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.

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.

The Court of Justice has given judgment following a reference for a preliminary ruling under Article 267 TFEU from the Supreme Court in O’Brien v Ministry of Justice (Council of Immigration Judges intervening), Case C-393/10, 1 March 2012.

The case concerns the refusal by the Ministry of Justice to pay Mr O’Brien a pension in respect of his service as a Recorder, which is alleged to be discrimination contrary inter alia to the Part-time Workers Directive (“PTWD”). The PTWD is implemented in the UK by the Part-time Workers Regulations (“PTWR”). Regulation 17 of the PTWR, entitled “Holders of judicial offices”, provides that the regulations do not apply “to any individual in his capacity as the holder of a judicial office if he is remunerated on a daily fee-paid basis”.

The Council of Immigration Judges, representing several hundred daily fee-paid judges, intervened in the Supreme Court and also made oral submissions in Luxembourg.

The following questions were considered by the ECJ:-

(1) Is it for national law to determine whether or not judges as a whole are “workers who have an employment contract or employment relationship” within the meaning of clause 2.1 of the PTWD, or is there a Community norm by which this matter must be determined?

(2) If judges as a whole are workers who have an employment contract or employment relationship within the meaning of clause 2.1 of the PTWD, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

As to the first question, the Court of Justice held that European Union law must be interpreted as meaning that it is for the Member States to define the concept of “workers who have an employment contract or an employment relationship” in Clause 2.1 of the PTWD, and, in particular, to determine whether judges fall within that concept. However, this is subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by the PTWD.

The Court further held that an exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, “substantially different” from that between employers and their employees falling, according to national law, under the category of workers.

As to the second question, the Court held that the PTWD must be interpreted as meaning that it precludes, for the purpose of access to the pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine.

The judgments in the Court of Justice can be found here and in the Supreme Court here.

Tim Ward QC represented the Ministry of Justice in the Court of Justice.

Ian Rogers represented the Council of Immigration Judges in the Supreme Court and in the Court of Justice. He also represents a large number of fee paid judges in different jurisdictions making protective claims.

Monckton Chambers is pleased to announce the appointment of Philip Moser to Queen’s Counsel.  Philip will be formally appointed at the swearing-in ceremony on 30 March.

Called to the Bar in 1992, Philip is regularly instructed in EU law cases, often involving novel or untested points of law. Specialist practices in public procurement, commercial agents’ cases, EU sanctions cases and MTIC fraud have each developed out of his involvement with EU law. He also has particular expertise in Conflict of Laws. Commercial work, often with cross-border elements, complements his specialist areas.

Members and staff warmly congratulate Philip on his success.

Eric Metcalfe acted for the Information Commissioner before the Information Tribunal, successfully resisting a bid to disclose the identity of the individual that donated £50,000 to the Global Warming Policy Foundation, a body which has attracted widespread controversy for its skeptical views on climate change. The donor’s identity had been requested under the Freedom of Information Act, and had the backing of many leading climate scientists. The Tribunal nonetheless upheld the Commissioner’s decision that identity of the donor should not be disclosed, among other things because it would breach the donor’s reasonable expectation of privacy.

To read the full article from The Guardian, please click here.

The Oxford University Law Faculty held a special lecture entitled “The Future of European Integration and EU Law: Why and how a financial crisis has become a crisis in European integration.” to celebrate the career of Sir Jeremy Lever KCMG, QC, a pioneer of both the practice and academic study of competition law in Europe. The lecture was given by Professor Miguel Maduro EUI and chaired by Sir Francis Jacobs KCMG QC.  The event was followed by a celebratory dinner at All Souls College.

Carlsberg (UK) Ltd and Inbev (UK) Ltd v HMRC [2012] EWCA Civ 82, 8 February 2012 (CA)

The Court of Appeal has held that brewers are not entitled to calculate beer duty on a “per container” basis and consequently round down the duty to the nearest penny on that basis.  The Court, dismissing appeals from the Upper Tribunal, rejected the brewers’ arguments that, under the Alcoholic Liquor Duties Act 1979 and the Beer Regulations 1993, duty on beer is to be assessed on each container and the rounding down of duty to the nearest penny under section 137(4) of the Customs and Excise Management Act 1979 (while it was in force) was therefore to be carried out in relation to the duty assessed on each container.  Although seemingly “somewhat esoteric, even abstruse”, the case is of (historic) importance to the brewing industry; the amount at issue in the appeals was of the order of £28 million.

Andrew Macnab acted for HMRC in the CA and below.

The hearing of Fresh Del Monte’s and Weichert’s appeal against the European Commission finding that they had participated in an anti-competitive information exchange on the setting of quotation prices for bananas took place today before the General Court. In October 2008 the Commission found that Chiquita, Dole, and Weichert were parties to an exchange of information which had the object of restricting competition contrary to Article 101 TFEU It also found that there was a single and continuous infringement. It fined Dole and Weichert/Del Monte €60m. Chiquita was not fined because it had applied successfully for leniency. The appeal raises important questions about the lawfulness of discussions on price setting factors, whether such discussions can amount to a restriction of competition by object as well as the scope of the concept of a single and continuous infringement.

Christopher Vajda QC, instructed by SJ Berwin, represented Weichert at the oral hearing.