ECFI Community trade mark – Opposition proceedings – Application for Community figurative mark POLO SANTA MARIA – Earlier Benelux figurative mark showing the silhouette of a polo player – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009.
T-376/09, [2011] EUECJ T-376/09
Updated: 12 September 2022; Ref: scu.439890
ECJ (Opinion) Equal treatment in employment and occupation – Directive 2000/78/EC – Prohibition of discrimination based on age – Article 2, paragraph 5 – Article 4, paragraph 1 – Article 6, paragraph 1 – Articles 21 and 28 of the Charter of fundamental rights – Collective agreement providing for the termination of sixty years of the employment relationship (‘forced retirement’) of an airline pilot – Aviation Security-Autonomy of collective bargaining – Professional requirements substantial and compelling – Social policy – Proportionality.
Pedro Cruz Villalon AG
C-447/09, [2011] EUECJ C-447/09
Directive 2000/78/EC – Prohibition of discrimination based on age 2
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
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 . .
Opinion – Prigge And Others v Deutsche Lufthansa AG (1) ECJ 13-Sep-2011
ECJ Directive 2000/78/EC – Articles 2(5), 4(1) and 6(1) – Prohibition of discrimination on grounds of age – Airline pilots – Collective agreement – Clause automatically terminating employment contracts at age 60 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2022; Ref: scu.439895
ECJ Public service – Officials – Social security – Insurance against accidents and occupational disease – Article 73 of the Statute – Refusal of recognition of occupational illness – Obligation to conduct the proceedings in a reasonable time.
53/09, [2011] EUECJ 53/09
Updated: 12 September 2022; Ref: scu.439757
ECFI State aid – Manufacture of railway – Advances payable – Decision declaring the aid incompatible with the common market and ordering its recovery – Adaptation of the conclusions – Human Defense – Duty to state reasons – State Resources – Accountability to the State – Private investor test – Company in difficulty.
T-267/08, [2011] EUECJ T-267/08
European
Updated: 12 September 2022; Ref: scu.439764
ECJ Public service – Officials – Action for damages – Rule of correlation between demands, claims and remedies in damages – Adversarial process – use a legal document confidential, classified ‘Restricted’ EU – Non-contractual liability of the institutions – fault liability – Causal link – Multiple causes of injury – Manufactured by a third – Strict liability – Duty to assist – Requirement for an institution to protect its staff – Assassination of a civil servant and his by third wife – Loss of chance of survival.
50/09, [2011] EUECJ 50/09
European
Updated: 12 September 2022; Ref: scu.439759
ECFI Community trade mark – Opposition proceedings – Application for Community word mark FLACO – Earlier national word mark FLACO – Relative ground for refusal – Identical goods – Article 8(1)(a) and (b) of Regulation (EC) No 207/2009 – Request for proof of genuine use of the earlier mark submitted for the first time before the Board of Appeal – Article 42(2) and (3) of Regulation No 207/2009 and Rule 22 of Regulation (EC) No 2868/95.
T-74/10, [2011] EUECJ T-74/10
Updated: 12 September 2022; Ref: scu.439754
ECJ Law Governing The Institutions – Appeal – Arbitration clause – Contract relating to Community support for a project in the context of the ‘eContent’ programme – Termination of the contract by the Commission – Reimbursement of eligible costs – Grounds of the judgment of the General Court.
C-200/10, [2011] EUECJ C-200/10
European
Updated: 12 September 2022; Ref: scu.439634
Applicable amount – person from abroad – habitual residence – European Union national – Dutch national settled in the United Kingdom to live near family carrying out voluntary work and receiving services – whether a ‘worker’ for the purpose of Council Directive 68/360/EEC – whether a right to reside pursuant to Council Directive 73/148/EEC
[2000] UKSSCSC CIS – 4727 – 1999
England and Wales
Updated: 11 September 2022; Ref: scu.269261
Lindsay J
[2006] EWHC 1343 (Ch)
England and Wales
Updated: 11 September 2022; Ref: scu.242414
ECJ A trader is not entitled under Article 5(2) of Regulation No 1697/79 to the waiver of the post-clearance recovery of import duties if the error made by the customs authorities from which he benefited was due to the fact that those authorities, instead of applying the Community provisions relating to the customs tariff published in the Official Journal of the European Communities, referred to a national tariff manual which wrongly incorporated an anticipated reduction in duty proposed by the Commission but rejected by the Council, since it was an error which the trader could reasonably have detected within the meaning of that regulation.
Community provisions relating to the customs tariff constitute, from the date of their publication in the Official Journal of the European Communities, the sole relevant positive law, of which all are deemed to be aware . A tariff manual drawn up by national authorities constitutes no more than a handbook for customs clearance; it can have no more than indicative character and in no case lead to the calling in question of the primacy of Community law . Moreover, an error in relation to the rate of duty can be detected by an attentive trader from a reading of the Official Journal of the European Communities, in which the relevant provisions are published.
Furthermore, a commercial trader whose activities consist, essentially, of import-export operations cannot derive a legitimate expectation as to the applicable rate of duty merely from a Commission proposal incorporated in a national tariff manual, since it is not unreasonable to expect him to consult the relevant Official Journals .
R-161/88, [1989] EUECJ R-161/88, [1988] ECR 2415
European
Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.215716
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run the business with the same staff until 25 February 1983, from when a new lease was concluded between the landlord and Daddy’s Dance Hall A/S. Daddy’s Dance Hall immediately re-employed the the staff including Mr Tellerup in the same jobs. The new contract with Mr Tellerup stated his remuneration, formerly of commission, would become a fixed salary. A trial period of three months was agreed on, during which either side could give 14 days’ notice. This was a shorter period of notice than that to which Mr Tellerup was entitled if his employment with the transferor was taken into account. He was dismissed on 26 April 1983 with 14 days’ notice.
Held: One question was whether an employee may waive rights conferred on him by the Directive if the disadvantages resulting from his waiver are offset by such benefits that, taking the matter as a whole, he is not placed in a worse position. The court gave a qualified answer saying that the purpose of the Directive is to ensure that the rights of employees affected by the transfer of an undertaking are safeguarded, adding that: ‘Since this protection is a matter of public policy, and therefore independent of the will of the parties to the contract of employment, the rules of the Directive, in particular those concerning the protection of workers against dismissal by reason of the transfer, must be considered to be mandatory, so that it is not possible to derogate from them in a manner unfavourable to employees. The court said that it followed that employees are not entitled to waive the rights conferred on them by the Directive, and that those rights cannot be restricted even with their consent. But the Directive could be relied on only to ensure that the employee is protected in his relations with the transferee to the same extent as he was in his relations with the transferor under the legal rules of the Member State. ‘Consequently, in so far as national law allows the employment relationship to be altered in a manner unfavourable to employees in situations other than the transfer of an undertaking, in particular as regards their protection against dismissal, such an alternative is not precluded merely because the undertaking has been transferred in the meantime and the agreement has therefore been made with the new employer.’
