Two Azerbaijan journalists have made an application to the European Court of Human Rights to challenge an effective monopoly of control over the country’s broadcasting system.  Yashar Agazade and Rasul Jafarov, represented by Gerry Facenna, have brought a case regarding the repeated refusal of the Azerbaijan authorities to grant a licence for an independent radio station.

The former Soviet republic controls most TV and radio outlets, while international broadcasters have been banned and nominally independent broadcasters are controlled by those close to the Government. The President also appoints all nine members of the broadcasting regulatory body, the National Television and Radio Council, whose responsibilities include granting broadcast licences.

Agazade and Jafarov argue that the refusal to grant licences to independent broadcasters not only denies their right to freedom of expression under Article 10 of the European Convention but means that Azerbaijan is failing to ensure a pluralistic media landscape, as the Convention requires.

Freedom of speech is officially guaranteed by the constitution, although there is little public debate on political, economic and other vital issues.  The matter has particular urgency because elections are due in 2013, and a favourable decision by the Court could force the government to make media reforms that would allow for more open debate.

Gerry Facenna is instructed by Finers Stephens Innocent, working with the not for profit organisation Media Legal Defence Initiative, which exists to help journalists and media outlets to defend their rights.

On 4 April 2012, Mr Justice Roth, handed down his judgment in National Grid’s application for disclosure, first brought before the court on 15 June 2011, the day after the European Court of Justice’s Pfleiderer ruling.  In its application, National Grid inter alia sought disclosure from the defendants (the GIS cartelists) of relevant parts of documents submitted by them to the Commission which may contain leniency material.

The case was part of the long running follow-on damages claim being brought by National Grid against members of the Gas Insulated Switchgear cartel. The defendants had sought to argue no leniency material should be disclosed even if it was of real assistance to the claimants in pursuing their claim.  The court rejected this approach and carried out a careful analysis of the relevant documents.

The outcome is in contrast to the conclusion of the German court in the Pfliederer case which decided to afford no disclosure of any leniency material notwithstanding the ECJ’s judgment.

The National Grid judgment is already being studied across Europe. The result is another stage in the process of balancing the need for successful prosecution of cartelists by the competition authorities through the use of leniency and empowering litigants to enforce their competition law rights in the national courts

Jon Turner QC and Daniel Beard QC acted for National Grid

Click to read the judgment in National Grid

Daniel Beard QC has been listed in Global Competition Review’s “40 Under 40” feature.  The feature, produced every 4 years sources those young lawyers whose superior technical skill, practical judgment and commitment to the competition sector mark them out as part of the next generation of leading antitrust practitioners.

Daniel explains in the feature that he chose competition law;

“initially by accident – I was interested in EU law and started dealing with competition cases. The first big piece of competition litigation I was involved in was the Premier League/OFT case – even the disclosure was fun on that one. As I got into competition law, the thing I appreciated was the breadth of the subject and the interaction between law and economic thinking. I also like the fact that you have parts of competition law dealing with public enforcement and making markets work, and other parts that are direct private party battles.”

Nokia  has successfully defended applications by Hitachi and Samsung to strike out/summarily dismiss Nokia’s claims in the English High Court arising out of their alleged participation in a cartel that raised the prices of liquid crystal displays (LCD) supplied to Nokia. An application by Nokia to amend its Statement of Case, to particularise the activities of the alleged cartel participants (which included Hitachi, Samsung, Samsung SDI, Sharp, Toshiba and AU Optronics), was also successful.

Click to view the judgment in Nokia Corporation

Christopher Vajda QC, Paul Harris QC and Ben Rayment were instructed by Bird & Bird LLP on behalf of Nokia

Paul Lasok QC and Alistair Lindsay were instructed by Allen & Overy LLP on behalf of Samsung SDI

Michael Bowsher QC, Kassie Smith and Valentina Sloane represented the interveners NHS Shared Business Services Ltd (NHS SBS) and the Secretary of State for Health in the successful defence of a  judicial review challenge brought by the trade union, UNISON.  UNISON claimed that the proposed outsourcing of administrative functions of 10 primary care trusts to a private contractor, NHS SBS in a cost saving exercise failed to comply with EU public procurement rules.  UNISON challenged the Trust’s argument that they would be able to call off the proposed contracts as the subject-matter and terms differed to those set in the framework agreement.

