The Upper Tribunal (Mr Justice Norris) today set aside a decision of the First Tier Tribunal(“FTT”) in 2009  that the United Kingdom had breached the principle of fiscal neutrality in the period up to 2005 by subjecting certain types of gaming machines (“Part III machines”) to VAT but not imposing VAT on Fixed-Odds Betting Terminals (“FOBTs”).  Although HMRC had withdrawn a number of their legal arguments against the FTT’s decision following a reference by the Upper Tribunal to the European Court of Justice, HMRC argued that it followed from the ECJ’s judgment that the FTT had erred in law in holding that FOBTs and Part III machines were “similar”.  The Upper Tribunal agreed with HMRC that the FTT had gone wrong by (a) applying a “high level of abstraction” test (previously laid down by Norris J himself in an earlier ruling in the case) rather than the test laid down by the ECJ, which was to examine “the relevant or significant elements or circumstances liable to have a considerable influence on the consumer’s decision to play one game or the other”; and (b) regarding differences in stake and prize limits as legally irrelevant to the question of similarity. The question of whether FOBTs and Part III machines were similar, applying the correct test, has been remitted to the FTT for re-determination.

Rank’s is the lead case in a large number of claims for repayment of VAT imposed on Part III machines over the years leading up to 2005: the claims are estimated to be worth many hundreds of millions of pounds.  The Upper Tribunal’s judgment will not only be important for these cases but also for other cases where taxpayers seek to argue that different tax treatment of similar products infringes the principle of fiscal neutrality.

George Peretz and Laura Elizabeth John acted for HMRC; Paul Lasok QC and Valentina Sloane acted for Rank.

Click to read the judgment in HMRC v Rank

Michael Bowsher QC is to address the Government Contracts Year-In -Review Conference in Washington DC.

Michael will be joining an hour-long panel, addressing “Anti-Corruption Internationally: Challenges in Procurement Markets Abroad” and how the UK Bribery Act is being implemented.

Thomson-Reuters/West Publishing annually hosts the conference, which is the largest event for government contracting lawyers and professionals in the United States.  It is a summary of the prior year’s key developments in procurement law.

The conference is taking place on 19^th February 2013 at the Omni Shoreham Hotel, Washington, DC.

Faced with a constant rise in the number of cases dominated by references for a preliminary ruling, the Court of Justice is adapting its rules of procedure to ensure that the particular features of those cases can more readily be taken into consideration, while at the same time strengthening its ability to dispose within a reasonable period of time of all the cases that are brought before it.

In recasting its rules of procedure, which will enter into force on 1 November 2012, the Court seeks primarily to adapt to the changes in its caseload. The new measures are designed to reflect the fact that references for a preliminary ruling from the courts and tribunals of the Member States represent, quantitatively, the primary category of cases brought before the Court.  The new rules of procedure devote a separate title to such references, while making the rules in that title both clearer and more comprehensive, for litigants as well as for national courts and tribunals.

A second key objective of the recasting of the rules is to encourage cases to be dealt with swiftly and efficiently. Those measures include, in particular, the possibility of the Court adopting a decision with a view to limiting the length of written pleadings or observations lodged before it, or the relaxation of the preconditions for the Court’s adoption of a reasoned order, particularly where the answer to the question referred by a national court or tribunal for a preliminary ruling admits of no reasonable doubt.

In addition to the pursuit of the aforementioned objectives, the new rules of procedure seek to clarify existing rules and practices. Thus, a clearer distinction is drawn between the rules that apply to all types of action and those that are specific to each type (references for a preliminary ruling, direct actions and appeals), while all the articles of the new rules are specifically numbered and headed, making searches easier.

Finally, this recasting of the rules of procedure simplifies the existing rules, either by repealing certain rules that are outdated or not applied, or by revising the procedure for dealing with certain cases.

The Court of Justice remains convinced that, together, these measures offer the best means of enabling the Court to continue to fulfil its task of ensuring that the law is observed in the interpretation and application of the Treaties within a reasonable period of time.

To read the full Rules of Procedure, please click here

Monckton Chambers has been featured in an article in The Lawyer. ‘Get set, go’ interviews Paul Lasok QC, Melanie Hall QC, Tim Ward QC, Paul Harris QC, Daniel Beard QC and Senior Clerk, David Hockney, discussing ‘the rise and rise’ of Monckton Chambers.

To read the full article, please click here.

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.’