A court in Cyprus has frozen the assets of Russian businessman and senator Suleiman Kerimov, including his stakes in Uralkali and Polyus Gold following a $2bn suits filed in London and Cyprus by Russian MP Ashot Egiazaryan and his partners.  The decision was handed down on September 13 and is set for a return hearing on September 27.

Mr Egiazaryan claims that Mr Kerimov conspired with Moscow Mayor Yuri Luzhkov and others to take control of his 25% stake in a multi-billion dollar project to rebuild the Moskva Hotel, a prime piece of Moscow property adjacent to Red Square and the Russian Parliament, and to sign over the entirety of his $253m investment in the project.  Egiazaryan states he was threatened with criminal prosecution if he did not agree.

Drew Holiner, a dual qualified member of the English and Russian Bars, is acting for the claimants.

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Drew Holiner

Oracle America (Formerly Sun Microsystems) v M-Tech Data Ltd and Stephen Lawrence Lichtenstein

In an important case concerning the relationship between trade mark rights under the trade mark Directive and other provisions of EU law, the Court of Appeal on 24 August allowed an appeal by M-Tech, an independent trader in Oracle hardware, against a decision of Kitchin J who had granted summary judgment in favour of Oracle.

The market in second-hand computer hardware is worth approximately €260 billion, of which €160 billion is traded by independent resellers.  These independent resellers do not constitute part of authorised networks of computer manufacturers, but help ensure a competitive market for second-hand computer hardware.  Trade is global, and the hardware is often traded several times.  As a result, the location of the hardware or of the dealer is often not a guide to whether the hardware was first placed on the market in the European Economic Area (EEA) with the consent of the trade mark proprietor.  Oracle does not publish any information which would enable independent traders to identify whether a particular item of its hardware had first been placed on the market within the EEA by Oracle or with its consent, and had deliberately adopted a policy of not publishing its database in order to make trade in genuine EEA-first marketed goods as difficult as possible. It aggressively pursued independent resellers for trade mark infringement if they offered for sale any of Oracle’s hardware which was first marketed outside the EEA.

M-Tech had imported into the United Kingdom from countries outside the EEA computer hardware which used trade marks belonging to Oracle. Oracle issued proceedings against M-Tech alleging trade mark infringement. M-Tech contended that Oracle’s practices were in breach of Arts 28-30 of the EC Treaty on the freedom of movement of goods between EU Member States (now Arts. 34-36 TFEU), were an abusive exercise of Oracle’s rights under the trade mark Directive, Directive 89/104, as well as Art.81 EC (now Art. 101 TFEU) which prohibits agreements restricting competition. Oracle has made it a term of its agreements with resellers of its products that they must buy Oracle new and second hand equipment only from within its supply network.

Kitchin J had accepted Oracle’s argument, based on Case C-414/99 Zino Davidoff SA v A&G Imports Ltd  that the trade mark Directive embodied a complete harmonisation of the rules relating to trade mark rights and that accordingly Oracle’s rights under rights conferred by a mark were untrammelled by Arts. 28-30 TFEU. While Oracle accepted, for the purpose of the summary judgment application, that its agreements with its resellers in the EEA were contrary to Art.81 of the EC Treaty, Kitchin J found that there was no sufficient connection between the breach and the enforcement of its trade marks. He therefore granted summary judgment in Oracle’s favour.

The Court of Appeal accepted M-Tech’s arguments that there was a real prospect of M-Tech establishing that rights under the trademark Directive had to be interpreted by reference to Arts. 28-30 of the EC Treaty. Given Oracle’s failure to allow traders to find out which of its goods had been marketed within the EEA by Oracle or with its consent there was a real prospect that a breach of Art.28 would be established which was not capable of justification under Art.30 or under the trade mark Directive. They also accepted that a broad approach should be taken to the question of showing a connection between the Article 81 agreements and the trade mark proceedings and that, for present purposes, a necessary connection had been established.

Christopher Vajda QC (who was not instructed below) represented M-Tech Data Ltd in the Court of Appeal.

The members and staff of Chambers are deeply saddened to learn of the death of Lord Nicholas Lyell QC on 30 August 2010.  He was one of very few lawyers to have combined a successful career in Parliament and a major private practice.  After 20 years at the bar he was appointed Solicitor General from 1987-92 and then Attorney General from 1992-97. His unique experience gave him exceptional insight when handling complex litigation involving the interplay between UK, European and Human Rights law.  

