Airline liable for carrying non-EU citizen without correct papers

On 24 April 2018, the Court of Appeal handed down judgment in the case of Ryanair v Home Secretary [2018] EWCA Civ 899. The appeal concerned the application of Directive 2004/38/EC, on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, and the UK carriers liability regime under which airlines may be fined for transporting passengers without the correct documentation into the UK.

In the present case, the passenger had flown from Germany to London on a Ryanair flight with his son, an Austrian citizen. The passenger, a citizen of Bosnia and Herzegovina, had produced a card issued by the Austrian authorities bearing words which could be translated as: “family member — permanent residency”. When the father arrived (with his son) he was stopped by UK Border Force and refused leave to enter the UK. He explained that he lived in Austria and had been told by a German official that he did not need a visa. The UK Border Force ordered Ryanair to take him back to Germany. The Home Office subsequently confirmed that Ryanair was liable to pay £2,000 under section 40 of the Immigration and Asylum Act 1999, on the basis that one of the passengers had arrived in the UK without appropriate documentation.

On appeal, the Court of Appeal held that, in order to take advantage of the visa exemption for family members of EU citizens contained in Art 5.2 of the Directive, a passenger had to have a valid residence card issued under Art 10 of the Directive. A valid residence card for the purposes of Art 10 had to bear the words “Residence card of a family member of a Union citizen”. A card purportedly issued without the requisite words might potentially provide powerful evidence of the holder’s right of free movement and so, perhaps, enable him to prove his entitlement “by other means” under Art 5.4. However, a card that did not carry the specified wording would not of itself satisfy Art 5.2. Further, possession of a card issued under Art 20 of the Directive might potentially afford strong evidence of a right of free movement. Where a passenger failed to produce such a document and failed to establish a right of free movement in some other way, the home secretary was entitled to impose a charge on the carrier in respect of a passenger without proper documentation.

In the present case, however, there was no evidence that the card held by the passenger had been applied for or issued under Art 20. It appeared to have been issued pursuant to Austrian domestic law rather than Art 20. Since the passenger had neither produced the documents required by Art 5.2 nor proved by other means that he was covered by the right of free movement, the home secretary had been entitled to impose the £2,000 charge on Ryanair.

The case was reported in the Times Law Reports on 1 May 2018 (read here).

A copy of the judgment is available here.

Kassie Smith QC, instructed by Stephenson Harwood LLP, acted for Ryanair Ltd.

EU Advocate General concludes that UK pension protection rules are contrary to EU law

In her Opinion dated 26 April 2018, Advocate General Kokott concludes that restrictions on the compensation payable by the UK Pension Protection Fund (PPF) to employees of insolvent companies is contrary to Directive 2008/94/EC (the Insolvency Directive).

The Advocate General accepts all of the arguments of the claimant Mr Hampshire, represented by Monckton Chambers’ Gerry Facenna QC and James Bourke. In particular, the Advocate General agrees that (except in cases of abuse) EU law entitles every employee of an insolvent employer to receive at least half of the total value of their accrued pension benefits, including any indexation benefits. The Advocate General also agrees that Article 8 of the Insolvency Directive is directly effective and can therefore be relied on directly against the Pension Protection Fund to override the terms of the Pensions Act 2004, and that in practice this binds the trustees administering any pension scheme that is or has been subject to PPF assessment.

Assuming the Advocate General’s Opinion is followed by the Court of Justice, it will represent a significant victory for Mr Hampshire and hundreds of pensioners who have campaigned against the UK’s pension compensation cap for over a decade. Of potentially even greater significance than the ruling on the cap is the impact of any ruling that pensioners in receipt of PPF compensation must receive at least half of any entitlements to annual increases in their pension. Such a ruling would potentially benefit thousands of PPF members, including those who may have initially received a high percentage of their original pension but who have lost any accrued rights to index-linked or guaranteed annual increases.

The Court of Justice has not yet announced a date for its judgment.

Gerry Facenna QC and James Bourke, instructed by Ivan Walker of Walkers Solicitors, are acting for Mr Hampshire.

A copy of the Advocate General’s Opinion is available here.

A previous news item on the reference by the Court of Appeal is here.

