Article 50 litigation: Interested Parties’ skeleton argument published

Today, the People’s Challenge Interested Parties have publicly released their skeleton argument for the Article 50 TEU litigation to be heard in the Divisional Court on 13 and 17 October 2016. The People’s Challenge Interested Parties are the first to publish their arguments so that the general public can see the arguments in this historic and important piece of litigation.

The skeleton argument for the substantive hearing can be read here.

In summary, the People’s Challenge Interested Parties argue that an Act of Parliament is necessary before Article 50 TEU can be triggered because any use of executive prerogative power to trigger Article 50: (1) has been removed by constitutional statutes; (2) does not extend to removing fundamental citizenship rights; or (3) would, in any event, be abusive if it were exercised to trigger the UK’s withdrawal from the EU (assuming it subsists and extends to removing fundamental rights).

The skeleton argument has had to be redacted as the Government has not agreed to publication of the content of the Secretary of State’s detailed grounds.

The People’s Challenge Interested Parties have additionally applied to the Divisional Court for clarification of its Order made in July as they believe that the Government could (and should) make its case available so that the general public can understand its position. The details of that application can be read here.

The People’s Challenge Interested Parties are a number of ordinary UK and EU citizens living in England, Gibraltar, Northern Ireland, Scotland and Wales, as well as British expats located in France. They are supported by funding raised through the crowdfunding platform, Crowdjustice.

Gerry Facenna QC and Jack Williams are instructed by Bindmans LLP on behalf of the People’s Challenge Interested Parties.

 

Chambers Bar Awards 2016 – Monckton shortlisted for Competition and Human Rights & Public Law

The 2016 Chambers Bar Awards shortlist has been announced and Monckton Chambers has been nominated for ‘Set of the Year’ in both the Competition and Human Rights & Public Law categories. In addition, Daniel Beard QC is in the running for Competition Silk of the Year. The results will be announced at the ceremony on Thursday, 27th October at The London Hilton on Park Lane.

Gerry Facenna QC, Daisy Mackersie and David Gregory successfully defend Environment Agency’s decision on water abstraction at Catfield Fen under the Habitats Directive

Monckton counsel have successfully defended the Environment Agency’s decision not to renew water abstraction licences near to Catfield Fen in Norfolk.  The applications were to allow the continued use of groundwater for agricultural purposes from existing abstraction sites near to a Special Area of Conservation protected by the EU Habitats Directive.  Catfield Fen contains calcareous fen (a priority habitat under the Habitats Directive) as well as a large population of the rare fen orchid and protected water beetles.

The decision of the Environment Agency to refuse the licences was considered at a three week planning inquiry held in Norwich in Spring 2016.  At the inquiry the Environment Agency, supported by Natural England and the RSPB, presented evidence of rapid ecological change on site suggestive of deteriorating water chemistry which was potentially a result of the water abstractions. By contrast the appellant contended that, applying the test under the Habitats Directive, it was beyond reasonable scientific doubt that the water abstractions were not responsible for any ecological change.

Having considered detailed expert evidence on fen ecology, hydrogeology and water chemistry, Elizabeth Hill BSc(Hons), BPhil, MRTPI, the Inspector appointed by the Secretary of State for Environment, Food and Rural Affairs, dismissed the appeals, finding: ‘it cannot be concluded beyond reasonable scientific doubt that abstraction under the licences would not have an adverse effect on the integrity of sites protected by European law, namely, the Broads SAC.’ She also rejected arguments that the licences should be granted in any event due to “imperative reasons of overriding public interest”, namely the impact of refusing the licences on the economy.

The Planning Inspector’s decision can be read here.

The Environment Agency was represented by Gerry Facenna QC, Daisy Mackersie and David Gregory.

The Legal 500 UK Bar 2016: Monckton is Top Tier Set for EU, Competition, Telecoms, Procurement and VAT with 40 members ranked as “leading” individuals

The recently launched  The Legal 500 UK Bar 2016 noted  Monckton Chambers for its ‘tremendous strength in depth’, and being ‘the premier set for EU and competition disputes’ as well as a strong choice for telecoms regulatory, indirect tax and public law. 40 individual barristers are listed across18 practice areas with many recommended in multiple categories.

Monckton Chambers has been recommended as a TOP-TIER set in the following practice areas:

  • EU and competition
  • Telecoms (regulatory)
  • Public procurement
  • Tax – VAT

The Set has also been ranked in a further 5 areas:

  • Administrative and public law (including local government)
  • Civil liberties and human rights (including actions against the police)
  • Environment
  • IT and telecoms – data protection
  • Sport

Individual members were also recognised as “Leading Individuals” in:

  • Aviation
  • Commercial litigation
  • Construction- Education
  • Immigration (including business immigration)
  • International arbitration: counsel
  • Professional negligence
  • Public international law
  • Social housing

The annual legal directory further described the Set as follows: ‘The barristers are all user-friendly, unstuffy, very good at rolling up their sleeves and fun to work with’, and are complemented by the ‘21st century and entrepreneurial-style clerking’, which is ‘highly professional and client-focused’; ‘they know how to match the right barrister to the right case and appear to take care to do so, rather than just looking at who has capacity at any given time.’

