Category: European

SNCF and British Railways v Commission: ECFI 12 May 1995

ECFI Applications for interim measures – Suspension of operation of a measure – Suspension of operation of a competition decision – Conditions for granting – Serious and irreparable damage – Concept – Uncertain and speculative risk – Exclusion – Balance of convenience – (EC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))
The urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is for the party seeking suspension of the operation of a decision to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.
Only the existence, at least foreseeable or probable, of third-party undertakings interested in using the Channel Tunnel’ s capacity would be capable of substantiating the risk of serious and irreparable damage alleged by railway undertakings seeking the suspension of operation of the conditions attached to the Commission’ s decision granting exemption under Article 85(3) of the Treaty in so far as those conditions require the applicants to surrender to third parties up to one-quarter of their rights under the usage contract exempted by the Commission. In those circumstances, suspension could be ordered only if the applicants could demonstrate before the judge hearing the application that the surrenders of capacity at issue would immediately make it impossible for them to fulfil their obligations relating to the operation of the tunnel or that they could no longer, if their applications in the main proceedings were to succeed, recover from the third parties the capacity surrendered to them in the meantime. Since they have not adduced evidence of those conditions, the damage to them is too uncertain and speculative to be able to prevail in the assessment of the balance of convenience over the preservation of effective competition and the principle of the freedom to provide services in the rail transport sector which the Commission sought to protect by attaching the abovementioned condition to the exemption.

Citations:

T-79/95, [1995] EUECJ T-79/95R

Links:

Bailii

Cited by:

Interim measures – SNCF and British Railways v Commission ECFI 22-Oct-1996
Actions for annulment – Pleas in law – Error of fact underlying a decision applying the competition rules – Annulment of the decision – (EC Treaty, Art. 85; Council Regulation No 1017/68, Art. 5)
A decision which applies the competition rules . .
Lists of cited by and citing cases may be incomplete.

European, Transport

Updated: 06 June 2022; Ref: scu.173013

Atlantic Container Line and others v Commission: ECFI 28 Feb 2002

ECFI 1. In the case of an agreement between shipping lines on the scheduled transport of containers across the Atlantic between Northern Europe and the United States and on the inland carriage of the containers, the relevant markets directly affected are those in transport services and not that in the export of goods to the United States. The restrictions of competition occur within the common market because it is there that the members of the agreement, including several shipping companies established in the Community, are in competition to sell their services to clients, namely shippers, established in the Community. The fact that certain members of the agreement are not established in the Community does not cast doubt on that conclusion.
2. For an agreement between undertakings to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between States. In particular, it is not necessary that the conduct in question should in fact have substantially affected trade between Member States. It is sufficient to establish that the conduct is capable of having such an effect.
3. An agreement between shipping companies, including a number established in the Community, which related to the conditions for the sale of maritime and inland transport services to shippers established in various Member States of the Community is capable of affecting trade between Member States for the purposes of Article 85(1) of the Treaty (now Article 81(1) EC).
Furthermore, such an agreement is capable of modifying the pattern of trade in goods transiting through the ports served by the shipping companies which are members of an agreement. As a result, that agreement must be regarded as having affected trade between Member States, over and above the trade consisting of only maritime transport services, since port and auxiliary services linked to the carriage of goods were also affected.
Finally, although more indirectly, the relevant agreement has, or at the very least is capable of having, an effect on the trade in goods between Member States, in so far as the transport prices fixed by the agreement represent a proportion of the end selling price of the goods transported.
4. An agreement can qualify for the exemption provided for in Article 3 of Regulation No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport only if it is a liner conference agreement.
The existence of a liner conference within the meaning of Regulation No 4056/86 depends on the charging of uniform or common freight rates by its members.
5. Having regard to the general principle of the prohibition of agreements restricting competition in Article 85(1) of the Treaty (now Article 81(1) EC), provisions derogating therefrom in an exempting regulation must, by their nature, be strictly interpreted. This conclusion applies, a fortiori, to the provisions of Regulation No 4056/86 relating to maritime transport by virtue of its unlimited duration and the exceptional nature of the restrictions on competition authorised (horizontal agreement having as its object the fixing of prices). It follows that the block exemption provided for by Article 3 of Regulation No 4056/86 cannot be interpreted broadly and progressively so as to cover all the agreements which shipping companies deem it useful, or even necessary, to adopt in order to adapt to market conditions. The exemption can relate only to the types of agreement which the Council, when Regulation No 4056/86 was adopted, regarded, in the light of experience, as satisfying the conditions of Article 85(3) of the Treaty. Apart from the power enjoyed by the Council, if the need arose, to amend Regulation No 4056/86, the undertakings concerned also always have the option to apply for an individual exemption to offset any disadvantages of the limitations inherent in the block exemption.
6. The definition of liner conference in Article 1(3)(b) of Regulation No 4056/86 was taken word for word from the United Nations Convention on a Code of Conduct for Liner Conferences. That code thus constitutes an important point of reference for the interpretation of the concept of liner conference referred to in Regulation No 4056/86.
7. By its very nature and in the light of its objectives, a liner conference, as defined by the Council for the purposes of qualification for block exemption under Regulation No 4056/86, can be characterised as a collective entity which presents itself as such on the market vis-a-vis both users and competitors.
The conference puts itself forward as an entity on the market since it fixes uniform freight rates for all its members, in the sense that the same price will be charged for the carriage of the same cargo from point A to point B, regardless of which shipowning member of the conference is responsible for carriage.
By contrast, an agreement between carriers providing for a scheme of tariffs which vary according to the members cannot be regarded as a liner conference under Regulation No 4056/86.
8. Liner conferences qualify for a block exemption because of their stabilising effect. That stability is best ensured if all the members of the conference adopt uniform freight rates rather than if there are several rates according to the members concerned. A uniform level of freight rates within the conference also allows users, account of whose interests is also a requirement for the exemption, to be assured of being able to obtain the transport service at the same price, whichever conference member it approaches. That interest of the shippers in having access to a reference rate in respect of a particular commodity is appreciably reduced if the members of the conference do not charge one rate, but two or more, in respect of the same product.
That interpretation of the concept of liner conference is not inconsistent with the possibility for a conference member to take independent action. That action is fundamentally different from the system of differentiated prices. The taking of independent action, which enables a conference member, subject to notice, to offer, for a specific product, a lower freight rate than that in the conference tariff, does not create another level of prices which may be generally charged, since that action concerns only a single ad hoc transaction. The stabilising effect of the existence of uniform or common freight rates for all conference members therefore continues in the event of independent action, whereas it is undermined where the conference tariff, which lists all the freight rates applicable, is replaced by a system of rates which vary according to the members.
Furthermore, the possibility of fixing different levels of prices makes it possible to attract into the group shipping lines which, without that flexibility, would remain independent and this situation is likely to lead to the elimination of external competition; by contrast, the obligation to fix uniform freight rates for all conference members is not such as to encourage all operators to join the conference, which guarantees the existence of external competition.
9. In the context of an action for annulment pursuant to Article 173 of the Treaty (now, after amendment, Article 230 EC), the review undertaken by the Court of the complex economic appraisals made by the Commission when it exercises the discretion conferred on it by Article 85(3) of the Treaty (now Article 81(3) EC), with regard to each of the four conditions laid down in that provision, is necessarily limited to verifying whether the rules on procedure and on the giving of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.
10. Although stability in the maritime transport sector, to the extent that it contributes to assuring shippers of reliable services, may be an advantage for the purposes of the first condition of Article 85(3) of the Treaty (now Article 81(3) EC), the Commission cannot be obliged to grant individual exemption to every agreement between shipping lines which, in the opinion of the parties, may contribute to such stability. Within the limits imposed by Regulation No 4056/86, the Commission retains its discretion in applying Article 85(3) of the Treaty.
11. The four conditions for granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC) are cumulative and therefore non-fulfilment of only one of those conditions will render it necessary to refuse the exemption.
12. In assessing an agreement with a view to granting an exemption under Article 85(3) of the Treaty (now Article 81(3) EC), the market to be taken into consideration comprises the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products.
In the case of an agreement between shipping lines for the scheduled transport of containers across the Atlantic between Northern Europe and the United States the relevant market is that for containerised liner shipping. The fact that other modes of transport, whether maritime or air, may engage in marginal competition on the market in containerised liner shipping services in respect of a limited number of products, does not mean that, for that reason, they can be regarded as forming part of the same market.
13. The possibility of eliminating competition in respect of a substantial part of the services in question within the meaning of Article 85(3) of the Treaty (now Article 81(3) EC), must be assessed as a whole, taking into account in particular the specific characteristics of the relevant market, the restrictions of competition brought about by the agreement, the market shares of the parties to that agreement and the extent and intensity of external competition, both actual and potential. In the context of this comprehensive approach, those different elements are closely interlinked or may balance each other out. Thus, the greater the restrictions of internal competition between the parties, the more necessary it is for external competition to be keen and substantial if the agreement is to qualify for exemption. Similarly, the larger the market shares of the parties to the agreement, the stronger the potential competition must be.
14. In order to determine whether an agreement affords its signatory parties the possibility, in respect of a substantial part of the products in question, of eliminating competition within the meaning of Article 85(3)(b) of the Treaty (now Article 81(3)(b) EC), the Commission cannot, in principle, rely merely on the fact that the agreement in question eliminates competition between those parties and that they account for a substantial part of the relevant market. First, the prohibition on eliminating competition is a narrower concept than that of the existence or acquisition of a dominant position, so that an agreement could be regarded as not eliminating competition within the meaning of Article 85(3)(b) of the Treaty, and therefore qualify for exemption, even if it established a dominant position for the benefit of its members. Second, potential competition must be taken into consideration before concluding that an agreement eliminates competition for the purposes of Article 85(3) of the Treaty.
Taking into account and analysing external competition, both actual and potential, is all the more necessary where it is a question of examining whether an agreement between shipping companies fixing maritime transport rates qualifies for individual exemption under Article 12 of Regulation No 4056/86.
15. Interveners must, under Article 116(3) of the Rules of Procedure of the Court of First Instance, accept the case as they find it at the time of their intervention and their submissions in an application to intervene are, under the fourth paragraph of Article 37 of the Statute of the Court of Justice, limited to supporting the submissions of one of the main parties, an intervener is not entitled to raise a plea in law that was not raised by the applicant.
16. In a decision finding that the provisions of an agreement between shipping lines fixing the rates and conditions of maritime transport infringe the Treaty’s competition rules, an order compelling the undertakings concerned to inform customers with whom they have concluded service contracts and other contractual relations in the context of that agreement that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith, which was not obviously necessary and does not correspond to an established line of Commission decisions, requires that institution expressly to set out its reasoning.
Even if that order may be regarded as necessary for re-establishing compliance with the law and as coming within the limits of the Commission’s power to order the undertakings concerned, in accordance with Article 11 of Regulations No 1017/68 and No 4056/86, to bring such infringement to an end, the statement of objections should in any event have set out, even briefly, but in sufficiently clear terms, the measures which the Commission intended to take in order to bring an end to the infringements and should have given the applicants all the information necessary in order to enable them properly to defend themselves before the Commission adopted a final decision on that point. That conclusion is all the more necessary where the individual service contracts account for a substantial part of the turnover of the undertakings concerned and the obligation to renegotiate with customers could thus have significant consequences for those undertakings, and could even amount to a penalty more serious than a fine.

