Hounslow Council proposed to enter into an agreement with Legal & General (“L&G”) which would have allowed L&G to develop a parcel of land in Hounslow which was partially owned by the Council. Quidnet, a developer who owned property in Hounslow, challenged the legality of the proposed agreement on the basis that even if it was not a works contract pursuant to the Public Contracts Regulations 2006 (the determination of this issue had been stayed) the proposed agreement was in breach of Article 56 of the Treaty on the Functioning of the European Union (“TFEU”) as there had been insufficient advertising of the opportunity to enter into the proposed agreement.

Mr Justice Coulson held that there was no breach of Article 56 TEFU because:

• i) Article 56 could not be applied to activities which were confined in all respects within a single Member State. The dispute before the court was wholly internal to the UK as the parties involved in the proceedings were all English and the land which was the subject matter of the proposed agreement was in England.
• ii) The proposed agreement, when properly constructed, did not impose an obligation on L&G to provide services and the substance of the proposed agreement was for the grant of a long lease not the provision of services.
• iii) The proposed agreement did not impose any restriction on the ability of third parties to provide services.

Mr Justice Coulson also added that, even if he was wrong and Article 56 TFEU did apply to the proposed agreement, he would be inclined to exercise his discretion and refuse to grant the declaration sought by Quidnet. The reasons he gave were that the claim was hypothetical, in the sense that there was no evidence that a party from another Member State had any interest in the contracting with the Council instead of L&G, and that damages ought to be an adequate remedy.

Please click below for the judgment.

AG Quidnet Hounslow LLP v Mayor and Burgesses of the London Borough of Hounslow

 

Ian Rogers has been appointed as an advocate for the Welsh Government on the Counsel General’s A Panel of Junior Counsel. He has been appointed primarily to undertake public law work for the Welsh Government, but will of course continue with his other areas of private client and government practice. Ian has been involved in three high profile cases in Wales in 2012 including competition and sports law disputes concerning the Welsh Ministers and the Welsh Rugby Union. He already has considerable experience of appearing for other government bodies and states, from the UK Prime Minister to local government, the Scottish Ministers, the Isle of Man, Jamaica and Trinidad & Tobago, as well as appearing for the UK in EU law matters in Luxembourg.

On 13 September 2012, the Court of Appeal handed down judgment in Toshiba Carrier v KME Yorkshire Limited and others. The Court revisited the vexed question addressed previously in Cooper Tire and Provimi as to circumstances in which a damages claim may be brought in the English courts where there are no English addresses of a Commission Decision on which the action depends. The issue was whether implementation by English “anchor defendants” of an unlawful anti-competitive agreement reached between others is enough to found an action, even if the implementation is without knowledge of the agreement.

The Court held that acts of implementation alone are capable of amounting to concerted practices where they are carried out pursuant to an anti-competitive agreement made between others and with knowledge of that agreement. The Court held that the claimants had sufficiently pleaded such a stand alone claim for conducting concerted practices contrary to Article 101.  However, the Court also indicated (although it was not necessary to reach a conclusion on this point) that, save in a case where the parent company exercises “a decisive influence” over its subsidiary, there is no scope for imputation of knowledge, intent or unlawful conduct.

Jon Turner QC acted for the Claimants.

Daniel Beard QC acted for the KME Defendants.

Kassie Smith acted for the Outokumpu Defendant.

Click to read the judgment in Toshiba v KME Yorkshire Ltd

The Competition Commission has formally cleared McGill’s Bus Services Limited’s (McGill’s) completed acquisition of the Arriva Scotland West (ASW) local bus business.

McGill’s and ASW operated competing local bus services in Renfrewshire, East Renfrewshire and the west of Glasgow, including the town of Paisley.

The Competition Commission has concluded that without the acquisition, both McGill’s and ASW would have continued to provide services in the Renfrewshire area, but although they were each other’s closest rivals, in future competition between them would have reduced. The Commission also concluded that the threat of entry into the area by large bus operators located nearby will provide sufficient incentive for McGill’s to avoid reducing frequencies or increasing fares as a result of the acquisition.

The final report is available on the Competition Commission inquiry home page along with all other information relating to the investigation.

Andrew Macnab was instructed by Stephen Hornsby (Partner, Goodman Derrick LLP, London) and Professor Peter Watson (Senior Partner and Head of Litigation, Levy & McRae, Glasgow) and acted on behalf of McGill’s Bus Services Limited.

Paul Lasok QC will be speaking to the Irish Tax Institute on Wednesday 3^rd October in Dublin.

The talk will cover recent ECJ VAT cases and their impact on how we think about VAT. Points to be addressed will include:

• Are EU law rights fault-based or can a taxpayer rely on EU law when the taxpayer has made the mistake?
• Does the ECJ judgment in Littlewoods spell the end for national statutory limits on the award of interest?
• Are national courts now obliged to award interest at commercial rates in EU law cases?
• What is an “effective” rate of interest?
• How should we look at the financial services exemptions in the light of Deutsche Bank?
• What does the recent hearing in Wheels tell us?

Rob Williams of Monckton Chambers has been quoted in the Financial Times article CBI attacks suppliers ‘blacklist’ today.

The article discusses a Cabinet Office initiative to prevent underperforming suppliers from winning fresh government outsourcing contracts by putting them on a list of companies considered to be ‘high risk.’

