Skating on Thin Ice: The European Commission challenges the governance rules of an international sports association as being incompatible with European antitrust rules

By Peter Alexiadis and Pablo Figueroa[1]

The recent announcement by the European Commission (“the Commission”) that it is actively looking into the compatibility of the disciplinary measures exacted by the International Skating Union (“ISU”) with competition rules reminds us yet again of that there are few elements of modern life that are exempt from the scope of EU competition rules.  The approach being undertaken by the Commission in the ISU case constitutes a logical extension of the recent interest shown by National Competition Authorities within the EU on the compatibility of governance rules of sports organisations with national and EU competition law.[2]

I.                        The Facts

Based in Lausanne, Switzerland, the ISU is the only body recognised by the International Olympic Committee (“IOC”) with the responsibility of administering the sports of ice figure skating and speed skating. In turn, its members are the various national ice-skating associations.

The Commission had initiated proceedings in relation to ISU’s eligibility rules in October 2015 following a complaint by two Dutch professional speed skaters, Mark Tuitert (gold medal winner at the 2010 Winter Olympics) and Niels Kerstholt.[3]

After an extremely short formal investigation of less than a year, the Commission has announced that the rules imposed by the ISU might be in contravention of the EU prohibition on anti-competitive agreements under Article 101 TFEU.[4]

More precisely, the Commission has informed the ISU of its preliminary view that its rules, under which athletes face severe penalties if they participate in speed skating events which have not been authorised by ISU, might infringe EU competition rules. Competition Commissioner Margrethe Vestager has indicated that the Commission’s concerns stem from the belief “that the penalties the ISU imposes on skaters through its eligibility rules are not aimed at preserving high standards in sport but rather serve to maintain the ISU’s control over speed skating. The ISU now has the opportunity to reply to our concerns”.

These accusations are outlined in a Statement of Objections addressed to the ISU, a document which informs the parties concerned of the competition allegations raised against them and which foresees that investigated entities can reply in writing and also request an Oral Hearing.  While the issuance of a Statement of Objections does not prejudge the outcome of the investigation, it is relatively rare that the Commission backs away from its claims.

According to a blog post by the Complainants’ counsel, which includes a twitter exchange between a skate complainant and Commissioner Vestager,[5] the complaint is based on the ISU’s intention to declare skaters as “persona non grata” where they participate in events organised by Icederby International, a private entity.  Moreover, the Complainants contended that the ISU Eligibility Rules rendered ineligible a person skating or officiating in an event not endorsed by ISU and/or its Members (i.e., the individual national associations) from participating in ISU activities and competitions.[6]  According to the Complainant’s counsel, this sanction apparently applies not only to the skaters, but also extends to coaches, trainers, doctors, team attendants, team officials, judges, referees and even volunteers.

By way of rebuttal, the ISU noted in a recent press release that independent organisers can establish international tournaments on the ISU calendar, and that Icederby, an organisation which initiated the complaint that triggered the Commission’s investigation via the two speed skaters in question, recently received ISU authorisation to co-run an event.[7]

The facts of the ISU case are not entirely dissimilar to those of Fédération Internationale de l’Automobile (FIA) in the late 1990s.  In that case, the Commission closed its investigation, apparently after the FIA agreed to refrain from using its regulatory powers in relation to international motor racing in a manner that would mean that competing events were forced out of the market.[8] Continue reading

The Miller judgment: Why the Government should argue that Article 50 is reversible

Prof Phil Syrpissyrpis

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50.

This strong statement of the rights of Parliament ought, in a rational world, to appeal to the instincts of leave supporters. At least part of the point of voting to leave the European Union was to ‘take back control’ from unelected bureaucrats in Brussels, and to return that power to the UK. In the same way as ‘we’ want to have control over the decision-making process in the EU, ‘we’ might also want to have some control over the actions of our (at least arguably, in this instance, also unelected) Government. The High Court’s judgment amounts to the simple assertion that, according to our Constitution, ‘we’ exercise this control via Parliament (and not, for example, via a ‘mandate’ given to the Crown by the result of the referendum (see [105]-[106])). The reaction of many on the leave side – and the Daily Mail deserves a particular mention for Friday’s front page – is a sad indictment of the state of debate in this country.

