The International Automobile Federation (FIA) has today rejected an appeal made by Infiniti Red Bull Racing to reinstate Daniel Ricciardo’s second place finish in this year’s Australian Grand Prix. Ricciardo’s career best finish was rescinded 5 hours after the race had ended when the FIA found his car to be in breach of Formula 1’s newly implemented fuel regulations. The result means the 18 point deduction on Ricciardo’s podium finish is maintained, leaving the driver currently in tenth place in the Driver’s Championship instead of a possible third.

Paul Harris QC, who acted on behalf of Mercedes AMG Petronas F1 in support of the FIA, described the actions of Red Bull as “a flagrant and deliberate disregard for the rules.”

The case has been featured in the following press:

• BBC
• Sky Sports
• The Telegraph
• ESPN

Ronit Kreisberger will be speaking at the BIICL Competition Law Forum on 14^th April 2014, regarding Pay for Delay.

Ronit joins a panel of experts for a discussion on topical issues including:

1. Object theories of harm and the counterfactual

2. “Straw man” theories of harm

3. The realities of patent litigation and the EC’s analysis of settlements.

4. Implications for consumers (benefits of innovation v low prices, generics’ incentives to litigate)

5. Fines and policy considerations.

The discussion is followed by a reception at the British Institute of International and Comparative Law.

We are delighted to announce that Monckton has been shortlisted in the Tax Chambers of the Year category at the LexisNexis Taxation Awards.

The awards ceremony is being held on 22^nd May at the London Hilton Park Lane.

For more information on the LexisNexis Taxation Awards, please click here.

At a hearing in the Administrative Court on 3 April 2014 Mr Justice Charles granted permission for two German companies, Ordanduu GmbH and Optimus Mobile GmbH, to bring judicial review proceedings against the UK regulator for premium rate telephone services, PhonepayPlus.

The claim arises out of a series of “Emergency Procedure” investigations instigated by PhonepayPlus in July 2013 under paragraph 4.5 of its Code of Practice.  The investigations followed identification by PhonepayPlus of a website using a form of malware to lock consumers’ internet browsers in an attempt to direct them to a number of online services and generate affiliate advertising revenue.  The investigations resulted in financial penalties and other sanctions being imposed on a number of companies, including several located in other EU Member States.

The Claimants are challenging PhonepayPlus’s actions as contrary to EU law.  The Judge also gave the Claimants permission to raise English public law grounds in their claim, having observed that PhonepayPlus’s actions against the Claimants were arguably unfair as a matter of public law.  The Claimants are also claiming damages for breach of their EU law rights.  The case is now expected to proceed to a substantive hearing.

Gerry Facenna, instructed by Hamlins LLP, acts for the Claimants, Ordanduu GmbH and Optimus Mobile GmbH.  Tim Ward QC, instructed by Bates Wells Braithwaite LLP, acts for the Defendant, PhonepayPlus.

Frank Mitchell of Monckton Chambers has had an article published in the latest edition of the Tax Journal.

In the article, Frank analyses five recent judgments from the CJEU which consider the impact of fiscal neutrality.

Michael Bowsher QC will be speaking at the Criminal Bar Association EU Seminar on 8th April.

The seminar, entitled ‘The Impact of EU Law upon Criminal Law: Opportunities for all’ will be held at The Old Bailey, from 17.15 – 18.15.

To secure your place email aaron.dolan@criminalbar.com

For more information, please click here.

Monckton Chambers is delighted to announce that Eric Metcalfe has been presented with an award from the Jewish Representative Council of Greater Manchester in recognition of his “generous pro bono legal assistance to the cause of local Jewish public radio broadcasting.”

Congratulations to Eric.

The European Commission has approved a financial package valued at £110 million for the reconstruction of three sports stadiums in Belfast on the basis that the grant will contribute to urban regeneration and social cohesion, in line with the EU objectives. The grant will be used to rebuild three old sports stadiums in Belfast with a view to providing modern, state-of-the-art venues for the three main sports of the region, namely football, gaelic games and rugby. It will be shared between three beneficiaries: the Irish Football Association for the soccer Windsor Park Stadium (£31 million / €37.4 million), the Ulster Council Gaelic Athletic Association for the gaelic games Casement Park Stadium (£62.5 million / €75.4 million) and the Ulster Branch of the Irish Rugby Football Union for the rugby Ravenhill Stadium (£16.5 million / €19.9 million).

