Ronit Kreisberger – Joint Lead Counsel for European Commission Written Observations on MasterCard and Visa MIF claims

On 23 May, the European Commission published its Written Observations submitted under Article 15(3) of Regulation 1/2003 in the Appeals in the English Court of Appeal against the 3 first instance Judgments dealing with the claims against MasterCard and Visa for recovery of multilateral interchange fees (MIFs).

Article 15(3) provides that the Commission may, acting on its own initiative, submit written observations to national courts where the coherent application of Articles 101/102 so require. The Commission may also make oral observations with the permission of the court in question.

Given the significance of the UK Appeals in the context of the competition law analysis of MIFs, the Commission made Written Observations on the Article 101(1) issues (attached here) and the Article 101(3) issues (attached here). The Commission also made oral submissions, with the Court’s permission, on both topics at the hearing of the Appeals.

Ronit Kreisberger acted as Joint Lead Counsel with Nicholas Khan QC for the European Commission.

Ronit Kreisberger to speak at GCLC conference – The Path Towards Modern EU Competition Policy: A 50+ Year Retrospective

This one day conference is organised by the prestigious Global Competition Law Center (GCLC) of the College of Europe and takes place on 21 June in Brussels.

Ronit Kreisberger will be a panel member discussing “The Rise of Private Competition Law Enforcement: benefits, costs and future prospects” with a presentation on the achievements and challenges of private enforcement in the United Kingdom.

The conference aims to offer an overview of the journey taken by key areas of EU competition policy over the past decades, and to then focus on three topics of particular relevance to today’s application of EU competition law, namely the interactions between competition law and intellectual property, the sharing of public enforcement between the EU and national levels, and the development of private enforcement and associated challenges. The event will conclude with a lecture by Mario Siragusa, followed by a Q&A session revolving around his practice and experience.

The Global Competition Law Centre (GCLC) of the College of Europe aims at promoting cutting-edge research in competition law and economics. Since its inception in January 2004, the GCLC has gained credentials as a high level discussion forum for academics, practitioners, and enforcement officers in the competition field across the world.

For further information click here.

See programme.


Kassie Smith QC appointed to carry out independent review of the Jersey Competition and Regulatory Authority

Kassie Smith QC has been appointed by the States of Jersey to carry out an independent review of the Jersey Competition and Regulatory Authority (JCRA) following the Royal Court judgment in ATF Overseas Holdings Ltd v JCRA.

The review will look into the circumstances leading up to a decision by the JCRA that ATF Fuels had abused a dominant market position. The Royal Court overturned this decision and this independent evaluation of the circumstances surrounding the case will investigate whether the JCRA discharged its legal duties appropriately, and whether there are any significant deficiencies in how Jersey competition law has operated.  Terms of reference were published in a Ministerial Decision on 20 March 2018.

The initial phase of the review will involve a documentary review, followed by meetings with stakeholders to address points of clarification.  It is anticipated that a draft report will be completed in the summer.

This has also been covered by the Bailiwick Express, see here.


Tariq v UK: Lack of Gist in Closed Proceedings Not Unfair

Gulamhussein and Tariq v United Kingdom, application nos. 46538/11 and 3960/12

The recent decision of the European Court of Human Rights in Tariq v UK has significant implications for the use of closed material procedures in civil proceedings in which article 6 ECHR is engaged.

Mr Tariq was employed by the Home Office as an immigration officer. In 2006, his security clearance was revoked due to his “close association with individuals suspected of involvement in plans to mount terrorist attacks” and he was dismissed from his job. Mr Tariq attempted to challenge the decision in the Employment Tribunal but the Home Office refused to disclose the evidence supporting its revocation of his clearance. A special advocate was appointed to represent him in closed proceedings but Mr Tariq complained that he was not provided with a gist of the accusations contrary to the principle identified by the ECtHR in A and others v United Kingdom (2009) 49 EHRR 29. In Mr Tariq’s appeal in 2011, however, the Supreme Court held that the principle in A and others did not require a gist to be provided in every case in which article 6 ECHR was engaged.

In Tariq, the First Section agreed with the Supreme Court, noting that article 6 ECHR did not mean that it was “invariably essential for someone to know the “gist” of the case against them” (para 84). It also noted that, despite the lack of disclosure, the special advocate had been able to make submissions on Mr Tariq’s behalf and the resort to closed proceedings had not been arbitrary or manifestly unreasonable.

Eric Metcalfe acted for the human rights organisation JUSTICE as third-party intervener, led by John Howell QC.

A copy of the Court’s judgment is available here.

Two wrongs don’t make a right: The Supreme Court’s Decision in R (Gallaher and Somerfield) v Competition and Markets Authority [2018] UKSC 25

The Supreme Court has considered the way in which the OFT conducted its ‘Early Resolution’ settlement negotiations with parties who were subject to its tobacco investigation.  In overturning the decision of the Court of Appeal, the Supreme Court has held that a mistake made to the benefit of one party in a settlement negotiation is not required to be replicated to the benefit of other similarly situated parties. It so concluded on the basis of traditional principles of public law rationality, rejecting the opportunity to fashion any stand-alone principle relating to mistakes in public law.