[1989] 2 CMLR 517, C-324/86, R-324/86, [1988] EUECJ R-324/86, [1988] ECR 739, [1989] ICR 330, [1988] IRLR 315
European
Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Cited – Wilson and Others v St Helens Borough Council EAT 10-Apr-1996
Variation of employment terms which arose on a transfer of an undertaking were ineffective. Mummery P J said: ‘It is also an error on the part of the tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties . .
Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.215557
‘This appeal raises important questions as to the circumstances in which, under European Community law, a National Health Service patient requiring surgery is entitled to have the surgery undertaken in another member state of the European Union and require the National Health Service to pay for it.’
Lord Justice May
[2004] EWCA Civ 166, (2004) 77 BMLR 26
England and Wales
Updated: 11 September 2022; Ref: scu.193639
C-217/89, [1990] EUECJ C-217/89
European
Updated: 11 September 2022; Ref: scu.160303
ECJ Member States – Obligations – Exercise of residual powers in the field of the registration of vessels – Compliance with Community law. Free movement of persons – Freedom of establishment – Registration of a fishing vessel in a Member State – Conditions relating to the nationality, residence and domicile of the owners, charterers and operators of the vessel – Unlawful – Power of derogation of the national authorities – Absence of effect – System of fishing quotas – Absence of effect – Condition relating to the location of place from which the vessel is managed and its operations directed and controlled – Lawful (EEC Treaty, Art. 52)
C-221/89, [1991] EUECJ C-221/89, [1991] ECR I-3905
European
Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.160306
C-246/90, [1992] EUECJ C-246/90
European
Updated: 11 September 2022; Ref: scu.160536
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 implementation of the Treaty.
LMA Brasserie de Pecheur – Claim by a French brewery for losses suffered as a result Germany’s purity of beer laws, in respect of which Germany had been found to be in breach of Art.30EC – freedom of movement of goods. The German court upon receiving the ruling ultimately awarded no damages to the plaintiffs on the basis that there had been no direct causal connection between Germany’s sufficiently serious breach and the damage suffered.
Factortame – Spanish fisherman had succeeded on substantive issue of UK’ s imposition of conditions for registration as a British vessel in breach of Art.52EC (right to establishment). They now sought damages for losses caused to them as a result of UK’s breach. The English Divisional Court on receiving and applying the ruling found that there had been a sufficiently serious breach to give rise to liability, but that although compensation was payable, exemplary damages would not be awarded. The amount of damages was not assessed at this hearing.
Held: Does decision turn on discretion on implementation?
Rodriguez Iglesias (Rapporteur), President
Times 07-Mar-1996, [1996] 2 WLR 506, [1996] IRLR 267, (1996) 1 CMLR 889, C-46/93, [1996] QB 404, C-48/93, [1996] ECR 1-1029, [1996] EUECJ C-46/93, [1996] CEC 295, [1996] All ER (EC) 301
European
Applied – Regina v Ministry of Agriculture, Fisheries and Food ex parte Lay and Gage Admn 15-May-1995
The claimants sought damages for the wrong interpretation of the law by the Ministry, which had restricted their rights to milk quota.
Held: Making an administrative decision which was in breach of European law was not enough in itself to . .
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
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 . .
Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
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 . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
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 . .
Cited – Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd) SC 11-Apr-2017
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 . .
Cited – Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.161075
Agriculture – Common organization of the markets – Milk and milk products – Additional levy on milk – Determination of the reference quantities exempt from the levy – Producer selling directly for consumption – Basis of calculation – Quantities marketed directly during the reference year and produced by the farmer’ s own herd (Regulation No 804/68 of the Council, Art 5c, and Council Regulation No 857/84, Art 6(1))
Article 6(1) of Regulation No 857/84 adopting general rules for the application of the additional levy on milk must be interpreted as meaning that the reference quantity assigned to a producer of milk and milk products selling directly to consumption, as referred to in Article 5c2) of Regulation No 804/68, is to be calculated on the basis of the quantity of milk or milk products which he sold directly to consumption during the relevant reference year and which was produced by his own herd.
C-174/88, R-174/88
European
Updated: 11 September 2022; Ref: scu.134903
Mergers and division of public limited liability companies; transposition of certain directives in international law.
C-46/88, [1989] EUECJ C-46/88
European
Updated: 11 September 2022; Ref: scu.134820
C-161/88
European
Updated: 11 September 2022; Ref: scu.134893
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering.
[1999] EWHC Technology 199, 1996 ORB No 1151, (1999) 67 Con LR 1
Public Works Contracts Regulations 1991
England and Wales
Cited – Rewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment) ECJ 16-Dec-1976
‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’
1. The . .
Cited – Commission v Denmark ECJ 22-Jun-1993
Opinion – Tesauro AG said: ‘where a public contract falls to be awarded, it is precisely because the procedure is a competition that it must be ensured that all those who take part have an equal chance; otherwise, it would no longer be a public . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
See Also – Harmon CFEM Facades (UK) Ltd v The Corporate Officer of the House of Commons TCC 29-Jun-2000
The company began a claim for damages for the failure to complete an award of a contract, but then went into voluntary liquidation. The defendant refused payment claiming that it would be used only for payment of the insolvency practitioner’s costs. . .
Cited – Montpellier Estates Ltd v Leeds City Council QBD 24-Jun-2010
The defendant sought to strike out certain parts of the claim against it relating to the tendering process for works on a substantial development. It was said that the defendant had given improper preference for the development of its own site.
Lists of cited by and citing cases may be incomplete.
Updated: 11 September 2022; Ref: scu.135813
Mr David Lock QC
[2021] EWHC 375 (Fam)
Hague Convention on the Civil Aspects of International Child Abduction, Council Regulation (EC) No 2201/2003
England and Wales
Updated: 11 September 2022; Ref: scu.659361
C-370/88
European
Updated: 11 September 2022; Ref: scu.135001
(Judgment) Administrative structure – Discretionary power in the organization of departments.
C-178/80, [1981] EUECJ C-178/80
European
Updated: 10 September 2022; Ref: scu.133110
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order staying her petition, saying that the Court had no jurisdiction to make the order.
