Compulsory affiliation to a sectoral pension scheme – Compatibility with competition rules – Classification of a sectoral pension fund as an undertaking
C-115/97, [1999] EUECJ C-115/97
European
Updated: 03 June 2022; Ref: scu.162082
C-104/97, [1999] EUECJ C-104/97P
Updated: 03 June 2022; Ref: scu.162073
C-111/97, [1998] EUECJ C-111/97
Updated: 03 June 2022; Ref: scu.162078
C-106/97, [1999] EUECJ C-106/97
Updated: 03 June 2022; Ref: scu.162074
[2001] EUECJ C-110/97, C-110/97
Updated: 03 June 2022; Ref: scu.162077
C-129/97, [1998] EUECJ C-129/97
Updated: 03 June 2022; Ref: scu.162090
ECJ Food supplements – Directive 89/398/EEC – Transposition – Conditions – Retention of previous national legislation – Additive – ‘L-carnitine’
R. Schintgen, P
C-107/97, [2000] EUECJ C-107/97, [2000] ECR I-3367
Updated: 03 June 2022; Ref: scu.162075
C-95/97, [1997] EUECJ C-95/97
Updated: 03 June 2022; Ref: scu.162070
C-124/97, [1999] EUECJ C-124/97
Updated: 03 June 2022; Ref: scu.162085
C-114/97, [1998] EUECJ C-114/97
Updated: 03 June 2022; Ref: scu.162081
ECJ Act of accession of the Kingdom of Sweden – Sixth VAT Directive – Transitional provisions – Exemptions – Services provided by authors, artists and performers – Lack of jurisdiction of the Court
C-134/97, [1998] EUECJ C-134/97
Updated: 03 June 2022; Ref: scu.162092
C-113/97, [1998] EUECJ C-113/97
Updated: 03 June 2022; Ref: scu.162080
C-210/97, [1998] EUECJ C-210/97
Updated: 03 June 2022; Ref: scu.162137
(Judgment)
C-386/96, [1998] EUECJ C-386/96P
Updated: 03 June 2022; Ref: scu.161996
A national of a member state having returned home after working abroad, and declaring an intention not to seek work abroad again, and applying for benefits could not be refused on the grounds that he had not been there long enough.
Europa Article 10a of Regulation No 1408/71, as amended and updated by Regulation No 2001/83, as amended by Regulation No 1247/92, read together with Article 1(h) thereof, precludes the Member State of origin – in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to his Member State of origin, where his family lives, in order to seek work – from making entitlement to one of the benefits referred to in Article 10a of Regulation No 1408/71 conditional upon `habitual residence’ in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there.
Times 04-Mar-1999, C-90/97, [1999] ECRI-1075], [1999] EUECJ C-90/97
England and Wales
Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.162068
ECJ Judgment – Failure to fulfil obligations – Directive 93/36/EEC – Failure to transpose within the prescribed period
C-43/97, [1997] EUECJ C-43/97
Updated: 03 June 2022; Ref: scu.162040
ECJ (Judgment) Social policy – Harmonisation of laws – Transfers of undertakings – Safeguarding of workers’ rights – Directive 77/187/EEC – Scope – Transfer of an undertaking in voluntary liquidation
C-399/96, [1998] EUECJ C-399/96, ECLI:EU:C:1998:532, [1999] All ER (EC) 831, [2001] 1 CMLR 25, [1998] ECR I-6965
European
Updated: 03 June 2022; Ref: scu.162006
ECJ Article 7 of Directive 90/314 on package travel, package holidays and package tours is to be interpreted as covering, as security for the refund of money paid over, a situation in which the purchaser of a package holiday who has paid the travel organiser for the costs of his accommodation before travelling on his holiday is compelled, following the travel organiser’s insolvency, to pay the hotelier for his accommodation again in order to be able to leave the hotel and return home.
C-364/96, [1998] EUECJ C-364/96
Updated: 03 June 2022; Ref: scu.161985
(Rec 1998,p I-6267) (Judgment)
C-9/97, [1998] EUECJ C-9/97
Updated: 03 June 2022; Ref: scu.162029
ECJ (Judgment) VAT was payable on supplies of counterfeit drugs even though the income generated by the trade was unlawful. Fiscal neutrality prevented differentiation between lawful and unlawful supplies
The defendants had sold counterfeit perfumes and had had VAT charges imposed retrospectively. It was held proper to charge VAT on sales which were illegal. Fiscal neutrality was set aside only where the special characteristic of a product required it
Times 10-Jun-1998, Gazette 09-Sep-1998, C-3/97, [1998] EUECJ C-3/97
Sixth Council Directive 77/388/EEC May 1977 2
Updated: 03 June 2022; Ref: scu.162023
ECJ (Judgment) Environment – Directive 85/337/EEC – Assessment of the effects of certain public or private projects – Setting of thresholds
J.-P. Puissochet, P
C-392/96, [1999] EUECJ C-392/96, [2000] Env LR D15, [2000] QB 636, [2000] 2 WLR 958, [1999] ECR I-5901, [1999] 3 CMLR 727, [1999] 4 PLR 107
Updated: 03 June 2022; Ref: scu.162001
It was not discriminatory to offer additional pay over and above statutory entitlements to workers taking maternity leave on condition that they return to work for at least a month after the birth or repay the additional sums allowed
Times 29-Oct-1998, C-411/96, [1998] EUECJ C-411/96
ECTreaty Art 177, Council Directive 75/117/EC
Reference from – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Referred to – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.162016
Judgment – Free movement of persons
C-366/96, [1998] EUECJ C-366/96
Updated: 03 June 2022; Ref: scu.161986
ECJ Judgment – Sixth VAT Directive – Car-leasing services – Fixed establishment – Rules governing reimbursement of VAT to taxable persons not established in the territory of the State – Principle of non-discrimination
C-390/96, [1998] EUECJ C-390/96, [1998] ECR I-2553
Updated: 03 June 2022; Ref: scu.161999
Judgment – Failure to fulfil obligations – Failure to transpose Directive 92/43/EEC
C-329/96, [1997] EUECJ C-329/96
Updated: 03 June 2022; Ref: scu.161964
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European Law: ‘it is for the national court to determine . . whether the transactions . . are to be regarded for VAT purposes as comprising two independent supplies . . or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.’ What matters is ‘the essential features of the transaction’. ‘There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied . .’
