9 July 2018

Background

The defendant local authority made a public spaces protection order (PSPO) which provided for a ‘safe zone’ around a clinic which provided abortion services (the centre) within which pro-life supporters and pro-choice activists were precluded from communicating their respective views on issues relating to the provision of abortion services. The claimant strong proponents of the pro-life stance, applied to quash the PSPO so as to permit the protesters to return to the immediate vicinity of the centre to continue their activities as before.

Application dismissed.

Issues and decisions

(1) Whether the necessary ingredients of s 59 of the Anti-social Behaviour, Crime and Policing Act 2014 (the ABCPA 2014) had been established and, in particular, that of detrimental effect.

There was no merit in the claimants’ argument that any effect identified had to be objectively detrimental. The statutory language was clear and the introduction of the concept of objectivity took the claimants’ case no further. Some individuals were more robust than others. The authority had been entitled to assess the impact of the activities of the protestors on all those whose quality of life it had been the object of the ABCPA 2014 to protect: the vulnerable and resilient alike. Cases might well arise in which the activities under scrutiny were performed in a locality particularly frequented by susceptible individuals whether arising from physical vulnerabilities, mental health issues or otherwise. The suggestion that the interests of such people should be relegated because they did not measure up to the standards of robustness of the man on the Clapham omnibus had only to be stated to be rejected. In many cases, the fact that the activities under consideration would not detrimentally effect people of reasonable resilience would be a factor to be taken into account when, for example, deciding whether the requisite overall detrimental effect had been made out and whether the effect of the activities was such as to make them unreasonable, but it did not present a free-standing additional hurdle for an authority to surmount (see [34] of the judgment).

Further, the argument lapsed into a non sequitur. Feelings of upset, offence, anger and annoyance were perfectly capable of having a detrimental effect on the quality of life of any given individual, even on one of average or greater resilience. Such feelings were not simply to be disregarded as in some way not being objective. The argument appeared to have shifted from the resilience of any given individual to meld into a consideration of the threshold level of upset which even those of normal robustness should be expected to tolerate without authority intervention under the ABCPA 2014 (see [35] of the judgment).  

Ultimately, the authority’s task had been to exercise its judgment on the application of the words of the statute. The superimposition of a free-standing test of objectivity, however it might be defined, would serve, not merely to confuse, but to impede that process. An authority would take into account the possibility that those whose quality of life was said to have been adversely affected were being oversensitive when deciding whether a detrimental effect had been made out and in whether the activities had been rendered unreasonable. Such assessments were bound also to feed into the need to act in accordance with the European Convention on Human Rights. However, in the present case, there was no compelling evidence to suggest that the authority had wrongly taken into account information which it ought either to have disregarded or to have significantly relegated in importance when applying the statutory tests (see [36] of the judgment).

In any event, even if the authority had been in error in failing to deploy a free-standing test of objectivity, it would not have affected the overall view of the validity of the claimants’ challenge. In particular, even an objective test, when applied to users of the clinic, would have to take into account that many of them would be pregnant, exposed to public view and facing the imminent prospect of termination. Those were no subjective factors (see [37] of the judgment).

The claimants’ argument, that the reference in s 59(2)(a) to the quality of life of those in the locality referred only to those who resided or worked in the relevant place or its immediate vicinity or who visited regularly, if successful, would exclude from consideration the vast majority of those women, together with their family and supporters, who visited the clinic for abortion procedures. The short answer to that point was that, if Parliament had thus intended to limit the scope of the section, it could easily have done so. The concept of a person in a given locality was not necessarily, as a matter of common English usage, limited to residents of or frequent visitors to such a locality (see [39], [40] of the judgment).

Furthermore, the terms of the ABCPA 2014 s 66(1) operated against, rather than in favour of, the construction advocated by the claimants, namely that, ‘interested person’ meant an individual who lived in the restricted area or who regularly worked in or visited that area. It would have been very straightforward for the draughtsperson to have used the term ‘interested persons’ or some similarly narrowly defined group, rather than ‘those in the locality’ in s 59. The fact that different terms had been deployed in the different sections of the ABCPA 2014 strongly pointed to the conclusion that different interpretations had also been intended (see [42] of the judgment).

Taking the evidence as a whole, the authority had had reasonable grounds to be satisfied that the conditions in the ABCPA 2014 s 59(2) and (3)(a) had been met. The findings in respect of the proper interpretation of those subsections were compatible with Convention rights. Therefore, the authority’s decision had been, in that sense, properly prescribed by law (see [55] of the judgment).  

Summers v London Borough of Richmond Upon Thames [2018] EWHC 782 (Admin) applied.

(2) Whether the provisions of art 8 of the Convention were engaged on the facts of the case.

The rights of those entering or leaving the centre to a private life had been engaged. Their position was very different to the person who walked down a public street knowing that they would inevitably be casually observed by others. In particular, women of reproductive age who were entering the centre were quite likely to be going there in order to have an abortion. Those leaving might have undergone an abortion. They thereby became objects of attention, not as ordinary members of the public, but as women in the early stages of pregnancy who were considering the prospect of an abortion or who had just had an abortion.

The fact of being pregnant was often, in itself, one that a mother reasonably wished to be kept private, to a greater or lesser extent, in the early stages. The fact that one was considering, or had undergone, an abortion was, if anything, likely to be an even more intensely private affair for many women and their partners. To be the focus of open public attention, often at the very moment when sensitivities were at their highest, was an invasion of privacy, even when it occurred in a public place.

Further, the activities of the participating groups, however well-intentioned, would inevitably serve to attract the gaze of local residents and passers-by to the users of the centre to a greater extent than would be the case if no such interaction were to take place. Of course, there would be users who were either oblivious to, or positively welcomed the opportunity to engage with, the activists. That was why it had been important for the authority to gather the information and evidence it had concerning the preponderant impact of the activities of the protesters upon those in the locality and, particularly, users, which it had. The feelings of intrusion felt by many users were evidenced in the statements and reports made by users of the centre and considered in a report (see [61] of the judgment).  

Accordingly, the art 8 rights of users of the centre had been engaged on the facts of the case. However, the activities of the protestors, in the particular circumstances of the case, had not engaged the art 8 rights of other visitors, local residents and staff working at the centre (see [62], [63] of the judgment).