There is little public guidance and case law on state aid issues in the sporting area. A copy of the Commission’s press release can be found at http://europa.eu/rapid/press-release_IP-14-406_en.htm and the decision will be published once confidentiality issues have been resolved.

Anneli Howard advised the Northern Ireland Government and Department for Culture and Leisure on the notification of the measure and the design of the project to enhance public interest policy objectives in terms of encouraging public access to sport, educational initiatives, community sport, disability programmes and promoting social cohesion across religious communities.

Today the new European Union public procurement Directives were published in the Official Journal of the European Union.

The Directives will come into force twenty days after publication in the OJEU. Member States will then have two years to implement the Directives. The UK has indicated that it intends to do this as soon as possible.

Monckton Chambers will continue to publish analysis and information about this development in public procurement law in future posts.

Case T‑306/10 Yusef v Commission, judgment of the General Court of the European Union (Second Chamber; President: Judge Forwood), 21 March 2014

The applicant’s funds and economic resources were frozen on 5 October 2005 by his inclusion on a list drawn up by the UN Sanctions Committee and his subsequent listing by the EU Commission in Annex I to Regulation No 881/2002. By letter of 18 March 2010 the applicant called upon the Commission to remove his name from the list at issue, following a number of events including the delivery of judgment in Joined Cases C‑402/05 P and C-415/05 P Kadi I in 2008 and the UK altering its stance on the applicant’s case in 2009, subsequently supporting his delisting by the UN (which was however blocked by the undisclosed listing state). When the Commission failed to respond the applicant brought this action for failure to act.

The General Court rejected the Commission and Council’s arguments that the action was an inadmissible attempt to circumvent the time limit for actions for annulment. It held that there were in reality new circumstances, arising well after the adoption of the listing regulation, which led the applicant to call upon the Commission to remove his name from the list at issue and, in the absence of any reaction by the Commission within the period of two months laid down in Article 265 TFEU, to bring this action for failure to act.

On the substance, Court upheld the applicant’s complaint of the persistent failure by the Commission to observe the principles stated by the Court of Justice in its Kadi I and Kadi II judgments.

On this first occasion when it has had the opportunity to do so, the Court emphasised that the Commission, post-Kadi, far from regarding itself as strictly bound by the assessments of the UN Sanctions Committee, must on the contrary envisage calling those findings into question in the light of the observations of the person concerned, failing which that person’s rights of the defence will be observed only in the most formal and superficial sense. The Court held that the Commission was clearly under an obligation to act with regard to the applicant, if not immediately after the Court had delivered its judgment in Kadi I, or in 2009, then at the very least and at the latest in reply to the applicant’s calling upon it to act of 18 March 2010. The Commission was at least obliged to examine the fresh evidence, in order to assess whether it amounted to a change of circumstances such as to warrant, if appropriate, the revocation of the regulation, if necessary without retroactive effect.

The General Court went on to find that it is not acceptable that, more than four years after the ruling in Kadi I, the Commission is still not in a position to discharge its obligation to examine the applicant’s case carefully and impartially, where appropriate in ‘effective cooperation’ with the Sanctions Committee. Furthermore, according to the statements made at the hearing, the Commission continues to regard itself as strictly bound by the findings of the Sanctions Committee and as not having any discretion in that regard. This, the Court held, is in contradiction with the principles laid down by the Court in Kadi I and Kadi II.

Accordingly, it held that the way in which the Commission purports, by implementing the review procedure with regard to the applicant’s case, to remedy the infringements of the same kind as those found by the Court of Justice in its judgment in Kadi I, is formal and artificial in nature.

The Court accordingly granted a declaration that the Commission’s failure to remedy the procedural deficiencies and substantive irregularities affecting the freezing of the applicant’s funds is unlawful.

Philip Moser QC of Monckton Chambers appeared for the successful applicant, instructed by Birnberg Peirce.

A link to the full judgment is here.