The Court of Appeal has by a majority today upheld the SCOP’s challenge to the CMA’s remitted decision in the Eurotunnel / Sea France investigation. The challenge related to a decision made by the CMA in June 2014 that it has jurisdiction to consider the acquisition of certain assets of Sea France by Eurotunnel under its merger control powers. That decision followed earlier proceedings in the Competition Appeal Tribunal in which the Tribunal partially upheld the SCOP’s challenge to an earlier finding of jurisdiction by the then Competition Commission in June 2013, and remitted the issue to the CMA for further consideration.

The SCOP’s challenge to the CMA’s remitted decision was dismissed by the Tribunal in January 2015 but the Court of Appeal granted permission for an expedited appeal which was heard in March 2015.

The Court of Appeal has today allowed the SCOP’s appeal (Tomlinson LJ and Sir Colin Rimer, Arden LJ dissenting). The majority concluded that the CMA’s decision that Eurotunnel and the SCOP acquired the activities of Sea France was irrational.

Please click here to view the full Société Cooperative de Production Sea France SA v Competition and Market Authority – Court of Appeal judgment.

The SCOP was represented by Daniel Beard QC and Rob Williams instructed by RPC.

The CMA was represented by Paul Harris QC and Ben Rayment.

Meredith Pickford QC and Ligia Osepciu represented DFDS AS which intervened in the proceedings in the CAT and the Court of Appeal, instructed by Hogan Lovells.

The outcome of the UK General Election is now known. In its Manifesto, the Conservative Party promised to renegotiate the UK’s relationship with the EU and then to hold an in/out referendum.

Monckton is one of London’s leading sets of chambers in the EU Law field. Practitioners, businesses, individuals and opinion formers will be planning ahead for different possibilities. Therefore they will want to understand the legal framework within which decisions will be taken about future relations between the EU and the UK.

On 24 June, members of chambers will present the first of two events at which they will explore some of the key issues. The seminar will involve a number of experienced EU practitioners. It will build on two recent lectures on the legal implications of Brexit, given by Christopher Muttukumaru CB to the Dutch Academy of Legislation on 15 April and by Ian Rogers QC to the Central European University, Budapest, on 24 April.

To register please click here.

In its judgment in R(Hemming) v Westminster CC [2015] UKSC 25, released on 29 April, the Supreme Court had to grapple with the question of how to apply a provision of Directive 2006/123/EC on services in the internal market that restricted charges that could be made to an applicant for an authorisation to provide services.  The provision at issue (Article 13(2)) stated that “charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures“.

The facts of the case concerned a sex shop that applied for a licence to operate as such from Westminster City Council.  Westminster charged an up front fee that was calculate to cover both its costs of determining whether a licence should be granted and its costs of enforcing the licensing scheme (e.g. by prosecuting unlicensed sex shops).  But if an application was unsuccessful, the part of the fee that covered enforcement costs was refunded.

The Court of Appeal held that that arrangement infringed Article 13(2).  Its judgment caused great concern to a wide range of regulators who receive their income from licensing regimes, including the Solicitors Regulation Authority and the Bar Standards Board, who intervened in the appeal along with the Treasury.

Lord Mance gave the single judgment of the Supreme Court.  He agreed with the sex shop that costs of enforcement could not be regarded as part of the “costs of the procedures”: in particular, he accepted a point made by the Treasury that Westminster’s argument on that issue was inconsistent with the French and German language texts of the Directive.  However, he agreed with Westminster and the regulators that it was clear (“acte clair“) that Article 13(2) did not apply to situations (called “type A”) where an applicant paid a fee for authorisation that was based on the costs of processing the authorisation decision, but in order to practise had to pay a further fee covering other costs such as enforcement.  But he then went on to record disagreement between the Supreme Court judges as to what the position was where – as in the case of the sex shop –  the applicant had to pay an up front fee including both authorisation costs and enforcement costs but received a refund of the part of the fee covering the latter element if it was unsuccessful (“type B”).  So that question was referred to the Court of Justice of the EU for a preliminary ruling.

The first part of the judgment clarifies the position in relation to a number of professional and other licensing regimes. The question that has been referred is a fairly narrow one that may have limited application outside the world of sex shops.  However, it has been known for the Court of Justice not to agree with the assumptions behind the questions referred to it: so it cannot be entirely certain that even the clear view of the Supreme Court on “type A” regimes will necessarily survive the reference process.

