Today the new European Union public procurement Directives were published in the Official Journal of the European Union.
The Directives will come into force twenty days after publication in the OJEU. Member States will then have two years to implement the Directives. The UK has indicated that it intends to do this as soon as possible.
Monckton Chambers will continue to publish analysis and information about this development in public procurement law in future posts.
Case T‑306/10 Yusef v Commission, judgment of the General Court of the European Union (Second Chamber; President: Judge Forwood), 21 March 2014
The applicant’s funds and economic resources were frozen on 5 October 2005 by his inclusion on a list drawn up by the UN Sanctions Committee and his subsequent listing by the EU Commission in Annex I to Regulation No 881/2002. By letter of 18 March 2010 the applicant called upon the Commission to remove his name from the list at issue, following a number of events including the delivery of judgment in Joined Cases C‑402/05 P and C-415/05 P Kadi I in 2008 and the UK altering its stance on the applicant’s case in 2009, subsequently supporting his delisting by the UN (which was however blocked by the undisclosed listing state). When the Commission failed to respond the applicant brought this action for failure to act.
The General Court rejected the Commission and Council’s arguments that the action was an inadmissible attempt to circumvent the time limit for actions for annulment. It held that there were in reality new circumstances, arising well after the adoption of the listing regulation, which led the applicant to call upon the Commission to remove his name from the list at issue and, in the absence of any reaction by the Commission within the period of two months laid down in Article 265 TFEU, to bring this action for failure to act.
On the substance, Court upheld the applicant’s complaint of the persistent failure by the Commission to observe the principles stated by the Court of Justice in its Kadi I and Kadi II judgments.
On this first occasion when it has had the opportunity to do so, the Court emphasised that the Commission, post-Kadi, far from regarding itself as strictly bound by the assessments of the UN Sanctions Committee, must on the contrary envisage calling those findings into question in the light of the observations of the person concerned, failing which that person’s rights of the defence will be observed only in the most formal and superficial sense. The Court held that the Commission was clearly under an obligation to act with regard to the applicant, if not immediately after the Court had delivered its judgment in Kadi I, or in 2009, then at the very least and at the latest in reply to the applicant’s calling upon it to act of 18 March 2010. The Commission was at least obliged to examine the fresh evidence, in order to assess whether it amounted to a change of circumstances such as to warrant, if appropriate, the revocation of the regulation, if necessary without retroactive effect.
The General Court went on to find that it is not acceptable that, more than four years after the ruling in Kadi I, the Commission is still not in a position to discharge its obligation to examine the applicant’s case carefully and impartially, where appropriate in ‘effective cooperation’ with the Sanctions Committee. Furthermore, according to the statements made at the hearing, the Commission continues to regard itself as strictly bound by the findings of the Sanctions Committee and as not having any discretion in that regard. This, the Court held, is in contradiction with the principles laid down by the Court in Kadi I and Kadi II.
Accordingly, it held that the way in which the Commission purports, by implementing the review procedure with regard to the applicant’s case, to remedy the infringements of the same kind as those found by the Court of Justice in its judgment in Kadi I, is formal and artificial in nature.
The Court accordingly granted a declaration that the Commission’s failure to remedy the procedural deficiencies and substantive irregularities affecting the freezing of the applicant’s funds is unlawful.
Philip Moser QC of Monckton Chambers appeared for the successful applicant, instructed by Birnberg Peirce.
A link to the full judgment is here.
An interview with Piers Gardner has been featured in the latest edition of The International Correspondent magazine.
In the article, Piers discusses the Llanos Oil Exploration Limited legal dispute concerning the disguised expropriation of 70 billion euro oil and gas rights in Columbia over the past decade. The case was taken to the Netherlands to ensure fair trial proceedings, and has been referred to the Dutch Supreme Court.
Piers is acting on behalf of Llanos Oil.
Two recent judgments of the Grand Chamber of the EU Court of Justice have clarified the extent to which non-EU nationals who are family members of EU citizens can establish a right of residence in their EU family member’s home Member State.
Case C-456/12 concerned a refusal by the Netherlands to grant a right of residence to the non-EU national family members of Dutch citizens who had spent short periods with their family members in other Member States at weekends and during holidays. The Court held that Directive 2004/38/EC does not confer on third-country nationals a derived right of residence in the home Member State of their EU citizen family member. However, it also held that a refusal to allow such a derived right of residence may interfere with the EU citizen’s freedom of movement under Article 21 TFEU if the period of residence in another Member State has been “genuine”, i.e. for a period of more than three months in accordance with Article 7 of the Directive (and subject to family life having been created or strengthened during that period). Short periods of residence, such as at weekends or on holidays, do not satisfy that condition.
Case C-457/12 concerned a similar refusal by the Netherlands in relation to non-EU family members of Dutch citizens where the family had never resided in another Member State, but where the EU national travelled from the Netherlands to other Member States for work. Again the Court confirmed that family members of such citizens have no derived right of residence in the home Member State under the Directive, but that such a right of residence should be granted where it is necessary to guarantee the EU citizen’s effective exercise of free movement rights under Article 45 TFEU. The fact that the third-country national takes care of the EU citizens’ children may be a relevant factor in that analysis.
The judgments assist in clarifying the scope of the Surinder Singh case law (Case C‑370/90), concerning the rights of family members of EU citizens who return to their home Member State having spent time in another Member State.
Gerry Facenna acted for the United Kingdom Government in both cases.
