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Brexit Law Blog: Archive

This blog tracked legal issues arising from Brexit. It ran from the referendum in 2016 to the last post in May of 2021.

Article 50 judicial reviews: hearings fixed and pleadings released

Posted on 30 Sep 2016 by Brick Court

Update on the Article 50 judicial reviews on which we previously reported:

  • The hearings will take place in the High Court on 13 and 17 October 2016.
  • The Attorney General, Jeremy Wright QC MP, will lead the team for the Government.
  • The skeleton argument of one of the Interested Parties (the People’s Challenge Interested Parties) is here.
  • The Government’s grounds of defence are here.
  • Mr Justice Cranston’s order on which pleadings / documents can and should be made public is here.

The UK courts after Brexit

Posted on 26 Sep 2016 by Brick Court

Richard Gordon QC considers two core questions which will need to be addressed by the UK courts in their treatment of “EU law” that is preserved after Brexit: (i) the legal status of that law; and (ii) the extent to which the common law may be reshaped by the experience of EU membership.

Please click here to view the article which was first published in Butterworths Journal of International Banking and Financial Law.

 

Competition law damages actions in England for violation of Articles 101 and 102 after Brexit: Part 3

Posted on 26 Sep 2016 by Brick Court

Daniel Jowell QC

(3) Commission decisions

Many current actions for damages for breach of Articles 101 and 102 rely, in whole or in part, on decisions of the European Commission that establish an infringement of those provisions by the addressees. These decisions are currently binding on the English courts.

It is tempting to suppose that, after Brexit, this will no longer be so.  It is correct, in this regard, that, unless other provision is made by Parliament, the English courts will cease to be bound by Regulation 1/2003 (the Modernisation Regulation) and by the ‘duty of sincere cooperation’ with EU institutions.  However, such a view overlooks the existence of section 58A of the Competition Act 1998. 

Section 58A provides that “infringement decisions” (which include a decision of the European Commission “that the prohibition in Article 101(1) or the prohibition in Article 102 has been infringed”), once they become final, are binding before the High Court (as well as in actions for damages and in collective proceedings before Competition Appeal Tribunal).  Commission Decisions become final when the time for appealing against that decision to the European Court expires without an appeal having been brought or when an appeal to the European Court has concluded.

Since s58A is part of Statute (and not merely an EU regulation) it follows that, regardless of U.K.’s withdrawal from the EU, the English High Court and Competition Appeal Tribunal will continue to be bound by that statutory provision even after the U.K. leaves the EU.

It is possible, of course, that Parliament will choose expressly to repeal s58A as part of the legislation relating to the implementation of Brexit.  This might be on the ground that it would be inappropriate, after choosing to leave the EU, for the English courts to continue to be bound by any measures of the European Commission – even in matters relating to the application of EU law to conduct implemented in the EU (and not the U.K.).[1]

However, it is not obvious what practical purpose would be served by such a repeal.  After all, if s58A were repealed the effect would not be to liberate the addressees of Commission decisions from the binding effect of those decisions (or their consequences in follow on damages actions).[2] Rather, the effect would be to encourage claims based upon those Commission decisions to be brought in Member States of the EU (where they would clearly continue to be binding) rather than in the U.K. It is unlikely to be to the advantage of UK businesses, whether they be claimants or defendants in such actions, to be forced to litigate such claims in the courts of EU Member States rather than in this jurisdiction.

[1] If the provision were to be repealed, Claimants would still be able to target with some confidence those defendants that had made admissions of liability to the Commission in the context of seeking immunity or leniency.

[2] It might be that defendants would not be liberated even if claims were brought in the English courts if it transpires that the binding effect of Commission decisions is (via Regulation 1/2003 and the Damages Directive) to be properly regarded as part of the applicable substantive (as opposed to procedural) foreign law.

Competition law damages actions in England for violation of Articles 101 and 102 after Brexit: Part 2

Posted on 26 Sep 2016 by Brick Court

Daniel Jowell QC

(2) Jurisdiction

The previous blogpost in this series considered whether a claimant that wishes to bring an action for damages for violation of Article 101 or 102 in the U.K. courts after Brexit will have a valid cause of action.  Assuming there is such a valid cause of action (a foreign tort), a claimant will still need to establish jurisdiction.  If the defendant is based in the U.K. then establishing jurisdiction will not be difficult, but in many cases a claimant will also wish to sue defendants domiciled elsewhere.