As to what amounted to insurance, the court said: ‘the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.
It is not essential that the service the insurer has undertaken to provide in the event of loss consists in the payment of a sum of money, as that service may also take the form of the provision of assistance in cash or in kind of the type listed in the annex Directive 73/239 as amended by Directive 84/641. There is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Directive on insurance or in the Sixth Directive.’
Times 18-Mar-1999, C-349/96, [1999] STC 270, [1999] 2 AC 601, [1998] EUECJ C-349/96 – O
Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .
Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Century Life Plc CA 19-Dec-2000
The Directive required member states to exempt from VAT, services involving the provision of insurance, and for intermediaries. Following the Regulator’s involvement, the principal company had to arrange for the checking of existing policies, and . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – Commissioners for Customs and Excise v Southern Primary Housing Limited CA 18-Nov-2003
The land owner had elected to pay VAT on the purchase of land. It sought to recover that VAT. The Commissioners appealed an order allowing that.
Held: Ther were three transactions, the purchase, the sale, and a development contract. The input . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Cited – Digital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161975
(Judgment)
C-328/96, [1999] EUECJ C-328/96
Updated: 03 June 2022; Ref: scu.161963
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of accommodation.
Held: The provision applied not just to travel agents, but to all ‘traders who habitually arrange travel or tours and, in order to supply the services generally associated with activities of that kind, have recourse to other taxable persons’ ‘traders such as hoteliers who provide services habitually associated with travel frequently make use of services bought in from third parties which take up a small proportion of the package price compared to the accommodation and are among the tasks traditionally entrusted to such traders. Those bought-in services do not therefore constitute for customers an aim in itself, but a means of better enjoying the principal service supplied by the trader. In such circumstances the services bought in from third parties remain purely ancillary in relation to the in-house services, and the trader should not be taxed under art 26 of the Sixth Directive. Where, however, a hotelier habitually offers his customers, in addition to accommodation, services which go beyond the tasks traditionally entrusted to hoteliers, and which cannot be carried out without a substantial effect on the package price charged, such as travel to the hotel from distant pick-up points, such services are not to be equated with purely ancillary services.’
C-308/96, [1998] STC 1189, [1998] EUECJ C-308/96
European
Reference from – Customs and Excise Commissioners v Madgett and Another T/A Howden Court Hotel QBD 15-Jan-1996
A hotel’s offering of a coach trip to collect guests may make them travel agents for VAT purposes. The case was referred on to the ECJ. . .
Reffered to – Customs and Excise Commissioners v Madgett and Another T/A Howden Court Hotel QBD 15-Jan-1996
A hotel’s offering of a coach trip to collect guests may make them travel agents for VAT purposes. The case was referred on to the ECJ. . .
Cited – Commissioners of Customs and Excise v British Telecommunications Plc HL 11-Feb-1999
The cost of the delivery of a quantity of new cars from the factory or depot to the purchaser is incidental and ancillary to the supply of the cars themselves, and the VAT on delivery charges was not reclaimable by the purchasing company as Input . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – College of Estate Management v Customs and Excise HL 20-Oct-2005
The college supplied educational services by distance learning. The commissioner sought to argue that printe daterials supplied with the course were ancillary and did not have the same exemption form VAT.
Held: The supplies did benefit from . .
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.
Updated: 03 June 2022; Ref: scu.161948
(Judgment) (Rec 1998,p I-7943)
C-337/96, [1998] EUECJ C-337/96
European
Updated: 03 June 2022; Ref: scu.161966
Unduly paid Community subsidy – Recovery – Application of national law – Conditions and limits
C-298/96, [1998] EUECJ C-298/96
European
Updated: 03 June 2022; Ref: scu.161943
(Judgment)
C-321/96, [1998] EUECJ C-321/96
European
Updated: 03 June 2022; Ref: scu.161958
ECJ (Order) 1. In principle, the issue of the admissibility of the main application should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case. However, where the contention is that the main application is manifestly inadmissible, the judge hearing the application for interim measures must establish whether there is a prima facie case for finding that there is a certain probability that the main application is admissible.
2. In view both of the essential place which the institutional rules governing the allocation of powers between the various Community institutions must be recognized as occupying in the Community legal order and of the role which the Member States play therein, involving participation in the exercise of legislative and budgetary powers and contribution to the Community budget, the use by the Commission of Community funds for measures which lack a proper legal basis because they have not been authorized by the Council would be such as to cause a Member State serious and irreparable damage justifying the granting of interim measures.
3. When the judge hearing an application for interim measures balances the applicant’ s interest in preventing the procedures initiated by the decisions whose annulment it seeks from being carried through against the defendant’ s interest in expediting those procedures, he must examine whether the possible annulment of the contested decisions by the Court hearing the main action would make it possible to reverse the situation and conversely to what extent each of the various possible interim measures would be such as to prevent the aims of the contested decisions from being achieved in the event of the main application being dismissed.
C-239/96, [1996] EUECJ C-239/96R
Updated: 03 June 2022; Ref: scu.161913
ECJ Appeal – Officials – Internal competition – Measures implementing a judgment annulling a decision – Promotion to a higher category following a competition with no retroactive effect – Material and non-material damage
C-259/96, [1998] EUECJ C-259/96P
Updated: 03 June 2022; Ref: scu.161920
LMA The case concerned Directive 91/533 on employers’ obligations to inform employees of the conditions applicable to their contract or employment relationship. An ’emanation of state’ was understood to be ‘organisations or bodies which are subject to the authority or control of the state or have special powers beyond those which result from the normal rules applicable to relations between individuals such as local or regional authorities or other bodies, which, irrespective of their legal form have been given responsibility, by the public authorities and under their supervision for providing a public service’
[1998] IRLR 333, C-253/96, [1997] EUECJ C-253/96, [1997] ECR I-6907
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161919
ECJ Directive 75/442 on waste, as amended by Directive 91/156, and Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community cannot be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. That follows from the provisions of the directive and the regulation and from the preparatory texts. Furthermore, the difference in treatment between waste for recovery and waste for disposal reflects the intention of the Community legislature to encourage recovery of waste in the Community as whole, in particular by eliciting the best technologies, which means that waste of that type should be able to move freely between Member States for processing, thus excluding the application of the principles of self-sufficiency and proximity.
