Counsel to the Commission: Nicholas Khan KC

Like, I imagine, most of those called to the Bar in the 1980s, I was barely aware of the existence of the employed Bar, envisaging that pupillage would lead to practice from chambers. Pupillages were easier to obtain in the 1980s but tenancies were hard to come by: chambers were much smaller and there was no assurance that even one new tenant would be taken on every year. At the end of pupillage, I found myself without a tenancy, so what next?

Before pupillage, I had undertaken a stage (traineeship) at the European Commission, which did not offer any direct path to a post there, but did open my eyes to the possibilities of professional life beyond the Inns of Court. During another spell in Brussels with a law firm, I sat the Commission’s entrance exam, the concours, but the notoriously low pass rate and the years that it would take for the results to come through (over 20,000 candidates made marking a lengthy task) meant I had to keep looking. Back in London, a third six was going well, but I heard that I was through the initial rounds of the concours, raising my prospects from infinitesimal to moderate, and I decided to apply for a position as a lawyer at the Department of Trade and Industry (DTI), on the basis that if I did pass the Commission’s concours, a spell in Whitehall would be better preparation than being a baby barrister in chambers.

Life as a DTI lawyer was varied and interesting; I advised on trade and EU regulatory issues, which included drafting Statutory Instruments (the strangest of which was an SI bringing into force the other-worldly Outer Space Act) and attending inter-departmental meetings organised by the Cabinet Office’s EU legal advisers, to discuss possible interventions by the United Kingdom in references to the European Court of Justice from courts in other Member States, or sometimes, the less welcome task of debating the UK’s response to infringement proceedings against the UK for a breach of EU law.

My involvement in litigation before the Court of Justice at the DTI was only in the background, but I really wanted to be doing the cases, not just contributing to them. Finally learning that I had passed the Commission concours opened up the possibility of joining its Legal Service, which performs not just the functions of the Government Legal Department but also those of Treasury Counsel, representing the Commission before the Court at all stages of the proceedings, including hearings. I therefore moved to Brussels in 1988 and to a very different life, with a remarkable range of colleagues, from initially 11 other Member States, rising to 27. My last few years were spent in the odd situation of being an official from a non-Member State, although as my post-2020 work was not linked specifically to the UK, it did not have any day-to-day consequences.

The Commission in the 1980s was a very different place; meetings were mainly held in French (which changed after the enlargement to Eastern Europe in 2004) and most departments were much more hierarchical than Whitehall, with even the most banal matter having to go up a long chain of approval. An exception to this was the Legal Service, where lawyers had considerable autonomy over their work, especially in litigation. As I knew from my time in Whitehall, preliminary references to the Court of Justice were taken very seriously by the UK and from my earliest cases, which tended to be preliminary references, I encountered as courtroom allies or opponents some of the leading figures of the time at the public law Bar, such as Michael Beloff and David Pannick. Had I been a relatively junior barrister in private practice, it is very unlikely that I would have been instructed in the cases that I represented the Commission in during my early years there.

As in Whitehall, the Commission expects its officials to be able to turn to different areas of activity over the course of their careers and in the Legal Service lawyers are rotated from time to time from one area of law to another. The Legal Service is a microcosm of the Commission, being divided into about a dozen equipes, each covering one or more areas of activity, such as agriculture, external relations, internal market etc., and over the course of my Commission career I dealt successively with; free movement of persons and coordination of social security, the Brussels Convention/Regulation on civil jurisdiction and judgments, trade defence measures (anti-dumping and anti-subsidy measures), State aid and lastly, competition. This evolution of work allowed me to start as an advocate before the Court of Justice with preliminary references on questions of law, which although often raising important points with significant repercussions, were relatively compact in scope – such cases only resolve points of EU law raised in proceedings in a national court, which remains the forum for the resolution of the dispute itself. More challenging are direct actions, where a Commission decision is subject to judicial review from an interested party, such as a company refused approval for a State aid or fined for an infringement of the competition rules. In such cases the focus of the dispute is a Commission Decision, the fate of which is to be determined by the Court of Justice. Such cases can take a very long time, due to the very different working methods of the Court of Justice, which digests and analyses written submissions in great detail, before a relatively short hearing to explore points where the court retains doubts, in particular by questioning advocates about aspects of their case (and requires the translation of written submissions into French, a cause of considerable delay). My record duration for a case is Intel, about whether Intel’s exclusivity rebates on computer chips were an abuse of its dominant position, which I took on when I moved into the competition equipe in 2009, and which concluded, after two judgments by the General Court and two on appeal by the Court of Justice, in October 2024, shortly after I retired from the Commission!

The weight and intensity of competition cases against companies like Microsoft, Intel and Google, where fines of billions of Euros were at stake, prompted me to think about applying for silk. This was a daunting prospect; starting from a practice based around litigation in a forum far away from the High Court, working in an international organisation from which no one had ever taken silk and being an employed barrister (the category with by far the lowest success rate among applicants). The rules on the range of judicial referees had, however, eased over time, making judges in Luxembourg eligible, so I applied. I was turned down initially, but on a subsequent application succeeded in convincing the KC Selection Panel that judicial review in the Court of Justice was comparable in its demands on advocates to practice in England and Wales and at least for one my cases I was able to rely on an intervention I had done for the Commission in a competition case in the Supreme Court, which I think provided some reassurance to the panel. In December 2017, I had a wonderful early Christmas present in the form of a letter informing me that I had succeeded, and on a freezing day in February 2018 went to London with my family to be sworn in as (then) a Queen’s Counsel.

The Commission’s compulsory retirement age loomed in 2024, but I did not want to come to a sudden stop professionally. In the competition cases that had dominated my work in recent years, I had often encountered barristers from Monckton Chambers, who seemed interested in me continuing my career in private practice, and I was delighted to be invited to join them this autumn. It is early days yet, but some of the issues I litigated in the context of public law enforcement are emerging again on my desk in their subsequent stage of the enforcement of private law rights derived from the principles established in my competition cases in the Court of Justice.