Category: European

Consorzio del Prosciutto di Parma and Salumificio S Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd: ECJ 20 May 2003

Europa Reference for a preliminary ruling: House of Lords – United Kingdom. Protected designations of origin – Regulation (EEC) No 2081/92 – Regulation (EC) No 1107/96 – Prosciutto di Parma – Specification – Requirement for ham to be sliced and packaged in the region of production – Articles 29 EC and 30 EC – Justification – Whether requirement may be relied on against third parties – Legal certainty – Publicity.
The court considered whether ham which had been produced in Parma, but sliced and packaged elsewhere coud still use the restricted designation of origin ‘Parma Ham’
Held: The restriction on the designation to include only ham sliced and packaged in Parma was indeed a restriction on trade (29), but was justified (30). The regulation allowed the conditions of designation to be set by the national authorities. The conditions here included conditions as to the place where the ham was sliced and packaged. When the new regulations came in, existing designations were passported under a simplified procedure which did not sufficiently clearly set out the conditions attached, and therefore in this case those conditions had not been sufficiently well advertised to attain the necessary legal certainty.

Citations:

C-108/01, Times 28-May-2003, [2003] EUECJ C-108/01

Links:

Bailii

Statutes:

EC Treaty 29 30

Jurisdiction:

European

Citing:

Reference From – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 8-Feb-2001
The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s . .

Cited by:

Returned Reference – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 31-Jul-2003
Judgment on return from Court of Justice of the European Communities – no Opinions. . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 07 June 2022; Ref: scu.182717

Rechnungshof v Osterreichischer Rundfunk and others: ECJ 20 May 2003

ECJ Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the Rechnungshof
Austrian law required public bodies subject to control by the Court of Auditors to report to it the names, salaries and pensions above a certain level paid to their employees and pensioners. The Court of Auditors would then make a report to Parliament which would be made public, the object being to exert pressure on public bodies to keep remuneration within reasonable limits. The Court of Auditors brought proceedings against Austrian radio and other bodies who refused to provide the information and some of the individuals involved brought proceedings contesting the compatibility of the legislation with their fundamental rights and with the Directive. A principal issue was whether publishing these data fell within article 7(c) or (e).
Held: The European Court of Justice stated that ‘the provisions of Directive 95/46, in so far as they govern the processing of personal data likely to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case law, form an integral part of the general principles of law whose observance the Court ensures.’
For an employer to publish the names and incomes of employees to a third party was an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights (para 74), but that it might be justified if it was both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being for the national courts to determine (para 90). But if the national legislation was incompatible with article 8, then it was also incapable of satisfying the requirements of proportionality in article 7(c) or (e) of Directive 95/46.

Judges:

GC Rodriguez Iglesias, P

Citations:

C-465/00, [2003] EUECJ C-465/00

Links:

Bailii

Statutes:

Directive 95/46/EC

Jurisdiction:

European

Cited by:

See Also – Rechnungshof v Osterreichischer Rundfunk and Others (Approximation Of Laws) ECJ 20-May-2003
ECJ Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Lists of cited by and citing cases may be incomplete.

European, Information

Updated: 07 June 2022; Ref: scu.182713

Arsenal Football Club Plc v Reed: CA 21 May 2003

The claimant had obtained a judgment in the European Court on reference from the Chancery Division as to its claim against the defendant. On attempting to have that judgement enforced, the Chancery court found that the European Court had made a finding of fact contrary to the original court, and had therefore acted in excess of jurisdiction, and had refused to enforce it.
Held: The true characterisation of the judgement of the European Court was that it had not depended upon the finding of fact referred to. The issue at the heart of the judgment was whether the registration rights would be affected by use of the mark by a third party. The sale by the defendant of goods bearing the claimant’s marks carried the same inference as to origin of those sold by the club. Appeal allowed. The policy conern is that ‘Unchecked use of the mark by a third party, which is not descriptive use, is likely to damage the function of the trade mark right because the registered trade mark can no longer guarantee origin, that being an essential function of a trade mark.’

Judges:

Lord Justice Aldous Lord Justice Clarke Lord Justice Jonathan Parker

Citations:

[2003] RPC 710, [2003] EWCA Civ 696, [2003] RPC 39

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Arsenal Football Club plc v Reed ChD 12-Dec-2002
The Club had claimed trade mark infringement against the defendant who sold Arsenal memorabilia, but claimed that the use was not a trade mark use. The case was referred to the European Court of Justice who decided in favour of the club, who then . .

Cited by:

Cited – Linkin Park TMR 3-Aug-2004
The applicant sought registration of the mark ‘Linkin Park’ under the classifications including posters. The name had been used by a music band, and objection was made, saying it would jeopardise the guarantee of origin associated with the name.
Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .
Cited – D Jacobson and Sons Ltd v Globe Gb Ltd Globe Europe Sas Chd 25-Jan-2008
The claimant alleged infringement by the defendants of its ‘Gola’ trade mark designs. The defendant said the registration was invalid because the stripes on the shoes were not distincive being seen as part of the design of the shoe rather than as an . .
Cited – Interflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 07 June 2022; Ref: scu.182359

Scott SA v Commission: ECFI 10 Apr 2003

Judgment – Action for annulment – State aid – Regulation (EC) No 659/1999 – Article 15 – Limitation period – Recovery of aid – Act interrupting the limitation period.

Citations:

T-366/00, [2003] EUECJ T-366/00, [2004] All ER (EC) 473

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Scott SA v Commission ECJ 29-Mar-2007
ECJ State aid – Land sale price – Decision ordering the recovery of aid incompatible with the common market – Errors in the calculation of the aid – Obligations of the Commission with regard to the calculation of . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 07 June 2022; Ref: scu.180829

Prudential Assurance Co Ltd v Prudential Insurance Co of America: CA 12 Mar 2003

The need to avoid conflict between trade marks registered in more than one country within the community was not dealt with by the Directive, but regard had to taken of the Convention. The Cour d’Appel had issued a final judgment in proceedings for registration of the mark in France.
Held: An English court was not required to reject an action for infringement in the UK courts because of the French proceedings. Those proceedings had concerned a French national mark. The proceedings in England concerned a community mark. The marks were not identical, and the requirements of article 105 were not satisfied. Appeal dismissed.

Judges:

Kennedy, Potter, Chadwick LJJ

Citations:

Times 19-Apr-2003, [2003] EWCA Civ 327, Gazette 22-May-2003

Links:

Bailii

Statutes:

Community Trade Mark Regulations (40/94/EEC of December 20, 1993) 105(2), Brussels Convention on the Jurisdiction and Enforcement in Civil and Commercial Matters 1968, Civil Jurisdiction and Judgments Act 1982

Jurisdiction:

England and Wales

Citing:

Appeal from – Prudential Assurance Company Ltd v Prudential Insurance Company of America ChD 11-Apr-2002
The claimant sought to restrain the defendant from use of certain names when trading in the UK. The defendants challenged the jurisdiction of the court. The judge rejected the UK claimant’s submission, that by applying to strike out the claims on . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 07 June 2022; Ref: scu.180886

Pippig Augenoptik GmbH and Co. KG v Hartlauer Handelsgesellschaft mbH: ECJ 8 Apr 2003

ECJ Judgment – Approximation of laws – Directives 84/450/EEC and 97/55/EC – Misleading advertising – Conditions for comparative advertising to be lawful

Citations:

C-44/01, [2003] EUECJ C-44/01, [2003] ECR I-3095, [2004] All ER (EC) 1156, [2004] 1 CMLR 39

Links:

Bailii

Statutes:

Directive 84/450/EEC, Directive 97/55/EC

Cited by:

Cited – Sainsbury’s Supermarkets Ltd, Regina (on The Application of) v The Independent Reviewer of Advertising Standards Authority Adjudications Admn 10-Nov-2014
The two supermarkets had price matching comparison schemes. Sainburys complained that the Independent Reviewer’s decsion that the ASA’s response to is complant as to the Tesco scheme was itself flawed. They had complained that the selections for . .
Lists of cited by and citing cases may be incomplete.

