Four years after the EC Commission decided that the Walloon Region of Belgium had provided illegal State Aid to Ryanair in respect of Ryanair’s development of new routes and the basing of aircraft at Brussels South Charleroi Airport, the CFI heard Ryanair’s Appeal against the Decision on March 12th 2008. Ryanair’s case before the Court is that the EC Commission misapplied the State Aid rules to agreements entered into between Regional Airports such as Charleroi and Low Cost Airlines such as Ryanair, ignored the evidence available to them of similar lawful arrangements made between privately owned airports and Ryanair, wrongly refused to admit that publicly owned airports could invoke the Market Economy Investor Principle so as to compete on a level playing field and distorted the Business Plans of the Airport which showed that such an investment would be profitable.

John Swift QC and Josh Holmes were brought in to the case for the purpose of arguing at the Oral Hearing, instructed by A&L Goodbody of Dublin on behalf of Ryanair.

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John Swift QC
Josh Holmes

The VAT Tribunal has published its decision in the case of T Mobile (UK) Ltd, an appeal against a decision of HMRC concerning the VAT liability of “payment processing” charges levied on customers who do not pay their bills by Direct Debit. T Mobile charges its ‘pay monthly’ customers £3 for each bill which they pay by a method other than Direct Debit or BACS. T Mobile argued that these charges were consideration for supplies of “payment processing services”, and that those supplies were exempt from VAT pursuant to the financial services exemption (Group 5 of Schedule 9 to the Value Added Tax Act 1994).

In recent years, many telecoms and utility companies have introduced payment processing charges in an effort to encourage their customers to pay by Direct Debit. T Mobile’s appeal has been widely seen as a test case for traders seeking to establish that these charges are VAT exempt.

The Tribunal has dismissed the appeal, ruling as follows:

(1) The £3 charge was part of the consideration for T Mobile’s standard rated telecommunications services. There was no separate supply of payment processing services. In the alternative, any supply of payment processing services was ancillary to the supply of telecommunications services and should not be treated separately for VAT purposes.
(2) Even if there had been a separate supply of payment processing services, that supply would not have qualified as an exempt financial service.

Alan Bates represented the Commissioners for HMRC

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Alan Bates

A key telecommunications case featuring seven Monckton barristers has been picked out as one of The Lawyer’s ‘Top Ten Trials’ for 2008.

The case of Orange & Ors v OFCOM & BT, also referred to as ‘Calls to Mobiles’, is addressing the issue of call charges for mobile phones.

The article says, “Calls To Mobiles is the largest of several pieces of litigation relating to call charges this year, including the European case on roaming charges. This particular case will decide whether consumers have been paying too much for their telephone calls. OFCOM believes that this is the case and is looking for phone rates to be slashed.”

Proceedings begin in the Competition Appeal Tribunal at the end of January.

Monckton barristers are involved on all sides:

Peter Roth QC, Josh Holmes and Ben Lask represented OFCOM.
Anneli Howard represented BT

Jon Turner QC and Meredith Pickford appeared for T-Mobile whilst Ben Rayment appeared for the Competition Commission

The full article is available on The Lawyer’s web pages, please click here.

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Jon Turner QC
Ben Rayment
Josh Holmes
Meredith Pickford
Anneli Howard
Ben Lask

Monckton Chambers are proud to announce that Daniel Beard has been listed as one of only three junior barristers to make the The Lawyer’s Hot 100 2008.

The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.

“With European Community Law becoming a vibrant arena within disputes, litigators need a safe pair of hands. They could not do much better than Daniel Beard of Monckton Chambers.

Beard, who was called to the Bar in 1996, is one of the best juniors at the competition and European Bar. One recent victory is testament to that.

Beard took on the might of the European Commission in a case that laid down a precedent that companies in Europe cannot discriminate against contractors. Contractors at Joint European Torus (Jet), the EU’s largest nuclear fusion research project, had not been given the same status as European employees of Jet as they were deemed to have been contracted as third parties.

Beard and fellow Monckton barrister Peter Roth QC won the UK workers £30m in damages. With landmark victories like that, expect Beard to take silk soon.”

Daniel is delighted to be listed in this year’s edition of the Hot 100.

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Daniel Beard QC

In view of his renowned practice in EC law, Legal Week asked our Head of Chambers, Paul Lasok QC, to share a few thoughts on the current hot topic of an EU referendum.  For more information on this opinion piece, published in the 15th November 2007 issue, see www.legalweek.com

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Paul Lasok QC

Chambers UK continues to highlight us as a leading set for Competition, EU, Procurement, Tax and Telecommunications with further recommendations in Admin & Public Law, Construction, Environment and Sport.

Just a few quotes are “Universally acknowledged to be ‘one of the best sets in the UK’ Monckton Chambers is firmly established as a formidable competition and antitrust powerhouse” and “…One interviewee suggested that ‘the set currently seems to have a real edge, both because of the breadth and depth of the talent and because of its responsiveness” and “Lauded as ‘the specialists’, Monckton Chambers is the most experienced set in the public procurement arena and boasts 16 members with some form of expertise in this area.”

We would like to take this opportunity to thank all our clients for their continuous support. Without them, these recommendations would just not be possible.

On 31 October 2007 the District Court of Amsterdam gave a landmark judgment on the non-recognition of foreign insolvency proceedings.  The court refused to recognise the authority of a Russian bankruptcy liquidator appointed in respect of Yukos Oil Co to vote the shares of the Yukos’ Dutch subsidiary, Yukos Finance BV.  The court held that huge and unexpected Russian tax assessments were the primary cause of Yukos Oil Co’s bankruptcy in Russia.  The fact that the huge tax assessments were raised unexpectedly, that freezing orders imposed by the Russian courts prevented Yukos from paying them and the unfairness and inadequacy of the procedures for challenging them were unfair contrary to ECHR and general standards of due process.  As a result, the appointment and actions of the Russian bankruptcy liquidator could not be recognised by the Dutch courts on public policy grounds.  The bankruptcy liquidator’s purported dismissal of the previous management of Yukos BV and all other acts undertaken in respect of that Dutch company on his purported authority, were invalid and should be reversed.

Piers Gardner of Monckton Chambers was part of the team, led by NautaDutilh, Amsterdam, instructed by the successful previous management of Yukos Finance BV and by the company.

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Piers Gardner

In its Judgment of 25th October 2007 the Court of Appeal held that parents with third country national status cannot rely on EC law to claim a right of residence in the UK on the basis that they have a child who is a national of a Member State and a citizen with EU and who can only exercise his right to reside within the EU if he is supported by a parent.

A previous ECJ decision, C-200/02 Chen, held that the UK had to grant a residence to Mrs Chen, a Chinese mother who gave birth to a baby girl in Northern Ireland, on the grounds that the child had acquired Irish nationality and could only exercise her right under Article 18 of the EC Treaty to reside in another Member State if she was with her self sufficient mother.  The Court distinguished the case of Chen on the basis that the Appellants in Mouloungui, Liu, Wang & Ahmed v SSHD could only become self-sufficient if they had access to the UK labour market whereas Mrs Chen was able to fulfil the self-sufficiency requirement without access to the UK employment market.

Christopher Vajda was instructed by the Treasury Solicitor on behalf of the Secretary of State for the Home Department.