Article 50 Notice Requires Parliament’s Authority The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act. Held: Once the notice had been given, it was irrevocable. Consultation … Continue reading Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others: QBD 13 Nov 2016
Parliament’s Approval if statute rights affected In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying that the notice could be given under the … Continue reading Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union: SC 24 Jan 2017
Opinion – Unilateral withdrawal of Art 50 Notice Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from the European Union – Notification of the intention … Continue reading Wightman and Others v Secretary of State for Exiting the European Union: ECJ 4 Dec 2018
Art 50 Notice withrawable unilaterally Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – ConditionsThe Court Ruled: ‘Article 50 TEU must be interpreted as meaning that, … Continue reading Wightman and Others v Secretary of State for Exiting the European Union: ECJ 10 Dec 2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .
Europa Bananas – Common organization of the markets – Import regime. In the procedure for the adoption of a regulation by the Council, the fact that the proposal from the Commission, amended in accordance with a . .
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. Judges: Lord Slynn of Hadley, Lord Goff of Chieveley Lord Nolan Lord Hope of Craighead Lord Clyde … Continue reading Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc: HL 26 Feb 1998
The social purposes of the Treaty in article 119 (141 EC) overrode the economic aims of the Treaty. Accordingly the article did not preclude a requirement upon a member state which imposed obligations to satisfy that social aim, even though it migt have economic consequences which risked an adverse effect upon that member states international … Continue reading Deutsche Telekom Ag v Vick and Another; Same v Schroder; Deutsche Post Ag v Sievers and Another: ECJ 28 Mar 2000
The claimant was an EC national who had become resident here but was not seeking work, since she cared for her children. The Secretary of State said that since she was not seeking work, she was not entitled to remain and should make arrangements to leave the UK. Held: The letter asking a claimant to … Continue reading Chief Adjudication Officer v Wolke; Remelien v Secretary of State for Social Security: HL 13 Nov 1997
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the TCN parent from the EU. P an … Continue reading Patel v Secretary of State for The Home Department: SC 16 Dec 2019
ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – Right of residence for students – National legislation which guarantees a minimum subsistence allowance only for nationals, … Continue reading Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve: ECJ 20 Sep 2001
On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional … Continue reading Post Office v Estuary Radio Ltd: CA 1968
The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be … Continue reading Rustomjee v The Queen: QBD 1876
The court should not interfere in decisions made by broadcasting companies allocating television time to parties before elections unless it is of the view that they were irrational in not giving enough weight to those matters in allocating it only one broadcast.The Bill of Rights does not restrict the Crown’s prerogative powers in relation to … Continue reading Attorney-General, ex rel McWhirter v Independent Broadcasting Authority: CA 1972
The appellant, a part time recorder challenged his exclusion from pension arrangements. Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata temporis. ‘The reality is that recorders are expected to observe the terms and conditions of their appointment, and that they may … Continue reading O’Brien v Ministry of Justice: SC 6 Feb 2013
(Northern Ireland) The claimant challenged the rules restricting payment of benefits to nationals from the 8 latest European Accession states to those with an unbroken 12 month working record. The applicant came from Poland and worked at two authorised employments but failed to find a third. She had left her partner because of his violence. … Continue reading Zalewska v Department for Social Development: HL 12 Nov 2008
The claimants, a Polish national and an Austrian national, appealed against decisions of the Court of Appeal upholding decisions that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to the provisions of United Kingdom domestic law. Held: The claimants’ appeals failed. When she applied, Ms Mirga was not … Continue reading Mirga v Secretary of State for Work and Pensions, Samin v Westminster City Council: SC 27 Jan 2016
EQUAL PAY ACT – Article 141/European law EQUAL PAY ACT – Equal value EQUAL PAY ACT – Other establishments 1. Although the point is not acte clair, the better view is that article 157 of the Treaty on the Functioning of the European Union is directly effective in a claim founded on equal pay for … Continue reading Asda Stores Ltd v Brierley and Others (Equal Pay Act): EAT 31 Aug 2017
The defendant resisted extradition to Brussels saying that the offence had been committed in part in England. He had absconded and been convicted. Application was made for his return to serve his sentence. The offences associated with organisation of illegal immigration, fell within the European framework list, but section 65(2)(a) was not satisfied. Held: ‘the … Continue reading Office of the King’s Prosecutor, Brussels v Cando Armas and others: HL 17 Nov 2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of Commons to bring into law an Act which had not been approved … Continue reading Jackson and others v Attorney General: HL 13 Oct 2005
Interim Injunctions in Patents Cases The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of Appeal. Held: The questions which applied when looking for an interim injunction in patent … Continue reading American Cyanamid Co v Ethicon Ltd: HL 5 Feb 1975
Art 50 withdrawal possibility review to proceed Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union. [2018] ScotCS CSIH – 18 Bailii Scotland Cited by: At Outer House – … Continue reading Wightman, MSP and Others, Reclaiming Motion By v The Advocate General: SCS 20 Mar 2018