Unless the Government changes its argument when the decision is appealed (and the hearing is due in early December), the Supreme Court, too, is likely to decide that, according to the UK’s own constitutional requirements, the decision to trigger Article 50 is for Parliament, not the Government. Already, there is fevered speculation surrounding the likely reactions in Government, in the Commons and the Lords, and the devolved assemblies.

And yet, the judgment proceeds on the basis of ‘common ground’ between the parties that ‘a notice under Article 50(2) cannot be withdrawn, once it is given’ [10]. This, it turns out, is significant for the High Court. The reason why the Crown cannot give notice under Article 50, is that domestic law rights will, inexorably, be affected by the decision. In various parts of the judgment, the decision to give notice under Article 50 is treated as equivalent to the decision to withdraw from the EU.

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High Court Brexit judgment: do all roads lead to Luxembourg?

Albert Sanchez Graellsbalanced-scale

This is a lightly edited version of a post that first appeared on the How to Crack a Nut blog. 

The High Court has now issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

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The remarkable Government case in the Art 50 litigation

Prof. Piet Eeckhoutpiet-eeckhout

[This piece was originally posted on the London-Brussels One-Way or Return blog and is re-posted here with kind permission.]

It is now about a week since the hearings concluded in the litigation, before the High Court, on whether the UK Government can trigger Art 50 TEU, or whether instead an Act of Parliament is required. The transcript of the hearing makes for fascinating reading. We will have to see what the judges decide, but I cannot refrain from making the point that the Government’s case is weak. Government lawyers are of course confined in what they can argue, and what not, by what their client, i.e. politics, wants. It seems like the client has not dealt them a good hand. For the Government’s case is built around a set of propositions which are in huge tension with one another. They are:

  • The 2015 Referendum Act, which organised the referendum, did not confer on the Government the power to trigger Art 50. At most, it did not disturb a pre-existing power (the Royal Prerogative).
  • The Art 50 notification cannot be revoked. In the words of Lord Pannick QC, once the bullet has left the gun it will definitely hit the target: exit after 2 years, or at such time as the withdrawal agreement enters into force.
  • The Government can make treaties and withdraw from them. But for there to be effect in domestic law of either the making a treaty, or withdrawing from it, Parliament must be involved. This last proposition is confirmed in the following, fascinating exchange.

“THE LORD CHIEF JUSTICE: I think, sorry, if I understood my Lord’s question, you accept that if the government wanted to amend the treaties or withdraw from them so that effect was given to withdrawal in domestic law, there would have to be an Act of Parliament.

THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: Whether it is amending or withdrawing, it doesn’t make any difference.

         THE ATTORNEY-GENERAL: Yes.

THE LORD CHIEF JUSTICE: I think that was the point. It is the effectiveness in domestic law. There is no difference between amending and withdrawing, you have to have a statute?

THE ATTORNEY-GENERAL: Yes, in order for there to be an effect in domestic law we accept that Parliament’s involvement would be necessary.”

At the end of this exchange the Attorney-General confirms that Parliament’s involvement would be necessary to give domestic effect to Brexit. In other words, the Government could negotiate a withdrawal agreement, but such an agreement could take effect in UK law (much like the conclusion of a new treaty) only if Parliament legislated to such effect. But this is contradicted by proposition (2). That proposition accepts that, once the trigger has been pulled, withdrawal is outside the Government’s control. It will happen, whether the Parliament legislates or not. Crucially, this includes the effect in domestic law. The UK cannot, in its domestic law, keep all extinguished EU membership rights and obligations alive. That is so, quite simply, because at least some of those rights and obligations require membership, and the cooperation of the EU institutions and other Member States. Just one example: UK citizens will no longer be able to vote for the European Parliament, after withdrawal, and it is wholly irrelevant whether the UK Parliament leaves such a right on its statute book or not.

