The European Community Court of First Instance rules in favour of Ryanair in Charleroi State aid case

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Europe’s second highest court (the CFI) has today upheld Ryanair’s challenge to a European Commission Decision finding that Ryanair had benefited from unlawful State aid.

The Commission had decided that the landing charges and ground handling fees agreed between Ryanair and Brussels Charleroi airport were too low, and amounted to a subsidy of Ryanair by the Walloon Region of Belgium, which owned the airport.

The Court of First Instance has annulled the Commission’s decision. It holds that the Commission’s refusal to examine together the advantages granted by the Walloon Region and by Charleroi Airport, and to determine whether, taken together, those two entities acted as rational operators in a market economy, is vitiated by an error of law.

John Swift QC and Josh Holmes represented Ryanair.

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John Swift QC
Josh Holmes

European Court of Human Rights orders Russia to release AIDS prisoner

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The European Court of Human Rights (ECHR) held in a judgment issued today, 22nd December 2008, that the continued detention of Vasily Aleksanyan by the Russian authorities is ‘unacceptable’.

STRASBOURG, 22nd December 2008: The ECHR, in a judgment issued this morning, ordered the release of Mr Vasily Aleksanyan, a 37 year old lawyer who has been held in detention by the Russian authorities since April 6th 2006 (991 days). Mr Aleksanyan suffers from AIDS and a number of concomitant diseases, including AIDS – related lymphatic cancer, and is nearly blind.

Following Mr Aleksanyan’s detention and the diagnosis of HIV in 2006, his health declined rapidly. On 26 November 2007, Mr Aleksanyan lodged a request for urgent intervention by the ECHR on the basis that he was not receiving treatment appropriate to his condition and necessary to preserve his life. In response, on several occasions in November and December 2007 the ECHR issued interim measures, (injunctions) requiring the Russian authorities to transfer Mr Aleksanyan to a hospital specialized in the treatment of AIDS and concomitant diseases. The Russian authorities refused to transfer Mr Aleksanyan for treatment for over two months.

Today the ECHR, finding violations of several articles of the European Convention on Human Rights, held that the Russian authorities’ failure to provide timely treatment to Mr. Aleksanyan ‘undermined [his] dignity and entailed particularly acute hardship… which amounted to inhuman and degrading treatment’. The ECHR also noted that ‘[it] is clear… that for over two months the Government continuously refused to implement the interim measure, thus putting the applicant’s health and even life in danger’.

Finally, the ECHR found that ‘in view of the gravity of the applicant’s illnesses, [his] continued detention is unacceptable’ and ‘has lost any meaningful purpose… further maintaining of [detention] is incompatible with Article 5 of the Convention’ (right to liberty and security of person).

Drew Holiner, who is also a member of the Russian Bar, represented the applicant.

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Drew Holiner

Solictors Regulation Authority find 2 solicitors guilty of misconduct

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On 11 December 2008, the Solicitors’ Disciplinary Tribunal found Mr Jim Beresford and Mr Douglas Smith guilty of 8 counts of professional misconduct brought by the Solicitors Regulation Authority arising out of the conduct of compensation claims for miners suffering from vibration white finger and vibration white finger and respiratory disease.

In their defence to two of the counts, the Respondents contended that that Rules 3 and 9 of the Solicitors Practice Rules 1990 and section 2(3) and Section 2(3) of the Introduction and Referral Code 1990 infringed UK and EC competition law prohibitions and were void and that those provisions were incompatible with Articles 43 and 49 of the EC Treaty (concerning freedom of establishment and provision of services). In upholding the allegations of misconduct, the Tribunal rejected those defences.

Andrew Macnab represented the Solicitors Regulation Authority in relation to the competition and EC Treaty issues

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Andrew Macnab

 

CAT refuses Sky’s application to appeal

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The Competition Appeal Tribunal has refused the applications of Sky and Virgin for permission to appeal from its decisions of 29 September and 30 October. It is now open to Sky and Virgin to apply to the Court of Appeal for permission to appeal.

The Secretary of State is represented by Rupert Anderson QC and Elisa Holmes.

The Competition Commission is represented by John Swift QC, Daniel Beard and Rob Willimas.

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John Swift QC
Daniel Beard QC
Rob Williams
Elisa Holmes

CAT dismisses banking challenge

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The Competition Appeal Tribunal have dismissed the application of six individuals known as the Merger Action Group, based in Scotland, to quash the decision of the Secretary of State for Business, Enterprise and Regulatory Reform to clear a merger between Lloyds and HBOS. In arriving at its unequivocal decision, the CAT concluded that “there is simply no basis for the allegation that the issue of the continuing need for the Merger was not properly considered by the decision-maker”.