Article 130t of the Treaty, which authorises Member States to adopt protective measures which are more stringent than those adopted pursuant to Article 130s, in so far as they are compatible with the Treaty, does not permit them to extend the application of those principles to waste for recovery when it is clear that those principles create a barrier to exports which is not justified either by an imperative measure relating to protection of the environment or by one of the derogations provided for by Article 36 of the Treaty.
Article 90 of the Treaty, in conjunction with Article 86, precludes rules such as the Netherlands’ Long-term Plan for the Disposal of Dangerous Waste of June 1993, whereby a Member State requires undertakings to deliver their waste for recovery, such as oil filters, to a national undertaking on which it has conferred the exclusive right to incinerate dangerous waste unless the processing of their waste in another Member State is of a higher quality than that performed by that undertaking if, without any objective justification and without being necessary for the performance of a task in the general interest, those rules have the effect of favouring the national undertaking and increasing its dominant position.
[1998] ECR I-4075, C-203/96, [1998] EUECJ C-203/96
Updated: 03 June 2022; Ref: scu.161890
(Judgment) Failure to fulfil obligations – Failure to transpose Directive 76/464/EEC
C-214/96, [1998] EUECJ C-214/96
Updated: 03 June 2022; Ref: scu.161899
ECJ (Judgment) Regulation (EEC) No 1408/71 – Worker who has not exercised the right to freedom of movement – Retired civil servant – Article 73 – Family benefits – German institution competent – Article 77 – National legislation
C-194/96, [1998] EUECJ C-194/96
Updated: 03 June 2022; Ref: scu.161885
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based outside EU. United Kingdom legislation restricting fiscal reliefs or advantages to cases where the relevant companies are resident in the United Kingdom may be inconsistent with the EC Treaty. ICI remained bound by domestic legislation upon its ordinary meaning notwithstanding that in certain circumstances such a construction would be incompatible with European Community rights.
Europa In the context of the preliminary ruling procedure under Article 177, it is solely for the national courts before which proceedings are pending, and which must assume responsibility for the judgment to be given, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they submit to the Court. A request for a preliminary ruling from a national court may be rejected only if it is manifest that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the true facts or the subject-matter of the main proceedings.
Article 52 of the Treaty precludes legislation of a Member State which, in the case of companies established in that State belonging to a consortium through which they control a holding company, by means of which they exercise their right to freedom of establishment in order to set up subsidiaries in other Member States, makes a particular form of tax relief subject to the requirement that the holding company’s business consist wholly or mainly in the holding of shares in subsidiaries that are established in the Member State concerned.
Such legislation, which makes a tax advantage in the form of consortium relief available solely to companies which control, wholly or mainly, subsidiaries whose seat is in the national territory, applies the test of the subsidiaries’ seat to establish differential tax treatment of consortium companies established in that Member State and is not justified in terms of a need to ensure the cohesion of the national tax system arising from the fact that the revenue lost through the granting of tax relief on losses incurred by resident subsidiaries cannot be offset by taxing the profits of non-resident subsidiaries, since there is no direct link between the consortium relief granted for losses incurred by a resident subsidiary and the taxation of profits made by non-resident subsidiaries.
When deciding an issue concerning a situation which lies outside the scope of Community law, the national court is not required, under Community law, either to interpret its legislation in a way conforming with Community law or to disapply that legislation. Where a particular provision must be disapplied in a situation covered by Community law, but that same provision could remain applicable to a situation not so covered, it is for the competent body of the State concerned to remove that legal uncertainty in so far as it might affect rights deriving from Community rules.
Times 20-Aug-1998, C-264/96, [1999] 1 WLR 108, [1998] ECR I-4695, [1998] STC 874, [1998] EUECJ C-264/96
European
Reference from – ICI Plc v Colmer (Inspector of Taxes) HL 15-Mar-1996
A ‘Holding company’ under the Act meant a company resident in the UK; A reference was made of the issues to the European Court. . .
At Court of Appeal – Imperial Chemical Industries v Colmer (Inspector of Taxes) CA 9-Aug-1993
Group tax relief was available despite other subsidiary companies within the same group being offshore. . .
At ECJ – Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2) HL 18-Nov-1999
Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161925
ECJ (Judgment) 1 Member States – Obligations – Failure to fulfil obligations – Retention of a national provision incompatible with Community law – Justification on the basis of administrative practices ensuring that the Treaty is applied – Not permissible
2 Acts of the institutions – Directives – Implementation by the Member States – Directive intended to confer rights on individuals – Transposition without legislative action – Not permissible
3 The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.
4 The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights.
That is not the case where, because a legislative provision incompatible with a provision in a directive has been retained, individuals are in a position of uncertainty as to their legal situation and exposed to unwarranted criminal proceedings. Neither the obligation for national courts to secure the full effect of Article 5 of the directive by not applying any contrary national provision, nor a ministerial answer to a parliamentary question can have the effect of amending a statutory provision.
[1997] ECR I-1489, C-197/96, [1997] EUECJ C-197/96
Updated: 03 June 2022; Ref: scu.161887
ECJ (Judgment) Failure of Member State to fulfil its obligations – Directive 92/119/EEC – Failure to transpose
[1997] EUECJ C-208/96
Updated: 03 June 2022; Ref: scu.161894
Order
C-196/96, [1996] EUECJ C-196/96
Updated: 03 June 2022; Ref: scu.161886
C-248/96, [1997] EUECJ C-248/96
Updated: 03 June 2022; Ref: scu.161916
(Judgment) In the context of intervention measures in the beef and veal sector, and in particular of the system of buying-in by tendering procedures, Article 9(1) of Regulation No 859/89 provides that tenderers must undertake to comply with all the relevant provisions and Article 9(2) that interested parties may submit one tender only per category in response to each invitation to tender. Since the need to ensure legal certainty means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them, the wording of Article 9(2) cannot provide any support for the interpretation that, on account of the difference in meaning between the words `interested party’ and `tenderers’, the latter may submit one tender only in response to an invitation to tender where they are part of a single group. Such an interpretation would thus be tantamount to applying retroactively Article 11 of Regulation No 2456/93, which introduces into the Community legislation provisions on the relationship between tenderers. That being the case, although the rule that tenders must be independent, an essential requirement for the validity and effectiveness of any tender procedure, which underlies Articles 9(6) (confidentiality of tenders), 12(2) (prohibition on the transfer of rights and obligations arising from the tender procedure), 9(4)(c) (tenderers’ obligation to lodge a security) and 15 (tenderers’ obligation to receive payment personally) of Regulation No 859/89 and Article 6(6) of Regulation No 805/68 (equality of access for all persons concerned), does not prevent several companies belonging to one group from taking part at the same time in one tender procedure, it does preclude those same companies from agreeing on the terms and conditions of the tenders which they each submit, if the tender procedure is not to be distorted.