In the Government’s case withdrawal is therefore completely different from the law and practice of negotiating and approving new EU Treaties (or amendments to them) – contrary to what it claims. That law and practice is such that a new Treaty cannot enter into force unless it has been ratified by each member State in accordance with its constitutional requirements (i.e. approved by its parliament): see Art 48 TEU (there is a simplified revision procedure, but even that allows national parliaments to block). The logic is that the EU does not finally agree new rights and obligations until all national parliaments have approved them, and incorporated them into domestic law. So the logic of the prerogative not interfering with domestic legislation is fully respected for the negotiation of new treaties. But for withdrawal the Attorney General effectively argues the reverse: the UK Government can decide on withdrawal, including its inescapable domestic effect, and it doesn’t need Parliament’s approval.

Proposition (1) is relevant because it means that the Government is not arguing that the 2015 Referendum Act conferred a power on it to give effect to a negative referendum result, by triggering Art 50. So Parliament never authorised the triggering, and it cannot, once the bullet has left, undo withdrawal, either at the international plane or at the domestic level.

I cannot see how these three propositions could be reconciled. The most remarkable one, from the perspective of the Government’s case, is the second. If the Government argued that the Brexit bullet can be pulled back to the gun – in other words that the UK Government could always revoke the notification – there would be a much stronger case for the exercise of the prerogative, as many have noted. Parliament could then, at any stage of the negotiations, force the Government to withdraw from withdrawal. But for political reasons the Government doesn’t argue this. The big question looming over the litigation is whether the courts can simply assume that the Art 50 notification is irrevocable, when that point is so critical.

The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

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Meanwhile, in Germany…the OMT ruling of the German Constitutional Court

BVerfGProf Peter Lindseth

This post originally appeared in virtually the same form on the europaeus blog.  Reproduced with kind permission.

With the EU referendum taking place today, it will be easy to overlook the OMT judgment from the German Federal Constitutional Court two days ago (English press release here, full German judgment here).  The conventional wisdom is that the decision is the usual “yes, but…” effort.  There’s some element of truth in that, but it also misses some important dimensions of ruling that will no doubt occupy commentators on Germany’s legal relationship with the EU for some time.  I’m still absorbing the judgment and also awaiting an English translation.  But in the interim, I thought I’d pass on my tweets from yesterday that tried to identify several key paragraphs worthy of deeper analysis. Continue reading

Is the right to vote ‘governed’ by EU Law?

Dr Iyiola Solanke

Voting is a civil right, guaranteed by international instruments for the protection of human rights as well as in primary EU law. Article 10 TEU sets out that elections are central to the democratic life of the Union; Under Article 14 (3) TEU MEPs are to be elected in free and secret ballots for a term of 5 years; under Article 20 TEU, EU citizens enjoy the right to vote and stand in EP elections. This is repeated in Article 39 CFR. In addition, Article 3 of Protocol 1 of the ECHR, protects the ‘free expression of the opinion of the people in the choice of the legislature’.  Given this, is the deprivation of the right to vote under national law compatible with EU law?

The Facts

Mr Delvigne was sentenced in 1988 to 12 years in prison for murder – under the French Criminal Code of 1810 this sentence also attracted loss of the right to vote. In 1992, the Code was updated to enable anybody subjected to deprivation of civil rights to apply for their reinstatement, either wholly or in part. According to French electoral law, any person so deprived of the right to vote was not to be registered on the electoral roll for the period set out in the judgment. Mr Delvigne lost his right to vote not only in national but also in European Parliament elections. He argued that this was a breach of the principle of equality set out in Article 39 CFR – French law stripped him of his rights as a Union citizen. Being unsure as to the answer, the national court referred two questions to the CJ.