Judges:

K. Lenaerts, P

Citations:

T-395/94, [2002] EUECJ T-395/94

Links:

Bailii

Jurisdiction:

European

Transport

Updated: 06 June 2022; Ref: scu.172976

Schulte v Council and Commission: ECFI 7 Feb 2002

1. The Community’s liability for losses resulting from the application of Regulation No 857/84, which fixes the reference quantity to be allocated under the scheme for additional levies on milk to each producer on the basis of production delivered during a reference year, cannot be incurred with respect to losses sustained after the date of the entry into force of Regulation No 764/89 amending Regulation No 857/84, since the refusal of a specific reference quantity is the result of an autonomous decision by the national authorities, based on considerations which are, to a very large extent, different from those mentioned by the Court of Justice in its judgment in Case C-314/89 Rauh in relation to producers who have taken over a holding by succession or by a similar transaction after expiry of a non-marketing undertaking entered into under Regulation No 1078/77 by the predecessor in title.
2. The limitation period for actions against the Community on grounds of non-contractual liability, laid down by Article 43 of the Statute of the Court of Justice, cannot start to run before all the requirements governing the obligation to make good the damage are satisfied and, in particular, in cases where liability stems from a legislative measure, before the injurious effects of the measure have been produced.
In the case of damage suffered by a producer of milk or milk products who, on account of a non-marketing or conversion undertaking entered into under Regulation No 1078/77, could not, in the light of Regulation No 857/84, be allocated a reference quantity, and was consequently unable to market any quantity of milk exempt from the additional levy, the requirements for bringing an action for compensation against the Community were fulfilled and the limitation period started to run on the date on which Regulation No 857/84 became applicable to that producer. Since, moreover, that damage was not caused instantaneously but recurred on a daily basis, entitlement to compensation relates to consecutive periods commencing on each day on which it was not possible to market milk. Since it has been held that the damage which the applicant, a producer who took over a holding by succession after expiry of the non-marketing undertaking entered into by his predecessor, claims to have sustained after the date of the entry into force of Regulation No 764/89 amending Regulation No 857/84 is no longer linked to the illegality of the Community legislation and therefore attributable to the Community, the limitation period expired five years after that date unless it was interrupted before that date.
3. Under Article 43 of the Statute of the Court of Justice, the limitation period is interrupted only if proceedings are instituted before the Community judicature or if, prior to such proceedings, an application is made to the relevant Community institution, provided always that, in the latter case, interruption only occurs if the application is followed by proceedings instituted within the time-limits determined by reference to Article 173 of the Treaty (now, after amendment, Article 230 EC) or Article 175 of the Treaty (now Article 232 EC), depending on the case. The reference in the last sentence of Article 43 of the Statute to Articles 173 and 175 of the Treaty has the effect of rendering applicable, as far as interruption of the limitation period is concerned, the rules for calculating the time-limits laid down by those provisions.
With respect to damage suffered by producers of milk or milk products who, on account of non-marketing or conversion undertakings entered into under Regulation No 1078/77, could not, in the light of Regulation No 857/84, be allocated a reference quantity, and were consequently unable to market any quantity of milk exempt from the additional levy, the waiver of the right to plead limitation contained in the Communication of the Council and the Commission relating to the subsequent adoption of Regulation No 2187/93 providing for an offer of compensation to the producers concerned is a unilateral act which was intended to limit the number of actions brought by encouraging producers to await the introduction of the flat-rate compensation scheme provided for by that regulation. Having regard to its purpose, that waiver ceased to have effect at the end of the period allowed for accepting the compensation offer made in accordance with that regulation or upon the explicit rejection of that offer, if it took place before the expiry of that period. Consequently, the institutions once again became entitled, from that time onwards, to plead limitation.
When a producer has received a compensation offer under Regulation No 2187/93, he may enjoy the benefit of the waiver of the right to plead limitation contained in the Communication of the Council and the Commission only if he has instituted proceedings for compensation within two months following the expiry of the period allowed for accepting the compensation offer or if that offer is explicitly rejected before the expiry of that period. However, if that producer sent an application for compensation to the institutions on a date prior to that communication, and if that application was made within the period laid down by the last sentence of Article 43 of the Statute of the Court of Justice for instituting proceedings, the limitation period is interrupted on the day on which the application for compensation was made. In that case, the undertaking given by the institutions results in suspension of that period for as long as the waiver referred to above produces effects.

Citations:

T-261/94, [2002] EUECJ T-261/94

Links:

Bailii

Statutes:

Regulation No 857/84

European, Agriculture

Updated: 06 June 2022; Ref: scu.172892

Hartmann v Council and Commission: ECFI 16 Apr 1997

1 Agriculture – Common organization of the markets – Milk and milk products – Additional levy on milk – Allocation of reference quantities exempt from levy – Producers who suspended deliveries pursuant to the non-marketing or conversion premium schemes and were therefore refused a reference quantity – Offer of flat-rate compensation under Regulation No 2187/93 – Producer bringing an action for damages embodying conditional acceptance of the offer – Producer to be regarded as having refused the offer
(EC Treaty, Art. 215; Council Regulation No 2187/93, Arts 8(2) and 14)
2 Actions for damages – Limitation period – Starting point – Liability on account of Regulation No 857/84 resulting in a reference quantity not being allocated to milk producers who entered into a non-marketing undertaking – Date to be taken into consideration
(EC Treaty, Arts 178 and 215; EEC Statute of the Court of Justice, Art. 43; Council Regulations Nos 1078/77 and 857/84)
3 Regulation No 2187/93 providing for an offer of flat-rate compensation to producers of milk or milk products who entered into a non-marketing undertaking and were temporarily prevented from carrying on their trade on account of the subsequent failure to allocate them a reference quantity contains precise provisions relating to acceptance of the offer of compensation. More specifically, Article 14 provides that acceptance of the offer is signified by return to the competent national authority, within two months of receipt of the offer, of the receipt accompanying the offer.
A producer who brings an action for damages in the Court of First Instance in which he states that he agrees to the offer, except as regards application of the limitation period laid down by Article 8(2) of the regulation, cannot be regarded as having accepted the offer made to him. On the one hand, acceptance cannot be signified in a form not provided for by the regulation and, on the other, it is clear from the wording of the regulation and from the nature of the offer as an offer in settlement that it can only be accepted unconditionally.
4 The limitation period laid down by Article 43 of the Statute of the Court of Justice for actions brought against the Community on grounds of non-contractual liability cannot begin before all the requirements governing the obligation to make good the damage are satisfied and, in particular, in cases where liability stems from a legislative measure, before the injurious effects of the measure have been produced. Those conditions consist of the existence of unlawful conduct on the part of the Community institutions, the fact of the damage alleged and the existence of a causal link between that damage and the loss claimed.
In contrast, a declaration that the measure in question is invalid is not one of those requirements. As regards damage sustained by producers of milk or milk products who, as a result of non-marketing or conversion undertakings entered into pursuant to Regulation No 1078/77, were unable to be allocated a reference quantity in view of Regulation No 857/84 and hence to market any milk exempt from additional levy, time under the limitation period started to run on the date when Regulation No 857/84 began to have injurious effects on the producers concerned by preventing them from resuming marketing milk. Since, moreover, the damage was not caused instantaneously but recurred on a daily basis, with respect to the date of the event which interrupted the limitation period, the time bar under Article 43 of the Statute of the Court of Justice applies to the period preceding that date by more than five years and does not affect rights which arose during subsequent periods.

Judges:

A Saggio, P

Citations:

T-20/94, [1997] EUECJ T-20/94

Links:

Bailii

European, Agriculture

Updated: 06 June 2022; Ref: scu.172786

Greenpeace and others v Commission: ECFI 9 Aug 1995

ECJ 1. Persons other than the addressees may claim that a decision is of individual concern to them only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed. The criterion thereby applied, which requires a combination of circumstances sufficient for the third-party applicant to be able to claim that he is affected by the contested decision in a manner which differentiates him from all other persons, remains applicable whatever the nature, economic or otherwise, of the interests affected.
Even on the assumption that, where interests linked to environmental protection are involved, the mere existence of harm suffered or to be suffered can give rise to an interest in bringing an action for annulment, that harm cannot confer locus standi on an applicant if it is such as to affect, generally and in the abstract, a large number of persons who cannot be determined in advance in a way which distinguishes them individually in the same way as the addressee of a decision. That conclusion cannot be affected by the fact that in the practice of national courts in matters relating to environmental protection locus standi may depend merely on the applicants’ having a ‘sufficient’ interest, since locus standi under the fourth paragraph of Article 173 of the Treaty depends on meeting the conditions relating to the applicant’ s being directly and individually affected by the contested decision.
2. As regards persons who rely only on their position as residents in the area of those power stations, fishermen, farmers or persons concerned by the consequences which those facilities might have on local tourism, on the health of residents and on the environment, a decision addressed to a Member State granting financial assistance from the European Regional Development Fund for the construction of two power stations is a measure whose effects are likely to impinge on, objectively, generally and in the abstract, various categories of person and in fact any person residing or staying temporarily in the area concerned. It does not, therefore, affect them by reason of certain attributes which differentiate them from any other person who is, or might be in the future, in the same situation, and is thus not of individual concern to them within the meaning of the fourth paragraph of Article 173 of the Treaty.
3. The granting of financial assistance from the European Regional Development Fund does not comprise any specific procedures whereby individuals may be associated with the adoption, implementation and monitoring of decisions taken in that field. Merely submitting a complaint relating to funding which is envisaged and subsequently exchanging correspondence with the Commission cannot therefore give a complainant locus standi to bring an action under Article 173 of the Treaty against a financing decision which was not addressed to him and which does not concern him individually as if it had been addressed to him.
4. An association formed for the protection of the collective interests of a category of persons cannot be considered to be individually concerned for the purposes of the fourth paragraph of Article 173 of the Treaty by a measure affecting the general interests of that category, and is therefore not entitled to bring an action for annulment where its members may not do so individually.
However, special circumstances such as the role played by an association in a procedure which led to the adoption of an act within the meaning of Article 173 of the Treaty may justify holding admissible an action brought by an association whose members are not directly and individually concerned by the contested measure. There are no such circumstances in the case of an environmental protection association seeking to bring an action for the annulment of a Commission decision addressed to a Member State granting financial assistance from the European Regional Development Fund for the construction of two power stations, which relies for that purpose on an exchange of correspondence and a meeting with the Commission in that connection. Such contacts do not enable such an association to rely on an individual interest where the Commission did not, prior to the adoption of the contested decision, initiate any procedure in which the association was recognized as an interlocutor and where the contacts were for purposes of information only, since the Commission was under no duty either to consult or to hear the association before adopting its decision.

Citations:

T-585/93, [1995] EUECJ T-585/93

Links:

Bailii

European, Utilities, Environment

Updated: 06 June 2022; Ref: scu.172772

FRSEA and FNSEA v Council: ECFI 28 Oct 1993

ECJ 1. The fact that it is possible to determine the number or even the identity of the persons to whom a measure applies at any given time is not sufficient to call into question the legislative nature of the measure, as long as it is established that it applies to them by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose. In order for a measure to be regarded as of individual concern, within the meaning of the second paragraph of Article 173 of the Treaty, to persons seeking its annulment, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as in the case of a person addressed.
A regulation extending eligibility under the system of premiums for maintaining suckler cows to small and medium-sized milk producers with an individual reference quantity greater than 60 000 kg of milk but not greater than 120 000 kg and who keep suckler cows applies to objectively defined situations and affects the legal position of persons referred to in general and abstract terms. It therefore concerns such milk producers only in their objective capacity as economic operators in the beef and veal sector, in the same way as any other economic operator in the same situation.
2. It is not possible to accept the principle that an association, in its capacity as representative of a category of operators, is individually concerned by a measure affecting the general interests of that category.

Citations:

T-476/93, [1993] EUECJ T-476/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172696

Ryan-Sheridan v FEACVT: ECFI 15 Feb 1996

ECFI Officials – Employees of the European Foundation for the Improvement of Living and Working Conditions – Recruitment procedure – Rejection of an internal candidate – Actions for annulment – Action for damages.