Held: W’s appeal was dismissed. It was not appropriate to extend the reasoning in Owusu v Jackson to the very different circumstances of the case, which concerned a stay in favour of prior competing proceedings in a non Member State (lis alibi pendens).
Rimer, Jackson, Lewison LJJ
[2013] EWCA Civ 1255, [2013] WLR(D) 391, [2014] FAM 102, [2014] 2 WLR 1033, [2014] 1 FLR 1514, [2014] 2 FCR 208, [2014] Fam Law 286, [2014] 1 Fam 102
Domicile and Matrimonial Proceedings Act 1973, Senior Courts Act 1981 49, Council Regulation (EC) No 2201/2003
England and Wales
Appeal from – AB v CB FD 10-Oct-2012
Whether English divorce proceedings instituted here by the wife AB should be stayed to enable Indian proceedings for divorce instituted there earlier by CB.
Held: Bodey J stayed the wife’s English petition on the ground that India was the more . .
Distinguished – Owusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – JKN v JCN (Divorce: Forum) FD 19-Apr-2010
Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 September 2022; Ref: scu.516556
ECJ Freedom of establishment – Restrictions – Joint and several liability of parent companies vis-a-vis the creditors of their subsidiaries – Exclusion of parent companies having their seat in another Member State – No restriction
C-186/12, [2013] EUECJ C-186/12
European
Updated: 10 September 2022; Ref: scu.511007
ECJ Opinion – Environment – Regulation (EEC) No 259/93 on the supervision and control of shipments of waste – Directive 2006/12/EC on waste – Notion of waste – Off-specification product resulting from accidental contamination
Jaaskinen AG
C-241/12, [2013] EUECJ C-241/12, [2013] EUECJ C-241/12
European
Updated: 10 September 2022; Ref: scu.511014
ECJ Community trade marks – Regulation (EC) No 207/2009 – Article 9(1) – Concept of ‘third party’ – Proprietor of a later Community trade mark
[2013] EUECJ C-561/11, C-561/11
European
Opinion – Federation Cynologique Internationale v Federacion Canina Internacional De Perros De Pura Raza ECJ 15-Nov-2012
ECJ (Opinion) Community trade mark – Infringement – Term ‘third party’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 September 2022; Ref: scu.510896
ECJ (Grand Chamber) Directive 2003/55/EC Internal market in natural gas State intervention on the price for the supply of natural gas after 1 July 2007 Public service obligations of undertakings operating in the gas sector)
V Skouris P
[2010] EUECJ C-265/08
European
Opinion – Federutility and Others (Freedom Of Establishment) French Text ECJ 20-Oct-2009
Europa (Opinion) Pricing of natural gas supply to residential customers PSOs general economic interest . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 September 2022; Ref: scu.510898
ECJ Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Likelihood of confusion – Word mark ZYDUS – Opposition by the proprietor of the Community trade mark ZIMBUS – Partial refusal of registration by the Board of Appeal of OHIM
C-268/12, [2013] EUECJ C-268/12
European
Updated: 10 September 2022; Ref: scu.510304
Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR
Ms Lucy Theis QC I
[2010] EWHC 843 (Fam), [2011] 1 FLR 826, [2010] Fam Law 796, [2011] 2 FCR 33
England and Wales
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.415945
Trade Marks – Imported goods.
Lord Justice Waller Lord Justice Lloyd Lord Justice Longmore
[2006] EWCA Civ 380, [2006] UKCLR 893, [2007] FSR 2, [2006] Eu LR 1014, [2006] ECC 27, [2006] ETMR 66
England and Wales
Updated: 09 September 2022; Ref: scu.241970
C-101/76, [1977] EUECJ C-101/76
European
Updated: 09 September 2022; Ref: scu.132500
C-125/77
European
Updated: 09 September 2022; Ref: scu.132555
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in various ways. The defendants argued that the proper forum was Jamaica.
Held: The decision as to forum conveniens was well within the judge’s discretion. As to the issues of European Law, these were to be referred to the European Court. Here, the two competing jurisdictions were not separate European ones, but one European and one Jamaican. The issue had not been previously dealt with by the European Court.
Lord Justice Brooke
[2002] EWCA Civ 877, [2003] PIQR 186
Civil Procedure Rules 6.20(3), Brussels Convention Art 2, EC Treaty 220
England and Wales
Cited – Massey v Haynes 1881
Where one party to a case resides out of the jurisdiction, then Order 11 r1(1) applies and he may be joined if there are several defendants and the result would depend upon one investigation involving all of them. The words ‘proper party’ includes . .
Cited – Group Josi Reinsurance Company Sa v Universal General Insurance Company ECJ 9-Aug-2000
The Brussels Convention rules allowing jurisdiction apply whenever the proposed defendant is domiciled in a convention country. The plaintiff need not be. The special rules on jurisdiction which apply to insurance cases do not apply to reinsurance . .
Reference from – Owusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.174009
C-103/77
European
Updated: 09 September 2022; Ref: scu.132531
C-251/16, [2017] EUECJ C-251/16
European
Updated: 09 September 2022; Ref: scu.601023
The claimants challenged the procurement methods of the respondent in acquiring land to support a development. The Court considered their standing to bring such proceedings.
Held: Arden LJ’s observations in Chandler (and Richards J’s in Kathro) had not been intended to suggest that anyone who did not have an ‘ulterior’ or ‘improper’ motive would have standing, but: ‘The approach taken by the Court of Appeal in Chandler’s case [2010] PTSR 749 is in my view clearly grounded in a conventional approach to an assessment of standing. However, that conventional approach, focused upon the purpose and policy of legislation being invoked, leads to a much more restrictive qualification for standing in procurement cases than would apply in judicial review generally.
It is clear from the 2006 Regulations . . that the purpose of those Regulations and the Directive which lies behind them, is firstly, to provide for an open and transparent system for the competition for public contracts in the interests of securing a fair and efficient market for those contracts and secondly, to provide a bespoke system of remedies for those parties who are directly involved in competing for such contracts and participating in the market for them. This regime is quite clearly tightly focused on those directly engaged with and actively seeking the benefit of obtaining public contracts that fall within the scope of the 2006 Regulations. The public interest is no doubt served by these aims and objectives of the 2006 Regulations (for instance, by fostering value for money and the objective evaluation of bids for public works), but that is very different from saying that it follows that any member of the public could have an interest in the enforcement of those Regulations which should be recognised by the grant of standing in judicial review. It is in my view entirely consistent with the purpose of the Regulations to confine standing in any judicial review claim brought outside the extensive range of remedies available to economic operators, and by a person who is not an economic operator, to only those who ‘can show that performance of the competitive tendering procedure . . might have led to a different outcome that would have had a direct impact on him’.’
