First-tier Tribunal (Tax Chamber)

Judgment, 29 January 2013 (released 3 May 2013)

Valentina Sloane for the Appellant, Honda

Philip Moser QC, instructed by the General Counsel and Solicitor to HM Revenue and Customs, for the Respondents, HMRC

This appeal concerned the correct customs classification of all terrain vehicles (“ATVs”) which are designed and used as tractors. It was agreed that the product was a small “tractor” and could be so classified under CN 8701, subheading 8701 90 (“Other” tractors). The question was whether they were “Agricultural and forestry tractors” (subheadings 8701 90 11 to 8701 9050), which are free of duty) or “Other other” tractors, (subheading 8701 90 90), which are subject to customs duty at 7%.

The Tribunal found that the ATVs were subject to customs duty at 7%.

The Tribunal found that the “intended use” of a product is determined by the designer, the factory and its intended use when constructed; i.e those specially designed, constructed or reinforced features which form an integral part of the product which perform a function such as lifting, excavating, etc. Features that would allow agricultural tractors to be distinguished from other tractors would be inherent in the product. The ATVs may have some use which is agricultural in nature, but in this case there were no inherent attributes which allowed this sort of activity to take place and hence nothing inherently agricultural about the product.

The Tribunal found that the relevant CNENs had to be read consistently with the CN and the relevant EU Regulation (Commission Regulation EC No 1051/2009 ) to ensure the uniform application of customs law in the EU. The word “generally” in the CNENs laid down certain design features which were expected to be found in agricultural tractors, but the ATVs in this appeal did not possess those features. It was possible that not all of the characteristics stated in the Regulation were met but the wording in the Regulation (“approximately”) was only directory in nature. In the Tribunal’s view, the ATVs were to be classified under the sub heading 8701 90 90 pursuant to the characteristics identified in the Regulation.

The ECJ’s Case C-15/05 Kawasaki decision did not decide the point at issue before this Tribunal: it left open the question of the categorisation of ATVs for the purposes of  CN 8701 90 90 and was concerned largely with engine power and not with any other distinguishing features. Any doubt created by the Kawasaki decision has been clarified by the Regulation. No reference to the ECJ was required in this case.

Click here to view the full Honda Motor Europe v HMRC judgment

The Supreme Court today gave judgment in an appeal brought by ClientEarth against Defra concerning the breach of air quality limits for nitrogen dioxide in Greater London and other zones in the UK. ClientEarth appealed against the Court of Appeal’s decision in May last year to refuse judicial review of the Government’s plans to improve air quality. The lobbying organisation says that under the EU’s Air Quality Directive, the Government should be forced to provide the European Commission with plans for reducing nitrogen dioxide levels by 1 January 2015 in 17 regions of the UK. Defra had previously been successful in arguing that it is not required to produce such plans under the terms of the Directive where compliance with the EU levels could not be achieved by 2015. The Supreme Court held that case raised “difficult issues of European law”, particularly on the interpretation of the Government’s  obligations under the Air Quality Directive, and that it was therefore required to make a reference to the Court of Justice of the EU (“CJEU”). The parties have been given 14 days to make submissions on the precise terms of the questions to be referred.

Kassie Smith QC acted for Defra in the Supreme Court.

To read the Supreme Court judgment, please click here.

The European Court delivered a judgment today dismissing the proceedings brought
by the Commission against the UK in which it challenged the UK’s legislation on
VAT Grouping. This judgment will be welcomed by all large taxpayers in the UK.

Click here to read the full European Commission v UK judgment

Melanie Hall comments in VAT Groups Sigh Of Relief case note

Monckton Chambers is pleased to announce Vivien Rose will be appointed Justice of the High Court with effect from 13 May 2013.

Vivien Rose is the current chair of the Competition Appeal Tribunal (CAT) and has a wealth of expertise in competition and public law. She was called to the bar in 1984 upon which she took up tenancy at Monckton.

In 1995 she left private practice and joined the Government Legal Service, working for several years in HM Treasury advising on financial services regulation, at the Ministry of Defence advising on international humanitarian law, and in the Legal Services Office of the House of Commons. She joined the CAT as chairman in 2005.

She is one of four newly appointed High Court Judges. To read full coverage of the new appointments in The Lawyer, please click here.

Members and staff of Monckton Chambers warmly congratulate Vivien on her success.

As Melanie Hall QC anticipated in her case note on C-85/11 EC v Ireland, the European Court has dismissed the Commission’s complaint concerning Ireland’s VAT Grouping legislation, for largely the same reasons as those advanced by the Advocate General.

Please click here for the judgment, click for the Advocate General’s Opinion and click here to view Melanie’s EC v Ireland case note.

Judgment in EC v UK is expected shortly.

Mr Justice Roth has today given his latest judgment in National Grid Electricity Transmission plc v ABB Limited and others.  He has ruled that the French Defendants to the proceedings (companies within the Alstom and Areva groups) must provide disclosure of relevant documents.  After considering extensive evidence from experts in French law, Roth J rejected the argument that there is a real risk of those companies being prosecuted in France under the so-called ‘French Blocking Statute’ (Law No. 68-678 of 26 July 1968) if they comply with a disclosure order from the English High Court.  He also rejected a cross-application, made by the French Defendants, for a request to be made to the French Courts for evidence to be taken under Regulation 1206/2001.

Jon Turner QC, Daniel Beard QC and Laura Elizabeth John of Monckton Chambers acted for the Claimant, National Grid Electricity Transmission plc.

Click here to read the full National Grid v ABB Judgment

Eric Metcalfe has been appointed to the Equality & Human Rights Commission Preferred Panel of Counsel, joining three other members of Monckton Chambers who are already on the panel.

The EHRC’s responsibility is to “promote and monitor human rights and to protect, enforce and promote equality across the seven “protected” grounds – age, disability, gender, race, religion and belief, sexual orientation and gender re-assignment.”

For further information on the EHRC, please click here.

Monckton Chambers is delighted to invite GDL students to join our Barristers for informal drinks to discuss life as a tenant at Monckton and your future career at the Bar.

The evening will be held at Chambers on Wednesday 17 April, 6pm.

We hope that you are able to join us and we very much look forward to welcoming you.

Monckton Chambers is based in Gray’s Inn, near Chancery Lane, London.

RSVP by Friday 12th April to Claire Alderman on 020 7468 6345 or calderman@monckton.com

The Bar Council Pupillage Gateway scheme is now open for applications for pupillage.

Monckton Chambers offers pupillage for twelve months. We recruit pupils in the expectation of being able to offer them tenancy, should they meet the required standard.. In the past 10 years, 16 out of 17 Monckton pupils were offered tenancy.

• Typically, two pupillages have been offered each year.
• We offer pupillage awards of £60,000.

Several members of chambers have come to us via a non-standard route – for example having previously worked at NGOs, as solicitors, academics or civil servants. We welcome such applications.

The application process closes at 11am on 30^th April.

To begin your application through the Pupillage Gateway, please click here.

For more information on pupillage, please click here.

If you have any questions regarding the pupillage application process, please contact Claire Alderman on calderman@monckton.com or 020 7468 6345.

Kassie Smith QC has been interviewed for the ’21^st century silk’ article featured in The Lawyer today.

Kassie is one of just 84 barristers due to take silk this week, and was speaking to The Lawyer about the application process and her practice to date.

She will be formally appointed to Queen’s Counsel by the Lord Chancellor on 27 March.

To read the full article, please click here.