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.

The Competition Appeal Tribunal has today dismissed the challenge by BAA Limited to the Competition Commission’s July 2011 decision requiring BAA to sell Stansted Airport.

This was BAA’s second challenge to decisions of the Commission requiring that Stansted be sold so as to increase the scope for competition in the provision of airport services in South-east England.  The Commission first took such a decision in March 2009 following a market investigation into competition in the provision of airport services across the UK.  BAA’s challenge to that decision, which was the subject of an appeal to the Court of Appeal and subsequently an application to the Supreme Court in early 2011, was ultimately unsuccessful.  BAA then argued that, in the time that had passed since the March 2009 decision, i.e. while BAA’s challenge was ongoing, circumstances had changed.  In particular, BAA argued that the new Coalition Government’s policy of opposing the building of new runways in South-east England was a change in circumstances that meant that the scope for competition between airports was reduced and the sale of Stansted could no longer be justified.  It was the Commission’s decision rejecting those arguments that was the subject of BAA’s second challenge which the Tribunal dismissed today.

The Tribunal (chaired by Mr Justice Sales) dismissed BAA’s case in relation to all four of its grounds of challenge.  The dismissal means that BAA remains required to sell Stansted within a timeframe that BAA and the Commission have agreed.

Monckton barristers Daniel Beard QC and Alan Bates represented the Commission.  Paul Harris QC represented Ryanair, which intervened in the case urging the Tribunal to uphold the Commission’s decision.

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.

Christopher Vajda QC and Philip Woolfe, instructed by Peters & Peters, are acting for the English NHS in proceedings against Servier for the alleged illegal extension of a patent protection relating to Servier’s product, Perindopril, a drug designed to combat high blood pressure and coronary artery diseases.  The claim alleges infringements of both Articles 101 and 102 TFEU. The patent extension has meant that cheaper generic versions of the drug were not able to reach the market. The NHS’s claim is for over £200m in damages. The European Commission started parallel proceedings against Servier in July 2009. Servier has applied to stay the High Court proceedings pending the outcome of the Commission proceedings. Before deciding on the issue of a stay and the terms of any stay the High Court has sought information from the European Commission pursuant to Article 15 of Regulation 1/2003 on the progress of the Commission’s proceedings. The Commission has been asked to respond by 8 March prior to the matter being relisted on 17 April. The High Court also ordered disclosure of alleged anti-competitive agreements between Servier and a number of generic companies.

Christopher Vajda QC and Philip Woolfe are also acting in another claim for the NHS for damages for abuse of a dominant position in relation to the supply of Gaviscon against Reckitt Benckiser. Last year the OFT fined Reckitt Benckiser £10m over its supply of Gaviscon to the NHS for abusing its dominant market position in the supply of heartburn remedies by restricting competition.  Reckitt withdrew cheaper alternatives as their patents had expired, therefore limiting the choice available to prescribing pharmacists.

Mr Justice Roth today handed down judgment in the latest instalment of the litigation relating to the procurement of new trains by Eurostar International Limited (“Eurostar”). The Claimant and unsuccessful tenderer, ALSTOM Transport, had previously attempted to seek an interim injunction to restrain Eurostar’s decision to  award the contract to Siemens plc, as well as a declaration that the contract was ‘ineffective’ under Regulation 45J of the Utilities Contracts Regulations 2006 (as amended). Having failed in those applications, ALSTOM was left to pursue its claim on the merits that the procurement process carried out by Eurostar constituted a breach of its duties under the Utilities Contracts Regulations, and/or obligations under an implied tender contract.

Those allegations, however, raised a preliminary issue which was the subject of today’s judgement: is Eurostar a ‘utility’ for the purposes of the Utilities Regulations? The High Court has unequivocally ruled that it is not, and therefore ALSTOM can no longer proceed with those aspects of its claim based on Eurostar’s alleged duties as a utility. The decisive feature of the judgment is Roth J’s finding that Eurostar does not operate a network, an essential component of the definition of ‘utility’ under the Regulations, on the grounds that it does not provide or operate railway infrastructure, nor does it provide services pursuant to  relevant  conditions laid down by or under the law.  However, Roth J has also ruled in Eurostar’s favour on a number of other important points, in finding for instance that its services are of a commercial character rather than meeting needs in the ‘general interest’, and that it does not operate on the basis of special or exclusive rights.

The judgment thus  strongly supports Eurostar position in the claim as well as representing an important contribution to the development of procurement law in the utilities context. In terms of its wider significance, the judgment also considers the duty of a national court to disapply provisions of national law that are inconsistent with an EU directive, concluding (again in line with Eurostar’s submissions on the point) that there is no general requirement to do so in claims against private parties.

Michael Bowsher QC and Ewan West (instructed by Burges Salmon LLP) appeared on behalf of Eurostar at the hearing.”    

The Oxford University Law Faculty is holding a special lecture to celebrate the career of Sir Jeremy Lever KCMG, QC, a pioneer of both the practice and academic study of competition law in Europe.

Sir Jeremy’s academic contribution has been both profound and prolific. A Distinguished Fellow and Senior Dean of All Souls College, Oxford University, he was one of the earliest and most consistent advocates of an economically sound approach to competition law.  He established and taught one of the first courses in competition law in the United Kingdom at Oxford University. Publishing The Law of Restrictive Trade Agreements he has contributed to Chitty on Contracts, the gold-standard work on English contract law, was a consultant editor for Bellamy & Child, Common Market Law of Competition and has continued throughout his career to contribute articles to the major academic journals on state aid, vertical restraints, the modernisation of Community competition law and a range of other matters.

In practice, Sir Jeremy’s career has been no less remarkable and innovative. Called to the Bar in 1957, taking silk in 1973, first as a tenant, and later as head, of what is now Monckton Chambers, he led it to become a leading set of the London Bar, specialising in European Law. In the European Courts, he acted in some of the most important competition law and state aid cases from the 1970s to the 2000s, including notably IBM, AM&S Europe, Ford, Tiercé Ladbroke, Cimenteries CBR, British Energy and Scott SA. In the UK courts, he has appeared in an extraordinary range of cases from the Restrictive Practices Court in the 1960s, through ex parte Datafin in the Court of Appeal in 1986, to the House of Lords in a series of cases including Crehan v Intreprenneur Pub Co in 2006.

Sir Jeremy has been described as “the father of competition law” in Britain by Judge David Edwards of the Court of Justice of the European Union and was appointed Knight Commander of St Michael and St George for services to European Law in 2003. He has practised at Monckton Chambers for fifty-five years.