Murray v Big Pictures (UK) Ltd [2008] 2 FLR 599 applied; Peck v United Kingdom (Application 44647/98) (2003) 13 BHRC 669 considered; Couderc and another v France (App no 40454/07) (2015) 40 BHRC 436 considered.

(3) Whether the PSPO had served a legitimate aim with respect to interference with rights under arts 9, 10, 11 and 14 of the Convention.

The protection of the rights to privacy of the users of the centre had been a legitimate aim (see [74] of the judgment).

(4) Whether the PSPO had a rational connection to the legitimate aim.

The creation of the safe zone had meant, as had been intended, that users of the centre would be able to make their entrances and exits without inevitably being exposed to the close scrutiny of those whose interests lay in supporting or opposing their decisions to terminate their pregnancies. Therefore, there was a rational connection between the measure employed and the legitimate aim of protecting the art 8 rights of users of the centre (see [76] of the judgment).

(5) Whether there were less restrictive alternatives.

The obvious disadvantage of doing nothing was that the situation giving rise to the conclusion that the quality of life of those in the locality was being detrimentally affected would remain unremedied (see [79] of the judgment).  

The deployment of the authority’s powers under s 222(1) of the Local Government Act 1972 carried with it the substantial disadvantage that any such proceedings would have to be based upon the commission of specific and substantive legal wrongs, and would have to be directed against named individuals or legal entities. The fact that the activities to which the PSPO was directed did not, of themselves, necessarily amount to unlawful conduct was part of the attraction of the PSPO option which, so long as it deployed in full compliance with the statutory criteria and with all requisite restraint, provided a flexible tool with which to enhance the quality of life of those in any locality within the jurisdiction of any given authority. Similar observations applied to the option of obtaining ad hoc injunctions under the Protection from Harassment Act 1997 (see [81], [82] of the judgment).  

The effectiveness of working with the police would be dependent upon the protesters acting in such a way as to justify police intervention. Of course, the police could intervene in the event of the commission of criminal offences, or in response to an actual or threatened breach of the peace. However, in that context, they were singularly ill-equipped to take into account the long-term quality of life of those in the locality (see [83] of the judgment).

The deployment of community protection notices under the ABCPA 2014 s 43 would not have been a preferable option to a PSPO. Such an order had to be made against an individual or body and suffered from the disadvantage that a separate order would have to be sought every time a new participant turned up outside the centre to engage in the detrimental activities, thereby giving rise to the risk of the wholly disproportionate expenditure of time and money (see [84] of the judgment).  

(6) Whether the PSPO was too wide, in particular, whether it failed to distinguish between groups, and the claimants’ group should be allowed to continue to congregate outside the centre even if other groups should be excluded.

The reality was that such a solution would be completely unworkable. It would be impossible to identify with adequate precision which persons belonged to one group or another, or who were acting on their own initiative. Even less attractive would be the notion that only those on one side of the debate should be permitted to ventilate their views outside the centre. Such a course would represent the very antithesis of democracy. In any event, a very significant proportion of the conduct found by the authority to have given rise to a detrimental effect was attributable to the conduct of the pro-life groups and was not limited to the pro-choice lobby. The reality was that there would have arisen overwhelmingly powerful objections to any attempt to allow some, but not others, to continue their activities immediately outside the centre (see [86] of the judgment).

The PSPO was of limited duration and had to be reviewed after three years by the operation of the ABCPA 2014 s 60. The creation of the designated area further mitigated the impact of the PSPO on the Convention rights of the activists to assemble and express their views (see [89] of the judgment).  

(7) Whether the PSPO had been necessary in a democratic society.

There was no doubt that there had been a significant interference with the rights of activists under arts 9, 10 and 11 of the Convention. The seriousness of taking steps which were bound to conflict with that special degree of protection afforded to expressions of opinion which were made in the course of a debate on matters of public interest would not be underestimated. Nevertheless, the authority had been entitled to conclude on the entirety of the evidence and information available to it that the making of the PSPO had been a necessary step in a democratic society. There had been substantial evidence that a very considerable number of users of the clinic reasonably felt that their privacy was being very seriously invaded at a time and place when they were most vulnerable and sensitive to uninvited attention. It also followed that the authority had been entitled to conclude that the effect of the activities of the protestors had been likely to make such activities unreasonable and justified the restrictions imposed in satisfaction of the requirements of the ABCPA 2014 s 59(3)(b) and (c) (see [97] of the judgment).

The authority’s decision to make a PSPO ought not to be quashed in whole or in part (see [98] of the judgment).

Annen v Germany (App. No. 3690/10) [2015] ECHR 3690/10 considered.

Alasdair Henderson and Benjamin Fullbrook (instructed by Tuckers Solicitors LLP) for the claimants.

Kuljit Bhogal and Tara O’Leary (instructed by Ealing London Borough Council) for the authority.

Karina Weller - Solicitor (NSW) (non-practising).

The defendant local authority’s decision to make a public spaces protection order, which provided for a safe zone around an abortion clinic within which pro-life and pro-choice protesters were precluded from communicating their respective views on issues relating to the provision of abortion services would not be quashed. Accordingly, the Administrative Court dismissed the challenge to the order by the claimant strong proponents of the pro-life stance.

Background

The appellants had issued proceedings, seeking judicial review, against the Director of Public Prosecutions (the DPP) and the Secretary of State for Foreign and Commonwealth Affairs, challenging the DPP’s decision not to mount a prosecution against a senior officer of the British Intelligence Service (MA) for alleged co-operation and participation in their rendition to Libya. The application was made on certain grounds, including inconsistency with the evidence. The appellants contended that the decision not to prosecute was irrational because the material in the public domain was enough to make good the elements of the relevant offences. The DPP took issue with that contention, claiming that it was based on the very limited documentation available to the appellants, whereas the decision not to prosecute had been supported by an examination of some 28,000 pages of statements, exhibits and other documents which had been considered by the Crown Prosecution Service and Treasury Counsel but could not be disclosed to the appellants because of their classification as top secret. It was ordered that the appellants’ application for permission to apply for review be adjourned to a rolled up hearing at which both permission and the substantive claim would be considered.