At present, our jurisdiction rules are governed by the Recast Brussels Regulation. A previous blogpost has argued that, after Brexit, the U.K. will, by virtue of Section 2(1) of the Civil Jurisdiction and Judgments Act 1982, fall back on the old Brussels Convention of which we are (and will be) still a contracting state.  Whether we are ultimately governed by the old Brussels Convention, or Parliament continues to apply the Recast Brussels Regulation or we join the Lugano Convention, all sets of rules potentially permit joinder of EU defendants to an anchor defendant domiciled in a contracting state. In particular, this is permitted where the claims against an (English) anchor and the other proposed defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.  In such circumstances, the English courts have no discretion to decline jurisdiction.[1]

The English courts have taken a generous approach to pleadings against English anchor defendants – permitting claims alleging secret infringements of competition law to proceed even in the absence of any direct evidence that the company in question was involved in the infringement[2]. It will, however, still be essential for a claimant to find an English defendant that may have been involved in the infringement of EU law on the Continent.  A defendant that merely sold cartelised goods in the U.K. might not suffice, unless that defendant was also arguably a participant in the cartel insofar as it was implemented or directly affected the EU (ex U.K.).

Furthermore, a company with its registered office in England might also be able to sue EU defendants in England for all of its loss arising from a cartel (apparently regardless of where it initially purchased the cartelised goods or services) under Article 5(3) of the Brussels Convention (now 7(2) of the Recast Regulation).[3]

Claims against foreign defendants that are not domiciled in the EU or EEA will not be governed by the Brussels Convention (or the Lugano or Recast Brussels Regulation).  Instead, a claimant against non-EU defendants will have to satisfy the requirements of the C.P.R. and common law and show the following:

  1. There is a real issue between the Claimants and an anchor defendant under Article 101 or 102 which it is reasonable for the Court to try and that the non EEA defendant is a necessary or proper party to that claim: CPR 6.37(1)(a), 6.37(2), and PD 6B paragraph 3.1(3).
  2. That the claim against the non EEA Defendant has a reasonable prospect of success: CPR 6.37(1)(b).
  3. That England is the proper place for the Claimants to bring the claim: CPR 6.37(3).

The applicable principles in applying the first condition were summarised by Lord Collins in Nilon Limited v Royal Westminster Investments SA and others [2015] UKPC 2 at [15].  It is important to note that, unlike with the Brussels Convention and Recast Brussels Regulation, the English court does have a ‘discretion’ to decline jurisdiction on ‘forum non conveniens’ or similar grounds: see, for example  Erste Group Bank AG London Branch v J ‘VMZ Red October’ & Ors [2015] EWCA Civ 379.  The courts may be more willing to exercise this discretion in relation to claims under Article 101 and 102 that will, after Brexit, be claims under foreign law.

[1] See Owusu v Jackson [2005] ECR I-1383.

[2] KME Yorkshire Ltd v Toshiba Carrier UK Ltd [2012] EWCA Civ 1190 at [38].  See also Sainsbury’s Supermarkets Ltd v Mastercard Inc [2016] CAT 11 at [363(7)]

[3] Case C-352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA at [51] – [56]

Competition law damages actions in England for violation of Articles 101 and 102 after Brexit: Part 1 [1]

Posted on 23 Sep 2016 by Brick Court

Daniel Jowell QC

If there is a ‘hard Brexit’[2], will it still be possible to bring actions before the U.K. courts seeking damages for breaches of Articles 101 or 102?

As recent cases[3] have reminded us, competition law, including EU and domestic competition law, is territorial in nature.  Following a hard Brexit, Articles 101 and 102 TFEU will no longer apply in the territory of the U.K. and EU law will no longer be a part of our law.  Articles 101 and 102 would continue to apply only if and insofar as the infringing conduct is implemented in (or, arguably, has immediate, foreseeable and substantial effects in) the remaining EU Member States and has an effect on trade within those States.  If and insofar as the conduct amounting to an infringement of competition law is implemented only within the U.K. then just the Chapter I and Chapter II prohibitions of the Competition Act 1998 should apply to such conduct.  The territorial ambit of competition law will therefore respect our border.