European, Media

Updated: 07 June 2022; Ref: scu.180814

Commissioners of Customs and Excise v Newbury: Admn 3 Mar 2003

The commissioner appealed a finding that a car and other goods they had forfeited should be returned. The owner said that matters had been imported for personal use under the directive.
Held: The directive had direct effect and precedence over English Law. The appellant had to behave in a proportionate manner (Louloudakis). The tribunal had a discretion as to forfeiture according to the circumstances, and must bear in mind the need for the response to be proportionate.

Judges:

Hale LJ, Moses J

Citations:

[2003] EWHC 702 (Admin), Times 18-Apr-2003, Gazette 12-Jun-2003

Links:

Bailii

Statutes:

Customs and Excise Management Act 1979 49(1), EEC Council Directive 92/12 of 25 February 1992, on excise duties 8

Citing:

Cited – Lindsay v Commissioners of Customs and Excise CA 20-Feb-2002
The applicant was stopped at Customs carrying cigarettes over the quantity set for personal use. His car was seized, and Customs refused to return it. The cigarettes were for his own use and for sale to family members. He claimed the seizure was an . .
Cited – Regina (Hoverspeed Limited and others) v Commissioners of Customs and Excise CA 10-Dec-2002
Passengers leaving a ferry had been stopped by Customs. The vehicle was searched and a quantity of alcohol and tobacco found, which they believed not to be for personal consumption. The car and imports had been forfeited. The court had said that the . .
Cited – Conegate Ltd v HM Customs and Excise 1987
Even though the terms of paragraph 6 of schedule 3 to CEMA appear to give the court in forfeiture proceedings no choice but to condemn the goods if they are ‘liable to forfeiture’ under the Act, the court must refuse to do this if to do so would be . .
Cited – Louloudakis v Elliniko Dimosio ECJ 12-Jul-2001
As penalties were not harmonised within Community law, it remains open to member states to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and . .
Cited – Commissioners of Customs and Excise v Alzitrans SL ChD 29-Jan-2003
The Commissioners had seized a lorry which had been carrying goods on which duty had not been paid. The respondent asked them to review their decision under section 14. They failed to give their determination and under section 15, were deemed to . .

Cited by:

Cited – Gascoyne v Customs and Excise and Another CA 28-Jul-2004
The Commissioners had found what they considered to be an excess of dutiable goods brought into the country by the tax payer, and had forfeited the car. The court considered the effect of the Gora case.
Held: The difficult statements in Gora . .
Cited – O’Leary International Ltd v North Wales Police Admn 31-May-2012
The company employed drivers to cross the UK. They were stopped and did not have the requisite drivers records. Instead they produced certificates as to having had rest days. These proved false, and the drivers said that the had been produced for . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, European

Updated: 07 June 2022; Ref: scu.180750

Joachim Steffensen: ECJ 10 Apr 2003

ECJ Directive 89/397/EEC – Official control of foodstuffs – Second subparagraph of Article 7(1) – Analysis of samples – Right to a second opinion – Direct effect – Admissibility of the results of analyses as evidence in the event of an infringement of the right to a second opinion

Judges:

M. Wathelet, P

Citations:

C-276/01, [2003] EUECJ C-276/01

Links:

Bailii

Statutes:

Directive 89/397/EEC

European, Agriculture

Updated: 07 June 2022; Ref: scu.180819

Van Doren + Q GmbH v Lifestyle sports + sportsewar Handelgesellschaft mbH and another: ECJ 8 Apr 2003

The claimant was exclusive agent for the trademark holder for Germany. The defendant sold goods it had not bought from the claimant, but bearing the mark. The defendant alleged exhaustion of the claimant’s rights.
Held: The burden of proving exhaustion of rights lay on the defendant, unless he could show that the result would be to create a real risk of the partitioning of the market. If he established that, then the burden of proving that the products had been placed on the market outside the EEAwith his consent so as to disapply article 7(1). The parties disoputed whether the goods were first marketed in the EEA. The importer argued that to disclose its sources would deter its suppliers in the future, thus enabling the proprietor to partition the market in the EEA. The Court of Justice held that Articles 28 and 30EC were applicable so that in such circumstances the proprietor had to show initially that the goods were not first marketed in the EEA with its consent. The Advocate General considered whether there was a duty on the proprietor to assist the importer identify the source of goods.

Citations:

C-244/00, Times 29-Apr-2003, [2003] EUECJ C-244/00, [2003] ECR I-3051, [2003] CEC 348, [2003] 2 CMLR 6, [2004] All ER (EC) 912, [2003] ETMR 75

Links:

Bailii

Statutes:

First Council Directive 89/104/EEC Art 7

Cited by:

Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Cited – Oracle America Inc v M-Tech Data Ltd and Another CA 24-Aug-2010
The claimant sought to prevent import from China of its own second hand computer disc drives said to infringe its trade marks. It had granted an exclusive licence for the sale of its equipment in Europe and alleged that this was a parallel import. . .
Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 07 June 2022; Ref: scu.180810

Maja v Commission: ECFI 12 Mar 2003

ECJ APPLICATION for the annulment of Commission decision C (1999) 2183 of 5 August 1999, first, discontinuing the financial aid granted to the applicant by Commission decision C (91) 654/87 of 29 April 1991 in the framework of project IT/0166/91/01, entitled `Modernisation of an aquaculture production unit at Contarina (Veneto)’ and for an order directing the applicant to repay to the Commission ITL 420 810 718 (EUR 217 330.59),

Judges:

R.M. Moura Ramos, P

Citations:

[2003] EUECJ T-254/99, T-254/99

Links:

Bailii

European

Updated: 07 June 2022; Ref: scu.180008

Wermuth v Wermuth: CA 4 Feb 2003

The husband had commenced proceedings for divorce in Germany. The husband was German, and the wife became German upon the marriage, but they had lived in London. The wife was second to issue, beginning proceedings in London. The district judge recorded the parties’ agreement that the German court should be seized, save of article 12 matters. The wife obtained an ancillary relief maintenance order, which the husband now appealed.
Held: The maintenance order was an unwarranted invasion of the jurisdiction of the German court. It was not protective, and nor was the case urgent. Brussels II has no direct application to ancillary relief claims. It was wrong for an English court to seek to usurp the Convention. Substantial sums had been spent on legal costs unnecessarily in London.