Thus, Dove J held at [41] that, whilst a trade association might satisfy the test, a council tax payer or concerned local resident or member of the local authority cannot without more bring themselves within it, because the procurement decision would have no direct impact on them. Dove J said: ‘It follows that I do not feel able to follow the approach which was taken by Lang J in Gottlieb’s case . . for the following reasons. Firstly, it is pertinent to note in my opinion that Lang J recognised that for the claimant in that case to be found to have standing to bring the claim it would be necessary to distinguish Chandler’s case. For the reasons I have already given that must be right. I am, however, unable to accept Lang J’s reasons for distinguishing Chandler’s case and reaching the conclusions which she did. Her grounds for distinguishing the claimant in Gottlieb’s case from Chandler’s case, set out in para 153, related to considerations of ulterior motive, which she considered existed in Chandler’s case but which did not arise in the case before her as the claimant genuinely wanted to have an open competition for the procurement of the development partner for the development. The difficulty with that analysis is that in my view it does not engage with the reason why there is the restricted test for standing set out in Chandler’s case, namely the policy, aims and objectives of the 2006 Regulations and their focus on the interests of economic operators. As I have set out above, in my view what was being examined in para 78 of the Court of Appeal’s decision in Chandler’s case was not directly related to ulterior motive but rather a demonstration of the distance between the interests of the claimant and the policy and purpose of the public procurement regime. It appears clear that had the Chandler test been applied in Gottlieb’s case the claimant in that case would not have established that he had standing to bring the claim.’
Dove J
[2017] PTSR 1245, [2017] EWHC 466 (Admin), [2017] WLR(D) 210
Senior Courts Act 1981, Public Contracts Regulations 2006, Parliament and Council Directive 2004/18/EC
England and Wales
Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2022; Ref: scu.579641
T-558/16, [2017] EUECJ T-558/16
European
Updated: 09 September 2022; Ref: scu.601065
ECJ (Judgment) Preliminary reference – Protection of plant health – Directive 2000/29 / EC – Protection against the introduction and spread in the EU of organisms harmful to plants or plant products – Implementing Decision (EU) 2015/789 – measures to prevent the introduction and spread in the Xylella fastidiosa Union (Wells and Raju) – Article 6, paragraph 2 a) – Obligation to carry out the immediate removal of host plants, whatever their health status, in a 100 meter radius around the infected plant – Validity – Article 16, paragraph 3 of Directive 2000/29 – Principle of proportionality – precautionary principle – Obligation to state reasons – Right to compensation
ECLI:EU:C:2016:428, C-78/16, [2016] EUECJ C-78/16
European
Updated: 08 September 2022; Ref: scu.565628
ECJ (Judgment) References for a preliminary ruling – Environment – Waste – Transfers – Regulation (EC) No 1013/2006 – Article 2(35)(g)(iii) – Illegal shipment – Incorrect or inconsistent information entered in the document listed in Annex VII to that regulation – Article 50(1) – Penalties applicable in the event of infringement of the provisions of that regulation – Proportionality
ECLI:EU:C:2016:425, [2016] EUECJ C-69/15
European
Updated: 08 September 2022; Ref: scu.565625
ECJ (Judgment) Reference for a preliminary ruling – Regulation (EEC) No 2658/87 – Common Customs Tariff – Tariff classification – Subheading 6211 3310 00 0 – Aprons – Anti-radiation protective coats
ECLI:EU:C:2016:424, [2016] EUECJ C-288/15
European
Updated: 08 September 2022; Ref: scu.565622
ECJ (Judgment) Failure to comply with a judgment of the Court of Justice finding that a Member State has failed to fulfil its obligations – Periodic penalty payment – Judgment quantifying the amount of the periodic penalty payment – Method of calculating the interest applicable to the recovery of unlawful aid – Compound interest
ECLI:EU:T:2016:342, [2016] EUECJ T-122/14
European
Updated: 08 September 2022; Ref: scu.565614
ECJ (Judgment) Dumping – Imports of bioethanol originating in the United States – Definitive anti-dumping duty – Action for annulment – Direct concern – Admissibility – Countrywide anti-dumping duty – Individual treatment – Sampling
ECLI:EU:T:2016:343, [2016] EUECJ T-277/13
European
Updated: 08 September 2022; Ref: scu.565620
Case concerning the equalisation of pension benefits for men and women.
Warren J
[2016] EWHC 377 (Ch)
England and Wales
Updated: 08 September 2022; Ref: scu.560322
ECJ Judgment – Public service – Removal after cancellation – Temporary staff – Contract renewal – Sets of six years
R. Barents (Rapporteur), P
F-87/12, [2015] EUECJ F-87/12, ECLI: EU: F: 2015: 31
European
Updated: 08 September 2022; Ref: scu.545874
ECJ Judgment – Appeal – Common foreign and security policy – Restrictive measures against the Syrian Arab Republic – Measures directed against persons and entities benefiting from the regime – Proof that inclusion on the lists is well founded – Set of indicia
C-605/13, [2015] EUECJ C-605/13, ECLI:EU:C:2015:248
European
Updated: 08 September 2022; Ref: scu.545875
ECJ Judgment – Community trade mark – Invalidity proceedings – Community figurative mark representing a grey chequerboard pattern – Absolute ground for refusal – No distinctive character – No distinctive character acquired through use – Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 – Article 52(1) and (2) of Regulation No 207/2009
M.E. Martins Ribeiro (Rapporteur), P
T-360/12, [2015] EUECJ T-360/12, ECLI:EU:T:2015:214
European
Updated: 08 September 2022; Ref: scu.545881
ECJ Judgment – Community trade mark – Invalidity proceedings – Community figurative mark representing a brown and beige chequerboard pattern – Absolute ground for refusal – No distinctive character – No distinctive character acquired through use – Article 7(1)(b) and Article 7(3) of Regulation (EC) No 207/2009 – Article 52(1) and (2) of Regulation No 207/2009
T-359/12, [2015] EUECJ T-359/12, ECLI:EU:T:2015:215
European
Updated: 08 September 2022; Ref: scu.545880
ECJ (Judgment) Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Error of assessment
H. Kanninen, P
T-176/12, [2015] EUECJ T-176/12
European
Updated: 08 September 2022; Ref: scu.541735
(Judgment) Community trade mark – Invalidity proceedings – Community word mark WET DUST CAN’T FLY – Absolute ground for refusal – Lack of distinctive character – Descriptive character – Article 7(1)(b) and (c) of Regulation (EC) No 207/2009
M. van der Woude, P
T-133/13, [2015] EUECJ T-133/13
Regulation (EC) No 207/2009 7(1)(b)
European
Updated: 08 September 2022; Ref: scu.541740
ECJ (Judgment) Community trade mark – Opposition proceedings – Community trade mark AFRICAN SIMBA – Earlier national figurative mark Simba – Relative ground for refusal – Genuine use of the earlier mark – Article 42, paragraphs 2 and 3 of Regulation (EC) No 207 / 2009 – Obligation to state reasons – Article 75 of Regulation No 207/2009 – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation No 207/2009
A. Dittrich, P
T-172/13, [2015] EUECJ T-172/13
European
Updated: 08 September 2022; Ref: scu.541738
