In judgments handed down yesterday the General Court of the EU has annulled the Commission’s 2010 decision finding the applicant companies to have infringed the competition rules by participating in a cartel to fix surcharges for air freight and imposing heavy fines upon them.

The basis for the Court’s ruling was that the reasoning in the decision found a single infringement: however, the final part of the decision setting out the infringement (“the operative part”) set out four separate infringements with different airlines participating in each.  The Commission argued at the hearing that that was because, over the period of the cartel, the EU Treaty, the EEA agreement, and the EU/Switzerland Agreement applied to different routes (e.g. the EU/Switzerland Agreement applied only to routes between the EU and Switzerland) and that the airlines listed in relation to each of those provisions were the airlines that flew the routes to which the provision applied (so that only airlines that flew between the EU and Switzerland were listed as having infringed the EU/Switzerland agreement).  However, the Court considered that there was such a contradiction between the reasoning in the decision and the operative part that the decision had to be annulled on the basis of contradictory reasoning.

The Court found it unnecessary to deal with any of the other arguments put forward by the applicants contesting their participation in the infringement or the amount of the fine.

As matters stand, to the extent that the decision is annulled, it no longer stands against any of the applicants to the Court, and no longer binds national courts (which are currently considering a number of follow-on actions based on the Commission’s decision).

George Peretz QC, Josh Holmes, Alan Bates and James Bourke acted for the European Commission; Jon Turner QC acted for British Airways and Ronit Kreisberger acted for Cathay.  In the follow-on damages actions in the English High Court: Paul Harris QC, Ben Rayment and Anneliese Blackwood are acting for Emerald Supplies Limited, Rob Williams acts for the Allston Landing Claimants, Jon Turner QC and Michael Armitage are acting for British Airways, Michael Bowsher QC, Tim Ward QC, Daniel Beard QC, Kassie Smith QC, Meredith Pickford QC, Ronit Kreisberger, Philip Woolfe, Laura Elizabeth John and Thomas Sebastian are acting for numerous Part 20 Defendants.

The Chartered Institute of Library and Information Professionals (CILIP) today announced that it was challenging the Department of Culture Media and Sport concerning its oversight of library services under the Public Libraries and Museums Act 1964.

Part of its campaign entitled My Library My Right championing public access to quality library services, CILIP is asking the Secretary of State to issue clear statutory guidance on the duty of local authorities to provide a “comprehensive and efficient” library service under section 7 of the 1964 Act.

Eric Metcalfe is acting for CILIP. Please click here for media coverage by the Guardian.

Leeds City Council v HM Revenue and Customs [2015] EWCA Civ 1293

The Court of Appeal has rejected Leeds City Council’s EU law challenges to the former 3 year limitation period in section 80(4) of the Value Added Tax Act 1994 on claims for VAT over-declared and overpaid in VAT periods ending on or after the introduction of the cap in December 1996 (so-called “Scottish Equitable” claims).  Dismissing Leeds’ appeal against the “impeccable” decision of the Upper Tribunal (Tax and Chancery Chamber), the Court of Appeal rejected various EU law arguments (invoking the principles of effectiveness, equivalence and legal certainty) that the 3 year cap had to be disapplied in relation to Leeds’ claims in circumstances where Leeds did not know it had claims and HMRC’s (erstwhile) public position had been inconsistent with the correct tax treatment of the supplies in question.

Andrew Macnab acted for HM Revenue and Customs

To view the full judgment please click here.

 

In a case which it described at the permission stage as one of “particular public interest”, the Supreme Court has allowed an appeal by the Competition and Markets Authority (CMA) against the decision by the Court of Appeal that the acquisition by Eurotunnel of 3 out of Seafrance’s 4 ferries, together with certain other business assets, which had not traded at the time of the acquisition for some seven and a half months, did not amount to an “enterprise” (i.e. “the activities or part of the activities of a business”) so as to give rise to a “relevant merger situation” over which the CMA had jurisdiction.   This was the first time the jurisdiction provisions of UK merger control had been considered by the UK’s highest court for over 20 years.   The appeal raised the issue of when acquired assets are simply “bare assets” and when the can be considered to involve the acquisition of a business (or part of one) and therefore subject to UK merger control.  As part of its analysis the Court considered when employees can be said to be transferred as part of an acquisition in the absence of a transfer of employment contracts.

Ben Rayment was instructed by the CMA

For a copy of the Supreme Court’s Judgment click here.

