Melanie Hall QC secures a win for the UK in the European Court – Avon Cosmetics Ltd v Revenue and Customs Commissioners

As reported in The Times the European Court has rejected the claim made by Avon Cosmetics plc that a derogation from EU law which authorised the UK to charge VAT on sales by direct selling companies based on their open market value, was unlawful. The Court accepted all arguments advanced on behalf of the UK and concluded that the derogation was lawful, proportionate and did not breach the principles of fiscal neutrality by failing to allow Avon ladies a VAT credit in relation to the purchase of demonstration items. Avon’s inability to claim such a credit was merely the consequence of its commercial decision to use the direct selling marketing model. Melanie Hall QC represented the UK. This judgment brings to an end litigation which has spanned over a decade.

Click here for a copy of the judgment.

EU Advocate General delivers landmark Opinion in Western Sahara Campaign UK v. Commissioners for Her Majesty’s Revenue and Customs

Advocate General Wathelet has delivered a landmark opinion in Case 266/16 on the validity of the Fisheries Partnership Agreement between the EU and Morocco. The case raises potentially far-reaching issues regarding the relationship between the EU and third counties and the extent to which such agreements must respect public international law and human rights obligations incumbent on EU institutions.

In his opinion, the Advocate General found that “the European Union has failed to fulfil its obligation not to recognise the illegal situation resulting from the breach of the right of the people of Western Sahara to self-determination by the Kingdom of Morocco and also not to render aid or assistance in maintaining that situation”. The AG further found that  in so far as they apply to the territory of Western Sahara and to the waters adjacent thereto, the Fisheries Agreement and a 2013 Protocol to that agreement are incompatible with EU law which imposes on the European Union “the obligation that its external action is to protect human rights and strictly respect international law”.

Conor McCarthy acts for the Claimant. He was instructed by Leigh Day and was led by Kieron Beal QC.

The opinion can be found here.

Ben Lask appointed to CMA standing counsel panel

The CMA has today announced the appointment of Ben Lask to its standing counsel panel. Ben will join the current panel as its fourth member following an open competition and approval by the Attorney General. Rob Williams of Monckton Chambers is already a member of the panel.

Members of the standing counsel panel assist the Competition and Markets Authority (CMA) with its cases, including defending them in court.

The CMA has such a panel because the areas of law it applies – competition, mergers, consumer – are highly specialised and its cases are often heavily contested in the Competition Appeal Tribunal and other courts.

Welcoming Ben’s appointment, the CMA General Counsel, Sarah Cardell, said:“I am delighted that we have been able to appoint an additional member of such high calibre to our current panel.  Having a dedicated, expert team of standing counsel has provided the CMA with high quality legal support across our functions and the addition of Ben to the team will strengthen them further.  I look forward to working closely with all four members of the panel.”

Court of Appeal rules against Independent Police Complaints Commission in Schedule 7 terrorism “stop” case

The Court of Appeal has ruled against the Independent Police Complaints Commission (IPCC) in a case concerning disclosure of information to a complainant where there national security concerns arise.

The claim was brought by Mr Miah who was ‘stopped’ by the Metropolitan Police at Heathrow Airport under Schedule 7 of the Terrorism Act 2000, which allows the police to stop travellers to question them about terrorism concerns, even where there are no grounds of suspicion.

The Appellant complained to the Metropolitan Police that he had been discriminated against on grounds of race and religion and appealed to the IPCC when his complaint was dismissed without being told the reason for the stop. The IPCC dismissed his appeal.

Overturning the judgment of Hickinbottom J, the Court of Appeal found that the Metropolitan Police investigation report was defective because if failed to sufficiently explain why the complaint had been dismissed. There was no evidence that the police had considered and applied the statutory ‘harm test’ for redaction and non-disclosure. The IPCC was therefore wrong not to uphold the Appellant’s appeal that the complaint required further consideration.

The judgment in R (Miah) v IPCC [2016] EWHC 3310 (Admin) can be found here.

Mr Miah was represented by Stephen Cragg QC and David Gregory.


