Scholars’ Report on BEG’s 2022 Salzburg Conference

Salzburg mountains. Photo by Heinz Klier on Pexels.com

The last time the Bar European Group gathered overseas was three years ago, when the 2019 Annual Conference took place in Gdańsk.

Since then, the COVID-19 pandemic forced us all to get used to attending talks, training and conferences virtually from our own homes, chambers and offices. In that context, the opportunity for delegates to meet up once again in the physical world, for the 2022 Annual Conference in Salzburg, was particularly welcome. Among other benefits, this meant that none of the speakers had to be reminded to unmute themselves before starting their talks.

The 2022 Annual Conference was notable for another reason: it was the first conference to take place since the United Kingdom’s departure from the European Union. Although this is a sad fact for many who believe in the European project, it has undoubtedly given rise to many interesting questions and conundrums for lawyers to grapple with.

Before turning to those interesting questions and conundrums – many of which were indeed grappled with over the course of the conference – it would be apt to say something about our host city (and the fourth largest in Austria), Salzburg. Until Salzburg became part of the Austrian Empire, it was ruled by a series of Prince Archbishops who commanded both spiritual and temporal power. Salzburg’s skyline is dominated by the Fortress of Hohensalzburg, one of the best-preserved medieval fortresses in Central Europe which served as the Prince Archbishops’ residence during the 15th and 16th centuries. During the 17th and 18th centuries, Prince Archbishops Wolf Dietrich von Raitenau, Markus Sittikus and Paris Lodron used the wealth from the salt trade to transform Salzburg into one of the world′s most outstanding baroque cities with magnificent palaces, churches and gardens. This architectural landscape has earned the city both the moniker ‘the German Rome’ and a designation as a UNESCO World Heritage site.

Notably, Salzburg is the birthplace of Mozart, whose family home is now preserved as a museum in the city. The city’s musical prominence continues to the modern day. In 1920, the renowned Salzburg Festival was founded, which comprises recitals, concerts of orchestral and chamber music, church music, opera and drama. Naturally, the music of Mozart dominates.

Salzburg is also famous for being the set location of the famous film ‘The Sound of Music’. The film has created a flourishing industry in Salzburg; dedicated fans might visit (as some conference attendees indeed did) the various filming locations on a ‘Sound of Music Tour’. Attendees of this Tour would learn that while the Von Trapp family really did flee Salzburg from the Nazis, they did not hike over the Alps to Switzerland; rather, they walked to the local train station and boarded the next train to Italy. From Italy they fled to London and, ultimately, to the United States. Since Salzburg is on the Austrian-German border, had the Von Trapps indeed hiked over the mountains, they would have unhelpfully ended up near Adolf Hitler’s mountain retreat in Germany.

Mercifully, Salzburg suffered relatively little damage during World War II and was the headquarters of the US military forces in Austria from 1945 to 1956. The city continues to grow, and benefits from both close ties to Germany and historic ties with Eastern Europe. In 1995, Austria joined the European Union (having previously been a founding member of the European Free Trade Association from 1960 until then).

We turn now to the conference. Following an introduction by Christopher Vajda QC (the former UK judge at the Court of Justice), Judge Andreas Kumin, the Austrian judge at the Court of Justice, gave the keynote speech provocatively entitled ‘The CJEU: A Bridge over Troubled Waters’. The focus of the speech was on the added value that a functioning system of judicial review provides, and it drew on a few central examples from the case law of CJEU including the judgments of the Full Court in Wightman and Others (C-621/18, EU:C:2018:999), the Grand Chamber in Hungary v Parliament and Council (C-620/18, EU:C:2020:1001) as well as the attribution of competences line of cases (United Kingdom v Parliament and Council, C-217/04, EU:C:2006:279; Pringle, C-370/12, EU:C:2012:756; Gauweiler, C-62/14, EU:C:2015:400 and Weiss, C-493/17, EU:C:2018:815). Judge Kumin continued his whistle-stop tour of the CJEU’s judicial review jurisprudence with references to the judgments of the Full Court in the rule of law conditionality cases (Hungary v Parliament and Council, C-156/21, EU:C:2022:97 and Poland v Parliament and Council, C-157/21, EU:C:2022:98) before completing the picture by discussing Opinion 1/19 of the Grand Chamber on the EU’s accession to the Istanbul Convention (C-1/19, EU:C:2021:198). He concluded by reminding those present of the importance of a Union of law equipped with a common system of judicial protection.