Citations:

T-589/93, [1996] EUECJ T-589/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172776

Hogan v Court of Justice: ECFI 29 Mar 1995

1. The appointing authority acts in the name of the institution which designated it, so that acts which concern the legal position of officials and may adversely affect them must be attributed to the institution to which they are attached, and any appeal must be brought against the institution from which the act having an adverse effect emanated.
2. The privileges and immunities accorded to officials by the Protocol on the Privileges and Immunities of the European Communities, solely in the interests of the Communities, have a purely functional character inasmuch as they are intended to avoid any interference with the functioning and independence of the Communities. In private legal relationships with other private individuals, officials are, in accordance with the first paragraph of Article 23 of the Staff Regulations, fully subject to the applicable national law, without prejudice to the provisions of that Protocol.
When, in the context of attachment proceedings before a national court, a third party seeks to attach an official’ s remuneration in the hands of an institution in its capacity as employer, that institution must, first, determine whether the privileges and immunities provided for by the Protocol are applicable to the proceedings in question and, if so, then decide to what extent it considers it appropriate to avail itself of them.
If the institution considers that it would not be contrary to the interests of the Community not to avail itself of its privileges and immunities, it is bound, by virtue of its duty to cooperate in good faith with the national authorities, to give effect to the attachment order issued by the national court.
3. The Treaty does not make any provision for a legal remedy enabling natural or legal persons to bring proceedings before the Community judicature on an issue regarding the compatibility of the conduct of the authorities of a Member State with Community law. Claims seeking a declaration that a Member State has infringed Community law are accordingly inadmissible.

Citations:

T-497/93, [1995] EUECJ T-497/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172713

Ladbroke Racing v Commission: ECFI 18 Sep 1995

ECFI (Judgment) 1. When the Commission receives a complaint lodged under Article 3 of Regulation No 17, it is at liberty to determine the priority to be given to that complaint in the light of the Community interest and to decide to initiate and pursue the investigation of the case on the basis of the various provisions of the Treaty invoked in the complaint if that appears to be in the Community interest. Similarly, whilst the Commission must exercise its powers under Article 90(3) of the Treaty to monitor compliance by the Member States with the rules of competition, it cannot be obliged to take action, at an individual’s request, on the basis of that article and, more particularly, with regard to undertakings entrusted with the operation of services in the general economic interest, particularly where such action entails assessing the compatibility of national legislation with Community law.
However, where, having received a complaint of infringements of Articles 85 and 86 and of Article 90 of the Treaty, the Commission gives priority to examining the complaints concerning infringement of Article 90 alleged to be the result of national legislation organizing a monopoly, because it takes the view that the competition issue raised by the complaint can only be resolved by examining the compatibility of the national legislation concerning a statutory monopoly with the Treaty rules and by taking action, if appropriate, under Article 90 of the Treaty, it is not possible for it to reject definitively the complaint under Articles 85 and 86 on the ground that they are inapplicable, without first completing its examination under Article 90, because such a rejection at that stage would not have been preceded by a careful examination of the factual and legal issues brought to its attention by the complaint.
The Commission must either find that the national legislation in question is consistent with the Treaty, in which case the conduct of the impugned undertaking must, if it is in compliance with that legislation, be regarded as compatible with Articles 85 and 86, or, if the conduct does not so comply, it must be examined in order to decide whether it constitutes an infringement of those articles, or the Commission must find that the said legislation is not consistent with the Treaty, whereupon it must be decided whether the fact that an undertaking is in compliance with that legislation may or may not lead to the adoption of measures against it in order to bring the infringements of Articles 85 and 86 to an end.
2. A claim in an action for annulment for an order requiring the Commission to re-examine a complaint is inadmissible. It is not for the Community judicature to address instructions to institutions or to substitute itself for them when exercising its power of judicial review and it is for the institution concerned to take, pursuant to Article 176 of the Treaty, the necessary measures to comply with a judgment given in an action for annulment.

Judges:

J.L. Cruz Vilaca, P

Citations:

T-548/93, [1995] EUECJ T-548/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172748

Lefebvre and others v Commission: ECFI 14 Sep 1995

ECFI 1. The Community does not incur non-contractual liability on account of damage caused by legislative measures adopted by its institutions unless a sufficiently serious breach of a superior rule of law for the protection of the individual has occurred. In a legislative field which is characterized by the exercise of a wide discretion, such as that required for the implementation of the common agricultural policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers.
2. The fact that the Commission waited until 1992 before submitting a proposal for a regulation implementing the common organization of the market in the banana sector, despite the fact that this should have been established at the latest by 1 January 1970, does not cause the Community to incur non-contractual liability.
First, having regard to the difficulties encountered in the establishment of a common policy in the banana sector, the Commission cannot be regarded, by delaying the submission of its proposal, as having manifestly and gravely disregarded the limits on the exercise of its powers. Second, Articles 38(4) and 43(2) of the Treaty, which provide for the establishment of a common agricultural policy, merely impose obligations on the institutions, so that they cannot be characterized as superior rules of law for the protection of the individual.
3. Since the derogations allowed under Article 115 of the Treaty constitute not only an exception to the provisions of Articles 9 and 30, which are fundamental to the operation of the common market, but also an obstacle to the implementation of the common commercial policy provided for by Article 113, they must be interpreted and applied strictly.
Where a Member State submits a request under Article 115, the Commission is under a duty to review the reasons put forward in order to justify the protective measures for which authorization is sought, and to verify whether those measures are consistent with the Treaty and necessary. Where the assessment of a complex economic situation is involved, the Commission has a wide discretion, such that judicial review must be confined to verifying that there has been no manifest error or misuse of power and that the bounds of that discretion have not been clearly exceeded.
4. The fact that the Commission does not bring an action against a Member State for failure to fulfil its obligations cannot constitute an infringement of the Treaty, in particular Articles 155 and 169 thereof, since the institution of such proceedings is a matter falling within its discretion. It cannot therefore give rise to non-contractual liability on the part of the Community.
5. The combined provisions of Articles 178 and 215 of the EC Treaty only give jurisdiction to the Community judicature to award compensation for damage caused by the Community institutions or by their servants in the performance of their duties, or, in other words, for damage capable of giving rise to non-contractual liability on the part of the Community.
Damage caused by national institutions, on the other hand, can give rise to liability only on the part of those institutions, and the national courts retain sole jurisdiction to order compensation for such damage.
It therefore falls solely to the national courts to rule on an action for damages involving only the conduct of a Member State.
6. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is apparent that the Community administration has led him to entertain reasonable expectations. On the other hand, a person may not plead a breach of the principle of the protection of legitimate expectations unless the administration has given him precise assurances.
7. The prohibition of discrimination between producers or consumers in the context of the common agricultural policy, as laid down by the second paragraph of Article 40(3) of the Treaty, is merely a specific enunciation of the general principle of equality, which is one of the fundamental principles of Community law and requires that similar situations should not be treated differently unless differentiation is objectively justified. Consequently, an applicant can usefully plead a breach of that prohibition only in so far as he can point to a situation similar to his own and show that it has been treated differently.

Citations:

T-571/93, [1995] EUECJ T-571/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172764

Koelman v Commission: ECFI 9 Jan 1996

ECFI 1. The Community judicature manifestly has no jurisdiction to issue directions to the Community institutions, to the Member States or to natural or legal persons or to give a ruling, on the initiative of a natural or legal person, on the compatibility of a Member State’ s or a natural or legal person’ s conduct with the provisions of the Treaty or to annul, in whole or in part, agreements concluded by natural or legal persons.
2. Where a complaint has been submitted to the Commission under Article 3 of Regulation No 17, it is required to examine carefully the facts and points of law brought to its notice by the complainant in order to decide whether they disclose conduct liable to distort competition in the common market and affect trade between Member States. Nevertheless, Article 3 of Regulation No 17 does not confer upon a person who lodges an application under that article the right to obtain from the Commission a decision within the meaning of Article 189 of the Treaty regarding the existence or otherwise of an infringement of Article 85 of the Treaty.
It follows that, when rejecting a complaint, the Commission must indicate the reasons why careful examination of the facts and points of law brought to its notice by the complainant do not prompt it to initiate a procedure to establish whether Article 85 of the Treaty has been infringed. In so doing, the Commission may investigate the agreements and practices called into question in the light of Article 85 as a whole and set out the reasons why it considers that assuming that those agreements and practices constitute an infringement of Article 85(1) this provision could in any event be declared ‘inapplicable’ to those agreements and practices under Article 85(3), so that it does not appear to it that careful examination of the complaint must lead it to take the action requested by the complainant. The Commission is therefore entitled to explain its decision to reject the complaint by giving the reasons why it considers, on the basis of the facts and points of law brought to its notice by the complainant, that the agreements satisfy the conditions of Article 85(3), without previously adopting a decision exempting those agreements which has been addressed to the contracting parties, or definitively ruling on the compatibility of those agreements with Article 85(1).
3. A decision to reject a complaint, which does not definitively rule on the question whether or not there is an infringement of Article 85(1) and does not grant an exemption under Article 85(3), is merely an assessment by the Commission of the agreements and practices in question. Accordingly, it has the same legal status as a ‘comfort letter’.
It follows that the assessments made by the Commission in a decision rejecting a complaint of that kind do not prevent a national court which has to rule upon the compatibility with Article 85 of the agreements and practices criticized by the complainant from declaring those agreements and practices to be automatically void under Article 85(2) of the Treaty, having regard to the evidence before it. The fact that, unlike in the case of comfort letters, the Commission’ s assessments are contained in a challengeable measure does not affect that conclusion, since such assessments entail no definitive decision on the issue whether or not Article 85(1) has been infringed or an exemption is to be granted under Article 85(3) on the conditions laid down in Regulation No 17.
When examining whether the agreements or conduct in question are in accord with the abovementioned provisions, the national courts may take into account the Commission’ s assessments as constituting facts, and they can, if necessary, contact the Commission.
4. When the Commission has decided not to take any action with regard to a complaint submitted under Article 3(2) of Regulation No 17 without holding an investigation, the purpose of review by the Community judicature is to ensure that the challenged decision is based on a correct assessment of the facts and that it is not vitiated by any error of law, manifest error of assessment or abuse of power.
5. An action for annulment brought by a natural or legal person against a Commission decision not to initiate proceedings against a Member State for failing to fulfil its obligations is inadmissible.
The Commission is not bound to commence proceedings under Article 169 of the Treaty but enjoys a discretion in that regard which precludes any right of individuals to require it to take a specific position.
An action for annulment (brought by a legal or natural person) against a Commission decision not to issue a directive or a decision to a Member State using the powers which it has under Article 90(3) of the Treaty is also inadmissible. The exercise of those powers is not coupled to an obligation on the part of the Commission to take action.
6. The Community cannot be liable under the second paragraph of Article 215 of the Treaty unless a set of conditions, relating to the existence of actual damage, a causal link between the damage claimed and the conduct alleged against the institutions and the illegality of such conduct, is satisfied.
As regards damage, it is for the applicant to provide the Court with evidence to establish the fact and the extent of the loss which he claims to have suffered.

Citations:

T-575/93, [1996] EUECJ T-575/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172768

Tierce Ladbroke v Commission: ECFI 18 Sep 1995

ECFI 1. The statement of reasons in decisions adopted by the Community institutions must be such as to enable the Community judicature to exercise its power of review of the legality of the decision and to enable the person concerned to ascertain the matters justifying the measure adopted, so that he can defend his rights and verify whether the decision is well founded.
A decision by which the Commission refuses to recognize the existence of aid must be regarded as being sufficiently reasoned where the facts and legal considerations essential to the decision are set out, even though not all the Commission’ s reasoning is revealed. The person adopting a decision is not required to give all the relevant factual and legal details and the question whether the statement of the reasons on which a decision is based is sufficient may be assessed with regard not only to its wording but also to the context in which it was adopted and to all the legal rules governing the matter in question.
2. A measure cannot be described as State aid within the meaning of Article 92(1) of the Treaty if it has not provided any advantage to the alleged recipient.
The Commission was thus right, after carrying out complex economic appraisals, to decide that the arrangements made by the public authorities, whereby the body responsible for managing betting on horse-races in one Member State, having deducted a levy on bets which it takes on behalf of the equivalent body in another Member State on races held in the second Member State, transfers a proportion of the levy to the latter body, do not constitute State aid, even though those arrangements are different from those applied in relation to bets on races run on national territory if, after an examination of all the arrangements governing the flow of funds between the two bodies managing, each on its own territory, betting on races, it reached the conclusion, without committing any manifest error of assessment, that the transfer of levy does not involve sums higher than the recipient body would have collected if it had itself taken abroad the bets relating to the races falling under its sphere of responsibility.

