Judicial Review

June 22nd, 2015

The Judgment of Green J in R (British Academy of Songwriters, etc) v SoS for BIS [2015] EWHC 1723 (Admin) is very long (106 pages, 318 paragraphs) and its subject matter (creating an exception to copyright based upon personal private use) is far removed from local government.  However, it is important on judicial review generally (and on State Aid).  The Judge addresses (paragraphs 127-148 inclusive) the appropriate standard of review, how intense the review should be, emphasizing that the Court must not, even in a case of intensive review, substitute its own view of the merits for that of the decision maker.  He addresses (paragraphs 149-163 inclusive) the question whether the relevant provision in an EU Directive had “direct effect”.  He addresses (paragraphs 164-168 inclusive) the principles of law governing consultations (and the appraisal of evidence), and in particular the fourth Gunning principle, that the product of consultation must conscientiously be taken into account by the decision maker, observing that this principle reflects two broader principles, first, that a decision must be based upon a reasonable view of the evidence it is said to be based upon, including the product of consultation, and, secondly, that the outcome must not be predetermined, because if it is then the decision-maker will not have acted “fairly”, and fairness is “the leitmotif of the principles governing consultations”.

The Judge observed (paragraph 9) that the Government had a “strong predisposition”, which it set out clearly in the consultation document. Nonetheless he rejected (paragraphs 274-281 inclusive) a challenge based on alleged predetermination.  He stated (paragraph 277):-

“… the Secretary of State was entitled to have a strong predisposition. The distinction between a predisposition and predetermination is well understood in the law. A decision maker may consult upon an issue that he has a firm view about. Indeed, if the decision maker’s cards are laid squarely upon the table consultees are fully informed as to that predisposition and have the clearest possible target at which to aim their submissions. A strong predisposition is not, therefore, inimical to a fair consultation assuming, of course, that the decision maker is prepared to keep an open mind and be willing to change his or her views if the evidence and submissions tendered are properly persuasive.”

Finally, the Judge considers (paragraphs 282-315 inclusive) the issue of whether there was unlawful State Aid and the approach to be adopted.  Green J stated:-

“283.     Article 107(2) and (3) TFEU stipulate that aids of certain types either shall or may be compatible with the internal market and that the determination on whether an aid is so compatible is the exclusive prerogative of the European Commission: see for example Case C-354/90 FNCEPA [1991] ECR I-5505 at paragraph 14. Article 108(3) TFEU imposes upon Member States an obligation to inform the Commission of plans to grant or alter aid and it prohibits the implementation of proposed measures pending such notification. It has been long established that Article 108(3) TFEU is directly effective. As such, it may be relied upon before domestic courts as a ground for impugning the legality of a legislative measure said to constitute unnotified and hence unlawful state aid. In such a challenge the court must form its own view as to whether the impugned measure or act does, or does not, involve the grant of an aid within the meaning of the Treaty: see, for example, R v Customs & Excise Commissioners ex p Lunn Poly Limited [1999] 1 CMLR 1357 at paragraphs 22–24 per Lord Woolfe MR. If the measure does amount to “aid” and it has not been duly notified to the Commission then it is unlawful.

284.      The analysis to be undertaken of “aid” by a Court may involve the consideration of a number of quite different components. In my judgment the question whether there is aid “through State resources” is an objective question for the Court and does not involve the conferral of any margin of appreciation upon the decision maker. The facts which must be considered by the Court do not involve any evaluative judgment on the part of the Defendant; the Court simply has to identify the manner in which the advantage allegedly comes about and then assess the nature of the link between the advantage and the State budget in terms of the closeness and strength of the nexus. The relevant facts are fixed and within a relatively narrow compass. It is possible that the Court, in another case involving other component parts of the definition of “aid”, might need to adopt a more limited review. So, for instance, if the issue was whether the market investor test was satisfied and it could be shown that on one reasonable analysis the test was met a Court might be loathe to substitute its own view for that of the decision maker. I do note in this regard however that the Court of Justice has stated that even where the analysis of whether “aid” exists is “technical or complex” the Court (in casu a judicial review by the General Court of a decision of the Commission) must conduct a “comprehensive review”: see e.g. Case C-487/06P British Aggregates Association v Commission [2008] ECR I-10515 paragraph 114. I emphasise however that no such complex technical or economic issue arises on the facts of the present case and I do not therefore express any view on how a Court would address other more complex components of “aid”.”

Green J then (paragraphs 285-288 inclusive) analysed the four constituent elements of State Aid, and concluded (paragraphs 299-314 inclusive) that there was no aid granted “through” State resources (the second constituent), applying the propositions that he set out at paragraph 306.

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