Following the keynote speech, the first session was chaired by the Rt Hon Lord Thomas of Cwmgiedd. The first speaker, Marcin Piechocki, provided an illuminating and passionate introduction to both the genesis of and the current situation regarding the Polish judicial system. Professor Panos Koutrakos (City University and Monckton Chambers) then spoke about the relationship between EU law and international law, specifically in relation to the EU principle of autonomy. The third speaker, Robert Palmer QC (Monckton Chambers) took us back to basics with a refresher on the Solange line of case law (from Solange I in 1974 to the present day with the German Federal Constitutional Court’s decisions that followed in the Weiss saga) before concluding his presentation with the beguiling words, apt in our host city, ‘Solange, farewell auf wiedersehen goodbye’. Those present wondered whether a lyrical rendition would be forthcoming but were left wanting (no doubt due to time constraints). The final speaker on this panel, Professor Fryderyk Zoll (Jagiellonian University of Cracow) focused his presentation on recent developments in the light of the case law of the Polish Constitutional Court by reference to three periods of this case law after Poland’s accession to the EU. 

A short coffee break was followed by the second panel discussion of the day, chaired by the Rt Hon Lord Justice Green. Derek Holt (AlixPartners) gave an overview from an economic perspective of collective actions based on collective proceedings orders (“CPOs”) in the Competition Appeal Tribunal (“CAT”), highlighting the average value of losses (including per claimant and by type of case) using an impressive array of graphs to illustrate how the CPO regime has developed rapidly over the last two years since the judgment of the UK Supreme Court in Merricks ([2020] UKSC 51). Anneli Howard QC (Monckton Chambers) then provided a tour-de-force of key themes from the CPO cases that have been heard to date by the CAT. The third speaker, Charlie Xie (AlixPartners) rounded off the panel by grappling with the vexed topic of excessive pricing. He first reminded us of the two-limb excessive pricing test as developed in the seminal United Brands judgment (C-2/76, EU:C:1978:22, paragraphs 251-252) before providing two case studies drawn from two cases currently before the CAT (Case 1381 Le Patourel v BT; and Case 1433 Dr Liza Lovdahl Gormsen v Meta). 

A delicious lunch in the Sheraton restaurant was followed by a panel discussion on retained EU law. Eleanor Sharpston QC, former Advocate General at the CJEU, welcomed and introduced the panel of Ian Rogers QC and Harry Gillow (Monckton Chambers) and Charlotte Thomas (Brick Court). Ian gave an overview of the legal mechanisms by which EU law is retained and of the different categories of retained and “non-retained” EU law. He focused in particular on the retention of principles of EU law, exploring the positions taken by Green LJ in Lipton v BA City Flyer [2021] EWCA Civ 454 and HHJ Keyser QC in Adferiad Recovery v Aneurin Bevan University Health Board [2021] EWHC 3049 (TCC)respectively. Ian questioned whether the retained EU law scheme is, in its present form, fit for purpose, drawing particular attention to the uncertainty as to how the judiciary are to treat post-IP completion day CJEU decisions.

Harry Gillow picked up on the Lipton/Adferiad debate, and on the treatment of accrued EU rights in Lipton and Varano v Air Canada [2021] EWHC 1336 (QB). Harry also considered the significance of section 29 of the EU (Future Relationship) Act 2020 (“the EU(FR)A 2020”), and Green LJ’s treatment of that provision in Lipton, where his Lordship took the view that section 29 incorporated the Trade and Cooperation Agreement (“the TCA”) directly into UK domestic law. Harry suggested that an alternative approach was possible: namely, that section 29 could be interpreted more narrowly as incorporating the TCA only to the extent necessary to give effect to the UK’s obligations under international law.