The Secretary of State applied for a declaration under s 6 of the Justice and Security Act 2013 (JSA 2013). A declaration under JSA 2013 s 6, was a prerequisite for an application to the court under CPR Pt 82 for the use of ‘closed material procedure’, whereby the court could sit in private and without a party and his or her legal representative in order to prevent disclosures damaging to the interests of national security. An application under s 6 could be made only to a court seized of ‘relevant civil proceedings’, which were defined as not including ‘proceedings in a criminal cause or matter.’ The appellants resisted that application on the basis that those judicial review proceedings were in ‘a criminal cause or matter.’ The Divisional Court rejected that argument but certified the issue as one of public importance, suitable for consideration by the Supreme Court.

Appeal allowed (Lord Lloyd-Jones and Lord Wilson dissenting).

Issues and decisions

Whether on the hearing of the application for judicial review, it would be open to the Court to receive closed material disclosed only to the court but not to the appellants.

The resolution of that issue depended on whether the judicial review proceedings were ‘proceedings in a criminal cause or matter’ for the purposes of JSA 2013 s 6.

Closed material procedure was a derogation from ordinary principles of forensic justice because it necessarily limited the ability of a litigant or a defendant in criminal proceedings to deploy his case. The adoption of closed material procedure was not within the inherent jurisdiction of the courts and required specific statutory authority. Until the enactment of JSA 2013, the High Court had no general statutory power to receive closed material. A more general authorisation of closed material procedure was conceived to be a way of enabling substantial justice to be done on the basis of a full examination of any relevant secret material, even if it was not in all respects seen to be done(see [5]-[7] of the judgment).

In its ordinary and natural meaning ‘proceedings in a criminal cause or matter’ included proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggested a different meaning. Although the High Court had only very limited original criminal jurisdiction, it had an extensive criminal jurisdiction by way of review. It was a feature of English criminal procedure that many decisions made in the course of criminal proceedings or in relation to prospective criminal proceedings were subject to judicial review in the High Court, mainly but not only in cases where there was no statutory avenue of appeal. The High Court’s review jurisdiction extended in principle to the exercise of any official’s functions in relation to the criminal process and to the decisions of magistrates’ courts and to those of the Crown Court other than in relation to trial on indictment. The High Court’s powers of review had also been held to extend to any excess of jurisdiction by the Crown Court, even in relation to a trial on indictment. It followed that judicial review as such could be regarded as an inherently civil proceeding. It might or might not be, depending on the subject-matter. What was clear was that it was an integral part of the criminal justice system, whose availability was in many cases essential to the fairness of the process and its compliance with art 6 of the European Convention on Human Rights (see [15], [16] of the judgment).

The phrase ‘criminal cause or matter’, had been held to refer to the proceedings which supplied the subject matter of the relevant decision. That phrase, read as a whole, spoke for itself. A ‘cause’ was a proceeding, civil or criminal, actual or prospective, before a court. A ‘matter’ was something wider, namely a particular legal subject-matter, although arising in a different proceeding. That was why a ‘criminal cause or matter’ in the Judicature Acts extended to a judicial review in the High Court of a decision made in relation to actual or prospective criminal proceedings (see [20] of the judgment).

The reality of the appellants’ application was that it was an attempt to require the DPP to prosecute MA. That was just as much a criminal matter as the original decision of the DPP not to prosecute him. It was difficult to conceive that Parliament could have intended to distinguish between different procedures having the same criminal subject-matter and being part of the same criminal process. That would have been a strange thing to do. However, if the draftsman had intended it, he could have achieved it easily enough, for example by omitting the reference to a ‘matter’ (see [20] of the judgment).

A declaration would be made to the effect that the present proceedings were proceedings in a criminal cause of matter for the purpose of JSA 2013 s 6 (see [24] of the judgment).

Woodhall, ex p (1888) 20 QBD 832 followed; Provincial Cinematograph Theatres Ltd v Newcastle-upon-Tyne Profiteering Committee (1921) 90 LJKB 1064 followed; Amand v Secretary of State for Home Affairs [1942] 2 All ER 381 followed; Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] All ER Rep 52 considered; R v Davis [2008] 3 All ER 461 considered; Al Rawi v Security Service [2012] 1 All ER 1 considered; R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2011] All ER (D) 207 (Oct) considered; R (on the application of CN) v Lewisham London Borough Council; ; R (on the application of ZH) v Newham London Borough Council (Secretary of State for Communities and Local Government, interested party) [2015] 1 All ER 783 considered.

Ben Jaffey QC and Helen Law (instructed by Leigh Day & Co) for the appellants.

John McGuinness QC and Tom Little QC (instructed by The Government Legal Department) for the DPP.

James Eadie QC, Ben Watson and James Stansfeld (instructed by The Government Legal Department) for the Secretary of State.

Neneh Munu Barrister.

In its ordinary and natural meaning ‘proceedings in a criminal cause or matter’ as set out in s 6 of the Justice and Security Act 2013, for the purpose of the making an application to the court for a declaration that the proceedings were proceedings in which a ‘closed material’ application could be made, included the present proceedings, namely proceedings by way of judicial review of a decision made in a criminal cause. Nothing in the context or purpose of the legislation suggested a different meaning. Consequently, the Supreme Court allowed the appellants’ appeal against a Divisional Court’s decision which had held that the present proceedings were not ‘proceedings in a criminal cause or matter’ for the purposes of s 6 of that Act.

Background

The present appeal concerned three cases. Two of the cases had been appealed from the Commercial Court, namely Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and others (Visa) and Asda Stores Ltd and others v MasterCard Incorporated and others  (AAM). The court held that the default multilateral interchange fees (MIFs) charged respectively within the MasterCard and Visa payment systems were not prohibited anti-competitive agreements. The third case, Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and others (theCAT case) was appealed from the Competition Appeals Tribunal (the tribunal). The tribunal held that the MIFs charged within the MasterCard payment system were prohibited anti-competitive agreements.

The central issue was whether the setting of MIFs  within the MasterCard and Visa payment card systems had contravened art 101 of the Treaty of the Functioning of the European Union (the TFEU).

The Visa and MasterCard payment systems (together, the schemes) both worked in the same way: cardholders contracted with one of many issuers as to the terms on which the might use the card issued to them to buy goods from merchants. Multiple issuers, mostly banks, contracted with multiple acquirers to settle the transactions by which cardholders ‘bought’ goods or services from merchants, using a payment card on the basis of the rules of the relevant scheme. The acquirers then contracted with the merchant on the basis that they would pay the merchant the value of the cardholders transaction minus a merchants’ service that normally included: (i) an interchange fee; (ii) the scheme fee payable by the acquirer to the scheme; and (iii) an acquirer’s margin.

