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

Leading Competition law set Monckton Chambers has formally launched a Merger Control Group, offering the full range of merger control services to its client base.

As one of the leading commercial sets at the Bar to host a stellar cast of competition law practitioners, Monckton Chambers has always been a first port of call for many city solicitors seeking merger control advice and, where necessary, representation before specialist courts and tribunals.

The recent addition of Alistair Lindsay, who joined the 50 strong set last October from Allen & Overy where he was a Partner for seven years, has considerably strengthened the set’s merger control capabilities. Lindsay comments as follows

“We’re now offering a full merger control service, including dealing with any appeals and managing multi-jurisdictional filings.”

The new service will be targeted to an array of clients including full service law firms but particularly to city and international law firms without a dedicated merger control team in London as well as to General Counsel who can instruct the Bar directly. The set’s Senior Clerk, David Hockney, comments:

“This is new territory for the Bar and reflects the fact that sets now need to think of alternative ways to attract work particularly in light of the forthcoming Legal Services Act.  We’re selling an end-to-end service from market-leading practitioners at competitive rates: it’s very compelling.”

The set’s Head of Chambers, Paul Lasok QC commented:

“There’s not many big-ticket deals at the moment because of financing issues and market volatility; but often it’s the smaller transactions that raise the most difficult merger control issues and the current uncertainties about growth and public spending are likely to encourage these.”

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George Peretz
Alistair Lindsay
Ben Rayment

Melanie Hall QC addressed the London Branch of the Chartered Institute of Taxation (ICOT) on Tuesday 29 June speaking on where to draw the line between legitimate planning and abuse.  Her talk included an update on Halifax following the recent hearing at the Court of Justice for the European Union of Weald Leasing.

The CIOT has a strong committee structure which carries out original work on such subjects as the study of tax legislation, international relations in the taxation field and tax training.

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Melanie Hall QC

Case C-58/08 – Vodafone and others

This reference was made in proceedings between Vodafone, O2 Europe, T-Mobile, Orange and the Secretary of State for Business, Enterprise and Regulatory Reform concerning the validity of provisions for the implementation of Regulation No 717/2007 adopted by the UK and Northern Ireland relating to the prices payable by users of public mobile telephone networks for retail roaming services,

The regulation lays down maximum charges that mobile phone operators may charge for calls made and received by users outside their own network.  The regulation also imposes a ceiling for wholesale roaming charges – the price paid by the consumer’s network to the foreign network which that consumer uses.

The leading European mobile telephone operators challenged the validity of the regulation before the High Court.  The High Court asked the Court of Justice whether the Community was entitled to adopt the regulation on the basis of Article 95 EC which permits the community to adopt legislative measures in order to approximate the laws of the Member States in cases of disparity or potential disparity capable of obstructing the establishment and functioning of the internal market, and whether, by setting the maximum retail price, the Community legislature had infringed the principles of subsidiarity and/or proportionality.

The Court found that the object of the regulation is to improve the conditions for the functioning of the internal market and that it could be adopted on the basis of Article 95 EC.

With regards the proportionality of the regulation in so far as it does not only lay down ceilings for wholesale charges but also for retail charges, the Court found that maximum retail charges could be considered to be appropriate and necessary for the purpose of protecting consumers against high levels of charges.

The Court examined the regulation in the light of the principle of subsidiarity, according to which the Community may not act unless the Member States are not in a position to achieve the same goal adequately.  The Court concluded that, give the interdependence of retail and wholesale charges, the community legislature could legitimately take the view that a common approach at Community level was necessary to ensure the smooth functioning of the internal market, thus allowing operators to act within a single coherent regulatory framework.

Jon Turner QC and Tim Ward represented the United Kingdom

Ronit Kreisberger represented Vodafone

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Jon Turner QC
Tim Ward QC
Ronit Kreisberger

A transatlantic coalition of environmental groups was today given permission to intervene in an action at the High Court to defend Europe’s right to tackle carbon emissions from aircraft that fly into and out of Europe.