Judges:

Thorpe, Latham, LJJ, Lawrence Collins J

Citations:

Times 07-Feb-2003, [2003] EWCA Civ 50, [2003] 1 WLR 942

Links:

Bailii

Statutes:

Council Regulation No 1347/2000/EC (OJ 2000 L160/19) 12

Jurisdiction:

England and Wales

Family, Jurisdiction, European

Updated: 07 June 2022; Ref: scu.179018

Caballero Montoya v Commission: ECFI 30 Jan 2003

ECJ Officials – Transfer to the Community pension scheme of pension rights acquired under a national social security scheme – Late transfer – Interest paid after transfer – Commission’s refusal to review the calculation of the pension rights of the officials concerned and to pay them part of that interest.

Citations:

T-303/00, [2003] EUECJ T-303/00

Links:

Bailii

European

Updated: 07 June 2022; Ref: scu.179006

Germany v Commission (Judgment): ECJ 28 Jan 2003

ECJ EC and ECSC Treaties – State aid – Composition of the Commission – Notification to the Commission of aid and planned aid – Concept and substance of notification – Scope of the ECSC Treaty – Fifth Steel Aid Code – Powers of the Commission ratione temporis – Article 87(2)(c) EC – Privatisation procedure – Private investor test – Invitation to bid – Transparency

Citations:

C-334/99, [2003] EUECJ C-334/99

Links:

Bailii

European

Updated: 07 June 2022; Ref: scu.179003

Sieckmann v Deutsches Patent- und Markenamt: ECJ 12 Dec 2002

(Judgment)A graphic representation within article 2 had to enable the sign to be represented visually, and the representation clear and precise, self-contained, easily accessible, intelligible, durable and objective to be registered as a trade mark.
‘the essential function of a trade mark is to guarantee the identity of the origin of the marked product or service to the consumer or end-user by enabling him, without any possibility of confusion, to distinguish that product or service from others which have another origin and that, for the trade mark to be able to fulfil its essential role in the system of undistorted competition which the EC Treaty seeks to establish, it must offer a guarantee that all the goods or services bearing it have been manufactured or supplied under the control of a single undertaking which is responsible for their quality.’

Citations:

C-273/00, Times 27-Dec-2002, [2002] EUECJ C-273/00, [2003] RPC 38

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Libertel Groep BV v Benelux-Merkenbureau (Judgment) ECJ 6-May-2003
Though a sufficiently distinctive colour was capable of being registered as a trade mark, the court must be careful not to allow registrations in such a manner as unduly to restrict the range of colours available to traders. A sample of a colour had . .
Cited – D Jacobson and Sons Ltd v Globe Gb Ltd Globe Europe Sas Chd 25-Jan-2008
The claimant alleged infringement by the defendants of its ‘Gola’ trade mark designs. The defendant said the registration was invalid because the stripes on the shoes were not distincive being seen as part of the design of the shoe rather than as an . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.178717

Maierhofer v Finanzamt Augsburg-Land: ECJ 16 Jan 2003

ECJ Sixth VAT Directive – Exemptions – Letting of immovable property – Prefabricated building which can be dismantled and reassembled

Citations:

C-315/00, [2003] EUECJ C-315/00, [2003] ECR I-563

Links:

Bailii

Cited by:

Cited – Holmwood House School Development v Customs and Excise VDT 12-May-2003
VDT EXEMPTION – school granting peppercorn lease of site for proposed new building – lessee and constructor of school building entering into two licences to school and to associated partnership – whether exempt . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 06 June 2022; Ref: scu.178720

Commission v Spain (Judgment): ECJ 16 Jan 2003

ECJ Failure by a Member State to fulfil obligations – Free movement of goods – Directive 73/241/EEC – Cocoa and chocolate products containing fats other than cocoa butter – Products lawfully manufactured and marketed in the Member State of production under the sales name ‘chocolate’ – Prohibition on marketing under that name in the Member State of marketing

Citations:

C-12/00, [2003] EUECJ C-12/00

Links:

Bailii

Statutes:

Directive 73/241/EEC

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.178708

Philip Morris International Inc and Others v Commission of the European Communities: ECFI 15 Jan 2003

The applicant sought an order to annul a decision of the Commission to issue legal proceedings against it, involving allegations that the smuggling of cigarettes had led to a loss of customs duty.
Held: It is settled law that only measures by Community institutions having an effect on an individual were challengeable by that individual in this way. The decision to issue proceedings did affect the applicant’s legal position, but was not itself determinative of them.

Citations:

Times 27-Jan-2003, T-377/00, [2003] EUECJ T-377/00

Links:

Bailii

Statutes:

EC Treaty Art 230

European, Customs and Excise

Updated: 06 June 2022; Ref: scu.178706

Aktionsgemeinschaft Recht und Eigentum v Commission: ECFI 5 Dec 2002

ECJ State aid – Scheme for the acquisition of agricultural and forestry land in the former German Democratic Republic – Failure to initiate the formal review procedure provided for in Article 88(2) EC – System of aid – Action for annulment – Association – Admissibility.

Citations:

T-114/00, [2002] EUECJ T-114/00

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.178575

Lankhorst-Hohorst GmbH v Finanzamt Steinfurt: ECJ 12 Dec 2002

German law taxed interest paid on loan repayments made by a company against a loan from a shareholder, but only where the shareholder was not resident in the same country as the company. The tax authority took the view that the payments were a equivalent to a covert distribution of profits.
Held: This was discriminatory, and offended the principal of freedom of establishment. It was wrong to compare the position of a company trading for profit with corporations exempt from corporation tax. Reduction in tax revenue is not an overriding reason in the public interest capable of justifying a measure contravening a fundamental principle.

Judges:

Wathelet, President, Timmermans, Edward, Jann and Rosas JJ

Citations:

Times 27-Dec-2002, C-324/00, [2002] EUECJ C-324/00, [2002] ECR I-11779, [2003] STC 607

Links:

Bailii

Jurisdiction:

European

Cited by:

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.

European, Corporation Tax, Company

Updated: 06 June 2022; Ref: scu.178612

Davidoff et Cle SA and Another v Gofkid Ltd: ECJ 9 Jan 2003

The claimant distributed cosmetics and other goods in Germany under the mark ‘Davidoff’, and the defendants used a similar registered mark for their own and similar goods. They sought protection under the directive.
Held: The directive explicitly provided a protection for the user of an earlier mark against the user of a later and similar mark where the goods themselves were dissimilar. Where there was no likelihood of confusion, there should be no protection. However, the Directive must be read in the light of the overall scheme and its objectives. The protection given to similar goods and services should be at least as strong as that for dissimilar services, and the Directive must be read accordingly.: ‘In view of its serious effect in extinguishing the exclusive rights of the proprietors of the trade marks in issue in the main proceedings . . consent must be so expressed that an intention to renounce those rights is unequivocally demonstrated.
Such intention will normally be gathered from an express statement of consent. Nevertheless, it is conceivable that consent may, in some cases, be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market outside the EEA which, in the view of the national court, unequivocally demonstrate that the proprietor has renounced his rights.’