In July 2002, the European Commission (the Commission) decided that Visa’s intra-European Economic Area MIFs were restrictive of competition for the purposes of art 101(1) TFEU.

In December 2007, the Commission held that MasterCard’s MIFs in the European Economic Area had been in breach of art 101(1) TFEU since May 1992. MasterCard appealed to the General Court, which upheld the Commission’s decision. In November 2014, the Court of Justice of the European Union (the CJEU) dismissed MasterCard’s appeal (the CJEU decision). All three cases were appealed to the Court of Appeal, Civil Division.

Issues and decisions

(1) Whether the schemes’ rules setting default MIF’s restricted competition under art 101(1) TFEU in the acquiring market, by comparison with a counterfactual without default MIFs where the schemes’ rules provided for the issuer to settle the transaction at par, namely to pay the acquirer 100% of the value of the transaction. It was common ground that the test under art 101(1) was whether there was a ‘likelihood’ that the agreement in question restricted competition.

The correct counterfactual for schemes like the MasterCard and Visa schemes was ‘no default MIF’ and a prohibition on ex post pricing. The relevant counterfactual had to be likely and realistic in the actual context, but for schemes of that kind, the CJEU had decided that the test was satisfied (see [185] of the judgment).

The CJEU’s decision had also made it clear that MasterCard’s MIFs, which had resulted in higher prices, had limited the pressure which merchants could exert on acquiring banks, resulting in a reduction in competition between acquirers regarding the amount of the merchants’ service charge. That was not a decision from which the Court of Appeal either could or ought to depart. It answered the schemes’ argument that, whether as a matter of evidence or not, the competitive process would not differ in the counterfactual. The default MIFs could be a transparent common cost, which was passed on by acquirers to merchants, and which did not figure in the negotiations between them, but it did not follow that acquirers nonetheless competed as strongly for merchants’ business in relation to the acquirer’s margin and the additional services they offered, as they would have done in the absence of the default MIFs (see [186] of the judgment).

It was not the case that all MIFs would infringe art 101(1)  TFEU as a result of the CJEU’s decision. In the present case, the MIFs were materially indistinguishable from the MIFs that had been the subject of the CJEU’s decision. The MIFs represented the vast majority of the merchants’ service charge, and the appropriate counterfactual was a ‘no default MIF’ plus a prohibition on ex post pricing (see [188] of the judgment).

The tribunal had fallen into error when it had held that it was likely that bilateral exchange fees would be negotiated between insurers and acquirers in the counterfactual world. That decision, and the decision as to the level of the likely bilateral interchange fees, had to be set aside (see [189] of the judgment).

The rules of the MasterCard scheme, providing for a default MIF in the absence of bilateral interchange fees, infringed art 101(1) of the TFEU (see [190] of the judgment).

Bookmakers’ Afternoon Greyhound Services Ltd v Amalgamated Racing Ltd [2009] All ER (D) 298 (Jul) distinguished; John Deere v Commission [1998] 5 CMLR 311 considered; Krupp Thyssen Stainless GmbH v European Commission: T-45/98 and T-47/98 [2001] All ER (D) 174 (Dec) considered; O2 (Germany) GmbH & Co v European Commission: T-328/03 [2006] All ER (D) 13 (May) considered; Crehan v Inntrepreneur Pub Co (CPC) (Office of Fair Trading intervening) [2006] 4 All ER 465 considered; Cartes Bancaires v Commission [2016] EU:T:2016:379 considered.

(2) Whether the  argument that the setting of a default MIF was objectively necessary for the schemes’ survival should be evaluated on the basis of a counterfactual that assumed that the rival scheme would be able to continue to impose (unlawful) MIFs (the death spiral issue).

In AAM, the court had wrongly concluded that the competitive effect of removal of the restriction on the particular scheme had been relevant to the ancillary restraint doctrine. The right test was to ask whether a default MIF was essential to the survival of the type of main operation under consideration, namely a four-party card payment scheme, to which the clear answer was negative, so that the default MIF could not be justified under the ancillary restraint doctrine. Further, the schemes were materially identical in holding that the claimant companies in AAM had to establish material identity in relation to matters relevant to article 101(3) TFEU and not just article 101(1), so that the only realistic counterfactual was that, if one scheme could not impose a default MIF, the other scheme would have been similarly restrained (see [346], [347] of the judgment).

(3) If the setting of default MIFs infringed art 101(1) TFEU, whether it should have been held that the conditions required for the application of art 101(3) were applicable in those cases and, if so, at what levels the MIFs had been exemptible. It was common ground that the three relevant conditions were: (i) the agreement, decision or concerted practice had to contribute to improving the production or distribution of goods, or to promoting technical or economic progress; (ii) consumers had to receive a fair share of the resulting benefits; and (iii) the restrictions had to be indispensable to the attainment of those objectives.

In AAM, the Commercial Court had proceeded on the fallacious assumption that the default MIFs would have led to increased card usage, which was always beneficial to merchants. The court had failed to have regard to the point that, in the mature UK market, most switching would be from one scheme card to another, and therefore of no overall benefit to merchants. Accordingly, the court had not engaged appropriately in the balancing exercise required by art 101(3). There had been no cogent factual or empirical evidence of the extent of issuer pass-through, so that the court ought not have sought to estimate percentages of credit and debit card pass-through in order to assess exemptible levels of MIF. Rather, it should have concluded that MasterCard had failed to satisfy the first condition of art 101(3), so that its case for exemption failed (see [349] of the judgment).

(4) Whether the tribunal had been right to employ a counterfactual that had assumed that issuers and acquirers would have agreed bilateral interchange fees in the absence of MIFs.

The tribunal had been wrong to hold that it was likely that bilateral interchange fees would be negotiated between issuers and acquirers in the counterfactual world. That decision, and its decision as to the level of the likely bilateral interchange fees, had to be set aside (see [345] of the judgment).

(5) Whether any damages to which the merchants were entitled should be reduced or eliminated because they had passed the MIFs on to their customers.

The judge in AAM had erred regarding the exemption issue, by proceeding on the fallacious assumption that the default MIFs would have led to increased card usage, which was always beneficial to merchants (see [349] of the judgment).

