Hugh mercer qc - Essex Court Chambers

HUGH MERCER QCBorn 1962Essex Court Chambers24 Lincoln’s Inn FieldsLondon WC2A 3EG United KingdomCorbeel, Association d’AvocatsPlace des Peintres 91348 Brussels-LLN, BelgiumTel: +44 (0) 20 7813 8000Fax: +44 (0) 20 7813 8080Email: hmercer@essexcourt.netTel: +32 (0) 10 45 7373Fax: +32 (0) 10 45 7363Practice Administrative and Public Law Arbitration Commercial Litigation Conflict of Laws European LawEU (all areas ranging from free movement of goods orcompanies to public procurement; customs to competition;application of regulations and directives in areas fromcommercial to criminal law), EU Agriculture & Fisheries, EUSanctions & Restrictive Measures (challenging listings innational & EU courts, damages claims, EU blocking measuresunder Reg 2271/96).Competition & state aid (especially in relation to shipping andtransport, retailing/distribution, utilities) with regulatory work inWater, Gas, Telecoms, OFT/European Commission, FinancialServices and damages claims arising for example out of thevitamins and air cargo cartels.Public law, ECHR (including coroners, agriculture, tax),Environment, Health (including medicines regulation, food safetyand issues arising from overseas provision).Conflict of laws, Rome Convention, Brussels Convention andEU Regulation 44/2001, Foreign law, International law.Arbitration both as counsel and as arbitrator includingappointments as sole arbitrator in cases which have proceededto final awards. Member of Tier 1 and Tier 2 Panels ofArbitrators for Lloyd’s of London Arbitration Scheme.Career 2012- Bencher of Middle Temple2010- Chairman of the CCBE Permanent Delegation to theCourt of Justice and General Court of the European Union (liaisoncommittee between all EU lawyers and the ECJ)2008 Appointed Queen’s Counsel2005-8 Junior Counsel to the Crown (A Panel)1988-9 Tutor, London School of Economics1985 Called at Middle TempleEducation 1986 Licence spéciale en droit européen, Université Libre deBruxelles1984 MA, Downing College, University of CambridgeLanguagesStrong languages - French, German, Italian, Spanish – hasHugh Mercer Page 1 of 11

worked on cases in all four languages and presented argumentin French.MemberSelectedPublicationsAgricultural Law AssociationBar European GroupBar Pro Bono UnitBritish Institute of International and Comparative LawBritish-Italian Law AssociationCCBE (Chairman of CCBE Permanent Delegation toLuxembourg and Member of UK Delegation)Commercial Bar Association (COMBAR)European Circuit (joint founder)International Committee of the Bar CouncilMember of Legal Experts Advisory Panel, Fair TrialsInternationalAuthor of chapter on Applicable Law in Cross-Border EUCompetition Law Actions, Danov, Becker & Beaumont, Hart,2012Co-author (with Antoine Winckler of Cleary Gottlieb) of Lacertitude juridique et l’astreinte en matière de concurrence, inPanorama du droit européen de la concurrence en homage àDominique Voillemot, Délégation des Barreaux de France, July2011Author of chapter on European Union Law in Judicial Review,Supperstone, Goudie & Walker (4 th edn, 2010)Co-author (with Alexander Layton QC) European Civil Practice(July 2004) Sweet & Maxwell, a major commentary on theBrussel’s Convention and EU Regulation 44/2001 which drawson EU case law and on the case law of the national courts of EUmember states.Formerly co-editor, The European Advocate, quarterly journal ofthe Bar European Group which covers issues of EC law,Brussels Convention and Human Rights law for advocates.Commercial Debt in Europe: Recovery and Remedies, Guy andMercer, Longman (1991); Comparative survey of Mareva andsummary judgment procedures in national courts of MemberStates of EU.Various articles including as co-author ‘Language as a Barrier toTrade: The Loi Toubon’ [1996] ECLR 308, submissions of theEnglish Bar to the European Commission in respect of variouslegislative proposalsLectures / SeminarsFrequently participates as speaker in seminars both in Englandand abroad involving subjects of a European or contractualnature including in the recent past:The Challenges facing the European Court of Justice (Vienna)The Lisbon Treaty for LitigatorsEU Law for Recorders, Judicial Studies Board, 2012EU Taking of Evidence Regulation and Service Regulation (IBA)Hugh Mercer Page 2 of 11