But the activities of those infringing competition law is unlikely to do so. Many cartels (and conduct constituting abuses of dominance) will continue to operate across the U.K. as well as on the Continent.  Moreover, some companies based in the U.K. doubtless will continue to infringe EU competition law by their activities on the Continent and victims will suffer loss and damage from anti-competitive conduct that spans the U.K. and some or all of the remaining EU Member States.   In such circumstances, many claimants will understandably wish to bring all of their claims for damages arising out of a single cartel (or similar infringement) in a single jurisdiction – and that most favoured single jurisdiction may well remain the United Kingdom.

If a potential claimant wishes, after Brexit, to bring its claims for a cartel implemented (wholly or in part) on the European continent before the U.K. courts it will, amongst other things, typically wish to consider three fundamental factors: (1) whether the English courts will recognise a justiciable cause of action based on Articles 101 or 102 TFEU; (2) whether it can establish English jurisdiction for such a claim and (3) whether it can rely upon the binding effect of any European Commission decision. I deal with the first of these factors below. Two further blog posts will address the second and third factors.

  1. Establishing a cause of action: a foreign statutory tort

At the present time, our choice of law rules for competition law claims are governed by the Rome II Regulation (Regulation (EC) No 864/2007). Article 6(3) of the Rome II Regulation provides for specific rules for the applicable law to competition law claims and expressly contemplates the application of competition law other than the law of the forum (i.e. the application in the U.K. of foreign competition laws). However, as a previous blogpost has observed, after Brexit, unless other provision is made by Parliament, our choice of law rules for non-contractual claims will cease to be governed by the Rome II Regulation and will revert to the rules embodied in the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”).

An alleged tort consisting of an infringement of competition law will, under the 1995 Act,  in summary and so far as likely to be relevant, be governed by the law where the significant elements of the tort occurred: s11(2)(c) of the 1995 Act. In the case of a competition infringement this is likely to be where the immediate damage was suffered (which will typically be where the goods or services in question were purchased by the claimant at an inflated price[4]).  It follows that if and insofar as the damage is suffered in one or more of the remaining Member States, the tort in question will be governed by the foreign law of that Member State.  As continuing members of the EU, the law of those Member States will (by reason of the doctrine of direct effect) incorporate Article 101 and 102 TFEU.

Will the English courts entertain actions based upon the law of remaining Member States incorporating (as they do) EU competition law?

The mere fact that the claim is based on a foreign tort is itself no obstacle.  It has long been established that actions can be brought in the English courts based upon torts governed by foreign, and not English, law. Claims based on foreign torts are fairly common place in commercial litigation in the Commercial Court in London.  What is more, since the 1995 Act itself abolished the ‘double actionability rule’, the mere fact that EU competition law is territorial in nature should itself be no bar to its enforcement here in respect of conduct implemented within the EU (ex UK).

Nor does it matter that the foreign tort is quasi-statutory in nature.  As Dicey & Morris put it in the Fourteenth Edition (2006)of the Conflict of Laws (the edition preceding the introduction of the Rome II Convention)  at 35-033: “There is no reason in principle why an English court should not give effect to [foreign] statutory liabilities as exist in the applicable law of the tort…”.   In accordance with this, the UK Supreme Court has held that, in accordance with what was called the “modern trend”, there was no impediment in principle to the enforcement in the UK courts of claims for damages for infringement of a foreign copyright.[5] If a claim based on foreign copyright can be brought here, a claim based on foreign competition law (including Articles 101 and 102) seems promising.

However, Dicey & Morris go on to note (in the same section) that such foreign statutory liabilities will only be given effect “…provided such liabilities are properly characterised as sounding in tort and no questions of extra-territoriality, public policy or non-enforceability of penal or public law arise”.  Do any of these provisos arise?

As to the first, a claim under Article 101 and 102 has long been characterised in English law as a claim sounding in tort.  There is no obvious reason why a foreign competition law would not be similarly classified.

As regards questions of ‘extra-territoriality’, as noted above EU competition law respects the principle of territoriality.  EU competition law should apply only to conduct implemented (or having a substantial, foreseeable and immediate effect) on the territory of the EU.