Citations:

T-471/93, [1995] EUECJ T-471/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172694

Lisrestal and others v Commission: ECFI 6 Dec 1994

1. The delegation of authority to sign within an institution is a measure relating to the internal organization of the Community’ s administrative departments. It is in accordance with Article 27 of the Commission’ s Rules of Procedure and is the normal means by which the Commission exercises its powers. Officials may therefore be empowered to take, in the name of the Commission and subject to its control, clearly defined measures of management or administration.
2. Respect for the rights of the defence in all proceedings which are initiated against a person and are liable to culminate in a measure adversely affecting that person is a fundamental principle of Community law which must be guaranteed, even in the absence of any specific rules concerning the proceedings in question. That principle requires that any person who may be adversely affected by the adoption of a decision should be placed in a position in which he may effectively make known his views on the evidence against him which the Commission has taken as the basis for the decision at issue.
That is so in the case of recipients of European Social Fund assistance for a vocational training operation in a Member State, where the Commission proposes to reduce the assistance initially granted on the ground that it has not been used in accordance with the conditions laid down in the decision of approval. The fact that the Member State concerned is the sole interlocutor of the ESF and the addressee of any decision to reduce assistance does not preclude there being a direct link between the Commission and the recipient of the assistance, which is directly affected by the economic consequences of the reduction, since it has primary liability for the repayment of the sums paid without warrant.
Consequently, it is an infringement of the recipient’ s rights of defence for a decision to reduce assistance to have been adopted when the recipient had not been notified of the reports of the Commission’ s inquiry into the conditions in which the assisted training operations were being carried out, or the Commission’ s complaints against it, and had not been heard by the Commission before it adopted the decision, and where having been invited by the Commission to submit its observations on the proposed reduction, the national authority in charge of supervising the relevant matters informed the Commission, without first hearing the recipient, that it would accept that decision.
3. A Commission decision reducing financial assistance from the European Social Fund initially granted for a vocational training operation, which has serious consequences for the recipient organization, must clearly show the grounds which justify a reduction of the amount of assistance initially authorized. The requirement to state reasons laid down in Article 190 of the Treaty is not satisfied when a decision to reduce assistance relating to various operations carried out by different organizations does not identify, with respect to each of them, the items to which the reduction relates and clearly state the reasons which led the Commission to reduce, for each of them, the assistance granted.

Judges:

R Schintgen, P

Citations:

T-450/93, [1994] EUECJ T-450/93

Links:

Bailii

European, Administrative

Updated: 06 June 2022; Ref: scu.172681

Rasmussen v Commission: ECFI 6 Jul 1993

ECJ 1. The existence of a vacant post, within the meaning of Articles 4 and 29 of the Staff Regulations, presupposes that a post is not filled amongst the total number of permanent posts referred to in the list of posts appended, in accordance with Article 6 of the Staff Regulations, to the section of the budget relating to the institution in question and indicating, for each category and each service, the number of posts in each grade for each career bracket. A procedure for the rotation of staff within an institution, under which officials are re-assigned together with their posts, does not constitute a procedure for the filling of a vacant post. It follows that Articles 4, 29 and 45 of the Staff Regulations do not apply to a procedure of that kind.
However, the organization of the Community civil service is governed by certain general principles of law, including equality of treatment and protection of legitimate expectations, which may not be disregarded in the context of a procedure, such as that for the rotation of staff, which is not explicitly provided for by the Staff Regulations. The application of those principles implies, on the one hand, that the administration is obliged to undertake a proper comparative examination of the merits of the candidates and, on the other, that once it has decided to fill a specific post by means of that procedure, it must carry it through properly, observing the terms of the notice which it has published, before calling for applications from external candidates under a different procedure.
2. The decision to terminate a staff rotation procedure without filling a particular job by appointing an internal candidate falls within the discretion enjoyed by the appointing authority in this context. Although the administration is not obliged to carry through a recruitment procedure initiated pursuant to Article 29 of the Staff Regulations with a view to filling a vacant post, that principle must, a fortiori, apply by analogy in cases where the administration calls for internal applications in the context of a staff rotation procedure.

Citations:

T-32/92, [1993] EUECJ T-32/92

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 06 June 2022; Ref: scu.172560

Pevasa and Inpesca v Commission: ECFI 28 Apr 1994

ECFI 1. Any measure, regardless of the form in which it is cast, the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or a decision against which an action for annulment may be brought.
That definition applies to a letter, drafted in precise and unequivocal terms, in which the Commission takes a definitive position with regard to the applicant’ s application for Community financial aid.
2. A decision should be regarded as having been properly notified to an applicant, within the meaning of the third paragraph of Article 173, where it is established that the applicant received a precise and unequivocal letter which contained that decision.
Where it is not possible to determine on which date the said letter was received, the time-limit for bringing an action is regarded as starting to run at the latest on the date appearing on a letter from the applicant which refers to that letter.
3. In actions for annulment brought under Article 173 of the Treaty, an application based on the first paragraph of Article 176 of the Treaty for recognition by the Community judicature of the applicant’ s rights is inadmissible since it exceeds the powers conferred on it in that regard.
4. Where an applicant has brought an action for both a declaration from the Community judicature of his entitlement to Community financial aid and for compensation in the form of interest for late payment of the requested aid, the claim for compensation cannot stand alone and accordingly is inadmissible as a consequence of the inadmissibility of the claim for a declaration.

Citations:

T-452/93, [1994] EUECJ T-452/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172683

Zunis Holding and others v Commission: ECFI 28 Oct 1993

1. The fact that a letter has been sent by a Community institution to a person in response to a request by that person is not sufficient for it to be regarded as a decision within the meaning of Article 173 of the Treaty, thereby opening the way for an action for annulment. Only measures having binding legal effects of such a nature as to affect the interests of the applicant by having a significant effect on his legal position constitute acts or decisions against which proceedings for annulment may be brought under Article 173 of the Treaty.
2. In the examination as to whether an action seeking the annulment of a negative decision taken by an institution is admissible, that decision must be appraised in the light of the nature of the request to which it constitutes a reply. In particular, the refusal by a Community institution to withdraw or amend an act may constitute an act whose legality may be reviewed under Article 173 of the Treaty only if the act which the Community institution refuses to withdraw or amend could itself have been contested under that provision.
3. The mere fact that a Commission decision declaring that a concentration does not come within the scope of Regulation No 4064/89 may affect the relations between the different shareholders of the notifying companies does not of itself mean that any individual shareholder can be regarded as directly and individually concerned by that decision. That decision is not of such a nature as by itself to affect the substance or extent of the rights of those shareholders, either as regards their proprietary rights or the ability to participate in the company management conferred on them by such rights.
4. The legal certainty which must be guaranteed to traders and the shortness of the time-limits which is a feature of the general system of Regulation No 4064/89 on concentrations between undertakings require in any event that a request for the reopening of the investigation proceedings provided for under that regulation on the ground of the discovery of an allegedly new fact should be submitted within a reasonable period.
A shareholder of one of the companies in question cannot rely on such a request submitted late for the purpose of contending that he must be regarded as individually concerned, within the meaning of the second paragraph of Article 173 of the Treaty, by the decision taken by the Commission at the conclusion of those proceedings on the ground that, if he had been aware from the outset of that fact, he would have applied to intervene in the proceedings and would consequently have had a right of action to protect his legitimate interests.

Citations:

T-83/92, [1993] EUECJ T-83/92

Links:

Bailii

Jurisdiction:

European

European

Updated: 06 June 2022; Ref: scu.172597

Hedley Lomas and others v Commission: ECFI 9 Jul 1997

ECFI Agriculture – Common organization of the markets – Sheepmeat and goatmeat – Variable slaughter premium – Equivalent amount levied on export to another Member State (`clawback’) – Recovery of clawback unlawfully charged – Detailed rules laid down by Regulation No 1922/92 – Breach of the principles of protection of legitimate expectations, legal certainty or proportionality – None
(Commission Regulation No 1922/92, Art. 2)
In so far as Article 2 of Regulation No 1922/92 amending Regulation No 1633/84 laying down detailed rules for applying the variable slaughter premium for sheep and determining the conditions for the reimbursement of the clawback following the judgment of the Court of Justice in Joined Cases C-38/90 and C-151/90 Lomas and Others provides for reimbursement merely of the difference between the clawback paid under Article 4 of the amended Regulation and the amount of the premium actually received, it breaches neither the principle of protection of legitimate expectations nor the principle of legal certainty. Given that the requests for payment of the clawback under Article 4 were not wholly devoid of legal authority, that the operators granted a premium should have expected that it would have to be recouped on export of the products and that the national law applicable on the date of the Court’s judgment made it difficult to recover in full amounts unlawfully charged by a public authority, it does not appear that the traders concerned could legitimately harbour the slightest expectation, based on the facts or on national law, of full recovery of the clawback paid before that judgment was delivered.
Nor is the validity of Article 2(1) affected by the fact that the second subparagraph thereof provides an alternative method of calculating the amount to be reimbursed, based on the average amount of the premiums over a period of four weeks, since that alternative was made available in recognition of the difficulties encountered by some operators in providing proof as to premiums actually paid.
So far as concerns the difficulties mentioned above, the placing of the burden of proof on the exporters is not manifestly inappropriate and consequently does not contravene the principle of proportionality, since a prudent trader, knowing that he would be liable to pay the clawback, should have taken the necessary steps to obtain the evidence which would be required in due course to establish the amounts in question.

Citations:

T-455/93, [1997] EUECJ T-455/93

Links:

Bailii

Statutes:

Commission Regulation No 1922/92, Art. 2

European, Agriculture

Updated: 06 June 2022; Ref: scu.172684

Guna v Council: ECFI 29 Oct 1993

ECFI Articles 7 and 9 of Directive 92/73 widening the scope of Directives 65/65 and 75/319 on pharmaceutical products and laying down additional provisions on homeopathic medicinal products are not of direct and individual concern, within the meaning of the second paragraph of Article 173 of the Treaty, to manufacturers and importers of homeopathic medicinal products who cannot, therefore, bring an action to have those provisions annulled.

Citations:

T-463/93, [1993] EUECJ T-463/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172690

Stagakis v Parliament: ECFI 8 Feb 1993

ECJ The reason for the requirement that the lawyer acting for a party lodge at the Registry a certificate of entitlement to practise before a court of a Member State, which is laid down by Article 44(3) of the Rules of Procedure of the Court of First Instance, and which is one of the conditions for the regularity of the application, is to enable the Community court to check compliance with Article 17 of the EEC Statute of the Court of Justice, pursuant to which parties other than Member States must be represented by a lawyer entitled to practise before a court of a Member State. This requirement therefore constitutes an essential procedural requirement, failure to observe which within the time prescribed for the party concerned to put his application in order renders it inadmissible.