Using EC Law creatively in the Media SectorIssues of EC law in Unfair Contract Terms (Office of FairTrading)Cultural Impediments to Free Movement of Goods and Services(Bar European Group, Vienna Conference)Public International Law and EC Law (University of Salamanca,Spain - in Spanish)EC Law and National Remedies (Associazione di Giuristi Italo-Britannica, Padua)Sanctions and Penalties in EC Agricultural Law (Agricultural LawAssociation)Single payment scheme and Member State freedom to takeagri-environmental measures (Burgos)Specific AreasAdministrative & Public LawHas been a regular litigant for and against Government entitiesfor over ten years, generally in cases which raise EU issues butalso in cases with Human Rights or regulatory law. Experiencedin the application of public law applied to coroners inquests andalso in relation to a diverse range of regulatory panels andprocedures.Agriculture & FisheriesVery experienced litigator on all public law issues affectingagriculture. Has worked with the NFU for many years dealingwith a vast range of cases involving interpretation of theCommon Agricultural Policy and now the Single PaymentRegime. Also advises and represents French farming unionsbefore the French courts and the European Commission. He isinstructed by the Azores in their judicial review of an EUFisheries Regulation which adversely affects the marineenvironment of the Azores and recently had a striking successbefore the Supreme Court in overturning a Court of Appealdecision in the fisheries sector.Group or Class actionsHas been involved in litigation involving multiple damagesclaims based on Francovich arising from the failure ofGovernment to implement EU directives in the field of insurance,financial services, tax and also in both stand alone and follow-onactions for damages arising from cartels for example in thevitamins cartel and the air cargo cartel.Commercial AgencyHas had a steady stream of commercial agency casesconcerning applicability of the regulations and levels ofHugh Mercer Page 3 of 11

quantum. Particularly experienced in cases where foreign lawbecomes an issue.Commercial Arbitration/LitigationExperienced litigator and regularly acts as counsel in arbitraltribunals, often where EU, competition or foreign law issues areraised including recently leading a team of Greek, Swiss andEnglish counsel in an ICC arbitration in Geneva and arbitratingcompetition law issues. In appropriate circumstances will alsolitigate/arbitrate in French, German, Spanish and Italian.Competition LawBroad range of competition and state aid law experience acrossa very wide range of industries from electronics and IT (currentlysupporting Microsoft in the General Court of the EU) to vitamins;specialist chemicals and oil derivatives to materials for theconstruction industry; supermarkets to cigarettes &beer/alcoholic drinks. Also was the primary competition lawyerfor the successful defendants in the Arkin shipping competitioncase in the English commercial court based on predatory pricingand has particular experience in transport related issues havingsuccessfully fought off challenges to shipping pools oncompetition grounds. See also Group actions, above.Conflict of LawsVery experienced conflicts lawyer on all conflicts issues fromjurisdiction to applicable law, taking evidence and foreign law,often as specialist counsel in a broader team. Co-author of oneof the major conflict of laws textbooks (Layton & Mercer) on theBrussels Convention and Regulation 44/2001 with particularresponsibility for incorporating citation of decisions from thenational courts of most EU member states.CustomsHas regularly handled issues arising out of EU customs law fromissues of community origin to export refunds and extending toissues arising from quotas for goods from non-EU states andapplicability of excise duty regime including judicial reviewsarising therefrom together with restitution and damages issues.EnergyFrequently advises and represents in this area covering a rangeof issues from competition to regulatory work (includingsuccessfully overturning a sectoral regulator’s pricing decisionbefore the Competition Commission and making interimapplication for redetermination of regulated price); commercialagency and utilities procurement issues.EnvironmentCovers a range of environmental issues arising in farming andfisheries contexts such as the application of the precautionaryprinciple to the ecosystem of the mid-Atlantic ridge (for theGovernment of the Azores) but is also involved in judicial reviewHugh Mercer Page 4 of 11