Court of Appeal upholds appeal by EE finding that Ofcom’s statutory duties are non-delegable

EE Ltd v Ofcom [2017] EWCA Civ 1873

The Court of Appeal has upheld an appeal by EE Ltd. in the context of the Annual Licence Fees (ALFs) it and other mobile operators pay for the use of mobile spectrum. The High Court had found last year, dismissing EE’s application for judicial review, that Ofcom had been correct to conclude that it had no discretion but to set ALFs at the market value of the relevant spectrum. The High Court had agreed that Ofcom was obliged to do so in light of a direction by the Secretary of State to set fees at a level reflecting full market value. The Court of Appeal disagreed, finding instead that the power of the Secretary of State to direct Ofcom to exercise its functions in a specific manner did not absolve Ofcom from having regard to its statutory duties and objectives under the Communications Act and the EU Common Regulatory Framework. These duties were non-delegable, and the direction by the Secretary of State did not on the face of it preclude Ofcom from having regard to its wider objectives as it was required to.

Ofcom’s 2015 decision and its implementing Regulations which brought in a significant increase in ALFs have been quashed. Ofcom has been granted permission to appeal the matter to the Supreme Court.

Philip Woolfe and Stefan Kuppen acted for EE (led by Lord Pannick QC).

The judgment can be found here.

High Court Gives Judgment in Sainsbury’s Visa Claim

The High Court (Phillips J) has dismissed Sainsbury’s claim against Visa in the on-going Interchange Fee litigation. In a judgment which departed from important aspects of the reasoning adopted in earlier cases (in particular, the High Court’s Judgment in Asda Stores Ltd v MasterCard Inc and the CAT’s determination in Sainsbury’s v MasterCard), Phillips J concluded that the UK Multilateral Interchange Fees imposed by Visa did not constitute a restriction on competition by effect within the meaning of Article 101 (1) of the Treaty on the Functioning of the European Union. The Court accepted, however, that if the fees had constituted a restriction on competition within the ambit of Article 101 (1) it would not have been objectively justified for purposes of that article. This finding departs from the approach adopted by Popplewell J in the High Court’s earlier ASDA judgment.

Mark Brealey QC acted for Sainsbury’s Supermarkets Ltd in the claim.

To read the judgment please click here.

Air Cargo Claimants can appeal

On 4 October 2017, Mrs Justice Rose dismissed claims by Emerald Supplies Limited and other claimants seeking damages alleged to have been caused in relation to alleged overcharges for flights between the EU and third countries prior to 1 May 2004, and alleged overcharges for flights between the EEA and third countries prior to 19 May 2005. For the Judgment see here. The principal issues concerned whether Article 101 of the Treaty on the Functioning of the European Union applied in the international air transport sector before those dates and/or whether Regulation 1/2003 changed the position as to the powers of a national court retrospectively in relation to those periods. At a hearing on 1 December 2017 Mrs Justice Rose granted Emerald Supplies and other Claimants permission to appeal to the Court of Appeal.

The following Monckton barristers are instructed in the case:

Philip Moser QC, Ben Rayment, Anneliese Blackwood and Conor McCarthy are instructed by the Claimants.

Jon Turner QC, Michael Armitage and Stefan Kuppen for British Airways PLC

Daniel Beard QC and Thomas Sebastian for airlines facing Part 20 Contribution Claims.

Monckton Chambers’ David Unterhalter SC appointed a judge of the High Court of South Africa

David Unterhalter SC has been appointed to the High Court bench in South Africa. David, who joined Monckton Chambers in 2009, is one of South Africa’s foremost barristers, with a leading practice in competition law, trade law, public law and commercial law. Mr Justice Unterhalter will be assigned to the Gauteng Division of the High Court of South Africa and will be taking up his position in Spring 2018.

Three accolades for Monckton in The Legal 500 UK 2018 awards

Monckton Chambers and its members were nominated for nine awards across three practice areas in The Legal 500 UK 2018 awards and the results just published, reveal that Monckton Chambers has picked up two individual awards and one set prize.

Dominating the Tax category, Monckton takes the overall Chambers of the Year award and Melanie Hall QC picks up Silk of the Year.

In addition Anneli Howard is recognised as Junior of the Year for EU and competition.

The winners are invited to a celebratory event on 22nd February 2018.

Click here for the full list of nominees and winners.