ECFI Judgment – State aid – Public Broadcasting Service – Help envisaged by Spain in favor of RTVE – Changing the financing system – Replacement of advertising revenue through new taxes on television operators and telecommunications – Decision declaring aid compatible with the internal market – Procedural rights – New aid – Amendment of existing aid scheme – Tax measures constituting the financing of aid – Existence of a link between the tax allocation necessary and help – Direct Influence of proceeds of the tax on the importance of using – Proportionality – Obligation to state reasons
O. Czucz (Rapporteur), P
T-151/11, [2014] EUECJ T-151/11, USA T: 2014, 631 ECLI: EU
European
Updated: 08 September 2022; Ref: scu.534348
ECJ Copyright – Information society – Directive 2001/29/EC – Article 5(1) and (5) – Literary and artistic works – Reproduction of short extracts of literary works – Newspaper articles – Temporary and transient reproductions – Technological process consisting in scanning of articles followed by conversion into text file, electronic processing of the reproduction and storage of part of that reproduction – Acts of temporary reproduction which form an integral and essential part of such a technological process – Purpose of those acts being the lawful use of a work or protected subject-matter – Independent economic significance of those acts
K Lenaerts, P
C-302/10, [2012] EUECJ C-302/10, ECLI:EU:C:2012:16
European
Opinion – Infopaq International v Danske Dagblades Forening ECJ 12-Feb-2009
ECJ (Opinion) Directive 2001/29 – Articles 2 and 5 – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Exceptions and limitations – Temporary acts . .
Judgment – Infopaq International v Danske Dagblades Forening ECJ 17-Jul-2009
ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 September 2022; Ref: scu.472727
The claimant challenged the scheme set out for procurement when making arrangements with a sponsor for establishing a school as an Academy school. . The main ground of challenge was that the procurement did not comply with the Public Contracts Regulations 2006.
Held: Arden LJ dismissed that ground substantively. She went on, however, to consider whether the claimant had standing, albeit the issue was ‘academic’. Arden LJ considered three bases on which the claimant asserted standing. First, it was said that she would have standing to bring a common law challenge to the rationality of the decision; and, that being so, the EU principle of equivalence meant that she must also have standing to complain about breach of the procurement regime. This argument was rejected at, because a rationality challenge was insufficiently similar to a challenge under the Regulations.
It was said that the issue was an important one, which ought to be capable of being tested in judicial review proceedings. But Arden LJ said that this was not enough to confer standing: ‘Economic operators can test the question of legality. It would drive a coach and horses through the requirement for standing if the importance of the issue justified standing in such circumstances. It would mean that people with no real interest in the question could bring judicial review proceedings.’
it was said that, if the claimant had an interest in the relief to be granted, she should be entitled to advance all available legal arguments in support of that relief. As to that, Arden LJ said: ‘Forbes J accepted the submission that a failure to comply with any of the 2006 Regulations gives rise only to a private law claim. Such a conclusion has potentially far-reaching implications. It means that a person who is not an economic operator entitled to a specific remedy under regulation 47 can never bring judicial review proceedings in respect of that failure unless he can bring himself within the exceptional type of claimant in the Law Society case. We consider that the judge’s proposition goes too far. The failure to comply with the 2006 Regulations is an unlawful act, whether or not there is no economic operator who wishes to bring proceedings under regulation 47, and thus a paradigm situation in which a public body should be subject to review by the court. We incline to the view that an individual who has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way, but is not himself an economic operator who could pursue remedies under regulation 47, can bring judicial review proceedings to prevent non-compliance with the 2006 Regulations or the obligations derived from the Treaty, especially before any infringement takes place: see generally Mass Energy Ltd v Birmingham City Council [1994] Env LR 298, 306, cf Kathro’s case [2001] 4 PLR 83, where Richards J held that the claimants were not affected in any way by the choice of tendering procedure. He may have such an interest if he can show that performance of the competitive tendering procedure in Directive 2004/18 or of the obligation under the Treaty might have led to a different outcome that would have had a direct impact on him. We can also envisage cases where the gravity of a departure from public law obligations may justify the grant of a public law remedy in any event. However, while the court is in general bound to ask itself why a public law remedy is necessary when private law remedies are available, once permission to bring judicial review proceedings has been given, then, unless it is appropriate to deal with standing as a preliminary issue, there is likely to be little point in spending valuable court time and costs on the issue of standing. In that situation, we would not encourage the court to embark on a complex argument about standing. This will especially be the case where standing is a borderline issue.
However, in this case the observations of Richards J in Kathro’s case are particularly apposite. Ms Chandler states in her witness statement that she is sceptical about academy schools. She fears that they select the most gifted children as pupils. She is concerned that academy schools are run more like businesses than schools. Her first choice would be for her children’s school to be run by the local education authority. What Ms Chandler wants to happen is that there should be a competition to determine who should run the new school in Camden and she suggests that she should have the right to be consulted if the public procurement regime applied. In fact there would be no consultation of the kind she seeks. Ms Chandler is not challenging the Secretary of State’s decision because of any interest that she has in the observance of the public procurement regime but because she is opposed to the institution of academy schools. She is thus attempting, or seeking, to use the public procurement regime for a purpose for which it was not created. In all the circumstances, it would, in our judgment, be outside the proper function of public law remedies to give Ms Chandler standing to pursue her claim.’
Sir Anthony May P, Arden and Toulson LJJ
[2009] EWCA Civ 1011, [2010] BLGR 1, [2010] Eu LR 232, [2010] 1 CMLR 19, [2010] PTSR 749
Education Act 1996, Public Contracts Regulations 2006
England and Wales
Cited – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.375939
It is possible that in some circumstances the same enactment may be construed differently according to whether it applies in circumstances covered by a directive. Arden LJ approved the following passage from Bennion: ‘It is legitimate for the national court, in relation to a particular enactment of the national law, to give it a meaning in cases covered by the Community law which is inconsistent with the meaning it has in cases not covered by the Community law. While it is at first sight odd that the same words should have a different meaning in different cases, we are dealing with a situation which is odd in juristic terms.’
