The Upper Tribunal has upheld the First Tier Tribunal’s judgment in the important and long-running litigation between local authorities and the HMRC over the question of whether the latter was correct in deciding that the treatment of local authorities as non-taxable persons when providing services that are otherwise taxable would lead, as a real possibility, to actual or potential distortions of competition (on a more than negligible scale) with private operators supplying the exact same services for the purposes of Article 4.5(2) of the Sixth VAT Directive (now Article 13 of Directive 2006/112/EC).

The appellant local authorities had appealed against the First Tier’s findings that the non-application of VAT to Local Authority provision of off-street parking would distort competition and that the degree of distortion would be more than negligible. Those findings were made, applying guidance provided by the Grand Chamber of the ECJ to whom a reference had been made by the High Court on an earlier appeal. The local authorities alleged that the First Tier had erred insofar as it had made findings of fact based on an incorrect understanding of the relevant road traffic legislation. The Upper Tribunal has dismissed the appeal in a judgment in which it comprehensively upheld the First Tier’s analysis.

This litigation, which has been running for more than ten years, is regarded as a test-case and although car-parking was the subject considered by the Tribunal, the same principles may apply to the provision of other services or supplies provided by a local authority where there are private operators providing the same service in the same market. Local authorities had collectively brought very significant Fleming claims which, pursuant to the Upper Tribunal’s Judgment, HMRC will not be required to refund.

Ben Rayment and Brendan McGurk successfully acted for HMRC.

Click to read the judgment in Isle of Wight v HMRC

On 14 October,  the Ukrainian Parliament adopted a new Law “On the Prosecutor’s Office” as part of continuing steps to modernise its criminal justice system, to fulfil its commitments under European and International Human Rights Law and to allow implementation of the Association Agreement with the European Union. The Law, which includes the elimination of the former general supervision function of the public prosecution established under the Soviet system, was prepared with the assistance of Jeremy McBride, who acted as an expert for the Council of Europe for  this reform. Previously he advised the Council of Europe on the preparation of a new Code of Criminal Procedure in Ukraine to replace the one adopted during the Soviet era.

 

Monckton Chambers is delighted to announce that Jon Turner QC has been awarded “Silk of the Year” for EU and Competition law at the annual Legal 500 UK Awards.

Congratulations to Jon.

Last night Monckton Chambers was awarded Set of the Year for EU & Competition Law for the second year running at the Chambers Bar Awards.

Daniel Beard QC won EU & Competition Silk of the Year, with Jon Turner QC and Anneli Howard also being shortlisted for awards.

Monckton Chambers was also shortlisted for the Chambers UK overall ‘Set of the Year.’

Congratulations to everyone.

Monckton Chambers is delighted to announce Daniel Beard QC has been awarded Silk of the Year for EU & Competition law at the Chambers Bar Awards.

Congratulations to Daniel.

An article by Monckton Chambers’ Michael Armitage appears in the latest edition of the Competition Law Journal (Volume 13, Issue 3, 2014). The article focuses on the interconnection between competition law and property rights, a hot topic since the exclusion of land agreements from the Chapter I Prohibition in the Competition Act 1998 was withdrawn. The article considers the decision of the Central London County Court in Martin Retail Group Limited v Crawley Borough Council, the first judgment on record which considers the new regime for land agreements, as well as discussing some issues of general significance in this area.

Michael has been a tenant since 2012 and has built a practice which spans the full spectrum of competition law. He has advised and appeared in court in land agreements cases on a number of occasions.

Ben Rayment also of Monckton Chambers has written as case note Martin Retail Group Limited v Crawley Borough Council on the same judgment.

Click here to visit the Competition Law Website.

Monckton Chambers has received three nominations for The Legal 500 UK Awards 2014.

Monckton Chambers has been shortlisted for EU/Competition Set of the Year, and Jon Turner QC and Daniel Beard QC for EU/Competition Silk of the Year.

The winners will be announced on 8th October.

Monckton Chambers is delighted to announce that Peter Oliver, a former Legal Advisor to the European Commission, has joined Monckton as a tenant.

Monckton Chambers is the leading set in EU law, and with his long and varied career in the Commission Legal Service and the depth and variety of experience of both court and advisory work, Peter will bring a fresh perspective to Chambers.

Over nearly 35 years, Peter appeared in some 350 cases before the Court of Justice of the EU as well as the EFTA Court, and worked in a wide range of fields including: environmental law; the internal market; agriculture, fisheries and food law; competition; and pharmaceuticals.  He is widely recognised as one of the most eminent authorities on the internal market, especially the free movement of goods.