of EU directives in the field of the environment, in particularwhere there is an interface with the farming community. Hashad regular involvement with climate change issues, both underEU and UK law (including an appeal under the UK CRCScheme)EUCovers the full range of EU law areas with special expertise inagriculture, competition, state aid and free movement of goodsor services as well as free establishment of companies in the EUbut extends across into EU law as it affects all areas fromtachographs to extradition treaties. Handles arguments onimplementation of EU law into English law in all fields.Financial ServicesParticularly experienced in the application of EU Directives tothe financial industry (e.g. seeking to sanction failure ofGovernment to apply the Insurance Directives) including claimsfor Francovich damages but also covers the public/regulatorylaw aspects of financial services including hearings before theRegulatory Decisions Committee and the Upper Tribunal.HealthcareHas acted as the conflict of laws specialist in several high courtactions involving health care and clinical negligence abroad inparticular for service personnel; deals with public law aspects ofhealth care such as competition law issues in relation todispensing doctor, disclosure of medical records, disclosure ofadverse results in clinical trials (in which responsible forchanges to the law) and all EU issues affecting health care.Human RightsHas particular experience in the application of human rightswithin a diverse range of fields of civil law such as agriculture,environment, due process, competition and extending even tothe impact of human rights on the conduct of inquests (acted aslead counsel for the coroner in the case of Middleton in theHouse of Lords). Recently represented the majority of theworldwide shipping industry in the case brought by CaptMangouras against Spain on the breach of his right to bail andcurrently representing NGOs in Bosnia in relation to the conductof the International Criminal Tribunal for the former YugoslaviaPublic International LawFrequently covers the public international law arguments arisingin relation to EU law such as the Law of the Sea or sanctions butalso extends to independent PIL issues in fields such as WTOand sovereign debt issues. Litigated the impact of internationallaw on EC law in the context of shipping pollution and advisedon the legal issues arising from the eurozone crisis.Hugh Mercer Page 5 of 11

Public ProcurementHas regularly advised and represented utilities in the UK andabroad (in particular long-standing Greek clients) both in courtand before the European Commission on specialist issues ofpublic procurement law. Experienced in the commercial court indealing with cases involving the UVDB qualification system.Sanctions/Restrictive measuresIs involved in legal and regulatory challenges in several of theEU sanctions regimes, challenging the implementing regulationin the EU General court, claiming damages, bringing nationalcourt challenges, dealing with the impact of the EU blockingregulation against US sanctions (Reg 2271/96).Shipping/TransportExtensive experience of competition issues both before UKcompetition authorities and the EU Commission in relation totransport including liner conferences; bulk and tramp shipping;shipping pools; reefer trades; port and airport pricing anddiscrimination arguments; differential pricing by monopolyoperators on shipping routes.SportDeals not only with competition issues (such as competitionarguments arising on promotion of clubs) but also on EU freemovement issues.State AidHas considerable experience dealing with state aid questionsarising in a wide variety of industries (but particularly strongexperience in telecoms) both in the UK and abroad and at bothcentral, regional and local government level, including working ina team with local counsel in appropriate cases. Particularexperience in relation to state aid arising in relation to fiscalmeasures.TaxDeals with tax issues arising in an EU context such asdifferential taxation of subsidiaries based in another EU countryand extending into state aid arguments arising out of differentialbusiness rates taxation. Has challenged a wide range of levies,charges and duties both in an purely UK and in an EU context.Telecoms / BroadcastingHas dealt with various competition, regulatory and state aidissues arising out of telecoms liberalisation policies, relatedregulatory issues and extending to competition issues arisingfrom satellite broadcasting, licensing of programmes etc.Reported CasesCox v. Ergo [2012] EWCA Civ 854, 1001 (Conflict of laws; fatalaccident; jurisdiction in England and question is whether theHugh Mercer Page 6 of 11