George Peretz QC appeared for HM Treasury in the Supreme Court.

Following its successful defence of the appeal brought by AXA PPP Healthcare Limited (AXA PPP) against its investigation into the provision of private healthcare, the Competition and Markets Authority (CMA) has also now succeeded in defending the appeal brought by the Federation of Independent Practitioner Organisations (FIPO).

On 29 April 2015, the Competition Appeal Tribunal, by majority judgment, dismissed FIPO’s application for review of parts of the CMA’s final report on the private healthcare market investigation. The majority of the Tribunal (Sales LJ and Clare Potter) rejected each of FIPO’s grounds of challenge and upheld the CMA’s finding that there was no adverse effect on competition resulting from insurers’ buyer power in relation to consultants and the restrictions placed on consultants’ fees. The Tribunal held that CMA’s findings were not irrational and were supported by the evidence. Further, the Tribunal found that there had been no failure to consult by the CMA.

One member of the Tribunal (Dermot Glynn) issued a dissenting opinion in which he set out his view that the CMA acted irrationally in not finding an adverse effect in competition and in concluding that consultants were able to compete below the price caps imposed by the insurers. The minority view was, in particular, that the CMA’s findings did not reflect economic realities in the market. However, the majority of the Tribunal considered that the minority opinion did not reflect the grounds of challenge raised by FIPO, involved a merits-based review and went beyond the scope of the CAT’s review role under section 179 of the Enterprise Act 2002.

Please click here to view the Federation of Independent Practitioner organisations v CMA judgment.

Kassie Smith QC and Brendan McGurk appeared for the Competition and Markets Authority.

Paul Harris QC will be chairing a round table session at the prestigious Lawyer General Counsel Strategy Summit in Portugal.

The impact of the new EU wide Damages Directive concerning breaches of competition law round table session will cover the following issues:

• Consider being a claimant, not just a Defendant
• Limitation issues: how will they work?
• Privilege: EU differences
• Developments in disclosure – how will they impact your business?
• Presumptions in the Directive, including as to damage

The Lawyer General Counsel Strategy Summit is attended by over 90 general counsel and heads of legal from some of the world’s largest companies across a range of industries.  The Summit will take place on 13 – 15 May 2015.

Paul is a well-known Silk in the field of commercial competition litigation and is instructed in many of the highest value and profile proceedings in the country. Current instructions include: acting as Lead Counsel for the Claimants in the largest follow on damages action in the UK (Air Cargo), acting for NHS bodies to recover damages from Reckitt Benckiser following its abuse of its dominant position in relation to the drug Gaviscon and defending IMI plc in multiple damages actions for cartel behaviour (copper tubes and fittings) He recently acted as Lead Counsel for Arriva Plc in their successful abuse of dominance trial against Luton Airport.

Chambers UK singles Paul out as “a particularly popular choice as lead counsel in follow–on damages actions, not least because of his outstanding litigation skills. An absolute delight to work with, he is incredibly clever and truly a litigator’s litigator. He is good at devising a strategy.”

Paul’s practice concentrates on contested litigation and advocacy, particularly in the fields of competition, European, broadcasting, public/administrative, sports, and VAT law and is regularly instructed directly by the in house legal market.

In a decision released yesterday the First-tier Tribunal upheld an appeal by the Department of Business, Innovation and Skills (BIS) against a decision by the Information Commissioner (IC) under the Freedom of Information Act 2000 (FOIA) that had ordered disclosure in full of a briefing to the Prime Minister in late 2011 on the financial situation of Thomas Cook.  By the time of the hearing, the BIS had agreed that much of the information could be disclosed, and IC agreed (on the basis of information not available to him at the time of his decision) that some of the information which remained in dispute was subject to a statutory restriction on disclosure and therefore was subject to an absolute exemption under FOIA. 

In relation to other parts of the briefing,  BIS argued that disclosure would prejudice Thomas Cook’s commercial interests (s.43 of FOIA) and that that damage outweighed the public interest in disclosure; it also argued that factual information obtained from Thomas Cook was subject to a duty of confidence so that the absolute exemption in section 41 FOIA applied. 

The Tribunal agreed with BIS that redactions should be made in the information disclosed.  It accepted that factual information in the briefing about Thomas Cook was obtained from it in confidence and that there was no sufficient public interest justification for breaching that confidence.  It also accepted evidence from Thomas Cook and from the Civil Aviation Authority (which has regulatory responsibility for Thomas Cook) that disclosure of information in the form of commentary from civil servants about Thomas Cook’s financial situation in 2011, even some time after Thomas Cook had been restructured, would be likely to prejudice its interests: it noted the volatility of the travel industry and its vulnerability to any adverse publicity. 