Charlotte Thomas addressed the application, interpretation and modification of EU law. She explained that the approach to the issue of supremacy (as set out in section 5(2) of the European Union (Withdrawal) Act 2018) was relatively straightforward, and reviewed the instances to date in which the supremacy principle has been applied to disapply primary domestic legislation. On interpretation and departure from retained EU law, Charlotte noted and discussed the exceptions to the general rule that the domestic courts are not bound by European Court decisions post-dating IP completion day. Charlotte then turned to retained EU case law, considering when the Supreme Court and Court of Appeal can depart from retained EU case law in light of the relevant principles and case law on departure to date. She also raised the question of what happens when retained EU law is modified, suggesting that the approach will be highly case-specific. 

Following a break for coffee and pastries, the Rt Hon Lady Rose of Colmworth DBE JSC chaired a panel on the new UK subsidy regime, consisting of George Peretz QC (Monckton), Dr Totis Kotsonis (Pinsent Masons) and Kieron Beal QC (Blackstone).

George Peretz QC kicked off the discussion by focusing on the key substantive provisions of the Subsidy Control Act 2022 (“the SCA”). He began by outlining the key differences between the new regime and the old EU state aid rules before turning to section 12(1) of the SCA, which (i) imposes a duty on a public authority to consider the subsidy control principles before giving a subsidy and (ii) prohibits a public authority from giving a subsidy unless it is of the view that the subsidy is consistent with those principles. He then addressed the statutory definition of a “subsidy” (given in sections 2-4 of the SCA), before addressing the difficulty in determining how to approach that definition: in line with TCA concepts, or World Trade Organisation terminology? To finish, he discussed the various prohibitions in the SCA, the rules as to subsidy schemes and the application of the SCA to primary legislation.

Next, Dr Totis Kotsonis addressed the transparency provisions in the SCA. He explained that public authorities are required to set out specific information about the subsidies they grant, accessible to the public and free of charge (sections 32-33 of the SCA). He then went on to discuss some of the key issues posed to transparency under the new scheme: for one, unless a particular subsidy falls within a subsect of cases referred to as Subsidies of Particular Interests, the transparency obligations of a public authority are only triggered if that public authority considers it necessary to self-refer to the CMA. Dr Kotsonis finished by addressing special categories of subsidiaries – Subsidies of Particular Interests, Subsidies of Interest and certain categories which are exempt from CMA referrals (including those of minimal financial assistance and services of public economic interest).

To round things up, Kieron Beal QC addressed the new UK subsidy regime from the perspective of enforcement. He explained that the new regime is actually comprised of three distinct, yet interwoven regimes: Article 10 of the Northern Ireland Protocol, Article 29 of the EU(FR)A 2020 and the SCA itself. He then explained how the original aims of the SCA was to provide for a more flexible and less bureaucratic system and questioned whether the present tri-partite regime was successful in achieving those aims before turning to each of the three distinct parts in more detail. To conclude, he addressed how judicial review functioned under the new regime, and suggested that the system of review by the CAT might risk ineffective enforcement.

After a short coffee break, Evanna Fruithof (Bar Council) presented a whistlestop overview of the Bar Council’s work in Brussels. She stressed that much had changed since she last addressed the Bar European Group in 2019.  The Northern Ireland Protocol reforms and the Human Rights Act reform have captured the attention of EU partners, Evanna reported. However, Brexit and the pandemic have, as was largely expected, hindered the English Bar’s engagement with EU partners.