action is to be brought only under English Fatal Accidents Act oraccording to German law as the applicable law) Successfullydefended on appeal.Mangouras v. Spain [2012] 54 EHRR 25 Application to theEuropean Court of Human Rights on the grounds that immediatearrest and detention in custody or under hotel arrest for a matterof years breached the defendant’s right to liberty under Article 5of the Convention.Microsoft v. Commission, Case T-167/08 (Periodic penalty of€900 million for alleged failure to comply with decision orderingcessation of abuse of dominant position; Commission allegingfailure to comply until 0% royalty proposed; acting forinterveners supporting Microsoft’s right to remuneration forinnovation).Bloomsbury v. Sea Fish Industry Authority and Defra [2011]UKSC 25, [2011] 1 WLR 1546 (The Sea Fish IndustryAuthority's power under the Fisheries Act 1981 s.4(3) to imposea levy in respect of sea fish or parts of sea fish landed in theUnited Kingdom extended to imposing a levy in respect ofimported sea fish. That levy was not a charge equivalent to acustoms duty contrary to arts. 28 and art.30 TFEU.) Decision ofprinciple on the approach to statutory construction. Instructedby Defra.Nordea v. Unicredit [2011] EWHC (Comm) (conflict of laws,foreign proceedings between related parties in EU, discretion tostay)R (on application of Fruition) v. Defra pending in European Courtof Justice (true interpretation of the rules on fruit and vegetableproducer organisations in agriculture; whether recognitionlawfully withdrawn from the claimant’s organisation)Vtesse Networks v. European Commission T-362/10 pendingbefore the General Court of the EU (whether the Commissiondecision not to investigate a state aid complaint without openinga detailed investigation is lawful)Vtesse Networks v. European Commission T-54/07 [2011] ECRII-0000 (whether decision of European Commission in a stateaid complaint unlawful; whether admitted differential in businessrates applied to BT granted an advantage to BT which qualifiedas an unlawful state aid).R (on the application of TA Gwillim) v. Welsh AssemblyGovernment Court of Appeal. (2009) NPC 136 (EC AgriculturalLaw - Single payment scheme – whether the provision forhardship in farmers subject to agri-environmental commitmentstransferring to the scheme requires a dip in livestock productionor not and whether, if hardship payment made, it would becontrary to state aid rule – Held that WAG’s decision unlawful)Vtesse v. Bradford [2010] EWCA Civ 16 (whether, indetermining the rateable value of a hereditament consisting offibre optic cable for use in telecoms market, VOA is obliged bythe Telecoms Directives to take into account evidence derivedfrom the rateable value of BT which incorporates 75% of UKHugh Mercer Page 7 of 11

optical fibre - Effect of state aid rules and whether definition ofthe relevant market is necessary for the legality of a tax basedmeasure to be assessed)R (on the application of Partridge Farms) v. Secretary of Statefor Rural Affairs CA, (2009) NPC 58 (EC law and compensationscheme for cattle culled under TB control measures – whetherunlawful differential treatment through failing to differentiate inany way between high value and normal commercial stock –challenge upheld at first instance but CA found no differentialtreatment. Whether compensation scheme would in any eventinfringe the EU state aid rules)R (on the application of O’Connor) v. HM Coroner for Avon[2009] 4 All ER 1020 (Coroners’ directions regarding insanitywhen raised in an inquest – departing from position in criminaltrial, once insanity is properly raised, it must be disproved to thecriminal standard to sustain a verdict of unlawful killing)Mangouras v. Spain ECHR (Human rights - whether breach ofright to bail for ship’s master accused of pollution offences to beasked for €3m and, even after providing this sum, being keptunder hotel arrest with ban on leaving Spain)Região autónoma dos Açores v Council Court of First Instanceof EU (EU fisheries policy – serious risk to environment throughpermitting fishing in the Azores waters – whether EuropeanCommission interim regulation obviated need for interim relief –on appeal to ECJ)Répertoire Culinaire v. HMRC ECJ (whether cooking wine iswithin the alcoholic beverage provisions of the Excise DutyDirective and/or whether it is entitled to exemption – whetherECJ bound by previous caselaw in respect of this issue)R (on the application of Mabanaft) v. Secretary of State forEnergy and Climate Change [2009] EWCA Civ 224 (EC law –rules on stocks of petroleum products to be maintained by eachMember State – to what degree equal treatment of affectedbusinesses needs to be maintained)Sutton & East Surrey Water Interim Determination (CompetitionCommission, 2009) (Water sector regulated prices – whetherwater undertaker entitled to modification of prices to deal withincreased energy prices and reduced demand – whether lawfulto refuse to increase prices)R (on the application of RSPCA) v. Secretary of State for theEnvironment, Food and Rural Affairs [2009] ACD 2(amendments to rules applicable to slaughter of birds in case ofserious health outbreak – whether ultra vires Directive 93/119 orgeneral EU law – Held – lawful). Acting for DefraR (on the application of Intertanko et al) v. Secretary of State forTransport [2008] ECR I-4057 (ECJ) (whether Directive 2005/35valid in the light of public international law – held UNCLOS is nota source of rights but Directive must be interpreted inaccordance with EC law)Arbitration on effect of EC competition law on specialist shippingHugh Mercer Page 8 of 11