Mr. Justice Eady held that a breach of the Public Contracts Regulations 2006 could affect the members of a union so that remedies could be sought through public law.  However, he refused permission to UNISON on the basis that it lacked standing and was out of time.  He considered but declined to apply the Court of Appeal’s obiter judgment on standing in the Chandler case.

Michael Bowsher QC and Valentina Sloane represented the interveners NHS Shared Business Services Ltd.

Kassie Smith represented, as the second intervener, the Secretary of State for Health.

Click to read the judgment in Unison v NHS

Yesterday, the Administrative Court dismissed a challenge to the lawfulness, under EU law, of the Government’s decision to stop imports of goods by mail order from the States of Jersey and Guernsey (“the States”) into the UK from being VAT free. The Chancellor will table resolutions intended to achieve this aim on 21 March 2010 (the date upon which the Budget is announced), and it is anticipated that the resolutions will pass into law on 26 March 2012.

The States are not part of the EU for the purposes of the harmonised VAT union. Ordinarily, therefore, imports from the States into the UK should be subject to VAT upon entry.

For the purposes of administrative simplification, however, Article 23 of Directive 2009/132 provides that imports which have a low or negligible value can be exempt from VAT, which is referred to as Low Value Consignment Relief (“LVCR”). The threshold currently set by the UK Government is £15. Critically, under Article 23 the Member States retain the power to exclude mail order goods from the ambit of this exemption.

LVCR gives a plain competitive advantage to traders importing goods into the UK from or via the States, and consequently a mass fulfilment industry has developed. This industry covers a wide range of products, including CDs/DVDs, plants, video games, household appliances, stationery and health supplements. The industry’s estimated value is £500 million a year.

The States commenced an urgent judicial review against the decision on 20 December 2011. During the expedited trial which started on 13 March 2012, the States argued inter alia that: (a) Article 23 only granted the EU Member States an “all or nothing” or binary power i.e. they could only remove LVCR from all non-EU countries or let all such countries enjoy the exemption; and (b) the decision breached the principles of equal treatment and fiscal neutrality because the UK would be treating the States’ imports differently from imports coming from other non-EU countries such as Taiwan or Switzerland.

The association called Retailers Against VAT Avoidance Schemes (“RAVAS”) was granted permission to submit evidence about and make written submissions in support of the Government. RAVAS submitted evidence showing that traders operating through the States are engaging in abusive practices, and that the LVCR is having a hugely detrimental impact on UK-based retailers.

The Court rejected the States’ application for judicial review because Article 23 of the Directive granted the Member States an unfettered discretion to exclude mail order goods from LVCR. Further, as the States are not members of the EU the principles of fiscal neutrality and equal treatment do not apply to them. The Court’s judgment means that the Government is free to press ahead with tabling the resolutions removing the exemption from the States on Budget day.

The Administrative Court granted the States permission to appeal on the basis that the case raised important issues, and, accordingly, it was appropriate for a higher court to hear the case.

The case has been widely reported in the press.

Valentina Sloane and Julianne Stevenson represented RAVAS.

Chambers takes great pleasure in welcoming Julianne Stevenson.  Julianne joins Chambers having successfully completed a six-month pupillage. As a pupil, Julianne gained experience of all Chambers’ main practice areas – including public law, competition law, European law, public law, procurement, commercial law and VAT.

Prior to joining, Julianne obtained a first class degree in Law with Advanced Studies from UCL where she was first in her year.  She was awarded a number of prizes during her undergraduate studies, including the Andrew’s Medal for being the top finalist in law at University College of London (2008), the Sweet & Maxwell prize for excellence in overall degree performance (2008); and prizes for her academic performance in each year of her degree.