The merchants did not bear the burden of proving the lawful level of MIF. The correct analysis was to apply articles 101(1) and 101(3) in order to determine whether or not the default MIF, as charged, was in whole or in part unlawful, and then to assess damages on the unlawful amount or level as so determined (see [352] of the judgment).

The tribunal had been right not to have reduced Sainsbury’s damages for ‘pass-on’. There had been no inconsistency between the tribunal’s findings regarding pass-on regarding loss and interest respectively (see [353] of the judgment).

British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1911-13] All ER Rep 63 considered; United Shoe Machinery Corporation v Hanover Shoe Inc  (1968) 392 IS 481 considered; Hodgson v Trapp [1988] 3 All ER 870 considered; Societe Comateb v Directeur General des Douanes et Droits Indirects and related references: C192-218/95 [1997] 2 CMLR 649 considered; SPE International Ltd v PPC (UK) Ltd [2002] All ER (D) 165 (May) considered; Blayney t/a Aardvark Jewelry v Clogau St David’s Gold Mines Ltd [2002] All ER (D) 242 (Jul) considered; Weber’s Wine World Handels-GmbH v Abgabenberufungskommission Wien: C-147/01 [2005] All ER (EC) 224 considered; Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v IRC [2007] 4 All ER 657 considered; Emerald Supplies Ltd v British Airways plc [2009] All ER (D) 110 (Apr) considered; Fulton Shipping Inc of Panama v Globalia Business Travel SAU (formerly TravelPlan SAU) of Spain; The New Flamenco [2018] 1 All ER (Comm) 95 considered.

(6) How the court should dispose of each of the cases in the light of its decisions on issues.

The appeals in AAM and Visa would be allowed on the art 101(1) issue, and MasterCard’s appeal on the bilateral interchange fees issue in the tribunal case would be allowed. The AAM parties’ appeal would be allowed in AAM on the death spiral issue. Declarations would be made to that effect (see [359] of the judgment).

The CAT case would be remitted to the tribunal for reconsideration of the art 101(3) issue and for the assessment of the quantum of the claim. Sainsbury’s would also be remitted for consideration of the art 101(3) issue and the assessment of quantum of the claim. Each of the three cases being considered would be remitted to the tribunal. To avoid inconsistency, the cases would, as far as possible be heard by the same tribunal and at the same time. Each tribunal would be chaired by a High Court judge (see [360], [361] of the judgment).

Decision of Competition Appeals Tribunal [2016] CAT 11 Reversed In Part.

Decision of Commercial Court [2017] EWHC 93 (Comm) Reversed In Part.

Decision of Commercial Court  [2017] EWHC 3047 (Comm) Reversed In Part.

Mark Brealey QC, Derek Spitz and Sarah Love (instructed by Morgan, Lewis & Brockius UK LLP and Mishcon de Reya LLP) for Sainsbury’s.

Jon Turner QC, Meredith Pickford QC, Christopher Brown and Max Schaefer (instructed by Stewarts Law LLP) for the AAM parties.

Mark Hoskins QC, Matthew Cook and Hugo Leith (instructed by Jones Day) for MasterCard.

Dinah Rose QC, Daniel Piccinin and Jason Pobjoy (instructed by Milbank, Tweed, Hadley & McCloy LLP) for Visa.

Nicholas Khan QC and Ronit Kreisburger (instructed by the European Commission) for the European Commission as intervener.

Toby Frost Barrister.

Three cases relating to the Visa and MasterCard payment systems were considered by the Court of Appeal. The court held that the systems had infringed European Union law concerning the prevention, restriction or distortion of competition within the internal market. All three cases would be referred to the Competition Appeals Tribunal for reconsideration.

Background

In June 2014, Oak Finance entered into a facility agreement with a Portuguese commercial bank (BES) under which it agreed to lend it about $835m. The facility agreement was governed by English Law and provided for the English courts to have exclusive jurisdiction in respect of ‘any dispute arising out of or in connection with the agreement’. BES however fell into serious financial difficulties and applied to the Central Bank of Portugal (the Central Bank) for emergency liquidity assistance. The Central Bank was the designated Resolution Authority for Portugal for the purpose of Directive (EU) 2014/59 (the EBRRD). The relevant terms of the EBRRD had been incorporated into Portuguese law by various provisions amending the Portuguese banking law.

In August 2014, the Central Bank sought to invoke the provisions in order to protect depositors’ funds by incorporating the respondent bank Novo Banco (NB) to serve as a bridge institution and transferred certain specified assets and liabilities of BES to it. Under Portuguese Banking law no liability could be transferred to a bridge institution if it was owned by an entity holding more than 2% of the original credit institutions share (the August decision). The appellant, GS, was the assignee of the rights of Oak Finance. The Central Bank decided in December 2014 that the Oak Finance liability was not eligible for transfer to NB as investigations had suggested that Oak Finance had entered into the facility agreement on behalf of GS and that GS held more that 2% of BES’s share capital (the December decision). GS objected. The Central Bank maintained its decision but conceded that any issue as to the eligibility of the Oak Finance transfer to NB would have to be resolved by a court of law.

GS commenced proceedings against NB for sums due in respect of the Oak Finance loan. The basis of their claims was that liability in the Oak Finance loan had been transferred to NB by the August decision and NB was bound by the jurisdiction clause in the facility agreement. NB applied to set aside service of the claim forms in both actions for want of jurisdiction on the ground that it had not been transferred as per the December decision and that the December decision had determined that the decision fell to be recognised in an English Court by virtue of art 66 of the EBRRD. The High Court upheld GS’s argument.

The Court of Appeal, Civil Division, allowed NB’s appeal substantially on the basis that art 3 of Directive (EC) 2001/24 (the Reorganisation Directive) which applied to measures taken in accordance with the new ‘tools’ with which member states were required to equip themselves, required the recognition of the entire process of reorganisation which included the August decision. That decision had determined conconsively that the Oak Finance liability had not been transferred. GS appealed.

Appeal dismissed.

Issues and decisions

(1) Whether the effect of the August decision could be recognised without regard to the December decision as GS had submitted.