As regards “public policy” generally, there seems to be little reason to suppose that the private enforcement in England of the competition laws of EU Member States (including EU competition law) would contradict any aspect of English public policy.  There is no good reason to suppose that applying EU competition law would be any more objectionable than applying any other foreign competition law. If anything, as our own Competition Act 1998 has been modelled on EU competition law, there is good reason to suppose that it should be less objectionable. Insofar as there is some specific instance of the application of EU competition law were to be seen as objectionable, there is statutory power for the UK government to take appropriate steps under the provisions of the Protection of Trading Interests Act s.5.

This leaves the common law rule against the enforcement in the U.K. of foreign “penal” or “public” laws, which has been expressly preserved by s.14(3)(a)(ii) of the 1995 Act.

It is likely that procedures for the imposition of a fine by the European Commission for violation of Article 101 or 102 is penal in nature, at least by the standards of the European Court of Human Rights[6].  However, it is more difficult to argue that private actions in the national courts for compensatory damages for infringement of EU competition law could properly be characterised as such.  (Such an argument would be stronger in relation to private law actions for damages for violation of foreign competition laws based on criminal statutes, such as the Sherman Act of the United States[7]).

The ambit of claims to enforce foreign “public law” has long been uncertain but was apparently regarded by the (pre Rome II) 14th Edn (2006) of Dicey & Morris at s5-33 as including “anti-trust legislation”.  However, more recent authority is to the effect that such “public law” claims are confined to those that involve the assertion of a sovereign right or seek to enforce a (foreign) governmental interest (such as a foreign exchange control provisions)[8]. It remains an open question whether (absent Rome II) foreign competition law claims would today be regarded as enforcing a foreign ‘governmental interest’ in any relevant sense.

[1] I am grateful for comments on a previous draft of this Blogpost from Robert O’Donoghue, Daniel Piccinin and David Bailey and for discussions with Anneli Howard. The opinions expressed, and any errors, remain my own.

[2] By ‘hard-Brexit’ I mean a withdrawal from both the EU and the EEA with no other agreement relevant to competition law.

[3] Iiyama Benelux BV & Ors v Schott AG & Ors [2016] EWHC 1207 (Ch);  Iiyama (UK) Ld ) & Ors v Samsung Electronics Co Ltd & Ors [2016] EWHC 1980 (Ch)

[4] See Iiyama (UK) Ld ) & Ors v Samsung Electronics Co Ltd & Ors [2016] EWHC 1980 (Ch)

[5] Lucasfilm Ltd v Ainsworth [2011] UKSC 39 at [105] – [109].

[6] Appn 43509/08 Menarini Diagnostics v Italy, judgment of ECHR of 27 September 2011 and Opinion of Advocate General Sharpston in Case C-272/09P KME Germany at [61] – [64].

[7] Dicey & Morris, The Conflict of Laws (14th Edn) at s35-119. Such a claim based on the Sherman Act would, in any event, likely be precluded by the fact that such claims can only be pursued in a U.S. District Court: see British Airways Board and British Caledonian Airways Limited v Laker Airways Limited [1983] E.C.C. 503 at [13].

[8] Iran v Barakat Galleries [2007] EWCA Civ 1374 at [125] – [128].

Parliamentary inquiries into legal implications of Brexit

Posted on 19 Sep 2016 by Brick Court

A number of Parliamentary committees have opened inquiries into legal issues arising from Brexit:

The Foreign Affairs Committee of the House of Commons is conducting an inquiry into the following legal issues:

  • Whether all directly applicable regulations that currently apply to the UK can be transposed into UK law in a single Act of Parliament.
  • On what terms will the UK and EU trade at the end of the 2-year negotiating period mandated by Article 50 of the TEU if no deal has been agreed between the UK and EU on the terms of Brexit, and/or on the future relationship between the UK and EU.

The Joint Committee on Human Rights has launched an inquiry in to the human rights implications of Brexit, including for:

  • the protection of private and family life for EU nationals currently living in the UK and UK nationals in other member states.
  • human rights clauses in trade details.
  • EU law rights including labour rights, disability rights, rights to freedom from discrimination.