Article 8(1) of Regulation No 729/70, which constitutes a specific expression in the agricultural area of the obligations imposed on Member States by Article 5 of the Treaty, defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations. It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures, particularly when there is evidence such as to give rise to serious suspicions that a prohibition laid down by the Community act in question has been circumvented.
Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets. Although it is therefore for the Commission to prove an infringement of the Community rules, the Member State concerned must demonstrate that the Commission committed an error as to the financial consequences to be attributed to it. Where it has established that a Member State infringed several Community rules in the field of agriculture and that harm was probably caused to the Community budget, the Commission cannot be required to do more, since it cannot carry out systematic checks and analysis of the current state of a given market depends on information gathered by the Member States.
The extent of the obligation to state reasons, laid down in Article 190 of the Treaty, depends on the nature of the measure in question and on the context in which it was adopted. A decision concerning the clearance of accounts in respect of expenditure financed by the EAGGF by which the charging to the EAGGF of part of the expenditure declared is refused does not require detailed reasons if the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF.
[1998] EUECJ C-209/96
Updated: 03 June 2022; Ref: scu.161895
(Judgment)
C-210/96, [1998] EUECJ C-210/96
European
Updated: 03 June 2022; Ref: scu.161896
(Judgment) EAGGF – Clearance of accounts – 1992 and 1993 – Beef and veal
C-238/96, [1998] EUECJ C-238/96
Updated: 03 June 2022; Ref: scu.161912
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent – Services of an arbitrator – Place where services are supplied.
Times 10-Nov-1997, C-145/96, [1997] EUECJ C-145/96, [1997] All ER (EC) 85, [1998] 1 CMLR 99
Cited – Jivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161850
C-162/96, [1998] EUECJ C-162/96
Updated: 03 June 2022; Ref: scu.161864
ECJ Judgment – Regulation (EEC) No 797/85 – Different treatment of individual farmers and legal persons
C-164/96, [1997] EUECJ C-164/96
Updated: 03 June 2022; Ref: scu.161866
ECJ Order – 1. It is open to the Court hearing an application for interim relief to order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable damage to the applicant’ s interests, be made and produce its effects before a decision is reached in the main action. The Court is also to balance the interests at stake. Suspension and other measures granted under Article 186 of the Treaty must, moreover, be provisional inasmuch as they must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.
In the context of that overall examination, the Court hearing the application enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis by reference to which the need to order interim measures must be assessed.
2. The urgency of an interim measure must be considered by reference to whether it is necessary to make a provisional ruling in order to avoid the occurrence of serious and irreparable harm as a result of immediate application of the measure contested in the main action. As regards the nature of the harm which may be invoked, it must be noted that the Member States are responsible for those interests, in particular of an economic and social nature, which are regarded as general interests at national level and are thereby entitled to defend such interests before the courts. They may therefore invoke damage affecting a whole sector of their economy, in particular when the contested Community measure may entail unfavourable repercussions on the level of employment and the cost of living.
3. Where an applicant seeking suspension of operation of a measure invokes the risk of its suffering serious and irreparable harm, the Court hearing the application must determine, when balancing the interests at stake, whether the possible annulment of the contested decision by the Court seised of the main action would allow the situation brought about by its immediate implementation to be reversed and, conversely, whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed.
4. An application by the United Kingdom for suspension of the operation of Commission Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy or even of part of it, or for interim measures qualifying its application, cannot be granted. Whilst some of the pleas in law put forward by the Member State contesting the lawfulness of that decision cannot be wholly ruled out at the stage of examination of the interim application, the Commission has none the less presented serious arguments as to the lawfulness of its decision as a whole. Furthermore, the balancing of the interests at stake inevitably leads to recognition that the protection of public health against a fatal risk, which can in no way be ruled out in the present state of scientific knowledge, must take precedence over the economic and social damage which the Member State may invoke as being likely to result from the application of the said decision, even if that damage is not easily reparable.
Europa In order for an act of the Council or the Commission to form the subject-matter of an action for annulment, it must be intended to have legal effects. That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act.
In adopting Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, the Commission acted within the framework of the powers conferred on it by Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade. First, the conditions governing the adoption of safeguard measures in accordance with those two directives were fulfilled, particularly since the power to adopt such measures is justified by the fact that a zoonosis, disease or other cause is likely to constitute a serious hazard. Second, having regard, in particular, to the fact that the directives are drafted in very wide terms, without imposing any restrictions as to the temporal or territorial scope of the measures concerned, it does not appear that the Commission clearly exceeded the bounds of its broad discretion in seeking to contain the disease within the territory of the United Kingdom by banning exports from that territory to other Member States and to third countries. Lastly, the decision is not vitiated by misuse of powers, since the Commission was prompted to act by concerns as to the risk of transmissibility of bovine spongiform encephalopathy to humans, after examining the measures adopted by the United Kingdom and consulting the Scientific Veterinary Committee and the Standing Veterinary Committee, its exclusive or main purpose not being to protect economic interests rather than health.
Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, fulfils the requirement to provide a statement of reasons, does not breach the principles of proportionality, non-discrimination or legal certainty and is in accordance with the objectives of the common agricultural policy set out in Article 39(1) of the Treaty. As regards, more particularly, the principle of proportionality, it was open to the Commission, in view of the great uncertainty as to the risks posed by the animals and products concerned, to take the protective measures in issue without having to wait until the reality and seriousness of those risks became fully apparent. As regards the principle of non-discrimination laid down in the second subparagraph of Article 40(3) of the Treaty, the fact that, at the time of adoption of the decision, almost all the cases of bovine spongiform encephalopathy in Europe were recorded in the United Kingdom meant that the situation in that Member State could not be regarded as comparable with that in the other Member States.
Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty. In that connection, and having regard to the importance of the role played by the free movement of animals, animal products and products of animal origin in achieving those objectives, Article 43 constituted the appropriate legal basis for the adoption of Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade, even though those directives authorise the Commission incidentally to adopt safeguard measures covering `products of animal origin’, `products derived from those products’ and `products derived’ from animals which are not included in Annex II to the Treaty.
