers’ cartels that fixed prices and divided markets under sections 4(1)(b)(i) and (ii) of the Competition Act.
Tiger Brands and Foodcorp, the other colluding parties agreed to a penalty and to the implementation of compliance programmes in their organisations.
The tribunal handed the Pioneer Foods (Pty) Ltd the maximum penalty due to a lack of co-operation with the agencies and the fact that to date it has not taken disciplinary action against, at date of hearing, a single person involved in these contraventions.
The total penalty imposed on Pioneer Foods (Pty) Ltd in respect of these complaints is 195 million rand.
David Unterhalter SC appeared for the Competition Commission
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David Unterhalter SC
The Court of Appeal today dismissed an appeal by TV shopping channel JML Direct relating to the allocation of Electronic Programme Guide (EPG) numbers by Freesat, a multi-channel TV service owned jointly by the BBC and ITV. The ruling has implications for the interpretation of regulatory codes.
JML had appealed the earlier judgment of Mr Justice Blackburne’s, in which he found that Freesat had not breached its contract with JML when allocating EPG numbers prior to its launch in May 2008. (An EPG is an on screen television programme guide used by digital TV systems.)
The Court of Appeal considered three questions:
(1) whether Freesat had failed to “publish and comply with an objectively justifiable method of allocating listings”, as required by the Ofcom Code of Practice (with which Freesat was bound to comply by the terms of its contract);
(2) whether the requirement in Freesat’s EPG Listing Policy (with which it was also bound to comply) for it to “take into account” a number of specified matters when allocating EPG numbers permitted it to attach no weight to one or more of those factors if it had rational grounds for doing so;
(3) whether the Judge’s finding that one of the reasons relied on by Freesat for its allocation was irrational meant that Freesat’s entire decision was invalid and in breach of contract.
The Court rejected JML’s arguments on each of these questions and dismissed its appeal.
Tim Ward and Ben Lask were instructed by the BBC on behalf of Freesat.
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Tim Ward QC
Ben Lask
The 2010 edition of Bellamy and Child: Materials on European Community Law of Competition, edited by Andrew Macnab of Monckton Chambers, was published by Oxford University Press on 28 January 2010.
This volume of EC competition law materials serves both as the Materials volume of the Sixth Edition of Bellamy & Child: European Community Law of Competition, and as a free-standing work of reference in its own right. It includes legislation, notices and guidelines relevant to all areas of EC competition law (including Treaty provisions, modernisation and procedural matters, substantive antitrust matters, mergers and concentrations, sectoral regimes, public undertakings and State aids). It provides a one-stop resource for competition and antitrust practitioners worldwide.
This book is ideally suited to practitioners dealing with competition (antitrust), business and EC law; competition and trade authorities; practitioners and regulators in key sectors such as telecommunications, financial services, intellectual property and transport; academics and students specialising in competition (antitrust), business and EC law; reference libraries; in each case, throughout Europe and worldwide.
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Andrew Macnab
The High Court has today given judgment in a VAT appeal concerning single/multiple supplies and issues concerning place of supply of services. The Court dismissed an appeal by a UK based American Express company in relation to supplies of real estate services provided to its American parent. American Express had contended the place of supply was America and that no VAT had been due.
HMRC’s argument and the VAT Tribunal’s decision that there was a single supply was upheld. The Court rejected a submission that it was only in exceptional cases that it was possible to find a single supply on the Levob test where the transaction comprised a combination of services (rather than a combination of goods and services). It held that the transaction was not too complex to be a single supply. That the supplier had discretion in the way in which the service was provided did not mean that the elements of the transaction were independent. On the facts the Levob test for a single supply was satisfied.
On place of supply, the Judge rejected an argument that Art 9(2)(a) of the Sixth Directive (services connected to land) applied, as the necessary connection with specific properties was absent.
The next question for the Court was whether the Tribunal was correct to hold, on the facts found, that the single supply did not fall within the third indent of Art 9(2)(e) of the Sixth Directive covering the services of consultants, engineers, lawyers, accountants and other similar services, as well as data processing and of the supplying of information.
The judge upheld HMRC’s submissions that the indent should not be interpreted more widely to include management functions and that the single service supplied had gone well beyond the habitual activity of a consultant.
Mrs Justice Proudman dismissed the appeal
Peter Mantle represented HMRC
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Peter Mantle
On 28 January 2010, the Court of Justice of the European Union (formerly the European Court of Justice) handed down its judgment in Case C-406/08 Uniplex. This judgment will affect fundamentally the way in which challenges to public procurement processes are made in the United Kingdom.
The case concerned a dispute between Uniplex (UK) Ltd (“Uniplex”) and the NHS Business Services Authority (“NHS”) concerning the conclusion of a framework agreement for the supply of haemostats.
Uniplex had submitted its tender on 18 July 2007. On 22 November, NHS sent a letter to Uniplex informing it that NHS had decided to conclude a framework agreement with three tenderers, not including Uniplex. It told Uniplex that it had received the lowest marks of all tenderers which had been invited to submit. The letter set out the award criteria, with corresponding weighting, and indicated the names of the successful tenderers, the range of successful scores and Uniplex’s evaluated score. The letter also informed Uniplex of its right to challenge the decision, of the mandatory 10-day standstill period, and of Uniplex’s entitlement to seek an additional debriefing.
Uniplex requested a debriefing by email on 23 November 2007. NHS replied on 13 December 2007 providing details of its approach to the evaluation of the award criteria for the successful tenders in relation to Uniplex’s tender.
On 28 January 2008, Uniplex sent NHS a letter before action alleging a number of breaches of the 2006 Regulations. In that letter, Uniplex stated that it considered that time did not start to run for the bringing of proceedings until 13 December 2007. In subsequent correspondence, NHS made clear its view that time had started to run on 22 November 2007, but Uniplex only issued proceedings on 12 March 2008. Uniplex sought, first, a declaration that NHS had breached the applicable public procurement rules and, secondly, damages.
The High Court made a reference to the Court of Justice concerning the date upon which time should start to run for the bringing of proceedings and how the national court should apply (i) the requirement for proceedings to be brought promptly, and (ii) any discretion as to extending the national limitation period for the bringing of such proceedings.
The Court of Justice held:
Kassie Smith acted for the United Kingdom in the proceedings before the Court of Justice of the European Union.
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Kassie Smith QC