Also of note was the CAT’s decision on standing. It decided that the members of the Merger Action Group, formed for the purpose of conducting these proceedings, had standing as a result of its “specific interest and strong feeling which the Merger has aroused in Scotland”. This decision has far reaching implications for future challenges of merger decisions, potentially opening the door for any member of the public who operates as a consumer in any relevant market, together with any individual or group with “strong feelings” associated with a particular merger, to challenge such decisions.

The Merger Action Group announced its decision yesterday not to appeal the CAT’s decision.

The Secretary of State was represented by Paul Lasok QC, Paul Harris, Elisa Holmes and Gerry Facenna.

Members of Monckton Chambers have successfully acted for the Secretary of State in each of the two public interest merger challenges which have so far been brought in the CAT. Rupert Anderson QC and Elisa Holmes acted for the Secretary of State in Sky. In that case John Swift QC, Daniel beard and Rob Williams acted for the Competition Commission.

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Paul Lasok QC
Paul Harris QC
Gerry Facenna
Elisa Holmes

Change in VAT Rate – Monckton Chambers sets up Advisory Panel

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In light of the recent announcement by the Chancellor that from the 1st December 2008 the rate of VAT would be cut from 17.5% to 15% members of Monckton Chambers have been advising clients on the implementation of the cut and the effect it may have on the pricing of products.

As a consequence we have recognised the need to establish an advisory panel to assist clients. As the largest VAT team at the Bar and due to the urgent nature of the work required, Monckton Chambers has the capacity to assist clients at short notice and advise by telephone or email or in writing or conference if more detailed advice is required.

Chambers has a wealth of VAT experience at all levels of seniority across a broad spectrum of industry sectors.

For further information please do not hesitate to contact the clerking team on 020 7405 7211.

OFT decides not to refer travel brochure distributors merger

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The OFT has decided not to refer the anticipated acquisition of Ocean Park Limited by Orbital Marketing Services Group Limited to the Competition Commission. The OFT found that it would be under a duty to refer the merger as it would combine the only two bulk distributors of tour operators travel brochures to travel agencies and other retail outlets in Great Britain. However, given the size of the market and the limited impact of the merger, the OFT exercised its de-minimis discretion, deciding that a detailed investigation by the Competition Commission would be disproportionate to the competition concerns.

To date the de-minimis exception to the duty to refer has only been applied in a limited number of cases mostly arising in the transport sector. In the one case to date not in the transport sector in which the exception was applied, the turnover in the affected market was very low (less than £1 million). The case shows that larger markets below the £10 million threshold may benefit from the exception depending on the circumstances. Although a “2 to 1” merger would normally justify a reference even for fairly small markets, the OFT was prepared to accept the arguments of the parties regarding the lessened impact of the merger in the future due to the expected decline in size of the market.

Ben Rayment advised Orbital Marketing Services Group Limited as to the applicability of the “de minimis” exception.

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Ben Rayment

Leading Set Recommendations In Chambers UK, 2009

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Chambers UK, 2009 edition was published on 6 November and continues to list Monckton Chambers as one of the leading sets at the London Bar. We are also delighted to see that our individual recommendations have gone up by over 10% to a total of 47 spread across 10 fields. For the full list of practice areas in which we are highlighted, including the details of those individual members of Chambers who received special mention, please visit our ‘Directories’ section of this website.

Commission Appeal Tribunal Refuses Virgin Media and BSkyB Applications

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The Secretary of State and the Competition Commission successfully resisted attempts by Virgin Media and BSkyB to persuade the Competition Appeal Tribunal to order that aspects of the acquisition by BSkyB of 17.9% of ITV’s shareholding be remitted to the Commisison and ultimately the Secretary of State for reconsideration. Virgin and Sky’s application followed the recent decision of the Tribunal to uphold the the Secretary of State’s decision ordering Sky to divest its shareholding in ITV down to a level below 7.5%. Virgin and Sky argued, on separate grounds, that the matter should be remitted for reconsideration following the CAT’s finding that the Commission and the Secretary of State had erred in aspects of their determinations that Sky’s acquisition did not impact upon the sufficiency of media plurality. The CAT, in refusing the applications, accepted the Secretary of State and Competition Commission’s arguments that any such remital would be otiose, since any reconsideration would not impact upon the appropriate remedy ordered by the Secretary of State to address the substantial lessening of competition, which remedy the CAT had already upheld.

The Secretary of State was represented by Elisa Holmes

The Competition Commission was represented by John Swift QC and Rob Williams.

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John Swift QC
Rob Williams
Elisa Holmes