Times 06-May-1998, C-180/96, [1996] EUECJ C-180/96R
See Also – United Kingdom v Commission (Rec 1996,p I-3903) (Order) ECJ 12-Jul-1996
. .
Cited – United Kingdom v Commission ECJ 5-May-1998
Agriculture – Animal health – Emergency measures against bovine spongiform encephalopathy – ‘Mad cow disease’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161875
(Order)
C-156/96, [1997] EUECJ C-156/96P
Updated: 03 June 2022; Ref: scu.161858
Land from which nitrates were leeching off into rivers causing pollution, had to be designated as environmentally vulnerable land, if agricultural activities were a substantial even if only partially cause of the pollution. ‘As regards . . . the principle of proportionality, it is settled law that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it.’
Times 10-May-1999, Case C-293/97, C-157/96, [1998] EUECJ C-157/96
Cited – Regina on the Application of Isle of Anglesey County Council v Secretary of State for Work and Pensions Admn 30-Oct-2003
The claimant council sought re-imbursement from the Secretary of the excess housing benefit payments it had made to claimants. The system expected the Council to have made referrals of high rents to rent officers. The respondent had decided that it . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161859
ECJ (Order) In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
In this respect, the information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court.
It is the Court’ s duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible – inasmuch as it does not enable the Court to give a useful interpretation of Community law – where the order for reference merely refers to criminal breaches of national copyright legislation and to the question, raised in that context, as to whether the monopoly held by a company having the exclusive right to manage such copyright and the authority to require payment of fees with protection backed by criminal penalties is compatible with Community law, and where it fails to give sufficient details of the factual context of the dispute, the national legislative context or the precise reasons which prompted it to consider the interpretation of Community law and to deem it necessary to refer questions to the Court of Justice for a preliminary ruling.
C-191/96, [1996] EUECJ C-191/96
Updated: 03 June 2022; Ref: scu.161883
(Judgment) Failure of a Member State to fulfil its obligations – Freedom of movement for workers – Article 48 of the EC Treaty – Article 7 of Regulation (EEC) No 1612/68 – Person working in the public service of a Member State – Mutual recognition of periods of employment in the public service of another Member State)#
C-187/96, [1998] EUECJ C-187/96
Updated: 03 June 2022; Ref: scu.161881
ECJ The expression ‘municipal/household waste’ referred to under point AD 160 of the amber list in Annex III to Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Decision 94/721 adapting, pursuant to Article 42(3), Annexes II, III and IV to Regulation No 259/93, includes both waste which for the most part consists of waste mentioned on the green list in Annex II to that regulation, mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list. Such mixed waste does not come within the green list unless it has been collected separately or properly sorted.
The information listed in Article 11(1) of the regulation, which must accompany shipments of waste intended for recovery appearing in Annex II, constitutes the minimum evidence which the competent authority may, in the absence of notification, require in order to establish that `green waste’ is intended for recovery.
In the case of shipments of waste which have not been notified to all the competent authorities concerned (illegal traffic), the Member State of destination may not unilaterally return waste to the Member State of dispatch without prior notification to the latter; the Member State of dispatch may not oppose its return where the Member State of destination produces a duly motivated request to that effect.
The reference to the storage of materials in point R 13 of Annex II B to Directive 75/442 on waste, as amended by Directive 91/156, which lists waste recovery operations, covers not only cases in which storage takes place in the undertaking in which the other operations mentioned in that annex must be carried out but also cases in which storage precedes transport to such an undertaking, regardless of whether the latter is established inside or outside the Community.
C-192/96, [1998] EUECJ C-192/96
Updated: 03 June 2022; Ref: scu.161884
ECJ Member States are required to refrain from taking any measures liable seriously to compromise the results prescribed by a Directive, even though the date for its implementation has not yet expired.
The test as to whether an item is discarded and is therefore waste was described: ”The general concept is now reasonably clear. The term ‘discard’ is used in a broad sense equivalent to ‘get rid of’; but it is coloured by the examples of waste given in Annex I and the Waste Catalogue, which indicate that it is concerned generally with materials which have ceased to be required for their original purpose, normally because they are unsuitable, unwanted or surplus to requirements.”
[1998] Env LR 623, C-129/96, [1997] ECR I/7411, [1997] EUECJ C-129/96
Cited – Regina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
Cited – British Airways Plc v Ryanair Limited ChD 25-Oct-2000
The claimant alleged that disparaging adverts by the defendant infringed its trade marks and amounted to the tort of malicious falsehood.
Held: There was no dispute that the mark had been used. The Act could not be used to prevent any use of . .
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.
Cited – Environment Agency v Thorn International UK Ltd Admn 2-Jul-2008
The Agency appealed by case stated against the Magistrates’ decision to acquit Thorn of keeping controlled waste contrary to section 33 of the 1990 Act. For that section ‘waste’ had the same meaning as that provided in Art 1(1)(a) of the WFD. The . .
Cited – Attorney-General’s Reference (No 5 of 2000) CACD 6-Jun-2001
Waste products could become ‘controlled waste’ and subject to licensing procedures without there being a recovery or disposal operation being involved. A rendering process produced a condensate which the company wished to spread on farm land without . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161836
ECJ Milk – Additional levy scheme – Additional reference quantity – Temporary withdrawal – Conversion into a definitive reduction – Loss of compensation – General principles of law and fundamental rights
C-186/96, [1998] EUECJ C-186/96
Updated: 03 June 2022; Ref: scu.161880
ECJ The basic function of a competition notice is to give those interested the most accurate information possible on the conditions of eligibility for the post to be filled, in order to enable them to determine whether they should apply for it.
J.L. Murray, P
C-119/96, [1996] EUECJ C-119/96P
Updated: 03 June 2022; Ref: scu.161831
(Judgment)
C-144/96, [1997] EUECJ C-144/96
Updated: 03 June 2022; Ref: scu.161849
Europa Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the Directive applies to a situation in which an undertaking which used to entrust the cleaning of its premises to another undertaking decides to terminate its contract with that other undertaking and in future to carry out the cleaning work itself, provided that the operation is accompanied by the transfer of an economic entity between the two undertakings. The term `economic entity’ refers to an organised grouping of persons and assets enabling an economic activity which pursues a specific objective to be exercised. The mere fact that the maintenance work carried out first by the cleaning firm and then by the undertaking owning the premises is similar does not justify the conclusion that a transfer of such an entity has occurred.