pool, 2008 (whether standard form charterparties entered into byship operator which shared profits with shipowners could be saidto constitute a restriction on competition by object or effect)Olafsson v. Gissurarson [2008] 1 WLR 2016 (CA) (whetherorder should be made dispensing with service in LuganoConvention case to ensure that otherwise potential domestictime bar would not defeat the claim – held that order should bemade in truly exceptional case)Boake Allen v. HMRC [2007] 1 WLR 1386 (HL) (limiting theavailability of group income elections to subsidiaries of UKcompanies was not in breach of the non-discrimination articlesof the relevant double taxation conventions.Pirelli Cable Holding v. HMRC [2008] STC 144 (if claimant hadbeen able to make a group income election, non-resident parentcompanies would not have been entitled under the relevantdouble taxation agreements to tax credits on the subsequentpayment by a UK subsidiary of mainstream corporation tax)Taylor v Lancs County Council [2005] EWCA Civ 284 [2005]NPC 43, Times, March 31, 2005 (Human rights – property law –whether Case D of the Agricultural Holdings Act 1986 draws anunlawful distinction contrary to Article 14 ECHR between theprocedures applicable to tenants who are required to doremedial works and those tenants required to remedy othertypes of breaches)Regina (Middleton) v West Somerset Coroner [2004] 2 AC 182(Human rights – deaths in prisons and the scope of theinvestigative duty under Article 2 ECHR – whether necessary orappropriate to extend scope of inquests to cover this Coroner’sactions – scope of inquests extended.)Holleran v Severn Trent Water Plc [2004] EWHC 2508 (Publicprocurement – whether claim was statute-barred under theUtilities Contracts Regulations 1996, Reg. 32(4), through failureto respect three month deadline – whether three month deadlineArticle 6 ECHR compliant – need for dealing with complaintsquickly in the public interest)Re A (a child) v Ministry of Defence [2005] QB 183 (CA) (Duty ofcare – non-delegable – negligent treatment of soldiers anddependants in hospitals in Germany – hospitals were part of a“health service” organised and administered by the Ministrywhich declined all responsibility in the event of claims – soldiersshould sue in Germany under German law and in Germanlanguage – CA hopes Ministry of Defence will help soldiers)Arkin v Borchard et al. (No. 3) [2004] 1 Lloyd’s Rep. 636 (Costsof Part 20 proceedings where defendant successfully defendedclaims by claimant but had been singled out of a group of jointlyliable potential defendants and had joined others from samegroup as Part 20 defendants)Arkin v Borchard et al. (No. 2) [2004] 1 Lloyd’s Rep. 88 (Costs –insolvent claimant and professional funder – whetherprofessional funder should be ordered to pay costs of successfulHugh Mercer Page 9 of 11