Professor Carl Baudenbacher in The Brief – Comment on how Britain can be a leader of outsiders after Brexit

Professor Carl Baudenbacher is the author of the “Comment” in today’s legal affairs bulletin, The Brief. Published by The Times and produced by Jonathan Ames and legal affairs editor Frances Gibb, The Brief compiles the most important and influential news in the legal industry on a daily basis. Professor Baudenbacher’s “Comment” explores how, if the UK should join forces with the four other EU outsiders to shape its relations with the EU, it could be the leader of an economically successful group of countries. Read the relevant edition of The Brief here.

Investigatory Powers Act not ‘general and indiscriminate’, says Divisional Court

The Divisional Court (Singh LJ and Holgate J) has today handed down judgment in judicial review proceedings brought by Liberty, challenging the lawfulness of the Investigatory Powers Act 2016. The case was identified by the Lawyer Magazine as one of its Top 20 Cases for 2018.

Today’s judgment concerns the compatibility with EU law of Part 4 of the 2016 Act, which contains a regime permitting the Home Secretary to require telecommunications operators to retain specified communications data (that is, data concerning matters such as the duration of telephone calls or emails, but not their content) for up to 12 months. The ability of public authorities to access such retained data can be of vital importance, for instance in criminal investigations.

Following the CJEU’s December 2016 judgment in Tele2/Watson, the Home Secretary had previously conceded that Part 4 of the 2016 Act is incompatible with EU law in two discrete respects, which are the subject of pending amendments to the legislation. The Divisional Court accepted the Home Secretary’s argument that the only appropriate relief in such circumstances was declaratory relief (including a declaration that the 2016 Act should be amended within a reasonable time), and that it was not appropriate to make an order disapplying the offending parts of the 2016 Act, as Liberty maintained.

Liberty also advanced a series of other EU law-based objections to Part 4 of the 2016 Act. These included an allegation that Part 4 is incompatible with EU law because it permits the ‘general and indiscriminate’ retention of communications data, amounting to a serious violation of privacy rights. Liberty contended that these matters should all be referred to the CJEU. However, the Divisional Court agreed with the Secretary of State that it should not make any reference to the CJEU, in some cases because it accepted the Government’s submission that the challenged aspect of the 2016 Act is compatible with EU law, and in other cases because the subject matter of Liberty’s complaint is already covered by a preliminary reference to the CJEU made by the Investigatory Powers Tribunal.

The Divisional Court rejected Liberty’s argument that Part 4 of the 2016 Act permits the ‘general and indiscriminate’ retention of communications data. The Court found that there was no basis for such a complaint, given (among other matters) the statutory requirement for the Home Secretary to be satisfied that retention notices are necessary and proportionate.

A copy of the judgment is available here.

Monckton Chambers’ Gerry Facenna QC and Michael Armitage, led by First Treasury Counsel, acted for the Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs.

Tim Ward QC appointed to the Football Association (FA) Judicial Panel

The Judicial Services Department of the Football Association (FA) has selected Tim Ward QC as a member of the FA Judicial Panel as a Specialist Panel Member, with immediate effect. As such, Tim Ward will be eligible to chair Regulatory Commissions and Appeal Boards for personal hearings. This is the FA’s senior panel which hears the full range of cases in connection with disciplinary and other regulatory matters of football played in England, including on-the-field misconduct, doping, safeguarding, agent activity, and anti-discrimination.

This is not Tim Ward’s first sports panel appointment. In 2013, Tim was appointed to the Rugby Football Union panel, on which he continues to sit as an adjudicator hearing appeals concerning competition issues.

De La Rue abandons blue passport procurement challenge

De La Rue International Limited has today announced that it will not be pursuing its threatened challenge to the award by Her Majesty’ Passport Office of the contract for the production of blue passports to Gemalto UK Limited. Following a two-week extension for the parties to exchange pre-action correspondence and information, the standstill period in the procurement passed at midnight of the 17th/18th April and no claim under the Public Procurement Regulations having been issued, HMPO will be proceeding to enter into the contract.

Philip Moser QC, Alan Bates, Philip Woolfe and Khatija Hafesji of Monckton Chambers acted for HMPO.

Kassie Smith QC and Ligia Osepciu acted for Gemalto UK.