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to comply with. She had sought to be employed on the basis that her … Continue reading A v West Yorkshire Police: HL 6 May 2004
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster. Held: Reclaim was granted. The absence of reasons allowed the court to infer that the reason for the prorogation was unlawful.‘It was the role of the courts to protect Parliament. … Continue reading Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General: SCS 11 Sep 2019
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful act. Held: The power to enter into Treaties was itself a power … Continue reading Blackburn v Attorney-General: CA 10 May 1971
UTIAC 1) Typically, the focus in EEA appeals involving family members is on either or both (i) the nature of the relationship with the EEA national/Union citizen; and (ii) the question of whether the EEA national/Union citizen has been exercising Treaty rights in the UK over the relevant period. What constitutes the relevant period, however, … Continue reading Idezuna (EEA -Permanent Residence) Nigeria: UTIAC 24 Jan 2012
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by other companies should proceed through the Commissioners who could implement European law directly. The taxpayers … Continue reading Autologic Holdings Plc and others v Commissioners of Inland Revenue: HL 28 Jul 2005
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from the state for the wrongful dismissal of his claim by the court. Held: It was for … Continue reading Kobler v Republik Osterreich: ECJ 30 Sep 2003
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age. Held: The matter was remitted to the Employment tribunal to see whether the fixing of the mandatory retirment age at 65 was a proportionate means of achieving … Continue reading Seldon v Clarkson Wright and Jakes: SC 25 Apr 2012
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any charges having an equivalent effect’. Van Gend challenged the action of the Dutch authorities before an administrative tribunal. The tribunal, in … Continue reading Van Gend En Loos v Administratie Der Belastingen: ECJ 5 Feb 1963
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by Parliament, and would transfer the Royal Prerogative power to enter into treaties without parliamentary approval. … Continue reading Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg: Admn 30 Jul 1993
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: ‘guidance is assistance in reaching a decision proffered to him who has to make … Continue reading Laker Airways v Department of Trade: CA 15 Dec 1976
Prorogation request was non-justiciable The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent. Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts.’‘The Prime Minister’s decision that Parliament should be … Continue reading Miller, Regina (On the Application Of) v The Prime Minister: QBD 11 Sep 2019
Sympathetic construction of national legislation LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC Directive designed to protect companies and third parties from the adverse effects of the doctrine of nullity. … Continue reading Marleasing SA v La Comercial Internacional de Alimentacion SA: ECJ 13 Nov 1990
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between ourselves and yourselves as principals, we alone being liable to … Continue reading JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry: HL 1989
ECJ Judgment – Grand Chamber – Citizenship of the European Union – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State – Right of entry – Third-country national who is a family member of a Union citizen and in … Continue reading McCarthy and Others v Secretary of State for the Home Department: ECJ 18 Dec 2014
‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail . .’ ECJ 1. In the … Continue reading Flaminio Costa v ENEL (Procedure): ECJ 15 Jul 1964
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was sought against the Secretary of State to restrain enforcement of that law pending a reference. The House … Continue reading Regina v Secretary of State for Transport, ex parte Factortame (No 2): HL 11 Oct 1990
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
ECJ (Opinion of Geelhoed AG) Interpretation of Articles 43 and 56 EC and Articles 4(1) and 6 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent . .
The claimant sought declaratory and mandatory orders in respect of the Government’s failure to comply with emission limits set by Directive 2008/50/EC of the European Parliament and Council of 21 May 2008. Article 13 of that Directive required . .
The appellants had imported Playstation computer games. They appealed refusal of a rebate of 50 million euros paid in VAT before a reclassification of the equipment so as to make it exempt from VAT.
Held: ‘The effect of the annulment of a . .
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
(Newfoundland) A treaty, which does not terminate a state of war, has no legal effect upon the rights and duties of the subjects of the Crown and speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty, or . .
This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council . .
ECJ Stability mechanism for the Member States whose currency is the euro – Decision 2011/199/EU – Amendment of Article 136 TFEU – Validity – Article 48(6) TEU – Simplified revision procedure – ESM Treaty – . .
The court was asked whether an English court can recognise and enforce an order of the court of the Turkish Republic of Northern Cyprus.
Held: Judgements of the courts of the Turkish Republic of Northern Cyprus were not enforceable in England. . .
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
ECJ Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship . .
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .
Municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.
(Cape of Good . .
References: (1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313 Links: Commonlii Coram: Sir James Wigram VC The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings. Sir James Wigram VC said: ‘In trying … Continue reading Henderson v Henderson; 20 Jul 1843
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