A preliminary question in this request for a preliminary ruling was whether the CJ had jurisdiction under Article 51 (1) CFR – was French electoral law implementing EU law? France, Spain and the UK argued that there was no connection thus no CJ jurisdiction. However, Germany, the EP and the Commission disagreed: by adopting national provisions on the right to vote in elections to the EP, France was implementing its obligation under Article 14 (3) TEU. The AG and the Grand Chamber agreed – by ‘performing a specific obligation derived from EU law’ [AG,31] to ‘ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret’ [CJ, 32] France was implementing Union law.

However, the Grand Chamber narrowed its enquiry to Article 39(2) – it held that as Delvigne was a French citizen seeking the right to vote in France, Article 39(1) CFR –  an expression in the Charter of Article 20(2)(b) TFEU – did not apply. Yet as an expression of Article 14 (3) TEU, the CJ was

‘… clear that the deprivation of the right to vote to which Mr Delvigne is subject …represents a limitation of the exercise of the right guaranteed in Article 39(2) of the Charter’ [45]

Although Mr Delvigne won in relation to this principle, he lost upon its application – the Grand Chamber found that the limitation arising from the French Criminal Code respected the ‘essence’ of the right to vote in the Charter, was proportionate and necessary to meet genuine objectives of general interest. The national rule therefore was not precluded by Article 39(2) of the CFR. Continue reading

Si.mobil v European Commission (T-201/11) – ‎Undermining the Effectiveness of EU Competition law?

si.mobilPablo Figueroa and Catherine Derenne[1]

“”That’s very important,” the King said, turning to the jury.  They were just beginning to write this down on their slates, when the White Rabbit interrupted:  “Unimportant, your Majesty means, of course,” he said in a very respectful tone, but frowning and making faces at him as he spoke.

“Unimportant, of course, I meant,” the King hastily said, and went on himself in an undertone, “important—unimportant—unimportant—important—” as if he were trying which word sounded best.”

(L. Carroll:  “Alice in Wonderland”)

According to the Automec case-law (paras. 73 ff), the European Commission has discretion as to how it deals with complaints.  That said, the Court of Justice of the European Union has clearly stated that the Commission’s discretion when rejecting complaints is not “unlimited” (Ufex and Others v. Commission, para. 89).  Regulation 1/2003 awarded to the Commission two additional grounds under which to dismiss cases.  Pursuant to Article 13, the Commission can dispose of complaints where “one authority is dealing with the case” (13(1)) or where a complaint “has already been dealt with by another competition authority” (13(2)).

In late 2014, the General Court has issued a Ruling in the context of the Si.mobil case interpreting the first of these provisions in a way which further enhances the Commission’s “not unlimited” discretion when rejecting complaints (the “Si.mobil Ruling”).  More specifically, the General Court endorsed the Commission’s deference to the National Competition Authorities of the EU Member States (the “NCA”s).  In our view, in doing so, the General Court allowed the Commission to abdicate from its constitutional Role of Guardian of the Treaties and to disregard the effectiveness of the Competition provisions in those Treaties.

Moreover, the Si.mobil Ruling was issued in the context of a broader series of Rulings which further enhance the Commission’s discretion when rejecting complaints (See Alexiadis, P. and Figueroa, P., “Commission Discretion Unchained”, Competition Law Insight, 17 March 2015).  Indeed, the Si.mobil Ruling becomes particularly surprising in the light of a series of unambiguous and repeated statements of the Commission in relation to the institutional failures of certain NCAs.  Note for example the Speech of former Vice-President Almunia in May 2014 where he expressed concerns in relation to the lack of resources and independence of certain NCAs.

The Si.mobil Ruling hinged on the interpretation of Article 13(1) Regulation 1/2003, according to which, “[t]he Commission may […] reject a complaint on the ground that a competition authority of a Member State is dealing with the case”.

On 14 August 2009, Si.mobil telekomunikacijske storitve d.d. filed a complaint before the Commission against Telekom Slovenije d.d. (“TS”), the incumbent mobile operator in Slovenia, for an alleged abuse of TS’ dominant position consisting, inter alia, in margin squeezes and predatory pricing.  On 24 January 2011, the Commission rejected the complaint mainly on the grounds that the Slovenian NCA (the “UVK”) was already dealing with the case.