For further details visit the Legal 500 website.

General Court upholds Commission ”Pay for Delay” decision in the Lundbeck case

The General Court of the EU yesterday dismissed appeals by Lundbeck, the leading pharmaceutical company, and a number of manufacturers of generic products, against a Commission decision finding that they were party to agreements that infringed EU competition rules and imposing fines.

The case concerned citalopram, a widely-used treatment for mental health conditions.  The agreements were entered into at a time when various generic manufacturers had been taking steps to start supplying citalopram, but Lundbeck had also launched, or was threatening to launch, patent infringement proceedings against those manufacturers in the UK and EEA.  Under the agreements, the generic manufacturers received payment from Lundbeck and also agreed not to supply citalopram for a period of time.

The General Court dismissed the companies’ claim that, because of the position in relation to patents, the generic manufacturers could not be regarded as potential competitors of Lundbeck.  It also rejected the companies’ argument that, because Lundbeck had a patent claim, an agreement not to sell citalopram in potential breach of that claimed patent could not be regarded as an ‘object restriction’ for the purposes of Article 101(1) of the Treaty on the Functioning of the EU.  It agreed with the Commission that, despite the patent claims: (i) the generic companies should be regarded as potential entrants, and (ii) the agreement was a restriction by object.

The case is the first judgment by the European Courts on the “pay for delay” issue, and is a very important decision for the pharmaceutical sector, as well as being the latest word on the category of object restrictions.

A link to the judgments is here.

Please click here to view the full case note.

George Peretz QC acted for the European Commission in T-467/13 Arrow v Commission; Ben Rayment acted for the European Commission in T-471/13 Xellia and Alpharma v Commission; Ronit Kreisberger and Ligia Osepciu acted for Merck in T-470/13 Merck KGaA v Commission; James Bourke acted for the European Commission in Case T-472/13 Lundbeck v Commission, Case T-469/13 Generics (UK) v Commission and Case T-470/13 Merck KGaA v Commission.

In a post Brexit world, Christopher Muttukumaru CB asks: what will happen to EU environmental laws that apply to the delivery of major infrastructure projects?

Christopher Muttukumaru CB argues in our Brexit Blog that aspects of environmental law, as they apply to the delivery of major infrastructure projects in a post Brexit world, could be very difficult to sweep away since they involve both EU Law and Public International Law obligations

To read the full blog piece please click here.

Christopher has also written a piece titled Cases before the CJEU at the time of Brexit: could the interests of justice be timed out? To read the full blog piece please click here.

Labour Party leadership election – Nikolaus Grubeck act in successful challenge to allow new members’ right to vote

Stephen Cragg QC and Nikolaus Grubeck, instructed by Kate Harrison at Harrison Grant, acted for Labour Party members excluded from an automatic right to vote in the forthcoming leadership election, on the basis that they have not been members of the Party for more than six months (Evangelou and others v The Labour Party).

In the High Court of Justice on the 4th August Mr Justice Hickinbottom decided that, under the Labour Party rules, the Labour Party’s National Executive Committee does not have the power to disenfranchise 150,000 members, including the claimants.

This means that all members who joined the party before 12th July 2016 have equal rights to vote in the leadership election.

Imogen Proud was instructed for hand down and consequentials.

A copy of the judgment is available here.

See The Guardian website.

Brendan McGurk successfully defends MoD from civil claims arising out of the UK’s role in Kosovo

The High Court has determined a series of preliminary issues arising out of claims brought by three individuals whose family members were murdered by unknown third parties in the immediate aftermath of the withdrawal of Slobodan Milosovic’s forces from Kosovo in June 1999. Milosovic’s withdrawal followed Nato operations to which the UK contributed. Following the promulgation of UN Security Council Resolution 1244, the UK provided forces to the Kosovo Force (or KFOR) which was given various security taskings. The murders took place within the area for which UK forces had lead responsibility. The Claimants brought (i) claims under the Human Rights Act and (ii) tort claims under local Kosovan law in the Queen’s Bench Division. They were seeking, amongst other things, the establishment of a public enquiry in relation to the alleged breach of the investigative obligations alleged to have arisen under Articles 2 and 3 ECHR, and damages. Preliminary issues were heard on, amongst other issues, (i) whether the alleged acts or omissions of UK forces were to be attributed to the UK or the UN; (ii) whether the claimants where within the jurisdiction of the UK for the purposes of Article 1 of the ECHR; (iii) whether an investigative obligation arose or continued under Articles 2 or 3 of the ECHR; and (iv) whether the UK could avail of any operative immunity in relation to such claims. In a long and detailed judgment, Irwin J determined all of the preliminary issues in favour of the MoD. The Claims will therefore be dismissed.