C-127/96, [1999] IRLR 132, C-229/96, C-74/97, [1998] EUECJ C-127/96, [1998] EUECJ C-229/96, [1998] EUECJ C-74/97
European
Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161835
ECJ Action for annulment – Commission’s refusal to include an overseas country in the provisional list of third countries established by Article 23 of Directive 92/46/EEC – Actionable measure. Only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment. In the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the Commission or the Council that are open to challenge and not intermediate measures whose purpose is to prepare for the final decision. An act which is neither capable of producing nor intended to produce any legal effects cannot form the basis of an action for annulment. In order to ascertain whether or not a measure produces such effects it is necessary to look to its substance.
[2000] EUECJ C-147/96
Updated: 03 June 2022; Ref: scu.161851
ECJ Economic and social cohesion – European Regional Development Fund – Management and monitoring – Transitional arrangements – Deadlines for requesting payment of the sums granted – Where deadlines are not met – Penalties – Automatic release of unclaimed sums – Whether in breach of the principles of Community solidarity, proportionality or protection of legitimate expectations – No such breach – Consultation of the ERDF Committee – Whether obligatory – No such obligation Economic and social cohesion – European Regional Development Fund – Grant of Community financial assistance – Deadline for submitting requests for final payment – Meaning of `request for final payment’
C-84/96, [1999] EUECJ C-84/96
Updated: 03 June 2022; Ref: scu.161806
ECJ (Judgment) Action for annulment – Commercial policy – Quantitative restrictions on imports of textile products – Products originating in India – Regulation (EC) No 3053/95 – Partial withdrawal
C-89/96, [1999] EUECJ C-89/96
Updated: 03 June 2022; Ref: scu.161808
ECJ (Judgment) Company law – First Directive 68/151/EEC – Scope – Representation of a company – Conflict of interests – Lack of authority of a director to enter into a binding transaction on behalf of the company
C-104/96, [1997] EUECJ C-104/96
Updated: 03 June 2022; Ref: scu.161820
ECJ (Judgment) 1 Acts of the institutions – Regulations – Basic regulations and implementing regulations – Scope of power of implementation – Limits – Implementing rules introducing, in relation to inward processing, a condition for recourse to equivalent compensation not laid down in the basic regulation – Lawful (Council Regulations Nos 1999/85, Art. 2(4), and 3677/86, Art. 9)
2 Free movement of goods – Trade with non-member countries – Inward processing arrangements – Equivalent compensation – Conditions – Classification of goods under the same tariff subheading – Breach of the principles of proportionality, protection of legitimate expectations and legal certainty – None
(Council Regulation No 3677/86, Art. 9)
3 In adopting provisions for the implementation of a basic regulation, the Community authority empowered to do so is required not to exceed the powers conferred upon it by that regulation for the implementation of the rules which it contains.
The fact that Article 9 of Regulation No 3677/86, adopted under the Regulatory Committee procedure for implementation of the basic regulation, Regulation No 1999/85 on inward processing relief arrangements, introduced, for recourse to equivalent compensation to be available under those arrangements, the condition that the equivalent goods must fall under the same Common Customs Tariff subheading as the import goods, whereas the basic regulation merely requires that the former should be of the same quality and display the same characteristics as the latter, does not mean that those powers were exceeded.
First, Article 2(4) of the basic regulation provides that the implementing measures to be adopted under the habilitation procedure may be designed to prohibit or limit recourse to the equivalent compensation system, which derogates from the inward processing arrangements. Second, the requirement of classification under the same subheading gives effect to the criterion, which as well as being clear and precise and capable of contributing to the attainment of the objective of precluding abuse of inward processing arrangements expressly referred to by the basic regulation, cannot be regarded as conflicting with the general objective of those arrangements, namely to promote exports by Community undertakings.
4 The condition for recourse to equivalent compensation under the inward processing relief arrangements introduced by Article 9 of Regulation No 3677/86 to the effect that the equivalent goods must fall under the same Common Customs Tariff subheading as the import goods is not manifestly disproportionate in relation to the objective of combating fraud which it pursued and therefore does not constitute a breach of the principle of proportionality. Nor does it breach the principle of the protection of legitimate expectations and legal certainty since, although relying on a criterion deriving from other rules, which are by their nature liable to be periodically amended, it places economic operators in a position such that they are able at any time to determine clearly and precisely whether or not equivalent compensation is available.
C-103/96, [1997] EUECJ C-103/96
Updated: 03 June 2022; Ref: scu.161819
(Judgment) Member States – Obligations – Implementation of directives – Failure to fulfil obligations not contested
C-91/96, [1996] EUECJ C-91/96
Updated: 03 June 2022; Ref: scu.161810
ECJ Environment – Assessment of the effects of certain projects on the environment – Directive 85/337 – Project for which consent was obtained prior to the deadline for transposing the directive into national law – New consent procedure initiated after that deadline – Project subject to obligations relating to environmental impact assessment (Council Directive 85/337) Directive 85/337 on the assessment of the effects of certain public and private projects on the environment is to be interpreted as not permitting Member States to waive the obligations regarding environmental assessments in the case of projects listed in Annex I of the directive where – the projects have already been the subject of a consent granted prior to 3 July 1988, the date by which the directive was to have been transposed into national law, – the consent was not preceded by an environmental assessment in accordance with the requirements of the directive and no use was made of it, and a fresh consent procedure was formally initiated after 3 July 1988. It is true that the principle of compulsory environmental assessment in accordance with the directive does not apply where the consent procedure was initiated before 3 July 1988 and was still in progress on that date. The reason for that is to avoid making more cumbersome and time-consuming, as a result of the specific requirements imposed by the directive, procedures which are already complex at national level and which were formally initiated before that date. Those considerations do not apply, however, in the circumstances mentioned above, particularly as national legal remedies are available in respect of the new consent procedure.