Judges:

Puissochet, Gulmann, Skouris, Macken, Colneric JJ

Citations:

Times 22-Jan-2003, [2003] 1 WLR 1714, [2003] FSR 28, [2003] EUECJ C-292/00, C-292/00

Links:

Bailii

Statutes:

Directive 89/104/EEC to approximate the laws of member states relating to trade marks, EU Directive 89/104/EEC of 21 December 1988

Cited by:

Cited – Adidas-Salomon AG and Another v Fitnessworld Training Ltd ECJ 23-Oct-2003
The claimants had trade marks consisting of three parallel lines of contrasting colour to the underlying garment. They alleged infringement by the use of similar designs with two lines by the defendant. The directive allowed member states to elect . .
Cited – Mastercard International Incorporated v Hitachi Credit (Uk) Plc ChD 8-Jul-2004
The claimants challenged award of a trade mark saying they were owners of many marks incorporating the word ‘Master’ associated with credit, and the applicants mark was too similar to its own.
Held: Applying Davidoff, the words can also be . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.178698

Overland Footwear Ltd v Commissioners of Customs and Excise: ECJ 5 Dec 2002

ECJ Reference for a preliminary ruling: VAT and Duties Tribunal, London – United Kingdom. Customs Code – Customs value of imported goods – Price of goods and buying commission – Reimbursement of duty payable on full amount

Citations:

C-379/00, [2002] EUECJ C-379/00

Links:

Bailii

European, VAT

Updated: 06 June 2022; Ref: scu.178418

Kurz (ne Yuce) v Land Baden-Wurttemberg: ECJ 19 Nov 2002

ECJ EEC-Turkey Association Agreement – Freedom of movement for workers – Article 6(1) of Decision No 1/80 of the Association Council – Scope – Registration as duly belonging to the labour force of a Member State – Turkish national pursuing gainful activity in the course of vocational training – Effects of an expulsion order.

Citations:

C-188/00, [2002] EUECJ C-188/00, [2002] ECR I-10691

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 06 June 2022; Ref: scu.178307

Arsenal Football Club plc v Reed: ECJ 12 Nov 2002

The trade mark owner sought orders against a street vendor who sold articles using their marks. He asserted that the marks were not attached to show any quality, but were used by the fans as badges of allegiance.
Held: The function of a trade mark was to guarantee the identity or origin of the goods, and distinguish them from goods of other origins. The purpose of the Directive was to ensure that the owner was able to protect his specific interests. Whatever the trader did to proclaim that the goods he sold did not originate from the claimants, he could not, for example, prevent confusion on a resale. The purpose of the attachment of the mark was not for purely descriptive purposes. The use of the mark in this way also diluted the guarantee of origin offered by the owner when using it itself. The articles were infringing.

Judges:

Iglesias, Puissochet, Wathelet, Timmermans, Gulmann, Edward, Jann, Skouris, Macken, Colneric, von Bahr JJ

Citations:

C-206/01, [2003] RPC 144, [2002] EUECJ C-206/01, [2002] ECR I-10273, [2003] ETMR 19

Links:

Bailii

Statutes:

First Council Directive 89/104/EEC Dec 21 1988 Art 5(1)(a)

Citing:

Reference From – Arsenal Football Club Plc v Reed ChD 6-Apr-2001
The defendant had sold memorabilia using the claimant’s name, and marks for thirty years. He sought to make it clear that the products were not sourced from the club. They were purchased, generally, by people who wore them as badges of allegiance to . .
Remitted to – Arsenal Football Club plc v Reed ChD 12-Dec-2002
The Club had claimed trade mark infringement against the defendant who sold Arsenal memorabilia, but claimed that the use was not a trade mark use. The case was referred to the European Court of Justice who decided in favour of the club, who then . .
Distinguished – Michael Holterhoff v Ulrich Freiesleben ECJ 14-May-2002
A trade mark was found to have been used to describe a method of cutting precious stones, rather than to identify their producer. . .

Cited by:

Referred to – Arsenal Football Club Plc v Reed ChD 6-Apr-2001
The defendant had sold memorabilia using the claimant’s name, and marks for thirty years. He sought to make it clear that the products were not sourced from the club. They were purchased, generally, by people who wore them as badges of allegiance to . .
Remitted from – Arsenal Football Club plc v Reed ChD 12-Dec-2002
The Club had claimed trade mark infringement against the defendant who sold Arsenal memorabilia, but claimed that the use was not a trade mark use. The case was referred to the European Court of Justice who decided in favour of the club, who then . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Linkin Park TMR 3-Aug-2004
The applicant sought registration of the mark ‘Linkin Park’ under the classifications including posters. The name had been used by a music band, and objection was made, saying it would jeopardise the guarantee of origin associated with the name.
Cited – Eli Lilly and Company and Another v 8PM Chemist Ltd CA 5-Feb-2008
The defendant appealed against an order refusing summary relied against a claim for trade mark infringement. The claimant’s drugs were sold internationally, but outside the EU, being sourced in Turkey, and distributed eventually through the . .
Cited – Wilson v Yahoo! UK Ltd and Another ChD 20-Feb-2008
The claimant had carried on business as ‘Mr Spicy’ selling snacks, and had obtained community trade marks for the name. He said that the defendant had allowed the infringement of his rights by allowing sainsbury’s to use the terms in their keywords . .
Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 06 June 2022; Ref: scu.178197

Cofidis SA v Jean-Louis Fredout: ECJ 21 Nov 2002

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Action brought by a seller or supplier – National provision prohibiting the national court from finding a term unfair, of its own motion or following a plea raised by the consumer, after the expiry of a limitation period.
The question of whether a domestic procedural provision does render it virtually impossible or excessively difficult to exercise an EU right, must be analysed by assessment of the procedural rules in its factual legal context

Judges:

A. Tizzano

Citations:

[2002] ECR I-10875, C-473/00, [2002] EUECJ C-473/00

Links:

Bailii

Statutes:

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

Cited by:

Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Cited – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Lists of cited by and citing cases may be incomplete.

European, Consumer

Updated: 06 June 2022; Ref: scu.178311

Matratzen Concord v OHMI: ECFI 23 Oct 2002

ECJ Community trade mark – Opposition – Relative grounds for refusal – Similarity between two trade marks – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 – Application for a figurative Community trade mark containing the word ‘Matratzen’ – Earlier word trade mark MATRATZEN.
Case T-6/01.
‘In this context, the Court of Justice has held that the assessment of the similarity between the two marks must be based on the overall impression created by them, in light, in particular, of their distinctive and dominant components . . Consequently, it must be held that a complex trade mark cannot be regarded as being similar to another trade mark which is identical or similar to one of the components of the complex mark, unless that component forms the dominant element within the overall impression created by the complex mark. That is the case where that component is likely to dominate, by itself, the image of that mark which the relevant public keeps in mind, with the result that all other components of the mark are negligible with the overall impression created by it . . Wiith regard to the assessment of the dominant character of one or more components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of the other components. In addition and accessorily, account may be taken of the relative position of the various marks within the arrangement of the complex mark.’

Citations:

T-6/01, [2002] EUECJ T-6/01

Links:

Bailii

Cited by:

See Also – Matratzen Concord v OHMI (Order) ECJ 28-Apr-2004
. .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.177924

Linhart v Hans Biffl: ECJ 24 Oct 2002

ECJ Approximation of laws – Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) – Directive 76/768/EEC relating to cosmetic products – Directive 84/450/EEC concerning misleading advertising – National legislation laying down restrictions on advertising.