Arden LJ
[2001] EWCA Civ 1685, [2002] 1 CMLR 20, [2002] Eu LR 37
Income Support (General) Regulations 1987
England and Wales
Appeal from – Gingi v Secretary of State for Work and Pensions SSCS 14-Nov-2001
. .
Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.167812
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human rights.
Held: (i) where there is a breach of a right afforded under EU law, article 47 of the Charter is engaged; (ii) the right to an effective remedy for breach of EU law rights provided for by article 47 embodies a general principle of EU law; (iii) (subject to exceptions which have no application in the present case) that general principle has horizontal effect; (iv) in so far as a provision of national law conflicts with the requirement for an effective remedy in article 47, the domestic courts can and must disapply the conflicting provision; and (v) the only exception to (iv) is that the court may be required to apply a conflicting domestic provision where the court would otherwise have to redesign the fabric of the legislative scheme.’
It was ‘questionable’ whether article 11 of the draft articles was in fact a definitive statement of customary international law in embassy employment disputes.
Lord Dyson MR, Arden, Lloyd Jones LJJ
[2015] EWCA Civ 33, [2016] QB 347, [2015] 3 WLR 301, [2015] IRLR 301, [2016] 1 All ER 816, [2015] 2 CMLR 20, [2015] WLR(D) 83, [2015] HRLR 3, [2015] ICR 793
State Immunity Act 1978, European Convention on Human Rights 6, Charter of Fundamental Rights of the European Union 47
England and Wales
At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
At CA – Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs SC 18-Oct-2017
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.542260
UTIAC 1. Because of the wording of the Qualification Directive, Community law looks outside itself for the interpretation of article 1D, and the CJEU’s pronouncement on the meaning of this aspect of refugee law is a pronouncement on the autonomous meaning of article 1D.
2. Following the CJEU’s reversal of the operative part of the decision of the Court of Appeal in El-Ali [2002] EWCA Civ 1103, the other elements of the latter decision may need to be reconsidered, possibly along the lines set out by the Advocate General in Bolbol v Bevandorlasi es Allampolgarsagi Hivatal Case C-31/09.
Ockleton VP, McGeachy UTJ
[2012] UKUT 413 (IAC)
England and Wales
Updated: 07 September 2022; Ref: scu.466467
ECJ Freedom of establishment – Directive 64/427/EEC – Activities of self-employed persons in manufacturing and processing industries – Conditions for taking up an occupation.
C-194/97, [1998] EUECJ C-194/97
Updated: 07 September 2022; Ref: scu.433447
ECFI (Social Policy) European Social Fund – Approval decision – Reduction of financial assistance – Prior hearing of beneficiary – Consultation of Member State – Protection of legitimate expectations – Legal certainty – Statement of reasons – Manifest error of assessment.
[1998] EUECJ T-181/96
European
Updated: 07 September 2022; Ref: scu.433446
ECJ (External Relations) Association Agreement EEC-Turkey – Decision No 1 / 80 of the Association Council – Article 7, first paragraph – Turkish national who spent ten years before the expulsion order on the territory of the Member State Home – Criminal convictions – Extending the scope of Article 28, paragraph 3, a) of Directive 2004/38/EC – Distance only for compelling reasons of public safety.
C-371/08, [2011] EUECJ C-371/08, [2011] EUECJ C-371/08
European
Updated: 07 September 2022; Ref: scu.433418
ECJ Directive 89/104/EEC – Trade mark – Right of the proprietor of a registered trade mark to oppose the illegal use of its mark – Use of a sign – Definition – Filling cans on behalf of third – Export Products – Likelihood of confusion – Target to take into consideration.
C-119/10, [2011] EUECJ C-119/10
See Also – Frisdranken Industrie Winters v Red Bull Gmbh ECJ 15-Dec-2011
ECJ Trade marks – Directive 89/104/EEC – Article 5(1)(b) – Filling of cans already bearing a sign similar to a trade mark – Service provided under an order from and on the instructions of another person – Action . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2022; Ref: scu.433392
ECJ Failure to fulfill obligations – Directive 2007/36/EC – Exercise of certain rights of shareholders in listed companies – Failure to transpose within the prescribed period.
C-390/10, [2011] EUECJ C-390/10
Updated: 07 September 2022; Ref: scu.433380
ECFI Community trade mark – Opposition proceedings – Application for the Community figurative mark FIRST DEFENSE AEROSOL PEPPER PROJECTOR – Relative ground for refusal – Article 8(3) of Regulation (EC) No 207/2009 – Implementation by OHIM of a judgment annulling a decision adopted by one of the OHIM Boards of Appeal – Rights of the defence – Obligation to state reasons – Articles 63(2), 65(6), 75 and 76 of Regulation No 207/2009.
T-262/09, [2011] EUECJ T-262/09
Updated: 07 September 2022; Ref: scu.433401
ECJ Appeal – Common commercial policy – Dumping – Regulation (EC) No 384/96 – Articles 2(10), 3(2), 18(3) and 19(3) – Comparison of the normal value and the export price – Adjustment – Rights of the defence – Imports of certain seamless tubes and pipes, of iron or steel, originating in Croatia, Romania, Russia and Ukraine – Regulation (EC) No 954/2006 – Cooperation by the European Union industry – Use of confidential information.
[2011] EUECJ C-191/09, [2012] EUECJ C-191/09 – P, [2009] EUECJ C-191/09 – P
European
Updated: 07 September 2022; Ref: scu.433386
ECJ Civil Service – Temporary staff – Article 8 of the CEOS – clause terminating the contract if the agent is not registered in the reserve list of competition – competition and general OHIM/AD/02/07 OHIM / AST/02/07 – Act adversely affecting an official – Principle of good faith performance of contracts – Duty of care – Principle of sound administration – Language Requirements – Lack of EPSO – Directive 1999/70/EC – Fixed-term work.
82/08, [2011] EUECJ 82/08
Updated: 07 September 2022; Ref: scu.433379
ECFI Social Policy – PHARE – ‘Revolving Fund’ obtained by the Czech Republic – Reimbursement of amounts paid – Decision of the Commission to recover by offsetting – Legal basis – separate legal orders – Meaning of some of the debt and liquid – Obligation to state reasons.