The Commission’s case rested on the proposition that Article 13 of Regulation 1/2003 should be interpreted in such a manner that the mere fact that an NCA claims to be dealing with a case is sufficient, in and of itself, to enable the Commission not to take the case (Commission Decision Si.mobil / Mobitel, Section 2(1)).  Under the Commission’s interpretation, even in scenarios with an effect on trade between Member States, and thereby meriting the application of the EU Competition rules, as long as such NCA claims to deal with, for example a margin squeeze case, which tends to be resource-intensive to investigate, the Commission is obliged to relinquish jurisdiction.

However, such a proposition involves a dramatic re-assessment of the Commission’s role as regards the exercise of its jurisdiction in relation to subject-matter which falls within the exclusive competence of the Union, and thus has far-reaching implications for the Community’s legal order.  By de facto completely disregarding the general legal principle of “effectiveness” from its decision to assert jurisdiction to apply European law, the Commission undermines the very foundations of the Treaties whose application is entrusted to ensure pursuant to Article 17 of the Treaty on the European Union (the “TEU”). Continue reading

The CJEU’s Response to the German Constitutional Court in ‘Gauweiler’

juropean-justiceProf Herwig Hofmann

This post originally appeared on the europaeus site and is re-produced here with permission.

Do exceptional situations make exceptionally good or exceptionally bad law? This is an old question often asked anew – especially in the context of the post-2008 economic crises travails of the European Economic and Monetary Union (EMU). The legal disputes which resulted from differing opinions about how to solve the crises and also how, incidentally, to improve the EMU’s governance have reached the Court of Justice of the European Union (CJEU). The most prominent case to date is the so-called Gauweiler case, a preliminary reference procedure initiated by the German Constitutional Court, the Bundesverfassungsgericht (BVerfG). I discuss this case in more fully argued working paper available on SSRN, ‘Gauweiler and OMT: Lessons for EU Public Law and the European Economic and Monetary Union‘.

Gauweiler concerns the legality of the decision of the Governing Board of the European Central Bank (ECB) of September 2012 on so called ‘Outright Monetary Transactions’ (OMT). This case is significant for legal integration in the EU since, although it is the first instance in which the German BVerfG has ever taken advantage of the preliminary reference procedure (Article 267 TFEU), the reference by the BVerfG was formulated in very terse words. Essentially, the reference asks for clarification about the legality of the ECB’s OMT decision. But that reference is not formulated in terms of a dialogue between Courts, each respecting the other’s distinctive powers. Instead, the BVerfG explains why it considers the ECB’s decision to be ultra vires of its mandate and asks the CJEU essentially to confirm this interpretation warning about potential consequences in its assessment of the ‘constitutional identity’ of the Federal Republic of Germany. Inherent in the reference is a thinly veiled threat not to accept the exclusive competence of the CJEU to review the legality of EU law and, instead, to unilaterally hold an act of an EU institution to be invalid within a Member State of the EU. The BVerfG reinforced its sceptical position of the primacy of EU law over the law of Member States by recalling in its decision for preliminary reference its case-law concerning the limits it perceives are set for the Federal Republic of Germany’s integration in the European Union. In its decision, it refers to and further interprets the scope of its own case-law making reference inter alia to its judgments concerning the Treaty of Maastricht, the Treaty of Lisbon and in Honeywell, as precedent for its questions to the CJEU. Continue reading

Case comment: the UK Supreme Court’s Rotherham judgment

Brown_K_146174_rtChristopher Brown

(This post originally appeared on the UK Supreme Court blog.)

On 25 February 2015, the Supreme Court handed down its judgments in R (Rotherham Metropolitan BC and Ors) v Secretary of State for Business, Innovation and Skills [2015] UKSC 6. The subject-matter was the allocation of European Structural Funds. Hardly a topic to get the pulse racing, you might think, but the judgments in fact contain important dicta, and differences of view, as to the role of the courts in reviewing decisions concerning one of the core functions of the State, namely the (re-)distribution of money.

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