Judges:

J-P. Puissochet, P

Citations:

C-99/01, [2002] EUECJ C-99/01

Links:

Bailii

European, Media

Updated: 06 June 2022; Ref: scu.177830

Borie Manoux SARL v Directeur de l’Institut national de la propriete industrielle: ECJ 24 Oct 2002

ECJ Agriculture – Common organisation of the markets – Wine – Description and presentation of wines – Quality wines produced in specific regions – Brand name printed on label – Restrictions – Articles 11 and 40 of Regulation No 2392/89

Citations:

C-81/01, [2002] EUECJ C-81/01

Links:

Bailii

Statutes:

Regulation No 2392/89

European, Agriculture

Updated: 06 June 2022; Ref: scu.177828

Develop Baudurchfuhrungs- und Stadtentwicklungs GmbH v Finanzlandesdirektion fur Wien, Niederosterreich und Burgenland: ECJ 17 Oct 2002

ECJ Reference for a preliminary ruling: Verwaltungsgerichtshof – Austria. Directive 69/335/EEC – Indirect taxes on the raising of capital – Capital duty – Contribution of assets of any kind – Meaning – Payments made by the parent company of a company which has acquired dividend certificates issued by a capital company

Citations:

C-71/00, [2002] EUECJ C-71/00

Links:

Bailii

Statutes:

Directive 69/335/EEC

European, Company, Taxes – Other

Updated: 06 June 2022; Ref: scu.177468

Solida Raiffeisen Immobilien Leasing GmbH and Tech Gate Vienna Wissenschafts- und Technologiepark GmbH v Finanzlandesdirektion fur Wien, Niederosterreich und Burgenland: ECJ 17 Oct 2002

ECJ Reference for a preliminary ruling: Verwaltungsgerichtshof – Austria. Directive 69/335/EEC – Indirect taxes on the raising of capital – Capital duty – Contribution of assets of any kind – Meaning – Acquisition by a non-member of dividend certificates issued by a capital company.

Citations:

C-138/00, [2002] EUECJ C-138/00

Links:

Bailii

Statutes:

Directive 69/335/EEC

European, Taxes – Other

Updated: 06 June 2022; Ref: scu.177469

Energie Steiermark Holding AG v Finanzlandesdirektion fur Steiermark: ECJ 17 Oct 2002

ECJ Reference for a preliminary ruling: Verwaltungsgerichtshof – Austria. Directive 69/335/EEC – Indirect taxes on the raising of capital – Capital duty – Increase in a company’s capital by the issue of new shares – Payments made upon the entry of a new member as a shareholder in the company – Payments made by the parent company of the new member – Payments made to the subsidiaries of the company increasing its capital – Payments not yet made.

Citations:

C-339/99, [2002] EUECJ C-339/99

Links:

Bailii

Statutes:

Directive 69/335/EEC

European, Company, Taxes – Other

Updated: 06 June 2022; Ref: scu.177467

Lawrence and others v Regent Office Care Ltd and Others: ECJ 17 Sep 2002

The employees claimed sex discrimination, and sought to have as comparators, male employees of an employer who had previously employed some of them, before a TUPE transfer of the services supplied. The Court of Appeal referred to the court the question of whether they could rely upon Article 141(1) to base such a comparison.
Held: There was nothing explicit in the wording to restrict the comparison. However, here there was no one body answerable for the inequality and the comparison was invalid.
There is, in this connection, nothing in the wording of article 141(1) EC to suggest that the applicability of that provision is limited to situations in which men and women work for the same employer. The court has held that the principle established by that article may be invoked before national courts in particular in cases of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which work is carried out in the same establishment or service, whether private or public: see, inter alia, Defrenne [1976] ICR 547, 568, para 40; Macarthys Ltd v Smith (Case 129/79 [1980] ICR 672, 690, para 10, and Jenkins v Kingsgate (Clothing Productions) Ltd (Case 96/80) [1981] ICR 592, 613-614, para 17.
However, where, as in the main proceedings here, the differences identified in the pay conditions of workers performing equal work or work of equal value cannot be attributed to a single source, there is no body which is responsible for the inequality and which could restore equal treatment. Such a situation does not come within the scope of article 141(1) EC. The work and the pay of those workers cannot therefore be compared on the basis of that provision.
In view of all the of the foregoing, the answer to the first question must be that a situation such as that in the main proceedings, in which the differences identified in the pay conditions of workers of different sex performing equal work or work of equal value cannot be attributed to a single source, does not come within the scope of article 141(1) EC.’

Judges:

Case C-320/00

Citations:

C-320/00, [2002] EUECJ C-320/00, [2003] ICR 1092

Links:

Bailii

Statutes:

EC Treaty 119 141(1)

Citing:

Reference from – A Lawrence and Others v Regent Office Care Limited; Commercial Catering Group and Mitie Secure Services Limited CA 21-Jun-2000
. .
At EAT – Lawrence and others v Regent Office Care Ltd and others EAT 5-Nov-1998
. .

Cited by:

Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Sodexo Ltd v Gutridge and others EAT 31-Jul-2008
EAT EQUAL PAY ACT
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The claimants alleged that their employer had been in breach of their rights under the Equal Pay Act 1970. They . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Considered – Robertson and others v Department for Environment Food and Rural Affairs CA 22-Feb-2005
The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 06 June 2022; Ref: scu.177355

Gallaher Limited v HM Revenue: UTTC 11 Dec 2020

CORPORATION TAX – whether the UK legislation in relation to intra-group disposals is compliant with EU law – the applicable freedoms, whether or not the provisions in question restrict a freedom – whether or not any restriction can be justified -proportionality of restrictions – conforming interpretation and disapplication – consideration of movements of capital – whether to refer questions of EU law to the Court of Justice of the European Union

Citations:

[2020] UKUT 354 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Corporation Tax, European

Updated: 06 June 2022; Ref: scu.657043

Volker Und Markus Schecke v Land Hessen (Approximation Of Laws): ECJ 9 Nov 2010

ECJ (Grand Chamber) Protection of natural persons with regard to the processing of personal data – Publication of information on beneficiaries of agricultural aid – Validity of the provisions of European Union law providing for that publication and laying down detailed rules for such publication – Charter of Fundamental Rights of the European Union – Articles 7 and 8 – Directive 95/46/EC – Interpretation of Articles 18 and 20
The limitations which may lawfully be placed on the right to the protection of personal data correspond to those tolerated in relation to article 8 of the ECHR.

Judges:

V Skouris, P

Citations:

[2010] EUECJ C-93/09, [2010] ECR I-11063, [2012] All ER (EC) 127, ECLI:EU:C:2010:662

Links:

Bailii

Statutes:

Charter of Fundamental Rights of the European Union 7 8, Directive 95/46/EC 18 20

Jurisdiction:

European

Citing:

Opinion – Volker Und Markus Schecke v Land Hessen (Approximation Of Laws) ECJ 17-Jun-2010
ECJ (Opinion) Protection of individuals regarding the treatment of personal data – Publication of information on beneficiaries of funds deriving from the European Agricultural Guarantee Fund and the European . .

Cited by:

Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Lists of cited by and citing cases may be incomplete.

Information, Human Rights

Updated: 06 June 2022; Ref: scu.512156

D’Hoop v Office National de l’Emploi: ECJ 11 Jul 2002

Europa Citizenship of the Union – Principle of non-discrimination – National legislation granting the right to tideover allowances to its nationals only on condition that they have completed their secondary education in an educational establishment in their own Member State – National seeking first employment having completed her secondary education in an educational establishment in another Member State.