The first day of the conference concluded with an informative session about recent efforts to progress wellbeing at the Bar by Nina Caplin (Financial Conduct Authority). We were given some striking figures about persistent high levels of stress and anxiety suffered by many barristers. All of the scholars found the information provided very insightful. Nina pointed out a number of initiatives that are available to barristers in light of effort by ‘Wellbeing at the Bar’ as of recent years. Most important of these to us seemed to be the confidential Assistance Programme and associated helpline, which are available to all self-employed barristers. The overall learning was that there are ongoing efforts to recognise and deal with common issues around mental health and wellbeing at the Bar, and that no one need struggle in silence any longer.

In the evening, delegates enjoyed a delicious meal in the grand St. Peter Stiftskulinarium. The restaurant, located within the walls of St Peter’s Abbey, is thought to have been in operation since AD 803, making it possibly the oldest restaurant in the world.

After dinner, the Rt Hon Lord Lloyd-Jones delivered the President’s speech, telling the story of Arturo Toscanini’s tenure at the Salzburg Festival and his resignation in 1938 in protest at the annexation of Austria by the Nazis. The words were all the more moving in light of the ongoing conflict on European soil in Ukraine. 

At the end of the speech, special mentions were given to Eleanor Sharpston QC, who was congratulated on her appointment as Grand Officier of the Ordre de Mérite by HRH Grand Duke Henri of Luxembourg, and to Christopher Vajda QC. Both were thanked for their service on behalf of the UK at the CJEU.  

Delegates reconvened bright and early on Monday morning for a session on Data Protection, chaired by Rt Hon Sir Stephen Richards.

Rupert Paines (11 KBW) looked at the enforcement of data-protection rights: with the ICO’s decision to focus its efforts ‘upstream’ on prevention, the potentially prohibitive cost of individual enforcement, and the decision in Lloyd v Google [2021] UKSC 50, Rupert warned that data protection may start to look like a ‘paper tiger’. He also considered the future of data protection enforcement, looking at the challenges and opportunities of Group Litigation Orders  and Representative Actions, as well as actions by NGOs under Article 82 of GDPR.

In another highly topical presentation, Eleanor Duhs (Bates Wells) considered the future of cross-border data flows with the EU, and whether the adequacy regime can survive in light of proposed regulatory divergence. She identified a number of proposals in the Data Reform Bill which may well pose a problem to the EU, including new limits on data subject access, the removal of the right to human review of automated decisions, and the granting of data-adequacy to third-party countries. Eleanor noted, on the other hand, that many third countries which currently benefit from EU adequacy decisions have data protection regimes which differ significantly from the GDPR. As such, a finding by the EU that the amended UK regime is inadequate may set the bar for adequacy too high. 

She also addressed the potential data-protection impact of the proposed Brexit Freedom Bills and the reform of the HRA. Eleanor concluded her presentation by reminding delegates of the practical difficulties posed by divergence, highlighting that any data transferred before divergence would still need to be protected to GDPR standard.

Following a break for coffee, Nigel Giffin QC (11 KBW) set the scene for a discussion on procurement law by outlining key provisions in the Government’s new Procurement Bill. Nigel explained that the rhetoric surrounding the bill is that it is designed to cut red tape and bureaucracy. However, the substantive detail does not reflect that reality. Nigel also noted that the bill lacks a clear unanimous purpose. Whilst part two of the Bill is focussed on the principles and objectives that must underlie the awarding of a public contract, questions arise as to whether procurement law should be more concerned with promoting competition, on the one hand, or with avoiding corruption, on the other hand. Nigel stressed the importance of a clear teleological underpinning in procurement law, so that courts can make decisions that are reasoned in accordance with the purpose of this area of law. The new Bill accordingly presents an opportunity to reflect upon the functions of procurement law.