Lord Lyell’s funeral will take place on Friday 10 September at St Leonard’s Church, Flamstead, Hertfordshire.  Any donations can be made to the hospice www.stfrancis.org.uk.

A Memorial Service in London will take place in due course.

The shortlists for these prestigious awards have been revealed and we are pleased to have been nominated as ‘Set of the Year’ for Competition and EU.

Additionally, in the Competition and EU category, Jon Turner QC is listed for ‘Silk of the Year’ and Paul Harris ‘Junior of the Year’.

The awards will be announced on 30 September 2010 at the London Hilton Hotel.

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Jon Turner QC
Paul Harris QC

The International Law Association’s 74^th Conference is being held in the Hague from 15 to 20 August 2010 at the invitation of the Netherlands Society of International Law, to mark the latter’s centenary. Piers Gardner of Monckton Chambers joined a distinguished panel of academic and practitioner speakers from Australia, the Netherlands, Ukraine and USA in the conference’s  session devoted to  ‘Integrating Human Rights in Civil Cases’, which compared reliance on human rights based arguments in commercial arbitrations, international proceedings and civil claims before domestic courts. Piers spoke on the protection of the rights of and in companies by the European Court of Human Rights and compared the rights enjoyed by companies themselves with the rights of shareholders and other stakeholders in respect of a company’s affairs, especially in the event of insolvency, liquidation and receivership.

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Piers Gardner

The International Law Association’s 74^th Conference is being held in the Hague from 15 to 20 August 2010 at the invitation of the Netherlands Society of International Law, to mark the latter’s centenary. Piers Gardner of Monckton Chambers joined a distinguished panel of academic and practitioner speakers from Australia, the Netherlands, Ukraine and USA in the conference’s  session devoted to  ‘Integrating Human Rights in Civil Cases’, which compared reliance on human rights based arguments in commercial arbitrations, international proceedings and civil claims before domestic courts. Piers spoke on the protection of the rights of and in companies by the European Court of Human Rights and compared the rights enjoyed by companies themselves with the rights of shareholders and other stakeholders in respect of a company’s affairs, especially in the event of insolvency, liquidation and receivership.

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Piers Gardner

John Wilkins (Motor Engineers) Ltd and others  v HMRC [2010] EWCA Civ 923

These appeals are part of a growing area of litigation in which taxpayers who have over paid VAT claim entitlement to compound interest rather than simple interest.  In each of these appeals, the appellant motor trader initially claimed interest under s 78 VATA 1994 and received simple interest. Claims for compound interest were later made between 10 months and two years after the initial claims for interest and were refused.

The group of dealers challenged the previous decision of the Upper Tribunal, which had ruled (1) that their claims for compound interest were made outside the relevant time-limits and (2) that s. 78 VATA 1994 could not be interpreted so as to require the payment of compound interest.

Today (Friday 30 July) the Court of Appeal decided that those dealers who had made their appeals to the VAT Tribunal (which on 1 April 2009 became the Tax Tribunal) had done so in time under rule 4 of the VAT Tribunal rules, which states that claims have to be made within 30 days of a disputed decision.

The Court of Appeal only dealt with the time-issue and a further hearing will be necessary to determine whether or not taxpayers are entitled to compound interest.

The Court of Appeal was split in its decision. Lord Justice Laws and Lord Justice Sullivan agreed with the appellant motor traders that s 78 VATA 1994 does not explicitly preclude the making of a second claim for interest within the 3 year (now 4 year) time limit permitted by s 78(11); accordingly, the disputed decision in each case was the Commissioners’ letter refusing to pay compound interest, and the appeals were brought within 30 days of that decision in each case. The majority considered that some repeated claims could be dismissed on the grounds of being abusive. Lord Justice Etherton agreed with the Commissioners that the second claims raised no new matters and that the disputed decision in each case was in substance the original decision to pay simple interest.

Peter Mantle and Philip Wolfe were instructed by the Commissioners for HMRC.