The effect of the August decision could not be recognised without regard to the December decision. On the face of it, the December decision was not an interpretation of the August decision or an amendment of it. Nor was it a re-transfer of a liability previously transferred to NB. It was a ruling that under Portuguese banking law the Oak Finance loan had never been transferred. It followed from the agreed proposition of Portuguese law and from the requirement of art 3.2 of the Reorganisation Directive than an English court had to treat the Oak Finance liability as never having been transferred to NB. Accordingly it had never been party to the jurisdiction clause (see [28] of the judgment).

To suggest that the August decision was to be recognised without regard to the December decision was implausible. The August decision was a ‘reorganisation measure’ entitled to recognition in England under art  3 of the Reorganisation Directive and it was a ‘transfer’ for the purpose of art 66 of the EBRRD. The result of separating the August decision from the December decision and giving effect only to the former was that in the eyes of an English court, Portuguese law had to be treated as having transferred the Oak Finance liability to NB although it would not be so treated in the eyes of a Portuguese court. Since the ordinary purpose of any choice of law rule was to ascertain which legal rules should be applied in the relevant foreign jurisdiction, that was a paradoxical result (see [21] of the judgment).

Article 3 of the Reorganisation Directive determined the applicable law to be applied to a ‘reorganisation measure’ in England. Article 66 of the EBRRD was a more specific provision. Although its language might suggest some overlap with art 3 of the Reorganisation Directive it was about enforcement. Its main purpose was to require other member states to take active steps to enforce transfers of assets or liabilities made in the course of a reorganisation in the home state and to prevent challenges to such transfers in their own jurisdictions. That could only be achieved by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It was not consistent with either the language or the purpose of art 3 that an administrative act such as the December decision, which affected the operation of a ‘reorganisation measure’ under the law of the home state, should have legal consequences as regards a credit institution’s debts which were recognised in the home state but not in other member states (see [22], [23] of the judgment).

Further, an administrative act such as the August decision did not occur in a legal vacuum. It occurred in the context of a broader framework of public law. Article 3 did not only give effect to ‘reorganisation measures’ throughout the EU. It required them to be ‘applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive’, and to be ‘fully effective in accordance with the legislation of that member state’. In that legal scheme, it could not make sense for the courts of another member state to give effect to a ‘reorganisation measure’ but not to other provisions of the law of the home state affecting the operation of a ‘reorganisation measure’. That was so, whether or not that other provision was itself a reorganisation measure (see [27] of the judgment).

LBI hf v Kepler Capital Markets SA: C-85/12 [2013] All ER (D) 301 (Oct) applied; Kotnik v Drzavni zbor Republike Slovenije [2016] All ER (D) 122 (Jul) applied.

Decision of Court of Appeal (Civil Division)  [2016] EWCA Civ 1092 affirmed.

Richard Salter QC and Jonathan Mark Phillips (instructed by Pinsent Masons LLP) for NB.

Lawrence Rabinowitz QC, David Caplan and Niranjan Venkatesan (instructed by Quinn Emmanuel Urquart & Sullivan UK LLP) for the Guardians of New Zealand Superannuation Fund.

Tim Lord QC, Thomas Plewman QC and Max Schaefer (instructed by Bird & Bird LLP) for Goldman Sachs.

Mark Howard QC and Oliver Jones (instructed by Enyo Law LLP) for the Central Bank (as intervener).

Tara Psaila Barrister.

The decision of the Central Bank of Portugal, as the designated Resolution Authority for Portugal for the purpose of Directive (EU) 2014/59 (the EBRRD), that a finance facility transferred to Goldman Sachs was not eligible for emergency liquidity assistance was legally correct. The Supreme Court held that having regard to art 3 of Directive (EC) 2001/24 (the Reorganisation Directive) the entire process of reorganisation had to be recognised which meant that there had been a conclusive decision that the finance facility had not been transferred.

Background

A patient, P, sought the disclosure of a full expert report (the report) on the hearing of his complaint by, the appellant General Medical Council (GMC). Although the report contained information about P, it also contained information about the respondent doctor, Dr B. The disclosure was to be treated as a subject access request (SAR) under s 7 of the Data Protection Act 1988 (DPA 1988). Dr B opposed the disclosure on the basis of Durant v Financial Services Authority[2003] EWCA Civ 1746. The GMC took the decision to disclose the report on the basis, amongst other things, that the failure to disclose the findings of an independent expert would most likely be a breach of the Human Rights Act 1988 as well as the rights and freedoms of the data subject. Dr B sought to get an injunction to prevent the disclosure. The GMC agreed to suspend the intended disclosure pending the decision. The judge granted an injunction against the GMC under the DPA 1988 restraining the disclosure of an expert report which contained mixed personal data about both a patient and a doctor. The GMC appealed.

Appeal allowed.

Issues and decisions

(1) Whether it was an error to have proceeded on the basis that in a case for ‘mixed personal date’ there was a rebuttable presumption under the DPA 1988 s 7(4) against disclosure.

The disclosure regime under the DPA 1988 s 7(4)-(6) sought to strike a balance between competing interests of the requester and the objector, both of which were anchored in the right to respect for private life in art 8 of the European Convention on Human Rights as reflected in Directive (EC) 95/46 (see [69] of the judgment).

The judge had been in error in saying that there was a presumption under the DPA 1988 s 7(4) in favour of a person who had not consented to or who had objected to disclosure pursuant to a SAR in a mixed data case, as against a person requesting disclosure. He had further been in error in criticising the GMC for failing to adopt that as the starting point for its consideration under the DPA 1988 s 7(4) as to whether disclosure should be given in the present case of the data in the expert’s report (see [65] of the judgment).

The more natural reading of DPA 1988 s 7(4) was that a data controller had alternative courses of action. He could either obtain a valid consent but if he did not do so, he could disclose only under DPA 1988 s 7(4)(b). The data subject who had not given consent was adequately protected by DPA 1988 s 7(4)(b) without the need for a presumption against disclosure (see [97] of the judgment).

The balancing regime in DPA 1988 s 7(4)-(6) had not included any presumptive starting point or hurdle which either the requester or the objector had to overcome. The circumstances in which the balancing exercise had to be carried out would be many and varied, and where no consent had been given for disclosure (or objection raised) the outcome of the exercise would inevitably depend on the particular facts and context. The question was whether ‘it is reasonable in all the circumstances to comply with the [SAR] without the consent of the other individual’. Although DPA 1988 s 7(6) specified that regard should be had to certain listed matters, it did not limit the other matters which might be relevant circumstances; nor did it specify the weight to be given to the listed matters either as between the items in the list or as against other, non-listed relevant circumstances. There was no sound basis for saying that one should load the exercise at the outset in favour of either the objector or the requester. Both sets of rights and interests were important and there was no simple or obvious priority as between them which emerged from consideration of their nature or their place in the legislative regime (see [70] of the judgment).