James Segan QC (Blackstone Chambers) then addressed the following question: to what extent are courts likely to rely upon general principles of EU procurement law when deciding cases under the UK’s new procurement regime? The EU procurement directives which originated in the 1970s were skeletal. But they ballooned via the CJEU developing specific rules using the general principles. The new UK Procurement Bill incorporates some of these principles. For example, the equal treatment principle in clause 11.2 is reflective of the EU equal treatment principle.  However, other EU principles are watered down in the new bill, or are not referred to at all. So, for example, the new bill incorporates the detailed rules of EU procurement law, without incorporating the principles of “manifest error” or “good administration”. This is problematic, because the detailed rules of procurement law that are contained in the new bill are essentially “EU-inspired ideas”, so it is difficult to interpret the rules in the absence of the general principles and case law of the CJEU which has developed alongside the development of the rules. Accordingly, James suggested that the CJEU’s case law and EU principles of procurement will inevitably continue to be relevant in procurement cases. He drew an analogy with the development of the Civil Procedure Rules (“CPR”). When the rules were introduced, they were presented as a new and complete code for civil procedure. Inevitably, however, pre-CPR case law remained relevant when interpreting the CPR. Similarly, lawyers and judges will inevitably have to turn to EU principles in order to properly interpret the detailed rules which have themselves derived from EU procurement law. 

Finally, Michael Bowsher QC (Monckton Chambers) discussed the procurement law provisions in the many trade agreements which have been entered into or negotiated by the UK in recent years post-Brexit. In particular, he stressed the importance of compliance with the UN Convention Against Corruption when entering into free trade agreements and drafting procurement legislation at national level.  More details about Michael’s presentation (and much more about procurement law) can be found on his blog: Michael Bowsher’s Mostly Procurement Bulletin

The concluding panel of the conference, on EU-UK relations (chaired by Lord Lloyd-Jones), drew together three themes which had been present throughout the conference. First, it highlighted that, outside the scope of the Withdrawal Agreement and TCA, there remains a substantial portion of the EU-UK relationship which still requires to be placed on a firm footing. Second, the significance not only of decisions to diverge, but also the rationale behind those decisions for the wider EU-UK relationship. Third, the importance of an identifiable and certain legislative direction of travel.

This panel began with a presentation by Carsten Zatschler SC (European Supervisory Authorities Board of Appeal), with a focus on the EU-UK relationship on financial services, including the Memorandum of Understanding on financial services cooperation. In highlighting the substantial percentage of UK financial services exports to the EU (34.3%), Carsten highlighted the importance of EU policy on derivatives and clearing counterparties.

Erik Lagerlöf (Swedish Institute for International Trade Law) approached EU-UK relations from the perspective of Sweden, losing a close partner with which it consistently took a similar approach in the Council. Of most interest here, Erik noted that Brexit had highlighted deficiencies in expertise in Sweden and the need to fill these gaps. Further to this, Erik noted that alongside the outstanding legal issues, there was no Swedish analysis of the TCA. This analysis of the Swedish approach to its bilateral UK relations, and Brexit, is a reminder that the impacts of Brexit are not shared equally across the Member States.

Jessica Simor QC (Matrix Chambers) offered a rather sobering run-down of the events which have occurred since the referendum, and the extent to which EU-UK relations have deteriorated in ways in which were not foreseen. Similar to previous panels and speakers, it was highlighted how much of the UK’s relationship with the EU was still to be resolved, this time in reference to the role of the Joint Committee and the Northern Ireland Protocol.

George Peretz QC (Monckton Chambers) rounded off the discussions by drawing our attention to Article 16 of the Northern Ireland Protocol which provides for the implementation of safeguards. Mr Peretz highlighted the inconsistencies and inaccuracies of the UK’s approach, and the difficulties the UK Government may face in providing legal justification for moving beyond the Article 16 process to a unilateral, and wider, response outside the scope of the Protocol.

All in all, the 2022 Annual Conference was a rewarding and exciting meeting of the minds – and we look forward to continuing the discussion in 2023, wherever the next conference may take us.

The scholars for 2022 were:

Femi Adekoya

Samuel Buyoya

Odette Chalaby

Christian Davies

Benjamin Hulme

Jagoda Klimowicz

Jenn Lawrence

Joshua Pemberton

Alastair Richardson

Suzanne Ter-Minassian

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