Citations:

T-101/92, [1993] EUECJ T-101/92

Links:

Bailii

Jurisdiction:

England and Wales

European

Updated: 06 June 2022; Ref: scu.172617

Ladbroke Racing Ltd v Commission: ECFI 27 Oct 1994

(Judgment) 1. When, in the context of an action against a Community institution for failure to act, the measure alleged not to have been taken is adopted after the action has been brought but before judgment is given, the application becomes devoid of purpose so that there is no longer any need for a ruling.
2. An undertaking is not entitled to bring an action for declaration of failure to act against the Commission on the ground that, notwithstanding the former’ s request to it, the Commission failed to use its powers under Article 90(3) of the Treaty.
First, it is a condition of an action for declaration of failure to act as instituted by Article 175 of the Treaty that the institution concerned should be under an obligation, so that the alleged failure to act is contrary to the Treaty. In the light of the Commission’ s power of assessment in supervising compliance by public undertakings with the rules of competition, that is not the case where that institution fails to address a decision in the matter to a Member State.
Secondly, measures which may be challenged on the basis of Article 90(3) are addressed to Member States so that, being a third party in relation to the measure which the Commission has allegedly failed to take, the undertaking cannot claim to satisfy the requirement that it should be individually concerned unless it is affected by reason of certain attributes which are peculiar to it or by reason of circumstances in which it is differentiated from all other persons and which by virtue of those factors distinguish it individually just as in the case of the person addressed.
That necessary individualization does not follow, in the absence of specific circumstances, from the mere fact that the undertaking has a presence on the market where a measure may affect the conditions of competition. Nor, in the case of a measure adopted on the basis of Article 90(3), is it realized because that measure was adopted following a request by the undertaking, since such a request cannot be considered to fall within the exercise of procedural powers, which it may hold, since those conferred on operators by Regulations No 17 and 99/63 concern only the implementation of Articles 85 and 86 of the Treaty. Nor can it be based on the undertaking’s participation in the investigation which preceded the adoption of the measure, since such participation is not such as to create for its benefit a right of action against an act which, by its nature and effects, does not concern it individually.
Finally, action by the Commission using its powers under Article 90(3), even if such action is taken, need not necessarily take the form of a decision but may also be a directive, which is a legislative measure of general scope addressed to the Member States the adoption of which cannot be required by individuals.
3. In relation to the application of the Community competition rules to public undertakings and undertakings to which Member States grant special or exclusive rights, Article 90(3) of the Treaty confers on the Commission the task of ensuring compliance by the Member States with their obligations concerning the undertakings referred to, and expressly invests it with the power to take action where necessary for that purpose under the conditions and by the legal measures which are there laid down. As may be seen from the abovementioned provisions and the scheme of Article 90 as a whole, the Commission’ s power to supervise the Member States responsible for an infringement of the Treaty rules, in particular those relating to competition, necessarily implies that that institution has a wide power of assessment. That power of assessment is all the wider since, first, Article 90(2) invites the Commission to take account in exercising that power of the demands inherent in the particular tasks of the undertakings concerned and, secondly, the authorities of the Member States may in certain cases have an equally wide power of assessment in regulating certain matters which may fall within the area of operation of those undertakings.
Consequently, the exercise of the power to assess the compatibility of State measures with the Treaty rules, conferred on the Commission by Article 90(3) of the Treaty, is not coupled with an obligation on its part to take action.

Judges:

.L. Cruz Vilaca, P

Citations:

T-32/93, [1994] EUECJ T-32/93

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172652

Ladbroke Racing v Commission: ECFI 24 Jan 1995

1. An action under Article 175 of the Treaty for failure to act may lie only where the institution has an obligation to act, so that the alleged failure to act is contrary to the Treaty.
Where a complaint is made to the Commission under Article 3 of Regulation No 17 alleging breach of Article 85 or Article 86 of the Treaty, it is obliged, in accordance with the provisions of Regulations No 17 and No 99/63, to examine carefully the evidence of fact and of law brought to its notice by the complainant in order to decide whether it must initiate the procedure for establishing the breach or reject the complaint or, finally, decide not to pursue the matter.
However, the Commission cannot be regarded as having failed to act for the purposes of Article 175 of the Treaty if, when the complainant addresses a formal request to it to adopt a position on the complaint, it has already initiated the procedure for investigating the alleged breach of Article 85 of the Treaty but the progress of the investigation and the time spent on it are not sufficient to enable it to address a communication to the complainant in accordance with Article 6 of Regulation No 99/63 nor, a fortiori, to adopt a position on the complaint in the form of a rejection.
2. Where a complaint is made to the Commission under Article 3 of Regulation No 17 for breach of Article 85 or Article 86 of the Treaty and the investigation is conducted solely on the basis of Article 85 the Commission cannot be regarded, at the time when the complainant addresses a formal request to it to act, in accordance with Article 175 of the Treaty, as having adopted a position on the complaint in so far as it is based on Article 86. An action for failure to act must therefore be declared admissible in so far as it is alleged that the Commission failed to act in relation to that article.
Such an action is admissible notwithstanding the fact that when the Commission receives a complaint under Article 3 of Regulation No 17 it is not bound either to issue a decision confirming the breach or to conduct an investigation to that end in every case, or the fact that it is free to determine the importance to be given to a complaint before it in the light of the Community interest. In view of the procedural guarantees provided for in Article 3 of Regulation No 17 and Article 6 of Regulation No 99/63, the Commission was free to decide to initiate the investigation solely on the basis of Article 85; however, it was bound both to examine first the evidence of fact and of law relevant to an application of Article 86 of the Treaty and to inform the applicant of its decision, with reasons, in order to enable its legality to be the subject of judicial review.
Furthermore, an action for failure to act in those circumstances does not become devoid of purpose as a result of either the Commission’ s publication of a notice pursuant to Article 19(3) of Regulation No 17 or the cessation of the restriction of competition which was the subject of the complaint. In the first place, a finding that amendments to the agreement challenged by the complaint have made it compatible with Article 85 does not constitute a definition of the Commission’ s position, as far as the applicant is concerned, on the complaint in so far as it was founded on Article 86. In the second place, the alleged cessation of the restriction of competition could have no effect other than to alter the facts which gave rise to the complaint under Article 86, and thus to lead the Commission either to adopt a decision not to pursue the investigation, or to decide to reject it; it could not dispense the Commission from its duty to inform the complainant of its position, in conformity with the procedural guarantees referred to above.
3. In the context of an investigation of alleged breaches of Community competition law, neither the Commission’s adoption of a position on a complaint in a statement of objections, nor the publication of a notice by that institution under Article 19(3) of Regulation No 17 constitutes a decision capable of forming the subject-matter of an action for annulment.

Citations:

T-74/92, [1995] EUECJ T-74/92

Links:

Bailii

Jurisdiction:

European

European

Updated: 06 June 2022; Ref: scu.172589

Noonan v Commission: ECFI 16 Sep 1993

Officials – Admissibility – Action challenging a decision of a selection board applying the conditions laid down in a competition notice.

Citations:

T-60/92, [1993] EUECJ T-60/92

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – Noonan v Commission ECFI 28-Mar-1996
ECJ Any condition in a competition notice which prohibits candidates with a university degree from entering a competition for category C posts is unlawful – as is any decision of a selection board based on such a . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 06 June 2022; Ref: scu.172579

Koelman v Commission: ECFI 29 Nov 1993

ECJ 1. The Community court manifestly lacks jurisdiction to issue directions to Community institutions, to Member States or to natural or legal persons, or to find unlawful, on whatever ground, the actions of Member States or of natural or legal persons on the initiative of natural or legal persons, or to annul agreements concluded by such persons.
2. Claims seeking annulment of all acts of the Council and the Commission adopted in a specific area on the ground of manifest lack of legitimacy, without any indication of the acts for which annulment is sought, are not sufficiently precise to be admissible.
3. Under Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications must indicate the subject-matter of the proceedings and include a brief statement of grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare his defence and the Court to give a ruling, if appropriate, without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible. If specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential information in the application itself, even if those documents are attached to the application. It is not for the Community judicature to do the work of the applicant and his lawyer by trying to locate and identify in the numerous annexes to which the application makes general reference the information which may support the claims formulated in the application.
4. Where, in an action for a declaration that a Community institution has failed to act, the act in question in the proceedings was adopted after they were brought, but before delivery of the judgment, the application becomes devoid of purpose so there is no longer any need to give a ruling.

Citations:

T-56/92, [1993] EUECJ T-56/92

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172575

Moat v Commission T-20/92: ECFI 13 Jul 1993

ECJ 1. The implied rejection of an application for promotion made in completely general terms cannot be categorized as an act adversely affecting the person concerned in the absence of direct and immediate effects on his legal situation.
2. An official has no legitimate interest in contesting the appointment of another official to a post to which he could make no valid claim in accordance with the rules applicable in the institution concerned for filling posts of the type in question.
3. An official who failed to bring an action within the time-limit laid down by Articles 90 and 91 of the Staff Regulations for the annulment of an act allegedly adversely affecting him cannot repair that omission and procure himself further time for bringing proceedings by means of a claim for compensation for the injury caused by that act.
4. Under Articles 90 and 91 of the Staff Regulations, an action for damages in which compensation is sought for injury caused, not by a measure adversely affecting the applicant the annulment of which is sought, but by various wrongful acts and omissions allegedly committed by the administration, has to be preceded by a two-stage administrative procedure or it will be found inadmissible. It is imperative that that procedure should begin with the presentation of a request asking the appointing authority to make good the alleged injury and continue, if necessary, with the lodging of a complaint against the decision rejecting the request.

Citations:

[1993] EUECJ T-20/92

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172550

PTT Nederland and others v Commission: ECFI 21 Jun 1991

ECFI Procedure – Allocation of jurisdiction between the Court of Justice and the Court of First Instance – Proceedings instituted by a natural or legal person on the basis of the second paragraph of Article 173 of the Treaty concerning the implementation of the competition rules applicable to undertakings and pending before the Court of First Instance – Proceedings for the annulment of the same act, but instituted by a Member State, pending before the Court of Justice – In the interest of the proper administration of justice for the Court of Justice to consider the arguments of the natural or legal person – Disclaimer of jurisdiction by the Court of First Instance
(Council Decision 88/591, Art. 3(1)(c); Protocol on the Statute of the Court of Justice of the EEC, Art. 47, third para.).

Judges:

Cruz Vilaca P

Citations:

T-42/91, [1991] EUECJ T-42/91

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172489

Bodson v Parliament: ECFI 11 Mar 1991

ECJ Application for interim measures – Action brought by an official – Application for interim measures having a purpose different from that of the main action and not preceded by a prior administrative complaint – Inadmissible

Citations:

T-10/91, [1991] EUECJ T-10/91

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172460

Lilian R Khouri v Commission of the European Communities (Rec 1992,p II-2637): ECFI 18 Dec 1992

1. Where the application of a rule of the Staff Regulations depends on the application of a legal rule applying in the legal system of one of the Member States, it is in the interest of the sound administration of justice and proper application of the Staff Regulations that the review by the Court of First Instance should also extend to an examination of the way in which the appointing authority of a Community institution has interpreted the national law of one of the Member States. 2. Under Article 2(4) of Annex VII to the Staff Regulations, the treatment, as a dependent child, of a person whom an official has a legal responsibility to maintain and whose maintenance involves heavy expenditure constitutes an exceptional step. The condition that the official must have a legal responsibility to maintain a person other than a dependent child must for that reason be interpreted strictly. The concept of ‘a legal responsibility to maintain’ used in the Staff Regulations is derived from the legal systems of the Member States, which, under their laws, impose a mutual obligation to provide maintenance on relatives by blood and/or marriage of a greater or lesser degree of proximity. That concept must therefore be understood as referring exclusively to an obligation of maintenance imposed on an official by a source of law independent of the will of the parties and as excluding maintenance obligations of a contractual, moral or compensatory nature. Since neither Community law nor the Staff Regulations provide the Community court with any guide as to how it should define, by way of independent interpretation, the meaning and scope of the concept of a legal responsibility to maintain entitling an official to receive a dependent child allowance under Article 2(4) of Annex VII to the Staff Regulations, it is necessary to determine whether the national legal system to which the official in question is subject imposes such a responsibility on the official. 3. The terms of a provision of Community law which makes no express reference to the laws of the Member States for the purpose of de?ermining its meaning and scope must normally be given an independent interpretation which must take into account the context of the provision and the purpose of the relevant rules. In the absence of an express reference to the laws of the Member States, the application of Community law may sometimes necessitate reference to the laws of the Member States where the Community court cannot identify in Community law or in the general principles of Community law criteria enabling it to define the meaning and scope of such a provision by way of independent interpretation.