Paul Lasok QC, Head of Monckton Chambers, said: “Peter Oliver is one of the most experienced advocates in litigation before the Court of Justice and General Court of the EU in Europe. He has a track record that only a very few can equal. His return to practice offers clients who wish to litigate in Europe an almost unrivalled depth of experience and skill.”

Peter Oliver said: “Monckton is rightly regarded as a top set of chambers, especially in EU law. Their invitation to join is therefore a wonderful opportunity. I look forward in due course to supporting a fresh client base for both advisory and court work.”

The Competition Appeal Tribunal gave judgment today in Skyscanner’s appeal against the decision by the OFT (now the CMA) to accept commitments from a number of online travel agents (OTAs) and InterContinental Hotels Group plc (IHG).  This was the first time that the Tribunal has been called upon to consider a commitments decision taken under s.31A of the Competition Act 1998.

By the commitments at issue in the case, the OTAs (Expedia and Booking.com) and IHG agreed to allow limited price discounting of online hotel room rates.  Discounting was to be allowed only to members of Closed Groups after one initial full-price purchase.  Further, although OTAs and hotels could advertise the general availability of discounts, the actual level of those discounts was not to be disclosed either on the hotel’s/OTAs’ own websites or via price comparison websites or meta-search sites.  The commitments were expressed to be minimum standards.

Skyscanner operates a price comparison or meta-search site for flights, hotel rooms and car hire.  Meta search sites display prices offered by third parties and thereby assist consumers to compare pricing.  After searching for a hotel room, for example, on Skyscanner’s site, consumers are directed to third party websites for the booking to take place.  Skyscanner was concerned that the commitments offered by the OTAs and IHG would prevent it from showing the actual prices available for hotel rooms to visitors to its site.  This would have a negative impact on price transparency and on inter-brand competition.  Skyscanner took part in the OFT’s consultation and made these points to the OFT.   However, the OFT proceeded to accept the proposed commitments by its decision of 31 January 2014.

Skyscanner appealed to the Tribunal under s.47(1)(c) of the Act.  The appeal was therefore to be determined by applying the same principles as would be applied by a court on an application for judicial review.  Skyscanner appealed on three grounds.  The Tribunal upheld Skyscanner’s appeal on two of those grounds and therefore quashed the OFT’s decision.

First, the Tribunal held that the OFT failed properly or conscientiously to take into account Skyscanner’s  objection to the proposed commitments.  The Tribunal held that the OFT failed properly to investigate a plausible point and instead insisted on Skyscanner providing more evidence or supporting material.  The Tribunal held that “if a consultation response raises an important and obvious point of principle, it is for the authority to examine it further.  This is particularly so where the authority has not carried out an analysis of the economic effects of the practices which it proposes to address with its commitments decision and where that decision itself may generate its own economic effects in the market”.  The Tribunal held that the OFT had acted unfairly and that the process by which it reached its decision was procedurally improper.

Second, the Tribunal held that the OFT had acted irrationally in coming to a decision that effectively ignored the point that Skyscanner and others had raised in relation to the potential impact of the commitments on meta-search and on price transparency and competition more generally.  The Tribunal held that “[w]hilst the authority enjoys a substantial margin of appreciation in exercising its judgement, where it makes a decision that raises obvious competition concerns that have on its own admission not been fully addressed, the Tribunal can and should intervene”.  The OFT had “acted as no reasonable authority should act”.

The Tribunal quashed the OFT’s decision and remitted it to the CMA with a direction to reconsider the matter in accordance with its judgment.

Kassie Smith QC acted for Skyscanner

Tim Ward QC acted for IHG

Josh Holmes acted for Expedia

Alistair Lindsay acted for Booking.com

Please click here to read the full Skyscanner Judgment

Melanie Hall QC spoke at the annual Farrer Tax Debate on 18th September, which has been featured in an article in The Times today.

The motion this year was ‘This house believes that paying tax is a moral obligation, not just a legal one’ and was chaired by Judge Roger Berner of the Upper Tribunal (Tax and Chancery).

Melanie Hall QC was paired with Edward Waldegrave.

The Times’ Edward Fennell remarked the following:

“My verdict was that the Hall-Waldegrave pairing was sparklingly superior. Their wit, imagination and style roused the audience. They pulled the heartstrings and were morally on message: namely, business must respond to the new moral zeitgeist. But as events in Scotland showed, guile and emotion only take you so far when wooing a mature audience. Grodzinski and Ridgway were students of the Alastair Darling school of rhetoric. They had one point to make and made it — again and again: what society needs is certainty; that is what the law gives. What’s morality in a society that believes VAT is the premium levied for paying a builder by cheque? Forget the airy-fairyness of morality; stick with legal precision. They won hands-down.”