C-81/96, [1998] EUECJ C-81/96
Updated: 03 June 2022; Ref: scu.161804
It follows from Articles 205 and 209 of the Treaty and the second subparagraph of Article 22(1) of the Financial Regulation, read together with paragraph 3(c) of Section IV of the Joint Declaration of 30 June 1982 by the European Parliament, the Council and the Commission, that implementation of Community expenditure relating to any significant Community action presupposes not only the entry of the relevant appropriation in the budget of the Community, which is a matter for the budgetary authority, but in addition the prior adoption of a basic act authorising that expenditure, which is a matter for the legislative authority, whereas implementation of budgetary appropriations for Community action which does not fall within that category – namely non-significant Community action – does not require prior adoption of such a basic act. The requirement that a basic act must be adopted before an appropriation is implemented derives directly from the scheme of the Treaty, in accordance with which the conditions governing the exercise of legislative powers and budgetary powers are not the same. The fact that implementation of expenditure on the basis of the mere entry of the relevant appropriations in the budget is an exception to that fundamental rule means that it cannot be assumed that Community action is non-significant and the Commission must therefore prove it to be so. The appropriations under heading B3-4103 of the budget for the financial year 1995 were to cover expenditure under a programme to combat poverty and social exclusion to be proposed by the Commission; however, when its proposal was not adopted by the Council, the Commission decided to commit that expenditure to fund the projects to combat social exclusion announced in its Press Release IP/96/67 of 23 January 1996, but did not succeed in establishing before the Court that the projects in question constituted non-significant action. Consequently, it was not competent to commit that expenditure, thus acting in breach of Article 4(1) of the Treaty, and its decision must therefore be annulled.
Since annulment of the Commission’s decision referred to in its Press Release IP/96/67 of 23 January 1996, announcing certain grants for European projects seeking to overcome social exclusion, takes place at a time when all, or almost all, of the relevant payments have been made, important considerations of legal certainty, comparable with those arising where certain regulations are annulled, justify the Court in exercising the power conferred on it by the second paragraph of Article 174 of the Treaty when it annuls a regulation and in deciding that the annulment is not to affect the validity of payments made or undertakings given under contracts which were the subject of the funding in issue.
C-106/96, [1998] EUECJ C-106/96
Updated: 03 June 2022; Ref: scu.161822
ECJ Company law – Annual accounts – Penalties for non-publication – Article 6 of the First Directive 68/151/EEC
C. Gulmann, P
C-97/96, [1997] EUECJ C-97/96
Updated: 03 June 2022; Ref: scu.161813
ECJ Article 177 of the EC Treaty – Jurisdiction – Court of one of the Member States – Extraordinary petition to the President of the Italian Republic – Compulsory opinion of the Consiglio di Stato – Directives 86/457/EEC and 93/16/EEC – Specific training in general medical practice – Rights acquired before 1 January 1995
C-69/96, [1997] EUECJ C-69/96
Updated: 03 June 2022; Ref: scu.161802
C-92/96, [1998] EUECJ C-92/96
Updated: 03 June 2022; Ref: scu.161811
ECJ In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
In this respect, the information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court.
It is the Court’ s duty to ensure that the opportunity to do so is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible inasmuch as it does not enable the Court to give a useful interpretation of Community law where the order for reference merely refers to criminal breaches of national copyright legislation committed by a person running a private radio station and to the question, raised in that context, as to whether the monopoly held by a company having the exclusive right to manage such copyright and authorized to require payment of fees with protection backed by criminal penalties is compatible with Community law, and where it fails to give sufficient details of the factual context of the dispute, the national legislative context or the precise reasons which prompted it to consider the interpretation of Community law and to deem it necessary to refer questions to the Court of Justice for a preliminary ruling.
GC Rodriguez Iglesias, P
C-101/96, [1996] EUECJ C-101/96
Updated: 03 June 2022; Ref: scu.161817
(Judgment) Common Customs Tariff – Tariff headings – Electrical apparatus constituting an ‘uninterruptible power supply’ – Classification in the Nomenclature of the Common Customs Tariff
C-105/96, [1997] EUECJ C-105/96
Updated: 03 June 2022; Ref: scu.161821
C-98/96, [1997] EUECJ C-98/96
Updated: 03 June 2022; Ref: scu.161814
ECJ Judgment – Obligation to give prior notification under Directive 83/189/EEC – Technical regulations and specifications – Marking of products subject to environmental tax.
C-13/96, [1997] EUECJ C-13/96
Updated: 03 June 2022; Ref: scu.161761
ECJ Compulsory affiliation to a sectoral pension scheme – Compatibility with competition rules – Classification of a sectoral pension fund as an undertaking.
[1999] ECR I-5751, C-67/96, [1999] EUECJ C-67/96
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 . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161800
ECJ 1 Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition of killing or capturing protected species – Condition – Absence of any other satisfactory solution – Possibility of breeding or reproducing in captivity – Not permissible (Council Directive 79/409, Art. 9(1)(c))
2 Environment – Conservation of wild birds – Directive 79/409 – Implementation by the Member States – Derogations from the prohibition of killing or capturing protected species – Condition – Absence of any other satisfactory solution – Capture of protected species with a view to preventing problems of consanguinity – Permissible – Limits
(Council Directive 79/409, Art. 9(1)(c))
3 Article 9(1)(c) of Directive 79/409 on the conservation of wild birds, under which Member States may, on condition that there is no other satisfactory solution, derogate from the prohibition of killing or capturing protected species, must be interpreted as meaning that a Member State may not, on a decreasing basis and for a limited period, authorize the capture of certain protected species in order to enable bird fanciers to stock their aviaries, where breeding and reproduction of those species in captivity are possible but are not yet practicable on a large scale by reason of the fact that many fanciers would be compelled to alter their installations and change their habits. It is only if it is established that, were it not for the capture of birds in the wild, breeding and reproduction of protected species in captivity could not prosper that this alternative could not be regarded as constituting a satisfactory solution within the meaning of that provision.
4 Article 9(1)(c) of Directive 79/409 on the conservation of wild birds must be interpreted as meaning that a Member State is authorized, with a view to obviating, in bird breeding for recreational purposes, the problems of consanguinity which would result from too many endogenous crossings, to permit the capture of protected species, which may constitute judicious use within the meaning of that provision, on condition that there is no other satisfactory solution, it being understood that the number of specimens which may be captured must be fixed at the level of what proves to be objectively necessary to provide a solution for those problems, subject always to observance of the maximum limit referred to in that provision.
JC Moitinho de Almeida, P
[1996] ECR I-6775, C-10/96, [1996] EUECJ C-10/96
Council Directive 79/409 9(1)(c)
Cited – Sustainable Shetland v The Scottish Ministers and Another (Scotland) SC 9-Feb-2015
Wind Farm Permission Took Proper Account
Sustainable Shetland challenged the grant of permission for a wind farm saying that the respondents had failed properly to take account of their obligations under the Birds Directive, in respect of the whimbrel, a protected migratory bird.