Citations:

[2003] All ER (EC) 527, [2002] EUECJ C-224/98, C-224/98, [2002] ECR I-6191

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 06 June 2022; Ref: scu.174731

Hoverspeed Limited, Alan Charles Andrews, Pauline Andrews, Lynne Andrews, George Wilkinson v Commissioners of Customs and Excise: QBD 31 Jul 2002

The applicants operated ferries between Britain and France. Their customers were being stopped by Customs and Excise, and they sought to challenge the validity of the Order and non specific ways of selecting vehicles to be stopped.
Held: The Order was incompatible with the Directive insofar as it put upon the consumer the burden of establishing that the goods being imported were for personal use. The Order and its implementation interfered with free trade. The Directive allowed imposition of additional duties only where articles were for commercial use. The holding of goods in excess of the level indicated was merely an indicator, and could not be used as presumptive of commercial use. Customs had to act proportionately when deciding to confiscate or return vehicles.

Judges:

Lord Justice Brooke, Mr Justice Bell

Citations:

Times 05-Aug-2002, [2002] EWHC 1630 (Admin)

Links:

Bailii

Statutes:

Excise Duty (Personal Reliefs) Order 1992 (SI 1992 No 3155), Council Directive 92/12/EC (OJ 1992 L76/1), EC Treaty 28

Cited by:

Cited – Regina (Hoverspeed Limited and others) v Commissioners of Customs and Excise CA 10-Dec-2002
Passengers leaving a ferry had been stopped by Customs. The vehicle was searched and a quantity of alcohol and tobacco found, which they believed not to be for personal consumption. The car and imports had been forfeited. The court had said that the . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, European

Updated: 06 June 2022; Ref: scu.174433

Flightline v Secretario de Estado dos Transportes e Communicacoes: ECJ 9 Jul 2002

ECJ Articles 3(2) and 4(1)(a) and (d) of Regulation (EEC) No 2408/92 – Imposition of public service obligations on scheduled air services serving a peripheral region – Compatibility with Member States’ power to restrict cabotage until 1 April 1997 – Interpretation of Article 1(e) of Decision 94/698/EC

Judges:

F. Macken R P

Citations:

C-181/00, [2002] EUECJ C-181/00

Links:

Bailii

Statutes:

Regulation (EEC) No 2408/92 3

European, Transport

Updated: 06 June 2022; Ref: scu.174368

Carpenter v Secretary of State for the Home Department: ECJ 11 Jul 2002

The applicant had come to England on a six month visitor’s visa. She then married an English national, but her visa was not extended.
Held: The husband had business interests and activities throughout the community. The deportation of the applicant would have the effect of removing her support for him and restrict his ability to trade within the EU. The right to trade could be relied upon by an individual as against the state where necessary. A member state could only derogate from the duty where the proposed action complied also with the convention. Here the proposed action would also infringe the right to family life. The deportation would be against EU law. ‘Finally, the question of the risk of abuse should be considered, in particular the possible risk that the national rules of residence concerning the legal position of spouses of nationals who are nationals of non-member countries could be evaded by the spouse who is a national being tempted to ‘create’ a Community connection. Thus it may be argued that the nationals of a member state might, for example, take up employment – even only for a short term – in another member state precisely in order thereby to ‘bring’ themselves and the non-member country spouse within the scope of Community law. It might further be argued that the spouses who are nationals of non-member countries would thus be removed from the exclusive application of national law and would retain a legal position which might be more favourable than under national law, by thereby being given the possibility of residence based on Community law.’

Judges:

GC Rodriguez Iglesias, President and Judges N. Colneric, S. von Bahr, C. Gulmann, D. A. O. Edward, J.-P. Puissochet, M. Wathelet, R. Schintgen and J. N. Cunha Rodrigues

Citations:

[2003] 2 WLR 267, [2002] EUECJ C-60/00, C-60/00, [2003] QB 416

Links:

Bailii

Statutes:

EC Treaty Art 49, European Convention on Human Rights 6.1

Jurisdiction:

European

Cited by:

Cited – Machado v Secretary of State for the Home Deptment CA 19-May-2005
At issue was a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue was whether the decision of the IAT to uphold . .
Cited – W (China) and X (China) v Secretary of State for the Home Department CA 9-Nov-2006
The claimants had entered England unlawfully, fleeing from China, then moved to Ireland and then back to England with their new born child, and claimed asylum. The court considered how the position of their child affected the parents.
Held: To . .
Cited – Low and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 21-Jan-2009
In each case the applicant, a company based in Ireland had employed in its restaurants, Chinese nationals who were unlawfully present here. The company sought judicial review of the arrest of its employees.
Held: ‘None of the claimants had any . .
Lists of cited by and citing cases may be incomplete.

European, Immigration, Human Rights

Updated: 06 June 2022; Ref: scu.174363

J Astley and others v Celtec Ltd: CA 19 Jul 2002

Civil servants had been transferred to Training and Enterprise Councils in 1990, and resigned from the Civil Service in 1993. They appealed a decision that there had not been a transfer of an undertaking, and that they had continuity of employment.
Held: The tribunal had focused on the date of transfer. Looking at the Directive rather than the Regulations, the skills of the claimants became available to the new organisation irrespective of the date of their resignation from the Civil Service, and the wording of the Directive was wide enough to allow application to a transfer which took place over an extended period of time. The appeal succeeded.

Judges:

Lord Justice Schiemann, Lord Justice Laws and Mr Justice Jackson

Citations:

Times 09-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 1035, [2002] ICR 1289, [2002] IRLR 629, [2002] Emp LR 1064, [2002] 3 CMLR 15,

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employees) Regulations 1981 (SI 1981 No 1794), Acquired Rights Directive 77/187/EEC (OJ 1977 L61)

Jurisdiction:

England and Wales

Citing:

Appeal from – Celtec Limited v John Astley Julie Owens, Deborah Lynn Hawkes EAT 5-Oct-2001
The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom . .

Cited by:

Appeal from – Celtec Limited v Astley and others HL 10-Nov-2003
The employments of civil servants had been transferred to the defendant company. There had been some delay between their resignations and the new arrangements. The employee claimed the protection of the directive, saying that there had been a . .
At Court of Appeal – 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 . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 06 June 2022; Ref: scu.174350

Rudolf Gabriel: ECJ 11 Jul 2002

Europa Brussels Convention – Request for interpretation of Articles 5(1) and (3) and 13, first paragraph, point 3 – Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial proceedings, of the prize which he has apparently won – Classification – Action of a contractual nature covered by Article 13, first paragraph, point 3 – Conditions.

Citations:

C-96/00, [2002] EUECJ C-96/00

Links:

Bailii

Jurisdiction:

European

European

Updated: 06 June 2022; Ref: scu.174365

HI Hospital Ingenieure Krankenhaustechnik PlanungsgesmbH: ECJ 18 Jun 2002

ECJ Public service contracts – Directive 92/50/EEC – Procedure for the award of public service contracts – Directive 89/665/EEC – Scope – Decision to withdraw an invitation to tender – Judicial review – Scope.

Citations:

C-92/00, [2002] EUECJ C-92/00

Links:

Bailii

Statutes:

Directive 92/50/EEC, Directive 89/665/EEC

Cited by:

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.