The coalition, consisting of three US-based organisations, the Environmental Defense Fund, Earthjustice, and the Center for Biological Diversity, as well as WWF-UK, Transport & Environment, and the Aviation Environment Federation in Europe, is intervening in a Judicial Review being sought by several US airlines – United, Continental and American – and their trade association, the Air Transport Association of America (ATA).

The airlines allege that the extension of the EU Emissions Trading Scheme (ETS) to cover emissions from aviation activities is incompatible with international law.  In particular, they allege it is incompatible with the EU-US open skies agreement, the Kyoto Protocol, the Chicago Convention on International Civil Aviation 1994, and customary international law.

The environmental groups, together with the Secretary of State for Climate Change, oppose that case.

The matter will shortly be referred to the Court of Justice of the European Union.

The environmental groups are represented by Jon Turner QC, Kassie Smith, and Laura Elizabeth John.

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Jon Turner QC
Kassie Smith QC
Laura Elizabeth John

NEIL HERRON PARKING APPEALS LIMITED v THE PARKING ADJUDICATOR and SUNDERLAND CITY COUNCIL (1) PARKING AND TRAFFIC APPEALS SERVICE (2) TRAFFIC PENALTY TRIBUNAL (3) NCP SERVICES LIMITED (4) SECRETARY OF STATE FOR TRANSPORT (5) (as Interested Parties)

Mr Justice Bean

[2010] EWHC 1161 (Admin)

The Administrative Court today rejected a widely-publicised challenge brought by motoring campaigners who sought judicial review of the decisions of the Parking Adjudicator. At an earlier hearing, Keith J had dismissed a challenge to the independence of the parking adjudication system under Article 6 of the European Convention on Human Rights. They also sought a declaration that a Sunderland city-wide Controlled Parking Zone (“CPZ”) does not comply with Regulation 4 and Direction 25 of the Traffic Signs Regulations and General Directions 2002 and that all single yellow line waiting restrictions contained within it are unenforceable.

The judgment of Mr Justice Bean distinguishes a series of cases dealing with defects in “signs and lines” (traffic signs and carriageway markings). The Judge expressly approved the approach developed by the Parking Adjudicator in its case law dealing with challenges to defects in signs and lines, which held that where the defect was in a different location from the one where the motorist had parked it could be treated as immaterial. The Judge stated, “Any non-compliance is immaterial if it is too far from the location of the particular motorist’s contravention to have led him or her into error.”

Dealing with the principle of statutory interpretation that penal statutes are to be construed strictly, the Judge observed that a statutory provision which permits the issue of a penalty charge notice must be construed strictly, in the sense that where there is a genuine ambiguity in the language used the motorist is entitled to the benefit of the doubt in interpreting it. But that does not mean that it has to be construed so literally as to produce an absurd result.

The statutory definition of a CPZ was held to mean that every part of every road in a CPZ, other than a parking bay, must be marked with a single or double yellow line, except where an alternative parking prohibition is marked out (such as that imposed by the zig-zags on the approach to a pedestrian crossing).

The Judge concluded that Mr Herron’s argument was “entirely based on technicality and utterly devoid of merit”, the Parking Adjudicator had not erred in law and the challenges to 54 penalty charge notices were rightly rejected.

Ian Rogers appeared throughout the proceedings for the Parking Adjudicator, instructed by the Traffic Penalty Tribunal.

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Ian Rogers

A nine-strong Monckton Chambers team competed in the Oxford Town and Gown 10k Race last Sunday to raise funds for the Muscular Dystrophy Campaign.  Monckton Man of the Race was Alistair Lindsay who came 11th out of a field of over 3000.

A nine-strong Monckton Chambers team competed in the Oxford Town and Gown 10k Race last Sunday to raise funds for the Muscular Dystrophy Campaign.  Monckton Man of the Race was Alistair Lindsay who came 11th out of a field of over 3000.

Monckton Chambers have been shortlisted as ‘Chambers of the Year’ at The Lawyer Awards 2010.

This year’s awards ceremony will be held at Grosvenor House, Park Lane London on 22 June.