Former EFTA Court President Carl Baudenbacher joins Monckton Chambers

The members of Monckton Chambers welcome Professor Carl Baudenbacher, who joins Chambers as a door tenant on 1 May 2018.

Professor Baudenbacher has enjoyed a distinguished career as a judge, university professor, arbitrator, author of legal and political publications, consultant, political advisor and speaker, in recent years with a particular emphasis on Brexit.

A Swiss national, Professor Baudenbacher was the Liechtenstein Judge of the EFTA Court from 1995 and served as the Court’s President from 15 January 2003 to 31 December 2017. He is a renowned expert in the fields of commercial and economic law, in particular competition law, as well as in the law of international courts. He is also the Director of the Competence Center for European and International Law at the University of St Gallen HSG and founder and Chairman of the renowned St Gallen International Competition Law Forum (ICF).

Between 1993 and 2005 he taught European and International Law as a Permanent Visiting Professor at the University of Texas School of Law. From 1994 to 1995 he served as a member of the Supreme Court of the Principality of Liechtenstein. In 2007 he was a member of the Independent Commission of Inquiry for the Investigation of the Events Surrounding the Hypo Group Alpe‐Adria established by the Government of the Republic of Austria (“Griss Commission”).

An experienced legal expert and arbitrator, he has advised the Swiss Parliament and the Swiss Government as well as the Governments of the Principality of Liechtenstein, the Russian Federation, Israel and the Canton of St.Gallen as well as private clients. His research activities encompass Swiss, European and International business and economic law. Special emphasis lies on the law of EU/EEA fundamental freedoms, unfair competition law, antitrust law, IP law, contract law, company law, labor law, comparative law, law of the globalization and dispute resolution.

Professor Baudenbacher resigned from the EFTA Court bench on 09 April 2018 and has selected Monckton Chambers as the ideal set from which to develop a UK practice. He will focus on both the Continent and United Kingdom across the full spectrum of EEA/EU law, Swiss economic law and certain aspects of German economic law and will involve consulting, litigation strategy, arbitration and speaking engagements.

Philip Moser QC, joint Head of Monckton Chambers, spoke for all the members in saying: “We are delighted that Professor Baudenbacher, with his considerable experience and specialist expertise, has recognised the complementary strengths of Monckton Chambers and its members and has decided to join us in the UK. With Brexit and the position of flux within Europe, this appointment could not be more important nor more timely.”

See full profile for Professor Carl Baudenbacher.

Tax Tribunal rejects test cases brought by the landfill sector

In test cases led by Veolia, Devon Waste and Biffa (who brought two separate appeals), the landfill sector has failed in its bid to claim substantial landfill tax refunds for the entire sector on the basis that layers of soft waste, known as “fluff”, were not intended to be discarded but instead were used to protect the lining of cells receiving waste at landfill sites throughout the UK.

The First-tier Tribunal rejected all four appeals. In so doing, it accepted HMRC’s case that Waste Recycling Group v HMRC [2008] EWCA Civ 849, [2009] STC 200 was decided on its own facts and did not support the Appellants’ case. This is the last in a series of challenges brought by the landfill sector in the Tax Tribunals and the Administrative Court

Link to the cases: here and here

Melanie Hall QC, Brendan McGurk and David Gregory represented HMRC.

The Lawyer General Counsel Strategy Summit 2018 – Gerry Facenna QC to chair session on GDPR

This year’s The Lawyer General Counsel Strategy Summit is being held at the Asia Gardens Hotel in Alicante, Spain on 16 – 18 May.

Monckton Chambers continues to support this important annual event, which is organised by The Lawyer magazine and is a forum for many of the UK and Europe’s most influential General Counsel to discuss the strategic and legal issues facing business leaders. The summit will bring together a host of external professionals including lawyers, economists and regulators, as well as those involved in senior decision-making at some of the world’s leading businesses.

Gerry Facenna QC is one of the leading practitioners selected to shape this “must-attend event” for GCs. He will be hosting a roundtable on the EU General Data Protection Regulation (GDPR), which comes into effect shortly after the event on 25 May 2018. Entitled “GDPR – a continuous process, not a destination” the session will focus on the data protection issues facing businesses in the new regulatory landscape, including ownership of GDPR within corporate structures, demonstrating accountability and regulatory compliance, and benefits for business in better control of data.

