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 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.

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.

See The Guardian website.