T-465/08, [2011] EUECJ T-465/08
Updated: 07 September 2022; Ref: scu.433388
ECFI Economic And Social Cohesion – Financial assistance for an ecological tourism project – Collusion – Regulation (EC, Euratom) No 2988/95 – Protection of the European Communities’ financial interests – Withdrawal of an advantage improperly obtained – Prescription – No interruption.
T-297/05, [2011] EUECJ T-297/05
Regulation (EC, Euratom) No 2988/95
Updated: 07 September 2022; Ref: scu.433394
ECJ (Freedom To Provide Services) Article 226 EC – Failure of a Member State – Article 49 EC – Limitation unjustified freedom to provide services – National Social Security – Medical benefits provided in another Member State – Provision of non-hospital care – Reimbursement of medical expenses committed abroad – Requirement of prior authorization – Restrictive conditions for granting such authorization.
[2011] EUECJ C-255/09, [2011] EUECJ C-255/09
European
Updated: 07 September 2022; Ref: scu.433383
The court was asked as to the circumstances in which family members of an EU citizen are entitled to permanent residence in another Member State where the EU citizen dies before acquiring the right of permanent residence.
Maurice Kay VP, Thomas, Etherton LJJ
[2011] EWCA Civ 499
England and Wales
Updated: 07 September 2022; Ref: scu.432923
ECJ (Area Of Freedom, Security And Justice) Jurisdiction and Enforcement – Definition of ‘civil and commercial matters – Recognition and enforcement of a decision imposing a fine calendar – Directive 2004/48/EC – Intellectual property rights – the measures, procedures and remedies in case achievement of such a right – pay the costs in the proceedings for enforcement efforts to recognize and execute decisions to preserve a right of intellectual property.
C-406/09, [2011] EUECJ C-406/09
Opinion – Realchemie Nederland v Bayer Cropscience Ag ECJ 18-Oct-2011
ECJ Regulation (EC) No 44/2001 – Jurisdiction and recognition and enforcement of judgments – Definition of ‘civil and commercial matters’ – Recognition and enforcement of an order imposing a fine – Directive . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.431963
ECJ State aid – Existing aid regime – Tax regime for coordination centres established in Belgium – Application by an association – Admissibility – Commission Decision that the regime does not constitute aid – Change in the Commission’s appraisal – Article 87(1) EC – Protection of legitimate expectations – General principle of equal treatment.
C-217/03, [2006] EUECJ C-217/03
European
Updated: 06 September 2022; Ref: scu.243001
The taxpayer licensed static caravans on seasonal pitches on its land. They claimed exemption from charging VAT on the basis that they were residential lettings exempt under European legislation.
Held: The appeal failed. The legislation exempted the purchase of static caravans, but explicilty not ‘the supply of accomodation in a caravan or houseboat.’ There was therefore no policy against a charge to VAT. A state was given discretion as to how any exemption was to be applied, but the test used in the UK legislation was of seasonality, and that in turn met the test of reasonableness.
Lady Justice Arden Lord Justice Thorpe Lord Justice Neuberger
[2004] EWCA Civ 146, Times 27-Feb-2004
Sixth Council Directive 77/388/EEC (OJ 1977 L145/1) 13B(b), Value Added Tax Act 1994 Sch9 Grp1
England and Wales
Appeal from – Colaingrove Limited v The Commissioners for Customs and Excise ChD 16-Apr-2003
The Directive exempted from a charge to VAT for letting of imoveable property. The taxpayer challenged the requirement to charge to VAT his business of leasing pitches for caravans.
Held: The directive allowed member states to derogate from . .
Cited – Skatteministeriet v Henriksen ECJ 13-Jul-1989
Europa Article 13B(b ) of the Sixth Directive ( 77/388 ) on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as meaning that the phrase ‘premises and sites for . .
Cited – Lubbock Fine v Commissioners of Customs and Excise ECJ 15-Dec-1993
Europa The term ‘letting of immovable property’ used in Article 13B(b) of the Sixth Directive (77/388) on the harmonization of the laws of the Member States relating to turnover taxes to define a transaction . .
Cited – Amengual Far v Amengual Far ECJ 3-Feb-2000
Europa Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes allows Member States to lay down a general rule making lettings of immovable . .
Cited – Blasi v Finanzamt Munchen ECJ 12-Feb-1998
ECJ Article 13.B(b)(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes may be construed as meaning that the provision of short-term accommodation for . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.193915
Lord Justice Clarke Lord Justice Kennedy Lord Justice Jacob
[2004] EWCA Civ 129
England and Wales
Answered by – Boehringer Ingelheim KG and Others v Swingward Ltd and Another ECJ 23-Apr-2002
The applicant sought to restrict the right of parallel importers of its goods to repackage the goods, and re-supply them in packaging on which their trade mark had been re-applied.
Held: The prohibition of quantitative restrictions on imports . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2022; Ref: scu.194121
Phillips J
[2019] EWHC 1994 (Comm), [2019] WLR(D) 431
Council Regulation (EU) No 267/2012
England and Wales
Updated: 06 September 2022; Ref: scu.642072
The court was asked as to the compatibility of provisions in the 1978 Act with the human rights of the appellant. The claimants, Moroccan nationals were employed as domestic staff in embassies in London. They alleged both race discrimination and breach of the 1998 Regulations, saying that the statutory exemption of the Embassies from liability infringed their human rights in Convention and EU law. The Foreign Secretary, on behalf of the embassies now appealed a finding that the provision was an infringement of the workers’ human rights.
Held: The appeals failed.
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption
[2017] UKSC 62, [2017] 3 WLR 957, [2017] WLR(D) 691, UKSC 2015/0063
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary video, SC Video * Jun 17 pm, SC Vid 6/6/17 pm, SC Vid 7/6/17 am, SC Vid 7/6/17 pm, SC Vid 8/6/17 am
State Immunity Act 1978, European Union Charter of Fundamental Rights, European Convention on Human Rights, Working Time Regulations 1998
England and Wales
At EAT – Benkharbouche v Embassy of The Republic of Sudan (Jurisdictional Points : State Immunity) EAT 4-Oct-2013
EAT STATE IMMUNITY
A cook at the Sudanese embassy, and a member of the domestic staff of the Libyan embassy, both made claims arising out of their employment. They were met with pleas of State Immunity, . .
At CA – Benkharbouche and Another v Embassy of The Republic of Sudan CA 5-Feb-2015
The claimant had been an employee of a foreign diplomatic mission. He said that he was not debarred by the 1978 Act from bringing claims for unfair dismissal and breach of working time regulations, saying that any exemption would infringe his human . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – The Owners of The Ship Philippine Admiral (Philippine Flag) v Wellem Shipping (Hong Kong) Limited and Another PC 5-Nov-1975
(Hong Kong) Sovereign immunity was denied to state trading ships, restricting the extent of state immunity. . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited – Golder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Markovic and Others v Italy ECHR 14-Dec-2006
The applicants were relatives of persons who had been killed in the NATO air-raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had . .