Chambers is pleased to announce that Kassie Smith QC has been listed in The Lawyer’s Hot 100 2014.
The Lawyer states:
‘As a new silk this year, Monckton Chambers’ Kassie Smith QC has made a seamless transition. Her stellar junior practice was easily transferable given the plaudits she received regularly from clients.
As well as being involved in the high-profile judicial review of the High Speed 2 rail link, Smith is currently providing competition law advice on the Libor manipulation case being pursued by Guardian Care Homes’ owner Graisley Properties against Barclays Bank.
More recently she appeared in the Supreme Court case concerning air quality limits in London.
In the past 12 months Smith has appeared in the Supreme Court, the Court of Appeal, the Court of Justice of the EU and all manner of tribunals, confirming her position as one of the up-and-coming silks at the bar.’
The annual supplement identifies members of the legal profession who have excelled in their chosen fields during the past year.
The Council of Europe and the European Union have published a report on the non-judicial human rights arrangements relating to human rights in Kosovo. The report examined the operation of these arrangements and has made a series o f
recommendations with a view to simplifying the institutional set up and enhancing its effectiveness. As part of the report a legislative expertise was undertaken with respect to existing and draft legislation relating to the Ombudsperson Institution, gender equality and protection against discrimination to ensure that the provisions in them were consistent with the reform proposals and the requirements of European Union law and applicable human rights treaties.
The report was prepared by a team of experts under the leadership of Jeremy McBride.
Here is the full Human Rights reform Kosovo report.
Drew Holiner has been ranked in the Chambers Global ‘Dispute Resolution – Russia (Experts Based Abroad)’ section for a fifth consecutive year.
Chambers Global stated:
“Drew Holiner of Monckton Chambers is a Russian-qualified English barrister with an extensive track record of commercial litigation and arbitration in Russia and the CIS.”
Drew is the only English barrister to be a qualified member of the Russian Bar. He has over 15 years of experience in litigation, advocacy and advisory work in Russia and other republics of the former Soviet Union, with specialist knowledge of Russian and CIS substantive and procedural law and its practical implementation.
The European Court of Human Rights vindicated the claims of Ms K Kiisa v Estonia on 13 March 2014, finding violations of Articles 6 and 13 in her case No 16857/10. The case concerned the over-lengthy proceedings arising from Ms Kiisa’s claims to financial support from her former husband and the lack of an effective remedy in Estonia against those delays.
The case is an example of the Eur Ct HR’s new procedure in ‘manifestly well-founded’ cases, applied to accelerate procedure and tackle the Eur Ct HR’s backlog. That procedure involves proposing a friendly settlement to the parties and encouraging the respondent Government to make a ‘Unilateral Declaration’, in the light of which the Eur Ct HR would be able to strike the application out of the list.
However, Ms Kiisa was able to vindicate her claims through a judgment from the Eur Ct HR finding the violations summarised, having shown that the Estonian Government’s Unilateral Declaration failed to address all the issues in the case and that a friendly settlement was not consistent with her complaints.
Ms Kiisa was represented before the Eur Ct HR by Piers Gardner, who has been involved in ECHR cases concerning a total of 29 Member States of the Council of Europe, including the United Kingdom.
Click here to read the full Kiisa v Estonia judgment.
In a judgment released earlier today (Speciality Produce Limited v Secretary of State for Environment, Food and Rural Affairs [2014] EWCA Civ 225), the Court of Appeal dealt with a case where the claimant, SPL, had sought judicial review of an initial decision by the Rural Payments Agency derecognising it as a producers organisation under the relevant EU Regulation. That initial decision could be challenged by a statutory internal appeal to the Secretary of State. SPL challenged the merits of the decision on the internal appeal but also sought – and obtained permission to bring – judicial review of the initial decision on the basis of a legitimate expectations/abuse of process argument. In the event, the internal appeal was resolved in SPL’s favour shortly before the hearing of the judicial review. There was no provision for costs in the internal appeal procedure. SPL claimed that since the decision had been withdrawn and it had got the relief it sought, the Secretary of State should pay its costs in the judicial review proceedings. The Court of Appeal – upholding an earlier judgment by Vos J – disagreed. It noted that the issues in the judicial review and in the internal appeal were very different and that no inference could be drawn from the result of the internal appeal that the Secretary of State was likely to have lost the judicial review. SPL could have asked to stay the judicial review until the internal appeal had been concluded, and it was not relevant that it had good commercial reasons for not taking that course or that an earlier internal appeal had taken a very long time. The right order was no order for costs.
George Peretz acted for the Secretary of State in the High Court and Court of Appeal
Click here to read the full speciality produce v SoS for Environment, Food & Rural affairs judgment
The First-tier Tribunal (Tax) has allowed the appeal of SAE Education Ltd against the decision of HMRC that it was not a “college of a university” within the meaning of exemption provided for in Note 1(b), Group 6 of Schedule 9 VATA.
In concluding that SAE is a college of Middlesex University, the Tribunal found that SAE has a similar purpose to the University in the provision of university education to students. The Tribunal found that in providing both degree and diploma courses, SAE provides university-standard education.
The decision bucks the trend of the recent case-law on the Note 1(b) exemption, and firmly grounds the analysis of the exemption in the relevant EU law context.
Melanie Hall QC and Elizabeth Kelsey appeared for the Appellant, SAE Education Ltd
Click here to read our case note on SAE Education Ltd v HMRC