Daniel Beard QC and Brendan McGurk acted for the successful appellant, the CMA.

Click here for the full judgment.

Anneli Howard joins former Lord Chancellor Kenneth Clarke QC MP to argue for the motion “The first casualty of Brexit will be City talent!” in the first of Thomson Reuters Legal Debates for 2018

Anneli Howard is one of the four “heavyweights from law and politics” being brought together on Thursday 7th June, for a contentious debate on Brexit and the future of the City’s talent.  The debaters will argue the motion “The first casualty of Brexit will be City talent!”


Arguing FOR the motion:

Kenneth Clarke QC MP, Member of Parliament for Rushcliffe and former Lord Chancellor

Anneli Howard, Barrister, Monckton Chambers


Arguing AGAINST the motion:

Michael Howard, Former leader of the Conservative party

Francis Hoar, Barrister, Field Court Chambers


The debate is being chaired by Axel Threlfall, Editor at Large, Reuters.

The Legal Debates are a series of evening events for key partners of Thomson Reuters and key customers of legal solutions.

To register for this event please click here.

House of Commons International Trade Select Committee backs George Peretz QC on improvements to the proposed Trade Remedies Regime

In its report published today on the Government’s proposed legislation setting up a Trade Remedies Authority (TRA) the House of Commons Select Committee has backed a number of recommendations made by George Peretz QC (who gave written and oral evidence to the Committee’s inquiry).

The TRA will, along with the Secretary of State for International Trade, administer after Brexit trade defence measures (anti-dumping duty, countervailing measures, and safeguard measures) permitted under WTO rules.

Among other matters, the Committee agreed with George that: –

  • the International Trade Select Committee should have a formal role in appointments as chair and chief executive of the TRA;
  • the TRA should not apply an “economic interest” test but that a decision to refuse trade defence measures on grounds of economic interest, as a political decision, should be reserved to the Secretary of State
  • the Bill should provide on its face that that there was a right of appeal to the Upper Tribunal against decisions to impose and to refuse trade defence remedies, and that such appeals should be “on the merits” rather than just by way of judicial review.

George’s detailed article on the Government’s proposals is here.

GCR AWARDS 2018 – Monckton members amongst Counsel recognised for ‘Litigation of the year – Cartel defence’ award.

Jon Turner QC, Counsel to British Airways and Daniel Beard QC and Thomas Sebastian, barristers to Part 20 claimant airlines, were recognised for their work on the UK Air Cargo Follow-on litigation which won the ‘Litigation of the year – Cartel defence’ award at the recent GCR Awards.

See GCR website for further details.

Airline liable for carrying non-EU citizen without correct papers

On 24 April 2018, the Court of Appeal handed down judgment in the case of Ryanair v Home Secretary [2018] EWCA Civ 899. The appeal concerned the application of Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, and the UK carriers liability regime under which airlines may be fined for transporting passengers without the correct documentation into the UK.

In the present case, the passenger had flown from Germany to London on a Ryanair flight with his son, an Austrian citizen. The passenger, a citizen of Bosnia and Herzegovina, had produced a card issued by the Austrian authorities bearing words which could be translated as: “family member — permanent residency”. When the father arrived (with his son) he was stopped by UK Border Force and refused leave to enter the UK. He explained that he lived in Austria and had been told by a German official that he did not need a visa. The UK Border Force ordered Ryanair to take him back to Germany. The Home Office subsequently confirmed that Ryanair was liable to pay £2,000 under section 40 of the Immigration and Asylum Act 1999, on the basis that one of the passengers had arrived in the UK without appropriate documentation.

On appeal, the Court of Appeal held that, in order to take advantage of the visa exemption for family members of EU citizens contained in Art 5.2 of the Directive, a passenger had to have a valid residence card issued under Art 10 of the Directive. A valid residence card for the purposes of Art 10 had to bear the words “Residence card of a family member of a Union citizen”. A card purportedly issued without the requisite words might potentially provide powerful evidence of the holder’s right of free movement and so, perhaps, enable him to prove his entitlement “by other means” under Art 5.4. However, a card that did not carry the specified wording would not of itself satisfy Art 5.2. Further, possession of a card issued under Art 20 of the Directive might potentially afford strong evidence of a right of free movement. Where a passenger failed to produce such a document and failed to establish a right of free movement in some other way, the home secretary was entitled to impose a charge on the carrier in respect of a passenger without proper documentation.

In the present case, however, there was no evidence that the card held by the passenger had been applied for or issued under Art 20. It appeared to have been issued pursuant to Austrian domestic law rather than Art 20. Since the passenger had neither produced the documents required by Art 5.2 nor proved by other means that he was covered by the right of free movement, the home secretary had been entitled to impose the £2,000 charge on Ryanair.

The case was reported in the Times Law Reports on 1 May 2018 (read here).

A copy of the judgment is available here.

Kassie Smith QC, instructed by Stephenson Harwood LLP, acted for Ryanair Ltd.