Durant v Financial Services Authority [2003] All ER (D) 124 (Dec) considered.

(2) Whether, and to what extent, was weight was to be given to the motivation of a person making a SAR in a mixed data case, where the motive or part of the motive was to seek information which might assist the requestor in litigation against the objector.

There was no general principle that the interests of the requester, when balanced against the interests of the objector, should be treated as devalued by reason of such motivation. The general position was that the rights of a SAR were not dependent on appropriate motivation on the part of the requester. Moreover, where a person had two rights to obtain something (here, access to information), the usual position was that he was entitled to rely on whichever right was the more effective from his point of view. When carrying out the balancing exercise under DPA 1988 s 7(4) in a mixed data case, it would be relevant to have regard to the extent to which the interests on either side which were of a kind which were protected by the legislation were engaged and might be prejudiced by a decision one way or the other (see [79] of the judgment).

In the present case, a material part of P’s object in making a SAR was to check that accurate personal data of his had been used by the GMC and the expert in their consideration of how to react to his complaint about Dr B’s conduct. That was an object within the purpose for which SAR’s had been conferred. Even if part of P’s object was to try to obtain material which might help him in litigation against Dr P, that in no way diminished the legitimacy or force of his interest to have communicated to him information about his personal data as processed by the GMC and the expert (see [80] of the judgment).

Dunn v Durham County Council [2012] All ER (D) 110 (Dec) considered; Guriev and another v Community Safety Development (UK) Ltd [2016] All ER (D) 54 (Apr) considered; Dawson-Damer v Taylor Wessing LLP (Information Commissioner intervening) [2017] All ER (D) 208 (Feb) considered; Ittihadieh v 5-11 Cheyne Gardens Rtm Company Ltd and others; Deer v University of Oxford; University of Oxford v Deer (Information Commissioner intervening) [2017] 3 WLR 811 considered.

(3) Whether there had been improper reliance on the motive of P in making the SAR.

The judge had erred in finding that the GMC’s decision had taken no adequate account of the fact that the purpose of the request was to use the report and its information in the intended litigation against Dr B (see [75] of the judgment).

Although it could not be said that a desire on Dr B’s part to be protected from litigation was wholly irrelevant in the balancing exercise under DPA 1988 s 7(4), it was a matter which was peripheral to the main focus of that balancing exercise, which was concerned with weighing the privacy interests of the requester and the objector. In any event, the GMC had taken Dr B’s desire into account, but for rational reasons had decided that it could not be treated as determinative (see [81] of the judgment).

In a mixed data case where (as here) a data controller gave the objector a full opportunity to state his grounds of objection to disclosure, the data controller would generally be entitled to focus on the objector’s arguments in evaluating his interest in having disclosure withheld. The data controller did not have to cast around for further reasons which had not been raised by the objector, at any rate so long as they were not matters which were so obvious that they had to be taken into account in the balancing exercise under DPA 1988 s 7(4) whether raised or not (see [82] of the judgment).

(4) Whether the judge had been correct in his reliance on other factors in favour of non-disclosure.

The issue for the court was always whether it reasonable in all the circumstances for the data controller to refuse the request or to decide to comply with the reques.  If the court decided to make the relevant assessment itself, it had to seek to balance the competing rights and interests as primary decision-maker (see [87] of the judgment).

In the present case, the GMC had given proper consideration to Dr B’s privacy interests.  The weight to be attached to Dr B’s interests in all the circumstances was a matter for the GMC as data controller.

The GMC plainly had taken into account that Dr B had expressly refused his consent to the disclosure to be made to P. The weight to be accorded to that factor was again a matter for the GMC as data controller. There was no good ground for the judge’s conclusion that it failed to take that matter adequately into account.

Further, the GMC had considered the arguments raised by Dr B in relation to the impact of disclosure upon him. It had made a lawful and rational assessment of the points he made. The weight to be accorded to them in the balancing exercise was a matter for the GMC as data controller. Its assessment cannot be fau

R (on the application of Corner House Research) v Director of the Serious Fraud Office (BAE Systems plc, interested party) [2008] All ER (D) 399 (Jul) applied.

(5) Whether the judge’s approach to the factors in favour of disclosure was correct.

The judge erred in his approch to the factors in favour of disclosure. The principal reason for finding that the judge had erred was  that he had departed from the basic approach  applicable in reviewing the decision of a data controller under DPA 1988 s 7(4). The judge had improperly substituted his own views regarding relevant factors and their weight for those of the GMC as data controller. The assessment made by the GMC under DPA 198 s 7(4) was rational and lawful (see [91], [92] of the judgment).

 There was nothing wrong or inconsistent in the GMC having a practice of disclosing summaries of expert reports to complainants on a proactive basis, when it explained a decision not to pursue a complaint further under the disciplinary rules, and separately considering whether further disclosure of personal data should be made later on pursuant to a SAR. As noted above, a complainant making a SAR has a legitimate interest within the contemplation of the Directive and the DPA to check that the personal data which have been used by the GMC and the expert in forming their views are accurate (see [93] of the judgment).

Decision of Soole J  [2016] EWHC 2331 (QB) Reversed.

Robin Hopkins (instructed by GMC Legal) for the apellant/defendant.

Anya Proops QC (instructed by BLM) for the respondent/claimant.

Tara Psaila Barrister.

There was no presumption under s 7(4) of the Data Protection Act 1988 in favour of a person who had not consented to or who had objected to disclosure pursuant to a subject access request in a mixed data case, as against a person requesting disclosure. The Court of Appeal, Civil Division held that the more natural reading of DPA 1988 s 74 was that the data subject who did not give consent was adequately protected by s 7 (4)(b) of the 1988 Act without the need for a presumption against disclosure.

Background

The applicant, MB, was born a male in 1948 and married in 1974. She began to live as a woman in 1991 and underwent sex reassignment surgery in 1995. MB did not, however, hold a full certificate of recognition of her change of gender, since, pursuant to the national legislation at issue in the main proceedings, in order for that certificate to be granted her marriage had to be annulled (see ss 4(3), 5(1) of the UK Gender Recognition Act 2004). She and her wife wished to remain married for religious reasons.