The House of Lords Select Committee on the Constitution has published a report on Article 50 (on 13 September 2016) which comments on whether an Article 50 can be made without Parliament and whether it can be unilaterally withdrawn by the UK.  The report concludes that Parliament should assume that it cannot be withdrawn, and that:

“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval – particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament… In our representative democracy, it is constitutionally appropriate that Parliament should take the decision to act following the referendum.  This means that Parliament should play a central role in the decision to trigger the Article 50 process, in the subsequent negotiation process, and in approving or otherwise the final terms under which the UK leaves the EU.”

See also the report of the House of Lords Select Committee on the EU’s reports on the process of withdrawing from the EU and on the role of Parliament.

 

Discussions of Brexit on the BBC

Posted on 16 Sep 2016 by Brick Court

On Tuesday 13 September Richard Gordon QC and Bernard Jenkin MP were interviewed by Ellie Price on Daily Politics about how to untangle more than 40 years of entwined British and European law:  Watch here

On Wednesday 14 September Richard Gordon QC took part in Unreliable Evidence  in a panel discussion moderated by Clive Anderson (including Lord Falconer) about how EU law has become woven into the fabric of our lives, and whether, on the day that Britain leaves the EU, all that law cease to apply.  In the absence of EU law guaranteeing free movement of labour, what will happen to EU citizens working in the UK and UK citizens working and living around Europe?  Listen here

General Court challenge to EU institutions’ Brexit discussion ban

Posted on 16 Sep 2016 by Brick Court

David Heaton

French campaign group Fair Deal for Expats has brought a challenge in the EU General Court to Commission President Jean-Claude Junker’s “presidential order” preventing Brexit negotiations with the UK until the UK has triggered TEU Article 50.

Mr Junker foreshadowed such an order shortly after the UK referendum result, and stated on 28 June 2016 that he had “forbidden Commissioners from holding discussions with representatives from the British government — by presidential order” and “told all the directors-general that there cannot be any prior discussions with British representatives”.

According to the Fair Deal for Expats website, the challenge is being brought under TFEU Article 263.  Its grounds include that the order contravenes the principle of sincere cooperation, has no proper basis and discriminates against UK citizens (who remain EU citizens).

One issue might be whether the claimant has standing to bring this challenge.  Under TFEU Article 263, a natural or legal person may challenge the legality of acts of the Commission where the act is “addressed to that person” or “a regulatory act which is of direct concern to them and does not entail implementing measures” (which do not appear to be the case), or where the act is “of direct and individual concern to” the person.  The CJEU’s case-law on what is required for direct and individual concern is restrictive.  In Case C-50/00 Unión de Pequeños Agricultores v Council [36], the CJEU reasserted that, for a person to be directly and individually concerned, a measure must affect “specific natural or legal persons by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee”.  It did so despite an Advocate-General’s opinion urging a widening of the test.  The application of this case-law to the present challenge, which appears to focus on the effect of the “presidential order” upon UK citizens, may be contested.

Brexit and the UK Constitution

Posted on 05 Sep 2016 by Brick Court

Professor Derrick Wyatt QC argued at the Brick Court debate on 21 July that the UK constitution should evolve to allow parliamentary scrutiny of the Brexit negotiations.  He will speak on this issue to the House of Lords EU Committee on 6 September.  Further details may be found here.

Brussels Seminar on Brexit: UK’s Constitutional Aspects of Article 50 — 6 September 2016

Posted on 05 Sep 2016 by Brick Court

tabc-logo

Brick Court Chambers invites you to a seminar on

Brexit: UK’s Constitutional Aspects of Article 50

Tuesday, 6 September 2016
15:00 – 16:30 CET
9:00 – 10:30am EST

Location:
Siemens AG, Avenue des Arts 20, 1000 Brussels, Belgium

Following the Brexit referendum result, this Trans-Atlantic Business Council seminar will examine the UK dimension of Article 50 of the Treaty on European Union. Richard Gordon QC of Brick Court Chambers will make a presentation on the constitutional aspects of triggering the Article 50 process in the UK: Prime Minister or Parliament? Alastair Sutton of Brick Court Chambers will add a short section on the trade policy aspects of Brexit. These presentations will be followed by a Q&A where their colleague Robert O’Donoghue will contribute in response to any questions on related competition or regulatory matters.

Attendees may join the meeting on-site in Brussels or participate via conference call.