Julianne studied at Harvard Law School where she obtained an LL.M with a concentration in International Human Rights.  She was awarded a Queen Mother’s Scholarship by the Middle Temple to study the BVC, and, accordingly, in 2009 to 2010 Julianne completed that course at BPP. Alongside her studies at BPP, Julianne was a tutor of public law and human rights at UCL.

Julianne comments:

“I am delighted to be joining Monckton Chambers and so to have the opportunity to develop a diverse practice across Chambers’ wide range of specialist areas.”

Philip Moser who has recently taken Silk has been admitted as a Fellow of the European Law Institute.  The ELI is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development.

To learn more about the ELI and its functions, please click here.

The Court of Appeal has today dismissed a challenge to the lawfulness, under EU law, of the provisions of the Digital Economy Act 2010 aimed at requiring internet service providers (ISPs) to help reduce illegal ‘peer to peer’ file-sharing.

Under the controversial Act, Ofcom must make a Code requiring ISPs to notify their subscribers of alleged instances of online copyright infringements, and to compile lists to allow copyright owners to identify repeat offenders. The Act also makes provision potentially to require ISPs to take “technical measures” against the most serious copyright infringers, such as to limit their use of, or even to terminate, their internet connections.

The challenge was brought by two major ISPs, BT and TalkTalk, who argued, inter alia, that the imposition of requirements on ISPs under the Act would breach EU law, because the Act had not been notified in draft to the European Commission under the Technical Standards Directive, and the requirements would be incompatible with EU Telecoms Directives (including the E-Commerce Directive, the Privacy and Electronic Communications Directive, and the Authorisation Directive). After the challenge failed in the High Court in April 2011, the ISPs appealed to the Court of Appeal.

The Court of Appeal rejected the challenge to the Digital Economy Act in full.  However, the Court found for the ISPs on one minor ground of challenge, which related not to the Act itself, but to proposed rules requiring ISPs (as well as copyright holders) to contribute towards the costs of the body that will hear appeals from subscribers against copyright infringement notifications.  The Court’s judgment means that the Government is free to press ahead with implementing the Digital Economy Act regime.

The ISPs have not yet said whether they will seek permission to appeal to the Supreme Court.

Robert Palmer and Alan Bates represented the Secretary of State for Culture, Olympics, Media and Sport (the Respondent).

On 2 March 2012, the High Court (Henderson J) gave judgment in Investment Trust Companies (in liquidation) v HMRC [2012] EWHC 458 (Ch).  Between 1990 and 2002, the claimants paid sums to managers by way of VAT on supplies of investment management services.  The managers accounted for and paid sums by way of VAT to HMRC, after deducting attributable input tax.  In 2007, the ECJ held in JP Morgan Claverhouse that the managers’ supplies should have been exempt.  The managers made claims for repayment under section 80 of the VAT Act 1994.  HMRC repaid to the managers the over-declared output tax (referred as the £100), less the over-claimed input tax (referred as the £25); claims in respect of the periods from December 1996 to 2002 were time barred by s.80(4) VATA (referred to as the “Dead Period”).  The managers passed the sums back to the trusts (i.e. £75 for uncapped periods, £0 for the Dead Period).  The trusts brought direct mistake-based restitution claims against HMRC for restitution of the £25 (uncapped) and £100 (Dead Period).

The court held (1) that as a matter of common law, the claimants had direct mistake-based restitution claims against HMRC;  (2) that such claims were excluded by section 80(7) VATA; (3) that, following the ECJ’s decision in Reemtsma and Danfoss,  EU law required the claimants to have a direct claim against HMRC for payment of the £25 in respect of uncapped periods, but not for payment of the £100 in respect in respect of the Dead Period; and (4) whether the national court had to disapply the statutory exclusion to permit a mistake-based restitutionary claim (which would allow claims going back to 1990) or only a “Woolwich” claim (in which case most claims would be statute-barred) would be stayed pending the Supreme Court’s judgment in the Franked Investment Income (FII) litigation and the ECJ’s judgment in Littlewoods.