The High Court has discharged an injunction that was obtained by Packet Media Limited (“PML”) against Telefonica UK (“TUK”) in July 2015. PML operates GSM Gateways and provides telecommunications services to its own business customers. The use of those Gateways was contrary to TUK’s Gateway Policy. PML sought to restrain TUK from disconnecting the SIM cards that PML were using to provide access and origination services to its customers. It did so on the basis that it was arguable that TUK were dominant on the market for the wholesale supply of access and origination services and was abusing that dominance. TUK had been given liberty to discharge the injunction and applied to do so by reference, inter alia, to public statements by Ofcom that that market was highly competitive. The Court found that the contention that TUK were dominant on that market did not give rise to a serious to be tried. The injunction will be discharged within two weeks and the Claim was struck out.

Brendan McGurk acted for Telefonica

The Administrative Court has rejected a judicial review challenge to the Government’s recent whiplash reforms, which on 6 April 2015 introduced a mandatory requirement for personal injury solicitors to instruct medical experts via the MedCo internet portal.

A leading medical reporting organisation (MRO), Speed Medical Examinations Limited, sought to challenge the operation of the Portal on the basis that it had affected its volume of business and restricted competition in the market for medical expert reports contrary to  EU and national competition law. Mr Justice Cranston held that MedCo could not be abusing its position in the upstream market for the provision of access to medical experts by distorting competition in the downstream market for the supply of medical reports in circumstances where it was not active or had no commercial interests downstream market and/or derived no direct or indirect economic advantage from distorting competition. As a regulator, acting in the public interest, implementing a policy of the Secretary of State for Justice, it was performing a public function and could not be resorting to methods different from those governing normal competition. Further, in implementing government policy, MedCo was complying with a legal requirement under Schedule 3 of the 1998 Act which sheltered it from all liability. Lastly, Cranston J held that even in there were some effect on competition downstream, the MedCo scheme formed part of the wider whiplash reforms programme and was objectively justified on the basis that it removed conflicts of interests from the selection process and ensured the independence of medical experts and MROs providing evidence for whiplash claims. At the same time, it was proportionate and did not go beyond what was necessary as it ensured that all MROs had an opportunity to be presented in the search results and preserved choice for users. Competition between large and small MROs was maintained and there were no barriers to entry that would make the market overly rigid or prevent future evolution of the market.  The Portal was less draconian that other alternatives discussed in the consultations.  A rationality challenge was also dismissed.

This judgment is important for the assessment of conduct that straddles two related markets under Art 102 TFEU as well as the characterisation of public service entities under competition law.

Anneli Howard, led by James Eadie QC, acted as junior counsel for the Secretary of State for Justice.

A copy of the judgment can be found here.

 

R v Secretary of State for the Home Department ex p David Davis MP, Tom Watson MP, Peter Brice and Geoffrey Lewis

Open Rights Group, Privacy International and the Law Society intervening

The Court of Appeal has today handed down judgment in an appeal concerned with the Home Secretary’s powers in relation to the retention of communications data and the validity of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). It has decided to refer questions to the CJEU concerning the meaning of the CJEU’s judgment in Joined Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd and Seitlinger and Others.

The Home Secretary appealed against the judgment and order of the Divisional Court ([2015] EWHC 2092 (Admin)), which found s1 DRIPA to be contrary to the CJEU’s judgment and disapplied DRIPA with effect from March next year. S1 DRIPA gives the Home Secretary the power to require public telecommunications operators to retain communications data for one or more specified purposes, including, but not limited to, the prevention of serious crime. The Divisional Court accepted the argument of the Claimants, including David Davis MP and Tom Watson MP, that s1 DRIPA was inconsistent with Articles 7 and 8 of the EU Charter because it did not set down clear rules governing access to the data and, in particular, did not make access dependent on prior judicial or independent review.

The Secretary of State appealed on the basis that the judgment below was based on a misunderstanding of the CJEU’s judgment in Digital Rights Ireland, delivered on 8 April 2014.

In its judgment the Court of Appeal has accepted, on a provisional basis, the Home Secretary’s argument that Digital Rights Ireland, which invalidated Directive 2006/24/EC (“the Data Retention Directive”), did not lay down mandatory requirements applicable to all Member States’ domestic data retention regimes, contrary to the Divisional Court’s interpretation. At the request of the Home Secretary, and given the difference in approach between different national courts, the Court of Appeal decided to refer questions as to the correct interpretation of Digital Rights Ireland to the CJEU, including on whether the CJEU in that judgment intended to expand the scope of Articles 7 and 8 of the EU Charter beyond the effect of Article 8 ECHR.

Daniel Beard QC and Gerry Facenna acted for the Secretary of State.

Azeem Suterwalla acted for the Respondents Brice and Lewis.

The judgment is available here.