defendants – whether grounds for order to pay part of costs)Leeds City Council v James Stuart Watkins and another (2003)14 EG 122 (CS) : Times, April 9, 2003 (Competition law andMarket law – exercise by city council of exclusive rights undermarket law for their own commercial purposes did not place citycouncil in a de facto dominant position on the relevant market –refusal to accept that there was a relevant market – norestrictive agreements proved)Arkin v Borchard et al. [2003] 2 Lloyd’s Rep. 225 (EUcompetition law – claim for damages – shipping linerconferences – no abuse of a dominant position – conduct withinthe block exemption – no causation in any event) (Note – actedfor successful defendants in the most substantial competitionlitigation ever in the UK courts)National Iranian Oil Corpn. v IRI International Corpn [2002]EWCA Civ 1024 (CA) (Rome Convention - law applicable to acontractual obligation in the absence of choice - force of thepresumption in Article 4(2) Rome Convention on the lawapplicable to contractual obligations - whether appropriate toapply Article 4(5))Henderson v Jaoen (CA) [2002] 2 All ER 705 (CA) (Jurisdiction -whether jurisdiction in English courts following tort in France -Brussels Convention - jurisdiction in relation to torts)Castille v DTI [2002] Eur. L.R. 209 (EU Customs law - whetherDTI in breach of EU customs legislation in rejecting multipleapplications for EU import quota)R v Minister of Agriculture, Fisheries and Food ex parte Fisher[2000] ECR I-6751 (ECJ) (EU Agriculture - whether MAFFobliged to disclose information to current farmer of land in orderfor him to apply for EU subsidies in respect of that land -penalties may not be imposed if failure to discloseAgnew v Lansforsakringsbolagens [2001] 1 AC 223 (HL)(Jurisdiction - breach of pre-contractual duty of disclosure ininsurance contract - whether a matter relating to a contract forthe Brussels Convention)R v Swale BC ex parte Lidl (UK) GmbH [2001] EWHC Admin405 (State aid/sale at an undervalue contrary to s. 123 LocalGovt Act 1972 – highest offer on the table is not necessarily thebest offer)Arkin v Borchard et al [2000] UKCLR 495 (Limitation periodapplicable to competition law - alleged abuse of a dominantposition by a liner shipping conference - applicable limitationperiod - estoppel following proceedings before the European)Sutton & East Surrey Water v Ofwat, Competition CommissionReport, 2000 (appeal against regulator’s decision - whetherfixing of k factor for prices in the water industry granted SESWsufficient resources to carry out its statutory duties as a waterundertaker – answer in negative)R v Secretary of State for Trade and Industry et al. ex parte theHugh Mercer Page 10 of 11

Isle of Wight Council (2000) COD 245 (EU Regional Policy –administration of policy by the DTI – Isle of Wight poor butaggregated with rich region – whether lawful not to include Isleof Wight as a potential recipient of regional selective assistanceand/or structural funds from the EC)Leidig v Intervention Board for Agricultural Produce [2000]Lloyds Rep PN 144 (CA) (Negligent advice by Board to a farmeron milk quota and whether cream sales were subject to levy – inconsequence farmer believing that his enterprise was viablecontinued and invested in it – entitled to levy but to no damageson account of continuing in business or investing therein).R v S of S for Health ex parte Eastside Cheese, Duckettintervening [1999] 3 CMLR 123 (implementation by UK of EUfood law - whether ban proportionate)Norbain v Dedicated Micro [1998] EuLR 266 (Competition -alleged abuse of a dominant position - whether injunctionavailable to oblige a supplier to continue to supply pending trial)Stevenage Borough Football Club v The Football League [1997]9 Admin LR (competition law and restrictive rules for entry to ahigher league - injunctive relief to force promotion)Flynn v Rizrani The Times, 20 July 1995 (the effect of Article 8aof the EC Treaty on the free movement of persons)Kitechnology v Unicor [1994] ILPr. 560 (Jurisdiction - placewhere the harmful event occurred for the Brussels Conventionon jurisdiction - intellectual property)European Commission v East Africa Conference LinesEuropean Commission XXIIIrd Report on Competition Policy,1993, paras. 230-231 (Article 81 and Article 82 EC - whetherlawful for a shipping liner conference to require 12 months’notice of leaving the liner conference).If you require further information please contactclerksroom@essexcourt.netHugh Mercer Page 11 of 11