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.

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.