In 2008, MB, having reached the age of 60, the age at which women born before 6 April 1950 could, under national law, receive a ‘Category A’ retirement pension from the state, applied for such a pension as from that age by virtue of the contributions paid into the state pension scheme while she had been working. Her application was rejected on the ground that, in the absence of a full gender recognition certificate, MB could not be treated as a woman for the purposes of determining her statutory pensionable age. The action brought by MB against that decision was dismissed by the First-tier Tribunal (Administrative Chamber), the Upper Tribunal (Administrative Appeals Chamber) and the Court of Appeal, Civil Division.

MB appealed to the Supreme Court of the United Kingdom (the referring court), claiming that the national legislation at issue in the main proceedings was discriminatory on grounds of sex, which was prohibited by art 4(1) of Directive (EEC) 79/7 (art 4(1). According to the information provided in the order for reference, MB fulfilled the physical, social and psychological criteria provided by the national legislation on civil status for the purposes of a legal recognition of a change of gender. The referring court pointed out, however, that, at the time of the facts giving rise to the dispute, the national legislation had made such recognition, as well as the issuing of the full gender recognition certificate, conditional on the annulment of any marriage entered into before such a change had taken place. According to the referring court, such annulment was also required in order for a person who had changed gender, such as MB, to access the state retirement pension as from the statutory pensionable age of persons of the gender acquired by that person.

Before the referring court, the respondent Secretary of State for Work and Pensions (the Secretary of State) submitted that, according to the Court’s caselaw, it was for the member states to determine the conditions under which a person’s change of gender could be legally recognised. He submitted that those conditions could not be limited to social, physical and psychological criteria but could also include criteria relating to marital status. He argued, among other things, that the objective of maintaining the traditional concept of marriage as being a union between a man and a woman could justify making recognition of a change of gender subject to such a condition.

In those circumstances, the referring court  stayed the proceedings and referred a question to the Court of Justice for a preliminary ruling.

Issues and decisions

Whether Directive 79/7, in particular the first indent of art 4(1), read in conjunction with the third indent of arts 3(1)(a) and 7(1)(a) thereof, should be interpreted as precluding national legislation that required a person who had changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she had acquired as a result of that change, in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to persons of that acquired gender.

According to the Court’s caselaw, national legislation making eligibility for a pension benefit subject to a condition relating to civil status could not be placed outside the scope of the principle of non-discrimination on grounds of sex set out in art 157 of the Treaty on the Functioning of the European Union (TFEU) in the area of workers’ remuneration. It followed that art 4(1), which implemented the principle of non-discrimination on grounds of sex as regards social security, should be complied with by the member states when they exercised their powers in the area of civil status. In particular, the first indent of art 4(1), read in conjunction with the third indent of art 3(1)(a) of that directive, prohibited all discrimination on grounds of sex as regards, among other things, the conditions for access to statutory schemes ensuring protection against the risks of old age (see [30]-[33] of the judgment).

 As was clear from art 2(1)(a) of Directive (EC) 2006/54, there was direct discrimination based on sex if one person was treated less favourably on grounds of sex than another person was, had been or would be treated in a comparable situation. That concept had to be understood in the same way in the context of Directive 79/7. In accordance with the Court’s settled case-law, the scope of the latter directive, in view of its purpose and the nature of the rights which it sought to safeguard, was also such as to apply to discrimination arising from gender reassignment. In that regard, although, it was for the member states to establish the conditions for legal recognition of a person’s change of gender, the fact remained that, for the purposes of the application of Directive 79/7, persons who had lived for a significant period as persons of a gender other than their birth gender and who had undergone a gender reassignment operation should be considered to have changed gender (see [34], [35] of the judgment).

In the present case, the national legislation at issue treated less favourably a person who had changed gender after marrying than it treated a person who had retained his or her birth gender and was married. Such less favourable treatment was based on sex and could constitute direct discrimination within the meaning of art 4(1). Further, in the light of the subject matter of the retirement pension and the conditions under which it was granted, the situation of a person who had changed gender after marrying and that of a person who had kept his or her birth gender and was married were comparable. Consequently, the national legislation at issue accorded less favourable treatment, directly based on sex, to a person who had changed gender after marrying, than that accorded to a person who had kept his or her birth gender and was married, even though those persons were in comparable situations.

(see [37], [38], [44], [48] of the judgment).

Further, according to the Court’s caselaw, a derogation from the prohibition, set out in art 4(1), of all direct discrimination on grounds of sex was possible only in the situations exhaustively set out in the provisions of that directive. As it was, the objective invoked by the UK government did not correspond to any of the derogations allowed by that directive. With more specific regard to the derogation provided for in art 7(1)(a) of Directive 79/7, the Court had already held that it did not allow member states to treat differently persons who had changed gender after marrying and persons who had kept their birth gender and were married, with regard to the age of entitlement to a state retirement pension. It followed that the national legislation at issue constituted direct discrimination on grounds of sex and was, therefore, prohibited by Directive 79/7 (see [50]-[52] of the judgment).

The answer to the question referred was: yes (see [53] of the judgment).

KB v National Health Service Pensions Agency: C-117/01 [2004] IRLR 240 considered; Richards v Secretary of State for Work and Pensions: C-423/04 [2006] All ER (EC) 895 considered; Vergani v Agenzia delle Entrate, Ufficio di Arona: C-207/04 [2006] All ER (EC) 813 considered.

Neneh Munu Barrister.

Council Directive (EEC) 79/7, in particular the first indent of art 4(1), read in conjunction with the third indent of arts 3(1)(a) and 7(1)(a) thereof, should be interpreted as precluding national legislation which required a person who had changed gender not only to fulfil physical, social and psychological criteria but also to satisfy the condition of not being married to a person of the gender that he or she had acquired a result of that change, in order to be able to claim a state retirement pension as from the statutory pensionable age applicable to persons of his or her acquired gender. The Court of Justice of the European Union so held in proceedings concerning the refusal by the Secretary of State for Work and Pensions (UK) to grant the applicant a state retirement pension as from the statutory pensionable age for persons of the gender that she had acquired as a result of a change of gender.