Brendan McGurk was led by James Eadie QC. The judgment, whose neutral citation is [2016] EWHC 2034 (QB), can be found here.

General Court rejects John Bredenkamp’s damages claim

Case T-66/14 Bredenkamp & Ors v Council, 21st July 2016

The General Court of the CJEU has rejected an application for damages brought by Zimbabwean businessman John Bredenkamp, and 3 companies owned by him, for damages for loss caused by their listing on the EU’s Zimbabwe sanctions list.

The court held that the applicants’ listing was not unlawful wherefore the applicants were not entitled to the damages claimed, so that the Court did not go on to consider the arguments on causation and loss. The Court found that listing a businessman on the basis of strong ties to the Government was a sufficiently clear statement of reasons, with a valid legal basis. Although the Council had not communicated the evidence forming the basis for the designation, the applicants had been given the bulk of the evidence justifying their listing, albeit by way of obtaining them in national proceedings against the UK government and the Court found that this would not therefore have made any difference to the applicants’ rights of defence.

A link to the judgment is here.

Philip Moser QC acted for Mr Bredenkamp and his companies

High Court holds that Napp Pharmaceuticals was not entitled to a period of data exclusivity for its analgesic skin patch under the Article 10(3) hybrid-abridged procedure

In a judgment handed down today, Mrs Justice Whipple rejected an attempt by Napp to assert a period of data exclusivity for “bridging data” provided by it in support of its application for a marketing authorisation (MA) for its product BuTrans®/Norspan® under the “hybrid-abridged” procedure laid down in Article 10(3) of the Medicines Directive (Directive 2001/83).

The “hybrid-abridged” procedure can be used where a manufacturer seeks to obtain an MA for a product that differs in certain respects, such as in the route of administration or therapeutic indication, from another manufacturer’s product that already has an MA (known as the “reference medicinal product” or “RMP”). The RMP in this case was an analgesic developed by another manufacturer in the form of a pill placed under the tongue: Napp then developed BuTrans®, which used the same analgesic in the form of a skin patch. Under the hybrid-abridged procedure, which requires the provision of “appropriate” pre-clinical tests and trials, it could and did obtain an MA by relying on the original documentation for the RMP combined with “bridging data” in the form of test results showing that the skin patch method was safe and effective.

Some 11 years later, Sandoz applied for MAs in a number of EU countries, including the UK, for its own analgesic skin patch. In its application, it referred to the RMP, the bridging data provided by Napp for BuTrans® and to its own studies demonstrating bioequivalence between its product and BuTrans®.

The UK Medical and Healthcare Products Regulatory Agency (“MHRA”), along with the equivalent authorities in other EU Member States, granted Sandoz an MA on that basis. Napp sought judicial review of the MHRA’s grant of an MA to Sandoz, claiming that the Medicines Directive did not permit the MHRA, in assessing Sandoz’s application for MAs, to allow it to rely on the “bridging data” provided by Napp. Napp also brought equivalent proceedings in other EU countries. At the hearing, Napp sought a reference for a preliminary ruling to the Court of Justice of the EU, arguing that there was a “lacuna” in the Directive to the extent that it did not lay down a period of exclusivity for “bridging data”: it pointed out that Article 10(1) provided for a period of exclusivity for the manufacturer of the RMP so as to prevent generic manufacturers relying on those data to secure an MA for their own product.

Whipple J observed that, as a matter of language, the reference in Article 10(3) to “appropriate” pre-clinical tests or clinical trials did not preclude the MHRA from accepting as “appropriate the data provided by Sandoz, namely the bridging data originally provided by Napp for BuTrans® together with Sandoz’s own studies demonstrating bioequivalence between its product and BuTrans®. That approach did not conflict with the purpose of the Directive of ensuring that medicines were safe and effective. Moreover, the Court of Justice’s case-law had refused to allow periods of exclusivity where the company in Napp’s position also held the MA for the RMP – had Napp also held the MA for the RMP in this case, BuTrans® would, under Article 6(1), have been held to be a “line extension” of the RMP and would not have had any additional period of exclusivity beyond that granted in relation to the RMP under Article 10(1): but there could be no reason for distinguishing the case where Napp held the MA for the RMP from the actual case, where it did not. She further noted that the Commission had expressed the same view in its Notice to Applicants. So she dismissed Napp’s challenge, holding that the MHRA had been correct to grant the MA, and refused to make a reference to the Court of Justice.

George Peretz QC acted for the MHRA.

To read the judgment, please click here.