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.

HM Revenue and Customs, represented by Melanie Hall QC, successfully resisted a challenge to the Landfill Tax by hundreds of site operators in the test case Patersons of Greenoakhill v HMRC.

The basis of the challenge was that the tax was not payable in circumstances where the methane, produced as part of the process of biodegradation, was converted into electricity. Patersons has yet to announce whether it will appeal.

The CAT yesterday rejected Ryanair’s challenge to the Competition Commission’s decision to continue investigating its minority stake in Aer Lingus.

The minority stake was acquired (largely) in 2006, but review under the Enterprise Act 2002 was delayed because the acquisition was under consideration by the European Commission and subsequently the European Courts as part of Ryanair’s 2006 public bid.

A reference was made to the Competition Commission on 15 June this year.  On 19 June Ryanair launched a further bid for Aer Lingus – also falling within the jurisdiction of the European Commission – and argued that the review of the minority stake should again be delayed, challenging the Competition Commission’s decision to proceed and the use of its information gathering powers.

It was common ground that, by contrast with the situation in 2006, on this occasion the European Commission did not have jurisdiction to review the minority stake and would consider only the increase in shareholding brought about by the proposed bid.

The CAT held that:

–    While European law confers exclusive jurisdiction on the European Commission, this applies only to the extent that it actually has jurisdiction, and could not be read more widely, for example to cover transactions “inextricably linked” to concentrations under review; and

–    The Competition Commission’s duty of “sincere cooperation” with the European Union did not preclude it from taking any further steps in the investigation, as Ryanair contended.

Daniel Beard QC and Alison Berridge appeared for the Competition Commission.

Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)

Mr Justice Akenhead struck out a claim brought by Turning Point Limited against Norfolk County Council in relation to a breach of the procurement regulations in its entirety. Part of the claim was struck out on the basis that proceedings were brought out of time and there was no basis for an extension to be granted. The other part, which related to a suggested obligation on the Defendant to seek clarification of a notation on the face of the Claimant’s tender, was struck out on the basis that there were no real prospects of success.

The claim alleged that the Council had breached procurement law principles and implied contractual terms by failing to provide what it said was sufficient TUPE and pensions-related information to tenderers. The Claimant also challenged the Defendant’s exclusion of the Claimant’s bid on the basis that it had qualified its bid by asserting the right to re-open discussions with the Council on the issue of redundancy costs in certain circumstances.

After considering recent case law, in particular Sita UK LTd v Manchester Waste Disposal Authority [2011] EWCA Civ 156 and Mermec Ltd v Network Rail Infrastructure Ltd [2011] EWJC 1847 (TCC), Mr Justice Akenhead in concluding that the Claimant should not have an extension of time, rejected an argument put forward by the Claimant that an extension sought of 14 days was a short period of time, emphasising that that cannot in itself be a good reason. The legislature had stipulated 30 days, not “30 days plus a reasonable proportionate and short period”.  Any good reason for extension of time would usually be something which was beyond the control of the Claimant, including “illness or detention of relevant members of the tendering team”.

Further, there was no requirement on the Defendant in this case to seek clarification of a qualification placed on the face of the Claimant’s bid as to price, which qualification was expressly not permitted by the ITT. The statement was clearly a qualification and nothing about it suggested that it was  a clear and obvious error of the kind referred to in Tideland Signal Limited v Commission of the European Communities [2002] ECR II-3781.

Finally, the Court, referring to the recent line of authorities strictly confining the circumstances in which implied contractual terms might arise in the context of public procurement, concluded there was no prospect of success of the Claimant establishing that an implied obligation arose which, inter alia, required the Defendant to comply with certain general principles.

Elisa Holmes represented Norfolk County Council.

The Court of Appeal has today handed down judgment in Deutsche Bahn AG and Ors v Morgan Crucible and Ors [2012] EWCA Civ 1055, concerning the time limits for the bringing of follow on claims in the  CAT.  The Court has allowed the appeal, with the result that time for the bringing of claims under section 47A of the Competition Act runs from the point at which there can be no further appeal against the infringement decision by any addressee of the Commission’s Decision.  The Court thus overturned the Tribunal’s ruling that time for bringing a claim against a particular addressee runs from the point at which that addressee can no longer appeal, on which approach claims against different addressees would have to be brought at different times, depending on whether the addressee appealed or not.

The Court accepted what it described as the “excellent submissions” of Jon Turner QC, who acted with Rob Williams for the Appellants.  In essence, the Court found that the relevant “decision”, referred to in section 47A, is the infringement decision generally, as it concerns all addressees, and not an individual decision concerning a particular party.  The Court also found that the proper interpretation of the time limit is a question of domestic rather than European law.

The judgment marks a return to an earlier ruling of a differently constituted Tribunal in the Emerson Electric litigation, which came to the same conclusion as the Court of Appeal.  The effect of the ruling is to overturn the striking out of the appellants’ claims against Morgan Crucible, so that the damages claims can proceed in the Tribunal.  The Court refused Morgan Crucible permission to appeal to the Supreme Court.

Paul Harris QC has successfully represented the Amateur International Boxing Association (AIBA) at the ad hoc Olympic Division of the London Court of Arbitration for Sport (CAS). A CAS Panel composed of Prof. Massimo Coccia (Italy), President, Mr Martin Schimke (Germany) and Ms Maidie Oliveau (USA) dismissed a request for arbitration filed by Irish boxer Joseph Ward who had challenged his non-qualification for the 2012 Olympic Games.

Having not been selected by either by AIBA or by a Tripartite Commission (composed by representatives of the AIBA, the IOC and the Association of National Olympic Committees (ANOC), Joseph Ward considered that the authorities had not properly applied the qualification criteria.

After an urgent hearing that lasted from 9pm until 2am, the Panel ruled that it lacked jurisdiction to deal with Joseph Ward’s application, either as an application under the CAS ad hoc Rules for the Olympic Games or as an appeal under the usual rules of the CAS. The Panel also considered that, even if it had had jurisdiction, the application would have been dismissed on the merits, since Ward would not in any event have qualified as the next best ranked boxer at the 2011 World Championships.

The Divisional Court this morning allowed the appeal of Paul Chambers against his conviction by the Crown Court in Doncaster in relation to a joke made on Twitter. In January 2010, Chambers jokingly threatened on Twitter to blow Nottingham’s Robin Hood airport “sky high”. He was subsequently convicted by Doncaster Magistrates’ Court of making a menacing statement via a public communications network contrary to section 127 of the Communications Act 2003. The conviction was subsequently upheld by the Doncaster Crown Court.

The Lord Chief Justice held that, taking account of the context, it had not been objectively open to the Crown Court to conclude that the tweet had a menacing character.

Eric Metcalfe acted on behalf of ARTICLE 19 which made written submissions in the appeal. The executive director of ARTICLE 19 Agnes Callamard said:

“This is a victory for common sense and freedom of expression online. The right to express ideas and information includes the right to make jokes, even if others may find them unfunny, distasteful or even shocking. The lower courts exaggerated the Tweet and made it into a threat, when it was clearly a joke made in jest. We welcome the Divisional Court’s ruling for the protection it gives to online speech and the freedom to tweet in particular”

• To read the Divisional Court judgment, please click here.
• ARTICLE 19’s press release, please click here.