Cited – Fayed v United Kingdom ECHR 6-Oct-1994
The Secretary of State had appointed inspectors to investigate and report on a company takeover. In their report, which was published, the inspectors made findings which were critical of and damaging to the applicants, who relied on the civil limb . .
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
Cited – McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
Cited – Waite and Kennedy v Germany ECHR 18-Feb-1999
The grant of immunity from the jurisdiction of the national court to an international organisation according to a long-standing practice essential for ensuring the proper functioning of these organisations free from unilateral interference by . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Cited – Sabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
Cited – Cudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
Cited – Wallishauser v Austria (No 2) ECHR 20-Jun-2013
. .
Cited – Radunovic And Others v Montenegro ECHR 25-Oct-2016
. .
Cited – Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.597258
ECJ Judgment – Community trade mark – Revocation proceedings – Community figurative mark MOTOBI B PESARO – Genuine use of the mark – Article 51(1)(a) of Regulation (EC) No 207/2009 – Evidence submitted against the application for revocation after the expiry of the period set for that purpose – Failure to take account thereof – Discretion of the Board of Appeal – Provision to the contrary – Circumstances precluding additional or supplementary evidence from being taken into account – Article 76(2) of Regulation No 207/2009 – Rule 50(1), third subparagraph, of Regulation (EC) No 2868/95
T-171/13, [2016] EUECJ T-171/13, ECLI:EU:T:2016:54
European
Updated: 04 September 2022; Ref: scu.559497
ECFI Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Imputability of the infringement – Duration of the infringement.
T-382/06, [2011] EUECJ T-382/06
Updated: 04 September 2022; Ref: scu.431365
ECJ (Opinion) Common agricultural policy – Regulation (EC) No 1257/1999 – Regulation (EC) No 817/2004 – Application of the integrated system to agri-environmental aid which, albeit not for animals, is dependent on a certain density of livestock.
Mazak AG
C-21/10, [2011] EUECJ C-21/10
Updated: 04 September 2022; Ref: scu.431361
ECFI Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Imputability of the infringement – Fines – Deterrent effect.
T-386/06, [2011] EUECJ T-386/06, [2011] 2 CMLR 50, [2011] EUECJ C-400/08
Updated: 04 September 2022; Ref: scu.431363
ECJ Environment and protection of human health – Directive 67/548/EEC – Classifications of nickel substances as dangerous substances – Whether Directives 2008/58/EC and 2009/2/EC are valid in so far as they adapt those classifications to technical and scientific progress – Legal basis – Methods of assessing the intrinsic properties of the substances – Obligation to state reasons – Regulation (EC) No 1272/2008 – Whether Regulation (EC) No 790/2009 is valid in so far as it incorporates those classifications.
C-14/10, [2011] EUECJ C-14/10
Directive 67/548/EEC, Regulation (EC) No 790/2009, Regulation (EC) No 1272/2008
Updated: 04 September 2022; Ref: scu.431362
ECFI Community trade mark – Opposition proceedings – Application for Community figurative Linea Natura Natur hat immer Stil – Earlier Community figurative mark natura selection – Relative ground for refusal – Likelihood of confusion – Similarity of signs – Article 8, paragraph 1, b) of Regulation (EC) No 40/94 [now Article 8, paragraph 1 b) of Regulation (EC) No 207/2009]
T-54/09, [2011] EUECJ T-54/09
Updated: 04 September 2022; Ref: scu.431367
ECJ Common foreign and security policy – Restrictive measures against certain persons and entities with a view to combating terrorism – Freezing of funds – Action for annulment – Statement of reasons.
T-327/03, [2007] EUECJ T-327/03
European
Updated: 04 September 2022; Ref: scu.431370
ECJ Public service – Officials – Promotion – Exercise Class of 2009 – Decision of non-promotion – Consideration of comparative merits – Manifest error of assessment – Action for annulment – Action for damages.
104/09, [2011] EUECJ 104/09
Updated: 04 September 2022; Ref: scu.431338
ECFI Community trade mark – Application for Community word mark carcheck – Absolute ground for refusal – Descriptive character – Article 7, paragraph 1, sub c) of Regulation (EC) No 207/2009.
T-14/10, [2011] EUECJ T-14/10
Updated: 04 September 2022; Ref: scu.431339
ECFI Community trade mark – Invalidity proceedings – Community word mark AK 47 – Absolute ground for refusal – Descriptive character – Article 7, paragraph 1, sub c) and Article 52, paragraph 1, sub a) of Regulation (EC) No. 207/2009.
T-419/09, [2011] EUECJ T-419/09
Updated: 04 September 2022; Ref: scu.431344
ECJ Appeal – Community trade mark – Regulation (EC) No 40/94 – Community figurative mark TiMi KiNDERJOGHURT – Earlier word mark KINDER – Invalidity proceedings – Article 52(1)(a) – Article 8(1)(b) and (5) – Assessment of the similarity of the signs – Family of marks.
C-552/09, [2011] EUECJ C-552/09
Updated: 04 September 2022; Ref: scu.431351
ECJ Indirect taxation – Excise duty levied in breach of national law of the Union – Impact of tax by the taxpayer on its customers – Requests for refund and / or damages against the Crown by the person who has economic burden.
C-94/10, [2011] EUECJ C-94/10
European
Cited – Danfoss And Sauer-Danfoss ECJ 20-Oct-2011
ECJ Indirect taxes – Excise duties on mineral oils – Incompatibility with European Union law – Non-repayment of excise duty to purchasers of goods to whom the excise duty has been passed on . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 September 2022; Ref: scu.431346
ECFI Community trade mark – Invalidity proceedings – Community word mark AK 47 – Absolute ground for refusal – Descriptive character – Article 7, paragraph 1, sub c) and Article 52, paragraph 1, sub a) of Regulation (EC) No. 207/2009.
T-503/09, [2011] EUECJ T-503/09
Updated: 04 September 2022; Ref: scu.431345
ECJ Appeals – State aid – Commission decision – Finding that aid is incompatible with the common market – Order for recovery of aid – Principles of legal certainty and non-retroactivity – Principle of the protection of legitimate expectations – Determination of the ‘appropriateness’ of the interest rate applicable to the recovery of aid.
C-369/09, [2011] EUECJ C-369/09
Updated: 04 September 2022; Ref: scu.431358