Rob Williams is quoted as saying:

‘The general principle that runs through procurement laws is that there should be open competition for contracts. A public authority can apply qualification standards for particular contracts such as technical capabilities, but that’s a long way from a general blacklist. There are also specific negative reasons you can use to reject bidders…but past performance doesn’t really fit into those rules.’

THE REFORM OF EU DIRECTIVES ON PUBLIC PROCUREMENT: TOWARDS MORE FLEXIBILITY SPONSORED BY MONCKTON CHAMBERS

27 September 2012
14:30 Start; 18:30 Close
Freshfields Bruckhaus Deringer, 22 Tudor Street, London, EC4Y 0AU

This event will evaluate the proposed reform of the EU Directives on Public Procurement, currently under discussion following proposals by the European Commission. Topics will include:

• Overview of reform of EU directives on public procurement by EU Commission speaker
• Contracts covered by the Directive and the in house exception
• Flexibility and dialogue in the award procedures
• Strategic use of public procurement to empower SMEs and achieve green and social objectives
• External view on reform of EU directives by leading US commentator

The event programme is as follows:

14.30 – 15.00. Welcome by Dr Duncan Fairgrieve, BIICL.

Update on the reform process by Nico Spiegel, DG Internal Market and Services, European Commission.

15.00 – 16.00. Roundtable 1. Scope/in house.

Dr Duncan Fairgrieve in the Chair

• Professor Dr iur Martin Burgi, Ruhr-Universität Bochum, Germany, (on the in-house concept)
• Michael Bowsher QC, Monckton Chambers (on scope and interface issues)
• Professor Gabriella Racca, University of Turin, Italy (on aggregated purchasing).

16.00 – 17.00 Roundtable 2. Access to dialogue and negotiation.

Professor François Lichère, University of Aix-Marseille, in the chair.

• Professor Steen Treumer, University of Copenhagen.
• Jane Jenkins, Freshfields (on simplification of procedures, free access to negotiation and streamlining competitive dialogue)
• Professor Mario Comba, University of Turin (on changes after the award)

17.00 – 17.20 : Coffee

17.20 – 18.15. Roundtable 3. Secondary objectives.

Professor Roberto Caranta in the chair

• Professor Martin Trybus, University of Birmingham TBC (on SMEs, green and social procurement)
• Professor Dacian Dragos, Babes Bolyai University, Romania (on life cycle costing)

18.15 – 18.45. Concluding session : External views by Professor Dan Gordon, George Washington University

18.45 – Cocktail

The 2012 Chambers Bar Awards shortlist has been announced. Monckton Chambers has once again been nominated for ‘Set of the Year’ for Competition/EU after winning the award for the past three years.

Additionally, we are pleased to announce Jon Turner QC has been nominated for ‘Silk of the Year’ along with Meredith Pickford for ‘Junior of the Year’, both for Competition/EU and Valentina Sloane for ‘Junior of the Year’ for Tax.

The results will be announced at The London Hilton on Park Lane on Thursday, 25th October.

Nada v. Switzerland

The European Court of Human Rights’ Grand Chamber has unanimously found, in a case in which the French and United Kingdom Governments and JUSTICE had intervened, that the implementation by Switzerland of United Nations Security Council counter-terrorism resolutions had violated the European Convention on Human Rights.

The applicant, an 80 years old Italian businessman represented by Jeremy McBride, had been confined for nearly 7 years to Campione d’Italia, an Italian enclave of about 1.6 sq.km inside the Swiss Canton of Ticino which was separated from the rest of Italy by Lake Lugano, without any specific allegations ever being made or any form of hearing in which they could be challenged.

In a ruling that makes it clear that the mandatory nature of Security Council resolutions of the United Nations will not excuse non-observance of human rights standards where there is clearly discretion as to the manner of their implementation, the European Court rejected Switzerland’s preliminary objections that the application was incompatible ratione personae with the Convention and that the applicant lacked victim status, as well as its preliminary objection that domestic remedies had not been exhausted.

In the Court’s view the Swiss authorities had not sufficiently taken into account the realities of the case, especially the geographical situation of the Campione d’Italia enclave, the duration of the measures imposed or the applicant’s nationality, age and
health. As it had been possible for Switzerland to decide how the Security Council resolutions were to be implemented in its legal order, it could have been less harsh in imposing the sanctions regime on the applicant.

The Court observed that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. As Switzerland had failed to harmonise the international obligations that appeared contradictory, the Court found that there had been a violation of Article 8.

Furthermore the Court found that, as the applicant did not have any effective means of obtaining the removal of his name and therefore no remedy in respect of the violations of his rights, there had been a violation of Article 13 taken together with Article 8.

However, the Court did not consider that the restrictions to which the applicant had been subjected amounted to inhuman and degrading treatment or violations of his right to liberty and security or to freedom to manifest his religion or belief.

Jeremy McBride acted for Mr Nada.

Eric Metcalfe acted on behalf of the NGO intervener JUSTICE in this case.

Click to view the judgment in Nada v Switzerland

Melanie Hall QC has recently represented HMRC in a test case behind which over 1,200 cases stand concerning VAT on hot takeaway food.  The case was heard by Arnold J on 23 and 25 July. Judgment was reserved.