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Peter Mantle
Philip Woolfe

Case-CO/5018/2009 – Ofcom have successfully resisted a claim for judicial review by ICO Global Communications (Holdings) Ltd (ICO) of a decision of Ofcom to write to request that the International Telecommunications Union (ITU) remove ICO’s global medium earth orbit (MEO) satellite system (ICO-P) from the Master International Frequency Register (MIFR).

Ofcom represents the UK in international bodies, including the ITU, having communications functions. In particular, Ofcom has a role in ensuring that spectrum and orbital positions are used efficiently and that competition, innovation and growth in communications services is not hindered to the detriment of consumers and businesses. In this case Ofcom were concerned with the failure to bring the ICO-P satellite network into use in accordance with its notified characteristics.

Christopher Vajda QC and Ben Rayment were instructed by Ofcom.

To read the judgment, please click here.

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Ben Rayment

O’Brien v Ministry of Justice [2010] UKSC 34

The Supreme Court decided to make a reference to the ECJ in a case concerning the statutory exclusion of part-time fee-paid judges from the scope of the Part-time Workers Regulations 2000 (“the Regulations”), which implement the Part-time Workers Directive (“PTWD”). Salaried judges (full-time and part-time) receive pensions, but part-time fee-paid judges do not.

The appeal raises the issue of the distinction between an office-holder and an employee and is therefore of general interest to employment law practitioners.

Interest for EU law practitioners lies in the conflict between, on the one hand, the freedom left by a directive to Member States to define terms which determine its scope and, on the other hand, the need for uniform interpretation of the directive. Rights under the PTWD are granted to part-time workers who have “an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State”.

The Council of Immigration Judges (“CIJ”) instructed Ian Rogers to intervene in the Supreme Court by way of written submissions. He argued that the PTWD and Regulations should be interpreted with regard to analogous fixed-term workers legislation. In the latter context, the ECJ had held in Impact that the relevant directive was directly effective. Having had its attention drawn to this authority, the Ministry of Justice conceded that the rights accorded by the PTWD were also directly effective.

He also argued that the ECJ’s judgment in Del Cerro Alonso limited the breadth of discretion left to Member States. The Ministry and the Court of Appeal relied heavily on Wippel v Peek, but the Supreme Court accepted the CIJ’s argument that the part of the Advocate-General’s opinion, on which the Ministry relied, had not been adopted by the ECJ. The CIJ’s argument also drew analogies with parallel concepts in the Working Time Directive jurisprudence (e.g. Jaeger). The Supreme Court held that Del Cerro Alonso represented the “high point” of Mr O’Brien’s case.

The following questions were referred to 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?

Ian Rogers appeared for the Council of Immigration Judges.

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Ian Rogers

The General Court (Case T-342/07 and Case T-411/07)  upheld two decisions of the EU Commission in respect of the long standing dispute between Ryanair and Aer Lingus as to the future ownership and control of the smaller airline.  The Commission had considered that the acquisition would significantly impede effective competition, in particular as a result, firstly, of the creation of a dominant position on 35 routes to and from Dublin, Shannon and Cork, and, secondly, of the creation or strengthening of a dominant position on a further 15 routes.  It therefore declared the concentration incompatible with the common market as it would have harmed consumers by removing this competition and creating a monopoly or a dominant position on the routes operated by both parties.

Ryanair based their application to annul the decision on several grounds including the effects of the liberalisation of the EU airline passenger market on market entry and thus the inability of the merged group to raise price and reduce quality, on the weakness of Aer Lingus and its lack of sustainability as a small regional airline and on Ryanair’s willingness to provide commitments more than necessary to meet any perceived adverse effects on competition.  The General Court held that in its judgment the Commission had not erred in its analysis of competition, including competition between the two airlines on origin and destination markets, that the combined market shares were very high, that each was the other’s closest rival and that there were barriers to entry on the relevant markets. It also confirmed the Commission’s decision that the commitments were not sufficient.

In a separate judgment the General Court confirmed the Commission’s decision that the acquisition by Ryanair of a minority stake in Aer LIngus did not amount to control within the meaning of the EU Merger Regulation and that the Commission’s powers, when they found that a proposed acquisition would significantly impede competition, did not extend to divestment of the whole or part of  a shareholding that fell below that of control. There was ample evidence that Aer Lingus continued to act independently of Ryanair.

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John Swift QC