Gerry Facenna QC is well placed to chair this topic, having been involved in many of the landmark cases that have shaped UK and EU data protection laws.

Monckton Chambers is a leading set in the area of data protection and information rights. Our unique combination of market-leading expertise in information rights, EU law, telecoms and regulatory litigation will all be mobilised to assist our clients when the new regulatory landscape under the GDPR comes into effect.

Who’s Who Legal UK Bar 2018 – Monckton Chambers in top five leading sets, members recognised as “Most Highly Regarded” for Competition, Telecoms and Government Contracts and Ligia Osepciu is a “rising star”

Who’s Who Legal (WWL) has published its analysis of the UK Bar. 30 members of Monckton Chambers are recognised across eight practice areas. With 48 listings in total, Monckton Chambers is ranked joint fifth in the table “Leading sets in WWL: UK Bar 2018 by total listings”.

Monckton members are particularly strong in three chapters where they are included in the “Most Highly Regarded Tables”, as well as dominating the Junior section in terms of number of members recognised.

Competition

Silks

Daniel Beard QC and Josh Holmes QC are recognised as two of only five of the listed “Most Highly Regarded” Silks. Nine Monckton silks are recommended this year out of a total of 25.

Juniors

Ronit Kreisberger and Anneli Howard are identified as two of the five “Most Highly Regarded” Juniors across the whole of the UK Competition Bar.

Monckton Chambers also shows its Junior strength by demonstrating “a superb junior bar with nine listings, giving it the largest contingent of juniors in this year’s chapter”.

Others listed are: Tim Ward QC, Jon Turner QC, George Peretz QC, Kassie Smith QC, Meredith Pickford QC, Paul Harris QC, Mark Brealey QC, Ben Rayment, Ligia Osepciu, Robert Palmer, Alistair Lindsay, Alan Bates, Alison Berridge and Rob Williams.

Telecoms

Silks

Daniel Beard QC and Josh Holmes QC are again recognised as two of only five of the listed “Most Highly Regarded” Silks. In total five Monckton Silks are recognised for their work in the field.

Juniors

Robert Palmer is one of only two Juniors recognised as “Most Highly Regarded” and once again Monckton Chambers boasts the largest number of juniors in this chapter, with six names listed.

Others listed are: Tim Ward QC, Jon Turner QC, Meredith Pickford QC, Fiona Banks, Alan Bates, Anneli Howard, Stefan Kuppen and Ligia Osepciu.

Government Contracts

Silks

Michael Bowsher is one of the five “Most Highly Regarded” Silks as Monckton Chambers “stand out for their exceptional work in in the procurement law”.

Juniors

Ewan West and Valentina Sloane are two of only four “Most Highly Regarded” Juniors. With seven leading juniors in the procurement space who impress commentators with the depth of their expertise, Monckton Chambers again lead the way in terms of Juniors.

Others listed are: Philip Moser QC, Fiona Banks, Anneliese Blackwood, Ligia Osepciu, Ben Rayment, Valentina Sloane, Ewan West and Rob Williams.

Members are also recognised in the following categories:

Sport: Paul Harris QC, Fiona Banks

Environment: Jon Turner QC, Gerry Facenna QC, Alan Bates

Media & Entertainment: Jon Turner QC, Daniel Beard QC, Meredith Pickford QC

International Trade & Commodities: Tom Sebastian

Corporate Tax: Valentina Sloane

Rising Stars

For the first time, WWL has identified some of the standout members of the junior Bar as “rising stars” with the aim of highlighting the work of those barristers, aged 45 or under, and of 15 years’ call or less, who are operating at a level beyond their call. Monckton’s Ligia Osepciu who is listed in the Competition, Government Contracts and Telecoms chapters of WWL: UK Bar 2018 is one such “rising star” as she wins praise for her “extensive experience in the public procurement space” and is recommended as “a superb case strategist”. She is also identified as “really good” in the competition and telecoms arenas, where sources highlight her as “very quick and clear”.

This is the fourth edition of Who’s Who Legal and it features more than 100 sets; however, over 40 per cent of the listings are earned by practitioners from 12 standout sets, one being Monckton Chambers. This comprehensive guide to 28 distinct practice areas at the bar is published by Law Business Research Ltd.