Thomas Cook was a major employer and any difficulty it got into could harm the taxpayer given that the Government guaranteed the ATOL scheme that insures customers against failure by holiday providers. Those factors overall outweighed the public interest in fully understanding the briefing given to the Prime Minister about the financial situation of a major company.

George Peretz QC acted for BIS: Laura Elizabeth John acted for the IC.  

 

The High Court (Mrs. Justice Andrews) has granted Greenpeace permission to challenge the UK’s failure to properly implement the EU’s new Common Fisheries Policy (“CFP”).

In December 2013, the EU legislature adopted a new regulation reforming the CFP, in particular by requiring Member States to allocate fish quotas based on environmental, economic and social criteria.

Greenpeace claims that the new regulation means that the UK is obliged to modify its current method of allocating fish quotas which is primarily based on historical fishing records from 1994-1996. The Secretary of State for Environment, Food and Rural Affairs has taken a decision that the UK’s method of allocating fish quotas is compatible with the new regulation. The High Court has permitted Greenpeace to challenge the lawfulness of that decision under EU law.

The case has received the following press coverage:

• BBC
• BBC Radio 4 Today
• Independent

Further information can also be found on the Greenpeace blog.

Kassie Smith QC and James Bourke are acting for Greenpeace, instructed by Harrison Grant.

Permission was granted yesterday by the High Court for a leapfrog appeal of a preliminary issue in Moreno v Motor Insurers Bureau [2015] EWHC 1002 (QB).  The preliminary issue will now proceed directly to the Supreme Court.

The Claimant was injured by an uninsured driver whilst on holiday in Greece and sought compensation from the MIB.  While the MIB has admitted liability, the dispute concerns whether the applicable rules to assess quantum are those of England and Wales or of Greece.  Giving judgment at the first instance, Gilbart J considered that he was bound by the ruling in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208 to the effect that compensation would be determined under domestic rules.  These are more beneficial to the Claimant.  However he noted that there was force in arguments that Jacobs was wrongly decided in the light of the Rome II Regulations.

Granting a certificate pursuant to section 12 of the Administration of Justice Act 1969, Gilbart J noted that the Supreme Court had previously given permission to hear the issue in Jacobs but that the appeal was not proceeded with.  He held that it was an important issue which would affect a substantial number of claims.  Their resolution would be delayed if the matter were to first come to the Court of Appeal.

Citation: [2015] EWHC 1142 (QB)

Related barristers: Daniel Beard QC

Please click to view the Moreno v MIB judgment.

The High Court has today dismissed an application by MasterCard to strike out claims made by Tesco Stores in relation to interchange fees.  MasterCard argued that the claimants form part of a single undertaking with Tesco Bank which issues MasterCard cards and are hence precluded from claiming damages by the principle of ex turpi non causa or illegality.  Asplin J dismissed the application, on the basis that a number of issues in the case were unsuitable for disposal on a summary basis.  The judgment contains interesting observations on the legal principles relating to single undertakings and the defence of ex turpi.

Tim Ward QC and Rob Williams acted for the successful claimants.

Please click to view the full Tesco Stores Ltd and Ors v MasterCard judgment.

 

The Western Sahara Campaign UK was granted permission for judicial review yesterday against the Department for Environment, Food and Rural Affairs (DEFRA) and Her Majesty’s Revenue and Customs (HMRC).

Western Sahara Campaign UK works to protect the rights of the people of Western Sahara. The UK based campaign group claim that products imported under a trade agreement with Morocco actually originate from West Sahara.

The case raises important points of EU Law and public international law.

In the claim against DEFRA, the Western Sahara Campaign UK is challenging the lawfulness of the Fisheries Partnership Agreement between Morocco and the EU (or, alternatively, the manner of its implementation).

In the claim against HMRC, the Western Sahara Campaign UK is challenging the lawfulness of the manner in which the Association Agreement has been implemented by the European Union and its Member States.

Permission for Judicial Review was granted on all grounds in both cases by Mr. Justice Walker.

The case has received the following press coverage:

• Guardian

Conor McCarthy is junior counsel for the Claimant, instructed by Leigh Day.