European

Updated: 06 June 2022; Ref: scu.174130

Koninklijke Philips Electronics NV v Remington Consumer Products Ltd: ECJ 18 Jun 2002

The claimant developed a three headed rotary razor for men. They obtained registration of the arrangement as a trade mark. They sued the defendant for infringement, and the defendant countered challenging the validity of the registration, saying the design was functional.
Held: A sign consisting exclusively of a product’s shape was unregistrable, if it was established that the essential functional features of that shape were attributable only to the technical result. Additional embellishments did not make it registerable, and the existence of alternate ways of achieving the same technical result did not allow registration. The court accepted that art.3(1)(a) imports both limbs of art.2. Distinctiveness is, therefore, an issue under both art.3(1)(a) and art.3(1)(b). Only a single question is posed in relation to distinctiveness of origin, which is whether the sign is capable of distinguishing the goods of one undertaking from those of another in the mind of the consumer, and a positive conclusion (albeit at that level of identification) is required.

Judges:

GC Rodriguez Iglesias, P. Jann, F. Macken, N. Colneric, S. von Bahr, C. Gulmann, D. A. O. Edward, A. La Pergola, J.-P. Puissochet, J. N. Cunha Rodrigues etc

Citations:

Times 20-Jun-2002, C-299/99, [2002] ETMR 955, [2002] EUECJ C-299/99, [2003] Ch 159, [2003] RPC 2

Links:

Bailii

Statutes:

Council Directive 89/104/EEC of December 21, 1988 to approximate the laws of the member states relating to trade marks 2 3(1)(a) 3(1)(b)

Jurisdiction:

European

Citing:

Reference from – Philips Electronics Nv v Remington Consumer Products Limited CA 5-May-1999
The court referred to the European Court of Justice the question of whether the arrangement of three heads on a razor was functional, and so was not capable of protection as a trade mark. . .
See Also – Koninklijke Philips Electronics NV v Remington Consumer Products Ltd and Another ChD 21-Oct-2004
The claimant alleged infringement of its trade mark. It registered a two dimensional mark which represented its razor which had three rotary blades on the head of the razor. The defendant manufactured and sold a similar design, and counterclaimed . .

Cited by:

Cited – David West Trading As Eastenders v Fuller Smith and Turner Plc CA 31-Jan-2003
The appellant sought a declaration of invalidity as regards the defendant’s registered mark ‘ESB’. It was claimed to have come to be used as a general designation of certain kinds of beer.
Held: The Philips decision appeared to supercede the . .
Referred to – Philips Electronics Nv v Remington Consumer Products Limited CA 5-May-1999
The court referred to the European Court of Justice the question of whether the arrangement of three heads on a razor was functional, and so was not capable of protection as a trade mark. . .
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Dyson Limited v The Registrar of Trade Marks ChD 15-May-2003
Applications for trade marks on behalf of the claimant had been rejected. Acquired distinctiveness was a significant issue, and the question of whether the appeal was a review or a rehearing was significant. In this appeal, the parties had given . .
Cited – Nichols plc v Registrar of Trade Marks ECJ 16-Sep-2004
The applicant sought to register the name ‘Nichols’ as a trade mark for food and drink vending machines. The application was rejected as being common. The registrar had checked in the London telephone directory and discovered that the name appeared . .
Cited – Koninklijke Philips Electronics NV v Remington Consumer Products Ltd and Another ChD 21-Oct-2004
The claimant alleged infringement of its trade mark. It registered a two dimensional mark which represented its razor which had three rotary blades on the head of the razor. The defendant manufactured and sold a similar design, and counterclaimed . .
Cited – Koninklijke Philips Electronics Nv v Remington Consumer Products Ltd and Another CA 26-Jan-2006
The court was asked whether a trade mark consisting of the shape of goods (a three headed rotary electric shaver) could be valid. In earlier proceedings a representation had been found incapable of registration representing only the function of the . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.174036

Commerzbank v Commission: ECFI 5 Dec 2001

ECFI In principle, the issue of the admissibility of the main application must not be examined in proceedings relating to an application for interim measures so as not to prejudge the substance of that case. Where, however, it is contended that the main application from which the application for interim measures is derived is manifestly inadmissible, it may prove necessary to establish the existence of certain factors which would justify the prima facie conclusion that the main application is admissible.
In the absence of serious evidence enabling the Court to consider that the main application is admissible, an application for interim measures seeking, first, suspension of the operation of a Commission decision refusing the applicant access to certain documents relating to the abandonment of a proceeding in application of Article 81 EC against other undertakings and, second, suspension of the proceeding against itself, must be declared inadmissible.
As to the first head of the application, a decision refusing the applicant access to certain documents relating to the abandonment of a proceeding against other undertakings, is not capable of producing legal effects of such a nature as to affect the applicant’s interests immediately, before any decision finding an infringement of Article 81(1) EC and possibly imposing a penalty on it is adopted.
As to the second head of the application, the judge hearing an application for interim relief cannot in principle accede to a request for interim measures seeking to prevent the Commission from exercising its powers of investigation after the opening of an administrative procedure and even before it has adopted the definitive acts whose operation is sought to be avoided. If such measures were adopted, the judge hearing the interim application would not be reviewing the activity of the defendant institution but assuming the role of that institution in the exercise of purely administrative powers. Consequently, the applicant is not entitled to request under Articles 242 EC and 243 EC that the defendant institution be prohibited, even provisionally, from exercising its powers in the course of an administrative procedure. Such an entitlement could only be recognised if the application were to present evidence from which the judge hearing the interim application could find that there were exceptional circumstances justifying the adoption of the measures requested.

Citations:

T-219/01, [2001] EUECJ T-219/01

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173935

Laboratoire Monique Remy v Commission: ECFI 21 Mar 2002

1. The concepts of force majeure and unforeseeable circumstances contain, besides an objective element relating to abnormal circumstances unconnected with the party in question, a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the party in question must pay close attention to the course of the procedure and, in particular, demonstrate diligence in order to comply with the prescribed time-limits. Thus, the concepts of force majeure and unforeseeable circumstances do not apply to a situation in which, objectively, a diligent and prudent person would have been able to take the necessary steps before the expiry of the period prescribed for instituting proceedings. (see para. 17)
2. The fact that the Commission does not refer, in a measure, to the possibility of starting judicial proceedings and/or of lodging a complaint with the European Ombudsman, in accordance with Article 230 EC or Article 195 EC, is a breach of the obligations which that institution has taken upon itself by its adoption of the Code of good administrative behaviour for staff of the European Commission in their relations with the public which is set out in the Annex to the Rules of Procedure of the Commission. (see para. 25)
3. The concept of excusable error, the direct source of which is a concern for observance of the principles of legal certainty and of the protection of legitimate expectations, can concern only exceptional circumstances in which, in particular, the conduct of the institution concerned was, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally prudent person. Although such may be the case where the commencement of an action out of time is caused by the provision, by the institution concerned, of wrong information creating pardonable confusion in the mind of such a person, or where the breach by the institution concerned of certain of its rules of procedure, such as, for example, a code of behaviour, has created such confusion, it cannot be the case, where the person concerned cannot harbour any doubt that the measure notified to him is in the nature of a decision. Indeed, in the latter case, the absence of information relating to the possibility of an appeal cannot in any way mislead that person.(see para. 30)

Citations:

T-218/01, [2002] EUECJ T-218/01

Links:

Bailii

European, Administrative

Updated: 06 June 2022; Ref: scu.173934

Reynolds v Parliament: ECFI 23 Jan 2002

ECJ 1. Officials – Secondment in the interests of the service – Power of the appointing authority to terminate prematurely – Existence – Conditions
(Staff Regulations, Arts 37, first para. (a), and 38(b))
2. Officials – Secondment in the interests of the service – Request to terminate prematurely by the service to which seconded – Discretion of the appointing authority – Scope
(Staff Regulations, Art. 38)
3. Officials – Secondment in the interests of the service – Decision terminating prematurely – Respect for the rights of the defence – Obligation to hear person concerned before adopting decision which must be observed even in the absence of an express provision – Limits
(Staff Regulations, Art. 38)v4. Officials – Decision having an adverse effect – Obligation to hear person concerned before adopting decision – Failure to observe – Irregularity having a particular impact on the content of the decision – Infringement of the rights of the defence – Judicial review – Scope
5. Officials – Actions – Actions for compensation brought without a pre-litigation procedure consistent with the Staff Regulations – Inadmissible
(Staff Regulations, Arts 90 and 91)

Citations:

T-237/00, [2002] EUECJ T-237/00

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173878

Mag Instrument v OHMI: ECFI 7 Feb 2002

1. Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, under which marks which are devoid of any distinctive character are to be refused registration, draws no distinction between different categories of mark. Accordingly, it is not appropriate to apply more stringent criteria or impose stricter requirements when assessing the distinctiveness of three-dimensional marks comprising the shape of the goods themselves than are applied or imposed in the case of other categories of mark. In order to assess a mark’s distinctiveness, it is necessary to take account of all relevant elements linked to the specific circumstances of the case and one such element is the fact that it cannot be excluded that the nature of the mark in respect of which registration is sought might influence the perception which the targeted public will have of the mark.
The distinctiveness requirements applicable to three-dimensional marks comprising the shape of the goods cannot be less strict than those applicable to word marks, since consumers are more accustomed to directing their attention to the latter.
2. The three-dimensional marks consisting of cylindrical torch shapes in respect of which registration was sought for apparatus for lighting and accessories for such apparatus are devoid of any distinctive character within the meaning of Article 7(1)(b) of Regulation No 40/94 on the Community trade mark, since a cylinder is a common shape for a torch which corresponds to shapes commonly used by other torch manufacturers on the market and thus, rather than enabling the product to be differentiated and linked to a specific commercial source, gives the consumer an indication as to the nature of the product. Moreover, the aesthetic qualities and the unusually original design of the shapes claimed as marks appear, as a result of those features, as variants of a common torch shape rather than as shapes capable of differentiating the goods and indicating, on their own, a given commercial origin.

Citations:

T-88/00, [2002] EUECJ T-88/00

Links:

Bailii

Jurisdiction:

European

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.173812

Euroalliages v Commission: ECFI 20 Jun 2001

ECJ 1. An action for annulment brought by a natural or legal person is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest can be present only if the annulment of the measure is itself capable of having legal consequences.
That is the case for annulment of a decision terminating the expiry review of anti-dumping measures under Article 11(2) of the basic anti-dumping regulation (Regulation No 384/96) initiated at the request of an association of production companies representing the Community industry. (see paras 26-29)
2. It is clear from the first subparagraph of Article 11(2) of the basic anti-dumping regulation (Regulation No 384/96) that retention of a measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned. It is also clear that the mere possibility that injury might continue or recur is insufficient to justify retaining a measure; that is dependent on the likelihood of continuation or recurrence of injury being established. It is not necessary for there to be proof of the continuation or recurrence of injury, merely that there should exist a likelihood of this. (see paras 42, 44)
3. In the context of an expiry review of anti-dumping measures under Article 11(2) of the basic anti-dumping regulation (Regulation No 384/96), the assessment of the likelihood of recurrence of the injury after expiry of the measures adopted calls for an appraisal of complex economic questions in which the Community institutions have a wide discretion. Judicial review of such an assessment must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error in assessing those facts or a misuse of powers. (see para. 46)
4. The conditions for initiating an expiry review of anti-dumping measures should not be confused with the conditions for retaining the measures. It is clear from the broad logic of Article 11(2) of the basic anti-dumping regulation (Regulation No 384/96) that it is sufficient for the purposes of initiating a review that the request submitted on behalf of the Community industry be supported in particular by evidence of one of the three situations listed in the second sentence of the second subparagraph of Article 11(2). Those three situations do not, as such, constitute criteria for assessing the likelihood of recurrence of injury within the meaning of the first subparagraph of Article 11(2).
As far as the first situation is concerned, a review should be initiated on the basis of sufficient evidence that dumping and injury are continuing; it is not necessary that continuation be already established. However, the existence of such evidence should not prejudice the result of the review. As far as the second situation is concerned, admittedly a review should be conducted where the request contains sufficient evidence that removal of the injury is due in whole or in part to the existence of measures. However, removal alone does not support the conclusion that it is likely that injury will recur if the measures expire. The third situation concerns expressly the likelihood of further injurious dumping. It is not necessary, however, in order for a review to be initiated, that the circumstances of exporters and the market conditions which make recurrence of dumping and injury likely be actually established. The request for a review need merely contain evidence on which to base the relevant inquiry. However, in order to retain measures in accordance with the first subparagraph of Article 11(2) of the basic regulation, the circumstances surrounding that likelihood must be established on the basis of the results of an investigation. (see paras 51-56)
5. The rule laid down in Article 6(1) of the basic anti-dumping regulation (Regulation No 384/96) that information relating to a period subsequent to the investigation period is not, normally, to be taken into account applies also to investigations relating to expiry reviews.
Article 11(2) of the basic regulation makes the retention of protective measures after the expiry of a five-year period conditional upon the conduct of an investigation in accordance with the basic regulation in order to establish the factual data from which the likelihood of recurrence of injury may be inferred. However, where the results of such an investigation are insufficient to justify retaining anti-dumping duties, the basic regulation provides that they should expire. That means that factors which arise after the investigation period cannot be taken into account in order to retain anti-dumping measures. (see paras 74, 76-77)

Judges:

A.W.H. Meij, P

Citations:

T-188/99, [2001] EUECJ T-188/99

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173719

Dejaiffe v OHMI: ECFI 12 Dec 2000

Members of the temporary staff – Early termination of a fixed-term contract of employment of a member of the temporary staff – Interests of the service – Manifest error of assessment – Misuse of powers – Non-contractual liability of the Community.

Citations:

T-223/99, [2000] EUECJ T-223/99

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173739

Hautem v EIB: ECFI 12 Dec 2000

ECJ Officials – Removal from post – Failure to comply with a judgment annulling a decision – Article 233 EC – Non-contractual liability of the Community – Non-material damage – Compensation.

Citations:

T-11/00, T-11/00, [2000] EUECJ T-11/00

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173772

Forde-Reederei v Council and Commission: ECFI 20 Feb 2002

ECJ Non-contractual liability of the Community – Directive 92/12/EEC on the general arrangements for products subject to excise duty – Damage caused by transitional tax exemption arrangements for products bought by travellers during sea-crossings between two Member States.

Citations:

T-170/00, [2002] EUECJ T-170/00

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.173851