The ECJ upheld RCI’s claim that it should not pay UK VAT in connection with RCI’s scheme for swapping time-share accommodation.  The case centred on the interpretation of Article 9 of the Sixth Directive concerning supplies in connection with property.  HMRC considered that: (i) UK VAT was applicable to the enrolment and subscription fees (pursuant to Art. 9(1)); and further, (ii) that, where the holiday home which the member acquired the right to use was situated within the EU, UK VAT also had to be paid on exchange fees.

The ECJ rejected the United Kingdom’s submission that RCI’s activities were analogous to those of a travel agency.  When using RCI’s service to effect an exchange, the member was paying not for the supply of a holiday, but for the service provided by RCI that facilitated the exchange of the member’s existing usage rights relating to a particular property.  It followed that the property with which RCI’s services were connected was the property in which the timeshare owner’s timeshare was held.

It is only the second time the ECJ has ever looked at the place of supply of transactions connected with property.

Melanie Hall QC represented RCI

Raymond Hill represented the UK government.

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Melanie Hall QC
Raymond Hill

It was with great sadness that Chambers recorded the death of Rupert Anderson QC on 30 July 2009.

Rupert, who was called to the Bar in 1981 and took silk in 2003 was a well liked member of Chambers and a phenomenally gifted barrister.  He will be greatly missed.

There will be a memorial service on 5 November 2009, Temple Church, 5.45pm.  Followed by a reception at Inner Temple Hall.  Please attend to bear witness.

On the 30October 2009 Mr Justice Tugendhat gave judgement in Accentuate Ltd -v- Assigra Inc, a case concerning the relationship between EU law and the law of arbitration.

The judge held that English courts must give effect to mandatory provisions of EU law, notwithstanding any expression to the contrary on the part of the contracting parties, including the situation where the contract had provided for a foreign place of arbitration and a foreign law and the arbitration had not given effect to a mandatory provision of EU law.

Philip Moser acted for the appellant.

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Philip Moser QC

The European Court of Justice this morning published Advocate General Kokott’s opinion in Case C-406/08 Uniplex -v- UK. The case was referred to the ECJ by the High Court and concerns some very important issues in the law of Public Procurement, notably the question of the time from which limitation periods may start to run.

Kassie Smith appeared on behalf of the UK Government.

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Kassie Smith QC

The Court of Appeal (Rix LJ, Lloyd LJ, Sir David Keene) dismissed an appeal against the decision of the Administrative Court refusing Judicial Review of various decisions of the Home Secretary concerning the application of Article 49 EC (the freedom to provide services).

The decision under appeal (R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] 2 C.M.L.R. 22 was the lead case among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The appeal concerned a scheme in which an Irish company entered into an agreement to supply catering services to a UK restaurant company. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights.

The Court of Appeal considered a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803, together with ECJ case law decided in other contexts. The Appellants argued that the logic of the existing case law should be extended to cover the facts of the present case, with the effect that the UK should grant temporary rights to reside in the UK to the third country nationals, in order to render the Irish company’s freedom to provide services in the UK effective. The Court of Appeal refused the Appellants’ request to make a reference to the ECJ. Reasons for the judgment will be given at a later date. If you wish to be notified when this judgment is available, please send an e-mail to one of the clerks.

Ian Rogers appeared for the Home Secretary

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Ian Rogers

An application by Barclays Bank plc for a review under section 179 of the Enterprise Act 2002 of certain findings made by the Commission contained in a report entitled “Market investigation into payment protection insurance” was decided today.  The Commission found that there were features of the PPI market which prevented restricted or distorted competition in connection with the supply of PPI in the United Kingdom.

The Tribunal concluded that the Commission had failed to take into account the loss of convenience which would flow from the imposition of the POSP in assessing whether it was proportionate to include it in its proposed remedies package.  In the Tribunal’s view, this constituted a failure to take into account a relevant consideration, and the Tribunal has therefore decided to quash that part of the Report which imposes the POSP as part of the proposed remedies package and remit the question whether a POSP should be so included for the further consideration of the Commission in accordance with the principles set out in the Tribunal’s judgment.

John Swift QC, Kassie Smith and Elisa Holmes represented the Commission

Paul Lasok QC and Tim Ward represented the intervening party, Shop Direct Group Financial Services Ltd

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Paul Lasok QC
John Swift QC
Tim Ward QC
Kassie Smith QC
Elisa Holmes

Monckton tenant Jeremy McBride has prepared a study for the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe on ‘The specificity and added value of the acquis of the Council of Europe treaty law’ which will form the basis of a report to be prepared by the Committee’s rapporteur, John Prescott, under the heading ‘For a greater commitment of member states concerning the efficiency and implementation of the Council of Europe Treaty Law’.

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Jeremy McBride

[2009] EWHC 2382 (Admin)

A significant public law case was handed down on 1 October 2009, concerning the competing interests of, on the one hand, public access to information about the accounts of public bodies and, on the other, the rights of third parties to commercial confidentiality. The judgment contains an extensive survey of the authorities concerning the scope of electors’ rights under the Audit Commission Act 1998.

In accordance with the 1998 Act, the Council notified the public that “the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them” were to be open for inspection for a four week period. Mr Dowen was a local elector and environmental campaigner, who made a request under section 15 of the Audit Commission Act 1998, for information relating to a waste management contract entered into between the Council and its contractor, Veolia. The Council determined, on advice, that it was obliged to disclose certain information pursuant to the Act.

Veolia applied for judicial review of the Council’s decision, asserting that certain pricing formulae contained in the contract and the invoices it submitted constituted commercially confidential data. It contended that the information is valuable to commercial competitors and to its sub-contractors and that if the information entered the public domain it would damage its ability to compete in bids with other local authorities and it would impair its ability to hold down sub-contract prices in the contract.

Cranston J held that the Council had correctly decided to provide the information sought, and that the exceptions to disclosure under section 15 did not cover Veolia’s claim of commercial confidentiality.

Ian Rogers represented the Council.

To view the judgment, please click here.

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Ian Rogers

The shortlists for these awards are now online and we are pleased to announce that Valentina Sloane has been nominated for the ‘Rising Star within Indirect Tax’ award.

The results will be announced on 15 October 2009 at the Glaziers Hall in London.

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Valentina Sloane

Monckton Chambers was honoured to be awarded the accolade of “Set of the Year” for our work in the field of EU and competition law at the fifth annual Chambers Bar Awards held at the Grosvenor House Hotel, London.

The work of Daniel Beard was also recognised last night as he scooped “Junior of the Year” in the same field.

Congratulations to everyone.