Citations:

T-85/91, [1992] EUECJ T-85/91

Links:

Bailii

Jurisdiction:

European

Administrative

Updated: 06 June 2022; Ref: scu.172530

Holtbecker v Commission: ECFI 17 Dec 1992

ECJ 1. Both Article 72 of the Staff Regulations and Article 3 of the Rules on sickness insurance for officials of the European Communities take as their starting point the idea that, as far as possible, an official’ s spouse who is in gainful employment must seek reimbursement of his or her medical expenses under the sickness insurance scheme which covers him or her, by virtue of his or her own employment, against the risks of sickness, since only supplementary cover is provided under the Community scheme. Neither Article 72(1) of the Staff Regulations nor Article 3(1) of the Insurance Rules makes the spouse’ s supplementary cover under the joint scheme, where he or she is gainfully employed, subject to the condition that, by the very fact of the occupation in question, compulsory insurance against the same risks is also provided by virtue of other legal provisions or regulations. On the contrary, Article 3(1) of the Insurance Rules must be interpreted as referring to both the case where the spouse’ s occupation gives rise in itself, by virtue of legal provisions or regulations, to an obligation to insure against sickness and also the case where the occupation only makes it possible for him or her to benefit, by virtue of legal provisions or regulations, from voluntary insurance against the same risks. 2. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it appears that the conduct of the Community administration has led him to entertain reasonable expectations. An official may not plead a breach of the principle of the protection of legitimate expectations unless the administration has given him precise assurances. Promises which do not take account of the provisions of the Staff Regulations cannot give rise to a legitimate expectation on the part of the person concerned.

Citations:

T-20/91, [1992] EUECJ T-20/91

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 06 June 2022; Ref: scu.172470

Raiola-Denti and others v Council: ECFI 11 Feb 1993

ECJ A selection board may not depart from the terms of the notice of competition with respect either to the purpose of the tests or to their nature and, as regards the order in which the candidates are short-listed, it may not award an overall mark instead of adding the marks awarded for the different tests since, by so doing, it fails to fulfil its obligations to comply with the method of marking the tests laid down by the notice of competition and to state the reasons for its decisions.
The absence of a statement of reasons for the selection board’ s decision resulting from its failure to undertake the marking of the tests in accordance with the notice of competition also has the effect of preventing review by the Court of the influence on the results of the competition of the selection board’ s application, contrary to the notice of competition, of an extraneous criterion to test the abilities of the candidates.
In the event of such irregularities, the Court must annul all steps taken by the selection board from the point at which those irregularities first occurred.

Citations:

T-22/91, [1993] EUECJ T-22/91

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172471

Stahlwerke Peine-Salzgitter v Commission: ECFI 27 Jun 1991

ECJ 1. The Commission is under an obligation, by virtue of Article 34 of the ECSC Treaty, when a judgment is delivered annulling a decision whose effect was limited to a clearly defined period of time, first, to take the measures required to comply with that judgment, not only as regards the annulled measure but also as regards the express or implied measures which have essentially the same content as the annulled measure and were adopted between the date of entry into force of the annulled measure and the annulling judgment, and, secondly, to take with respect to individual measures the steps made necessary by the annulment of the general measure for whose implementation they were adopted. Accordingly, an action to establish liability on the basis of a declaration that the said subsequent or implementing measures involved fault and that harm resulted from them cannot, having regard to the requirements of Article 34 of the ECSC Treaty, be declared inadmissible for lack of prior annulment by the Court of Justice.
2. An action for damages brought by an undertaking on the basis of the second paragraph of Article 34 of the ECSC Treaty following an annulling judgment is admissible only if, first, it has previously been held by the Community Court that the annulled measure is vitiated by a fault of such a nature as to render the Community liable and has caused the undertaking to suffer direct and special harm and, secondly, the Commission has, after that finding, been allowed a reasonable time in which to take the steps necessary to ensure equitable redress and, so far as necessary, pay appropriate damages.
3. By virtue of Article 34 of the ECSC Treaty, the annulment of a legislative measure of the Commission is not sufficient to render the Community liable. In view of the need, within a single legal order, albeit one established by three different treaties, to ensure as far as possible the uniform application of Community law and a consistent system of judicial protection, it appears appropriate, where a legislative measure is illegal, to interpret the concept of fault of such a nature as to render the Community liable as used in the first paragraph of Article 34 of the ECSC Treaty in the light of the criteria laid down by the Court of Justice in its decisions on the second paragraph of Article 215 of the EEC Treaty.
4. Having regard to the previous decisions of the Court of Justice, the Commission could not have been unaware, at the time of the adoption, as from 1985, under the steel production and delivery quota system, of decisions refusing to adjust delivery quotas for certain undertakings and for certain products, of the fact that it was not authorized to take into account, in determining the existence of exceptional difficulties, the position of other categories of products and consequently that it could not lawfully base its refusal on the fact that the undertaking was on the whole making a profit. Moreover, the seriousness of its error is aggravated by the fact that, for no apparent reason, it took an approach diametrically opposed to its previous practice and, in several cases, granted additional quotas to undertakings that were achieving profits, thus manifestly infringing the principle of equality of treatment as between economic agents.
The Commission could not, moreover, having regard to the previous decisions of the Court of Justice, have been unaware that the effect which an aid may have on the profit and loss account of an undertaking cannot be regarded as a valid criterion for the purpose of identifying aid intended to cover operating losses and therefore, by treating as such the aid received by certain undertakings and therefore refusing to adjust their quotas, it committed an error in interpreting the concept of operating losses which must be described as inexcusable. It follows that the Commission manifestly and gravely disregarded the limits which it must observe in the exercise of its discretion when applying the production quota system and consequently it committed a fault of such a nature as to render the Community liable under the first paragraph of Article 34 of the ECSC Treaty.
5. By failing to adjust, under the steel production and delivery quota system, the unfavourable ratio between the delivery quotas and the production quotas of a number of undertakings, even though it itself considered such an adjustment necessary in order to place the quotas on an equitable basis, on the ground that the Council had not given its assent, even though it was clearly apparent from the case-law of the Court of Justice that the Council’s assent was required only for the establishment of the production quota system, the Commission manifestly and gravely disregarded the limits on the exercise of its discretion in implementing the production quota system, such conduct constituting a fault of such a nature as to render the Community liable within the meaning of the first paragraph of Article 34 of the ECSC Treaty.
6. An undertaking which, under the steel production and delivery quota system, is compelled, as a result of the Commission’ s refusal to allow it any adjustment of its delivery quotas, which involves both illegality and fault, to sell a substantial part of its production on the markets of non-member countries under unprofitable conditions, has suffered direct harm within the meaning of the first paragraph of Article 34 of the ECSC Treaty. Such harm is also special harm within the meaning of the same provision in so far as it is established that the undertaking in question is one of a limited and clearly identified number of undertakings which, through an unjustified breach of the principle of equality as between economic agents, have suffered harm going beyond the bounds of the risks inherent in the activities in the sector concerned.

Citations:

T-120/89, [1991] EUECJ T-120/89

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172376

Williams v Court of Auditors of the European Communities: ECFI 10 Dec 1992

ECJ 1. The action before the Court, even if formally directed against the rejection of the official’ s complaint, has the effect of bringing before the Court the decision adversely affecting the applicant against which the complaint was submitted. 2. The fact that in the staff reports, under the heading ‘Knowledge required for post occupied’, two officials occupying comparable posts receive identical assessments even though only one of them has specific training corresponding to the duties performed does not, in the absence of other factors, constitute proof of an infringement of the principle of equal treatment. The evaluation of the knowledge required for the post occupied calls for a specific assessment, taking account of all the actual knowledge of the official concerned, in particular his specific knowledge corresponding to the post which he occupies, not an abstract assessment of the level of his training, purely in terms of his qualifications and diplomas. 3. It is not for the Court to determine whether the assessment made by the administration in the context of a staff report of the occupational ability of an official is well founded when it involves complex value judgments which, by their very nature, are not capable of objective proof. However, the Court is required to carry out a review concerning any irregularities of form or procedure, manifest errors of fact vitiating the assessments made by the administration and any misuse of power. 4. The freedom of trade union activity recognized under Article 24a of the Staff Regulations means not only that officials have the right without hindrance to form associations of their choosing, but also that those associations are free to do anything lawful to protect the interests of their members as employees, in particular by means of bringing court proceedings. Furthermore, the Community institutions, and the bodies treated as such for the application of the Staff Regulations of Officials by virtue of Article 1 thereof, must refrain from doing anything which might impede the freedom of trade union activity recognized by Article 24a of the said regulations. 5. Where an internal directive of an institution concerning the reports procedure, such as a guide to staff reports, provides that the official assessed must be put in a position to state his point of view regarding all the information on the basis of which the appeal assessor adopts his final decision, a reports procedure in which that rule has been disregarded is irregular and the staff report subsequently adopted must be annulled.

Citations:

T-33/91, [1992] EUECJ T-33/91

Links:

Bailii

Jurisdiction:

European

European, Administrative

Updated: 06 June 2022; Ref: scu.172481

Teissonniere v Commission: ECFI 14 Dec 1989

1. Although it is true that before retirement, an uncertain future event, pension rights are contingent rights accruing from day to day, it is none the less clear that an administrative act deciding that a period of employment cannot be taken into account for the calculation of years of pensionable service, or a decision refusing a request for application of the increase provided for under Article 5 of Annex VIII to the Staff Regulations, immediately and directly affects the legal situation of the person concerned, even if that act is to be implemented only subsequently. In principle, therefore, the official has a legitimate, present and vested interest in taking proceedings against such an act.
2. Within the framework of a continuing discussion between an institution and an official, the latter is entitled not to regard an exchange of views as a formal decision on the part of the administration until he receives the first letter from the administration stating the grounds on which that decision is based. Only at that time does he become bound to lodge a complaint within the period laid down by the Staff Regulations.
3. An application is inadmissible if it is directed against an act preparatory to a decision, in particular against an act coming within the category of administrative information, on the ground that it refers to the subsequent adoption of a decision or does not emanate from an appointing authority.
A letter addressed to an official is not in the nature of a decision where, in particular, the author of that letter took care expressly to draw the applicant’ s attention to the fact that the pension calculations communicated to him were for guidance and had to be subject to subsequent confirmation.
4. The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for the lodging of complaints and appeals are a matter of public policy and are not subject to the discretion of the parties or the court, since they were laid down with a view to ensuring clarity and legal certainty.

Citations:

T-119/89, [1989] EUECJ T-119/89

Links:

Bailii

European

Updated: 06 June 2022; Ref: scu.172375

Josu Miguel Dyaz Garcya v European Parliament: ECFI 18 Dec 1992

ECJ 1. Under Article 2(4) of Annex VII to the Staff Regulations, the treatment, as a dependent child, of a person whom an official has a legal responsibility to maintain and whose maintenance involves heavy expenditure constitutes an exceptional step. The condition that the official must have a legal responsibility to maintain a person other than a dependent child must for that reason be interpreted strictly. The concept of ‘a legal responsibility to maintain’ used in the Staff Regulations is derived from the legal systems of the Member States, which, under their laws, impose a mutual responsibility to provide maintenance on relatives by blood and/or marriage of a greater or lesser degree of proximity. That concept must therefore be understood as referring exclusively to an obligation maintenance imposed on an official by a source of law independent of the will of the parties and as excluding maintenance obligations of a contractual, moral or compensatory nature. Since neither Community law nor the Staff Regulations provide the Community court with any guide as to how it should define, by way of independent interpretation, the meaning and scope of a legal responsibility to maintain, entitling an official to receive a dependent child allowance under Article 2(4) of Annex VII to the Staff Regulations, it is necessary to determine whether the national legal system to which the official in question is subject imposes such a legal responsibility on the official. 2. The terms of a provision of Community law which makes no express reference to the laws of the Member States for the purpose of determining its meaning and scope must normally be given an independent interpretation, which must take into account the context of the provision and the purpose of the relevant regulations. In the absence of an express reference to the laws of the Member States, the application of Community law may sometimes necessitate a reference to the laws of the Member States where the Community court cannot identify in Community law or in the general principles of Community law criteria enabling it to define the meaning and scope of such a provision by way of independent interpretation. 3. An official has no legitimate interest in the annulment of a decision for breach of procedural requirements where the administration has no scope for the exercise of discretion but is bound to act as it has done. In such a case, the annulment of the contested decision could lead only to the adoption of another decision identical in substance to the decision annulled.

Citations:

T-43/90, [1992] EUECJ T-43/90

Links:

Bailii

Jurisdiction:

European

Children, Benefits

Updated: 06 June 2022; Ref: scu.172447

Pinto Teixeira v Commission: ECFI 27 Mar 1990

ECJ The special and temporary measures laid down in Regulation No 3517/85 for the recruitment of Spanish and Portuguese nationals upon the accession of Spain and Portugal and by Regulation No 3018/87 for the recruitment of overseas staff of the European Association for Cooperation were adopted for two specific purposes and thus constitute two independent sets of rules.
It follows that an official recruited on the basis of the special and temporary measures for recruitment laid down by either of those regulations may not claim the benefit, in whole or in part, of the special and temporary measures for recruitment laid down by the other regulation.
The European Association for Cooperation is an association governed by Belgian law and cannot, therefore, be regarded as an administrative unit of the Commission.
It follows that the engagement and appointment by the Commission of a member of the overseas staff of the Association constitutes recruitment from outside the institutions and that the Commission cannot, therefore, be under any obligation to verify and, if necessary, modify that person’ s classification with the Association on the basis of which he or she was classified on recruitment as an official of the European Communities.

Citations:

T-62/89, [1990] EUECJ T-62/89

Links:

Bailii

Statutes:

Regulation No 3517/85

European

Updated: 06 June 2022; Ref: scu.172348

Williams v Court of Auditors: ECFI 7 Feb 1991

Whilst Article 90(1) of the Staff Regulations provides that any official may request the Appointing Authority to take a decision relating to him, that right does not allow an official to circumvent the time-limits laid down in Articles 90 and 91 of the Staff Regulations for the lodging of a complaint and an appeal by indirectly calling in question by means of a request a previous decision which has not been challenged within the period prescribed. Only the existence of new substantial facts may justify the submission of a request for a review of such a decision.
In view of the differences between the classification rules applicable to successful candidates in competitions and those applicable to promotions, an official cannot rely on a new fact stemming from the classification obtained by certain of his colleagues on promotion in order to challenge the classification which he was given after passing a competition.

Citations:

T-58/89, [1991] EUECJ T-58/89

Links:

Bailii

Jurisdiction:

European

European

Updated: 06 June 2022; Ref: scu.172345

Coote v Granada Hospitality Ltd: EAT 19 May 1999

The refusal of an employer to provide a reference to an employee who had left and claimed sex discrimination against the company could of itself and also found a claim for sex discrimination as victimisation. European regulations required the court to interpret our own regulations widely enough to comply with the European Regulations. The claim arose from employment even after it had ceased.

Judges:

The Honourable Mr Justice Morison (President)

Citations:

Times 03-Jun-1999, EAT/1332/95, [1999] UKEAT 1332 – 95 – 1905

Links:

Bailii, EAT

Statutes:

Equal Treatment Directive (76/207/EEC)

Citing:

At ECJ – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .

Cited by:

Appeal from – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European, Employment

Updated: 06 June 2022; Ref: scu.171614

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 does not preclude restrictions justified on the grounds of the protection of industrial and commercial property. Such restrictions must not allow arbitrary discrimination or be a disguised restriction on trade between member states. The mark owners were allowed to prevent the repackaging so long as it did not operate to prevent trade.

Judges:

GC Rodriguez Iglesias, President and Judges P. Jann, C. Gulmann, D. A. O. Edward, M. Wathelet, R. Schintgen, V. Skouris, J. N. Cunha Rodrigues and C. W. A. Timmermans Advocate-General F. G. Jacobs

Citations:

Times 23-May-2002, C-143/00, [2002] EUECJ C-143/00, [2002] ECR I-3759

Links:

Bailii

Statutes:

First Council Directive 89/104/EEC of December 21, 1988 to approximate the laws of the member states relating to trade marks (OJ 1989 L40, p1) 7(2)

Jurisdiction:

European

Cited by:

Answered by – Boehringer Ingelheim Kg, Boehringer Ingelheim Pharma Gmbh and Co Kg, Swingward Limited v Boehringer Ingelheim Kg, Boehringer Ingelheim Pharma Gmbh and Co Kg, Boehringer Ingelheim Limited-And-Dowelhurst Limited CA 5-Mar-2004
. .
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.

European, Intellectual Property

Updated: 06 June 2022; Ref: scu.170259

Duchon v Pensionsversicherungsanstalt der Angestellten: ECJ 18 Apr 2002

Europa Social security for migrant workers – Article 48 and Article 51 of the EC Treaty (now, after amendment, Article 39 and Article 42 EC) – Article 9a and 94 of Regulation (EEC) No 1408/71 – Accident at work occurring in another Member State before the entry into force of the regulation in the worker’s home State – Incapacity for work

Judges:

P. Jann, President of the Chamber, S. von Bahr, and M. Wathelet (Rapporteur), Judges, Advocate General: F.G. Jacobs, Registrar: R. Grass

Citations:

C-290/00, [2002] EUECJ C-290/00

Links:

Bailii

Jurisdiction:

European

European, Benefits

Updated: 06 June 2022; Ref: scu.170166

Palin Granit Oy v Vehmassalon kansaterveystyon kuntayhtyman hallitus: ECJ 18 Apr 2002

Harmonisation of laws – Directives 75/442/EEC and 91/156/EEC – Concept of waste – Production residue – Quarry – Storage – Use of waste – No risk to health or the environment – Possibility of recovery of waste

Judges:

Macken P

Citations:

C-9/00, [2002] EUECJ C-9/00

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Lists of cited by and citing cases may be incomplete.

European, Environment

Updated: 06 June 2022; Ref: scu.170164

English v North Lanarkshire Council: SCS 22 Jan 1999

The application of the phrase ‘work equipment’ is to protect the workman using such equipment. This might embrace routine maintenance or cleaning or even minor repairing while the machine is operating. The 1998 Regulations should not be interpreted narrowly and in a way which would fail to implement the Framework Directive.

Judges:

Lord Reed

Citations:

[1999] ScotCS 29, 1999 SCLR 310

Links:

Bailii, ScotC

Statutes:

Work Equipment Directive (Council Directive 89/655/EEC of 30 November 1989, Provision and Use of Work Equipment Regulations 1998

Cited by:

Cited – Munro v Aberdeen City Council SCS 17-Sep-2009
Safety Duty on Employer was not Absolute
The pursuer was injured slipping on ice in her defender employer’s car park. Liability depended on the interpretation of regulation 5, the claimant saying that it imposed an absolute requirement to maintain the workplace in efficient working order . .
Lists of cited by and citing cases may be incomplete.

Scotland, Health and Safety, European

Updated: 05 June 2022; Ref: scu.169690

Gough and Another v Chief Constable of Derbyshire: CA 20 Mar 2002

The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were civil, the standard of proof required was virtually that of a criminal court. Public policy could be used to justify an infringement of the citizens’ rights under European Law. A football banning order should only be imposed where there were strong grounds for concluding that the individual subject to the order had a propensity for taking part in football hooliganism. Noting the serious consequences: ‘This should lead the Justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.’
Lord Phillips MR referred to the kind of intelligence information which was being collected, stating: ‘The tactics of the police have had to respond to this developing phenomenon. There is a football intelligence system co-ordinated by NCIS. Each club has a Football Intelligence Officer, who is known to the prominents as they are known to him. In relation to each match … information is collected by the police ‘spotters’ who watch the prominents. The information is collated in an information/intelligence report. The profiles are prepared in reliance on the contents of such reports, and consist in short notes, each giving an outline description of the particular prominent’s involvement in actual or threatened trouble in relation to any given match.’

Judges:

Phillips of Worth Matravers, Master of the Rolls, Lord Justice Judge and Lord Justice Carnwath

Citations:

Times 10-Apr-2002, Gazette 23-May-2002, [2002] EWCA Civ 351, [2002] QB 1213, [2002] 3 WLR 289, [2002] 2 All ER 985

Links:

Bailii

Statutes:

Football Spectators Act 1989 14B, Football (Disorder) Act 2000

Jurisdiction:

England and Wales

Citing:

Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Appeal from – Gough and Another v Chief Constable of Derbyshire; Regina (Miller) v Leeds Magistrates’ Court; Lilley v Director of Public Prosecutions QBD 13-Jul-2001
Challenges were made to the powers banning the free movement of those convicted of offences of violence. Orders had been made banning the applicants from attending football matches, and requiring attendance at police stations at times of matches . .

Cited by:

Distinguished – Regina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – Newman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
Lists of cited by and citing cases may be incomplete.

European, Crime

Updated: 05 June 2022; Ref: scu.168533

Lommers v Minister van Landbouw, Natuurbeheer en Visserij: ECJ 19 Mar 2002

Europa Social policy – Equal treatment of men and women – Derogations – Measures to promote equality of opportunity between men and women – Subsidised nursery places made available by a Ministry to its staff – Places reserved only for children of female officials, save in cases of emergency, to be determined by the employer.
‘according to settled case law in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the directive, due regard must be had to the principle of proportionality which required that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued.’

Citations:

C-476/99, [2002] EUECJ C-476/99

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Azmi v Kirklees Metropolitan Borough Council EAT 30-Mar-2007
The claimant alleged discrimination. As a teaching assistant, she had been refused permission to wear a veil when assisting a male teacher.
Held: Direct discrimination had not been shown. The respondent had shown that any comparator would have . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination

Updated: 05 June 2022; Ref: scu.168131

Mercantile International Group Plc v Chuan Soon Huat Industrial Group Ltd: CA 8 Mar 2002

The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Held: It is common for agents acting in the sale of financial products, eg many types of insurance policies, to fix its own commission, and this arrangement can be consistent with the existence of a relationship of agency.

Judges:

Rix LJ, Waller LJ, Wilson LJ

Citations:

[2002] EWCA Civ 288, [2003] ECC 28, [2002] 1 All ER (Comm) 788, [2002] CLC 913, [2002] Eu LR 314

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

Cited by:

Cited – Claramoda Ltd v Zoomphase Ltd (T/A Jenny Packham) ComC 13-Nov-2009
The former distribution agent sought to claim under the Regulations. The defendant said that the claim had not been notified as it should, within one year. The agency was for the sale of fashion items. Termination had been informal, stating that it . .
Cited – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 05 June 2022; Ref: scu.168082

Secretary of State for the Home Department v International Transport Roth Gmbh and others: CA 22 Feb 2002

The Appellant had introduced a system of fining lorry drivers returning to the UK with illegal immigrants hiding away in their trucks. The rules had been found to be in breach of European law and an interference with their human rights. The penalties were substantial, though there existed a system of appeals.
Held: The principle that the punishment must fit the crime was irreconcilable with the notion of a substantial fixed penalty. The system was incompatible with the respondents’ article 6 human rights. As to the rights under the European treaty, not every breach of the Convention affecting cross- border trade and services involved an impermissible restriction on Treaty rights. Here the effects of cross-border trade were at best only tenuously established, and that part of the appeal succeeded. Simon Brown LJ ‘. . . the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility. . . But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.’
Laws LJ dissenting set out the following tests of the deference which the judicial arm of government should show to the other arms of government: (1) greater deference is to be paid to an Act of Parliament than to a decision of the executive or subordinate measure; (2) there is more scope for deference ‘where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified’ (per Lord Hope in ex parte Kebilene); (3) greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility, and less when it lies more particularly within the constitutional responsibility of the courts; (4) greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts). ‘The first duty of government is the defence of the realm. It is well settled that executive decisions dealing directly with matters of defence, while not immune from judicial review (that would be repugnant to the rule of law), cannot sensibly be scrutinised by the courts on grounds relating to their factual merits . . ‘

Judges:

Lord Justice Simon Brown, Lord Justice Laws, And, Lord Justice Jonathan Parker

Citations:

Times 26-Feb-2002, [2002] EWCA Civ 158, [2002] 3 WLR 344, [2003] QB 728

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999, European Convention on Human Rights Art 6, EC Treaty 28 49

Jurisdiction:

England and Wales

Citing:

Appeal from – International Transport Roth GmbH and Others v Secretary of State for the Home Department QBD 5-Dec-2001
The respondent introduced rules imposing fixed and penalties on HGV drivers coming into the UK who were found to have stowaway illegal entrants. The operators sought judicial review.
Held: The penalty was in the character of a criminal . .

Cited by:

Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Trailer and Marina (Leven) Limited v The Secretary of State for the Environment, Food and Rural Affairs, English Nature QBD 6-Feb-2004
The claimant owned land which contained a canal. After disuse it had become subject an order declaring it a site of special scientific intrest. The owner complained that this removed his right to develop uses of the land and infringed his human . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Lists of cited by and citing cases may be incomplete.

Transport, Administrative, European, Human Rights

Updated: 05 June 2022; Ref: scu.167653

J C J Wouters, J W Savelbergh and Price Waterhouse Belastingadviseurs BV v Algemene Raad van de Nederlandse Orde van Advocaten, intervener: Raad van de Balies van de Europese Gemeenschap: ECJ 19 Feb 2002

ECJ Professional body – National Bar – Regulation by the Bar of the exercise of the profession – Prohibition of multi-disciplinary partnerships between members of the Bar and accountants – Article 85 of the EC Treaty (now Article 81 EC) – Association of undertakings – Restriction of competition – Justification – Article 86 of the Treaty (now Article 82 EC) – Undertaking or group of undertakings – Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 and 49 EC) – Applicability – Restrictions – Justification.

Citations:

C-309/99, [2002] EUECJ C-309/99, [2002] ECR I-1577)

Links:

Bailii

Cited by:

Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 05 June 2022; Ref: scu.167708

Thoburn v Sunderland City Council etc: Admn 18 Feb 2002

Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it impliedly repealed the 1972 Act to that extent (2(2)).
Held: The EC Treaty was unlike others in creating a new and unique legal order which was supreme above the legal systems of the member states. On accession under the 1972 Act, the United Kingdom bowed its head to that supremacy. The 1972 Act was a constitutional Act, and at common law could only be repealed by express provision. All specific rights and obligations created by European Law were incorporated into domestic law and ranked supreme by the 1972 Act, which was a constitutional statute, and could not be impliedly repealed. That the 1972 Act was a constitutional statute was derived from common law which recognised such a category. The fundamental legal basis of the United Kingdom’s relationship with the EU rested with the domestic, not the European legal powers.

Judges:

Lord Justice Laws, Mr Justice Crane

Citations:

Gazette 11-Apr-2002, [2001] EWCH Admin 195, [2003] QB 151

Links:

Bailii

Statutes:

European Communities Act 1972 2(2), Weights and Measures Act 1985 1, Weights and Measures Act 1985 (Metrification) (Amendment) Order 1994 (SI 1994 No 2866), Unit of Measurement Regulations 1994 (1994 No 2867), Price Marking Order 1999 (1999 No 3042)

Jurisdiction:

England and Wales

Cited by:

Cited – Levi Strauss and Co and Another v Tesco Stores Ltd and others ChD 31-Jul-2002
The trade mark owners sought to restrain the defendants from selling within the EU, articles bearing their mark which had been imported other than through their own channels. The defendants resisted summary judgement after reference to the European . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
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 . .
Lists of cited by and citing cases may be incomplete.

Constitutional, European, Consumer

Updated: 05 June 2022; Ref: scu.167622

Commission v Italy: ECJ 15 Jan 2002

ECJ Failure to fulfil obligations – Infringement of Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) – Retention of certain national and regional rules regarding trade fairs, markets and exhibitions

Citations:

C-439/99, [2002] EUECJ C-439/99

Links:

Bailii

Jurisdiction:

European

European

Updated: 05 June 2022; Ref: scu.167454

Fahnenbrock v Hellenische Republic: ECJ 11 Jun 2015

ECJ Judgment – References for a preliminary ruling – Judicial cooperation in civil matters – Service of judicial and extrajudicial documents – Regulation (EC) No 1393/2007 – Article 1(1) – Concept of civil or commercial matters – Liability of the State for ‘acta iure imperii’

Judges:

A. Tizzano (Rapporteur), P

Citations:

C-226/13, [2015] EUECJ C-226/13, ECLI:EU:C:2015:383

Links:

Bailii

Jurisdiction:

European

European

Updated: 05 June 2022; Ref: scu.548118

Commission v Poland: ECJ 11 Jun 2015

Judgment – Failure of a Member State to fulfil obligations – Public health – Directive 2004/23/EC – Directive 2006/17/EC – Directive 2006/86/EC – Exclusion of reproductive cells, foetal tissues and embryonic tissues from the scope of national legislation transposing those directives

Citations:

C-29/14, [2015] EUECJ C-29/14, ECLI:EU:C:2015:379

Links:

Bailii

Jurisdiction:

European

Health

Updated: 05 June 2022; Ref: scu.548116

EMA v Commission: ECJ 11 Jun 2015

ECJ Judgment – Appeal – Arbitration clause – Contracts Cocoon and DICOEMS, concluded under the Sixth Framework Programme for research, technological development and demonstration activities contributing to the realization of the European Research Area and to innovation (2002-2006) – Irregularities – Ineligible expenditure – Termination of contracts

Citations:

C-100/14, [2015] EUECJ C-100/14, ECLI:EU:C:2015:382

Links:

Bailii

Jurisdiction:

European

Arbitration

Updated: 05 June 2022; Ref: scu.548117

Baby Dan: ECJ 11 Jun 2015

(Judgment) Reference for a preliminary ruling – Customs Union and the Common Customs Tariff – Combined Nomenclature – Tariff classification – Positions 7318 and 8302 – Article specially designed for the fixing of safety barriers for the protection of children

Citations:

C-272/14, [2015] EUECJ C-272/14, ECLI:EU:C:2015:388

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 05 June 2022; Ref: scu.548112

Hauptzollamt Hannover v Amazon EU Sarl: ECJ 11 Jun 2015

ECJ Judgment – Reference for a preliminary ruling – Regulation (EEC) No 2658/87 – Customs union and Common Customs Tariff – Combined Nomenclature – Heading 8543 70 – Electrical machines and apparatus, having individual functions, not specified or included elsewhere in Chapter 85 of the Combined Nomenclature – Subheadings 8543 70 10 and 8543 70 90 – Reading devices for electronic books with translation or dictionary functions

Judges:

J.-C. Bonichot, P

Citations:

C-58/14, [2015] EUECJ C-58/14, ECLI:EU:C:2015:385

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 05 June 2022; Ref: scu.548111

Comite D’Entreprise De Nortel Networks And Others v Cosme Rogeau: ECJ 11 Jun 2015

ECJ Judgment – Reference for a preliminary ruling – Regulation (EC) No 1346/2000 – Articles 2(g), 3(2) and 27 – Regulation (EC) No 44/2001 – Judicial cooperation in civil matters – Main insolvency proceedings – Secondary insolvency proceedings – Conflict of jurisdiction – Exclusive or concurrent jurisdiction – Determination of the applicable law – Determination of the debtor’s assets falling within the secondary insolvency proceedings – Determination of the location of those assets – Assets situated in a third State

Judges:

A. Tizzano, P

Citations:

C-649/13, [2015] EUECJ C-649/13, ECLI:EU:C:2015:384, [2015] WLR(D) 249

Links:

Bailii, WLRD

Statutes:

Regulation (EC) No 1346/2000, Regulation (EC) No 44/2001

Jurisdiction:

European

European, Insolvency

Updated: 05 June 2022; Ref: scu.548115

Base Company and Mobistar v Ministerraad: ECJ 11 Jun 2015

ECJ Judgment – Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/22/EC – Articles 4, 9, 13 and 32 – Universal service obligations and social obligations – Provision of access at a fixed location and provision of telephone services – Affordability of tariffs – Special tariff options – Financing of the universal service obligations – Additional mandatory services – Mobile communication services and/or internet subscription services

Citations:

C-1/14, [2015] EUECJ C-1/14, ECLI:EU:C:2015:378

Links:

Bailii

Statutes:

Directive 2002/22/EC

Jurisdiction:

European

Media

Updated: 05 June 2022; Ref: scu.548113

Onuekwere v Secretary of State For The Home Department: ECJ 3 Oct 2013

ECJ Opinion – Right of Union citizens to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 16 – Continuity of residence required in order to acquire the right of permanent residence – Taking into account periods of imprisonment in the host Member State

Judges:

Bot AG

Citations:

C-378/12, [2013] EUECJ C-378/12

Links:

Bailii

Statutes:

Directive 2004/38/EC 16

Jurisdiction:

European

Citing:

Reference – Onuekwere (Imprisonment – Residence) Nigeria UTIAC 3-Aug-2012
Order for reference to European Court of Justice . .

Cited by:

Opinion – Onuekwere v Secretary of State For The Home Department ECJ 16-Jan-2014
ECJ Request for a preliminary ruling – Directive 2004/38/EC – Article 16(2) and (3) – Right of permanent residence of third-country nationals who are family members of a Union citizen – Taking into consideration . .
Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 05 June 2022; Ref: scu.516349

Secretary of State for Work and Pensions v Lassal: CA 10 Mar 2009

The court referred the case to the ECJ.

Judges:

Waller LJ VP, Arden LJ, Moore-Bick LJ

Citations:

[2009] EWCA Civ 157

Links:

Bailii

Statutes:

Directive 2004/38/EC

Jurisdiction:

England and Wales

Cited by:

Reference – Secretary of State for Work and Pensions v Lassal ECJ 11-May-2010
(European Citizenship) (Opinion) Directive 2004/38/EC Right of Union citizens to reside in the territory of the Member States Article 16(1) Right of permanent residence – Residence for a continuous period of five years Taking into account periods of . .
Reference – Secretary of State for Work and Pensions v Lassal ECJ 7-Oct-2010
Reference for preliminary ruling – Freedom of movement for persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Temporal application – Periods completed before the date of transposition . .
Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 05 June 2022; Ref: scu.317903

Metropol Treuhand WirtschaftstreuhandgmbH v Finanzlandesdirektion fur Steiermark: ECJ 8 Jan 2002

ECJ Sixth VAT Directive – Article 17(6) and (7) – Right to deduct input VAT – Exclusions provided for under national laws at the date of entry into force of the directive – Exclusions for cyclical economic reasons – Consultation of the Advisory Committee on value added tax.

Citations:

C-409/99, [2002] EUECJ C-409/99

Links:

Bailii

European, VAT

Updated: 05 June 2022; Ref: scu.167379