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161760
ECJ Judgment – Failure of a Member State to fulfil its obligations – Article 5 of the EC Treaty and Article 11(2) of Annex VIII to the Staff Regulations of Officials of the European Communities – Failure to take the measures necessary to enable pension entitlements of officials to be transferred to the Community scheme
[1997] EUECJ C-52/96
European
Updated: 03 June 2022; Ref: scu.161788
ECJ Freedom of movement for persons – Workers – Equal treatment – Promotion on grounds of seniority – Collective agreement applicable to public sector employees taking into account only periods of employment completed in the national public service but not periods of comparable employment completed in the public service of another Member State – Discrimination on grounds of nationality – Justification – None (EC Treaty, Art. 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Freedom of movement for persons – Workers – Equal treatment – Clause in a collective agreement contrary to the principle of non-discrimination – De jure nullity – Obligations of the national court (EC Treaty, Art 48; Council Regulation No 1612/68, Art. 7(1) and (4))
Article 48 of the Treaty and Article 7(1) and (4) of Regulation No 1612/68 on freedom of movement for workers within the Community preclude a clause in a collective agreement applicable to the public service of a Member State which provides for promotion on grounds of seniority for employees of that service after eight years’ employment in a salary group determined by that agreement without taking any account of previous periods of comparable employment completed in the public service of another Member State. Such a clause is such as to infringe the principle of non-discrimination laid down by those provisions in that the conditions for promotion on grounds of seniority manifestly work to the detriment of migrant workers who have spent part of their careers in the public service of another Member State. As regards activities not falling within the scope of Article 48(4) of the Treaty, the clause cannot be justified either by arguments based on the specific characteristics of employment in the public service or, given the multiplicity of legally separate employers, by the desire to reward employee loyalty.
A clause in a collective agreement entailing discrimination contrary to Article 48 of the Treaty and to Article 7(1) of Regulation No 1612/68 is null and void by virtue of Article 7(4) of that regulation. Without requiring or waiting for that clause to be abolished by collective negotiation or by some other procedure, the national court must therefore apply the same rules to the members of the group disadvantaged by that discrimination as those applicable to the other workers.
C-15/96, [1998] ECR I-47, [1998] EUECJ C-15/96
Cited – Kobler v Republik Osterreich ECJ 30-Sep-2003
The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161763
ECJ Article 6(1) of Decision No 1/80 of the EEC-Turkey Association Council is to be interpreted as meaning that a Turkish national who has been lawfully employed in a Member State for an uninterrupted period of more than three years in a genuine and effective economic activity for the same employer and whose employment status is not objectively different to that of other employees employed by the same employer or in the sector concerned and exercising identical or comparable duties, is duly registered as belonging to the labour force of that State and is legally employed within the meaning of that provision. A Turkish national in that situation may therefore seek the renewal of his permit to reside in the host Member State notwithstanding the fact that he was permitted to take up paid employment there only temporarily with a specific employer for the purpose of acquainting himself with and preparing for employment in one of its subsidiaries in Turkey, and obtained work and residence permits for that purpose only.
The fact that a Turkish worker wishes to extend his stay in the host Member State, although he expressly accepted its restriction, does not constitute an abuse of rights. The fact that he declared his intention of returning to Turkey after having been employed in the Member State for the purpose of perfecting his vocational skills is not such as to deprive him of the rights deriving from Article 6(1) of Decision No 1/80 unless it is established by the national court that that declaration was made with the sole intention of improperly obtaining work and residence permits for the host Member State.
C-36/96, [1997] EUECJ C-36/96
Updated: 03 June 2022; Ref: scu.161775
ECJ Reference for a preliminary ruling: Bundesfinanzhof – Germany. Common Customs Tariff – Tariff headings – Tariff classification of a ‘Vista board’ electronic component intended for image processing and capable of being used as a graphics card in a computer – Classification in the Combined Nomenclature.
C-382/95, [1997] EUECJ C-382/95
Updated: 03 June 2022; Ref: scu.161737
ECJ The aim of the pre-litigation procedure provided for in Article 169 of the Treaty is to give the Member State concerned an opportunity to justify its position or, as the case may be, to comply of its own accord with the requirements of the Treaty. If that attempt to reach a settlement proves unsuccessful, the Member State is requested to comply with its obligations as set out in the reasoned opinion which concludes the pre-litigation procedure, within the period prescribed in that opinion. The proper conduct of that procedure constitutes an essential guarantee intended by the Treaty not only to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter, the subject-matter being determined by the Commission’s reasoned opinion.
Where it is not disputed that the reasoned opinion and the procedure leading up to it were properly conducted, a Member State’s right to a fair hearing is not infringed by the circumstance that the contentious procedure is opened by an application which takes no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion. It is fully open to that State to raise those matters in the contentious procedure, to begin with in its first pleading in defence.
Article 4(1) of Directive 74/409 on the conservation of wild birds requires Member States, if species mentioned in Annex I occur on their territory, to classify as special protection areas the most suitable territories in number and size for their conservation, an obligation which it is not possible to avoid by adopting other special conservation measures. Nor may the economic requirements mentioned in Article 2 of the directive be taken into account in this respect.
As regards the Member States’ margin of discretion in choosing the most suitable territories, that does not concern the appropriateness of classifying as special protection areas the territories which appear the most suitable according to ornithological criteria, but only the application of those criteria for identifying the most suitable territories for conservation of the species in question.
Consequently, where it appears that a Member State has classified as special protection areas sites the number and total area of which are manifestly less than the number and total area of the sites considered to be the most suitable, it will be possible to find that that Member State has failed to fulfil its obligation under Article 4(1) of the directive; for assessing the extent to which the Member State has complied with that obligation, the Court may use as a basis of reference the Inventory of Important Bird Areas in the European Community, 1989, which draws up an inventory of areas of great importance for the conservation of wild birds in the Community.
C-3/96, [1998] ECR I-3031, [1998] EUECJ C-3/96
Cited – Bown v Secretary of State for Transport CA 31-Jul-2003
The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161757
ECJ (Order) In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
The information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the Statute of the Court. It is the Court’ s duty to ensure that the opportunity to do so is safeguarded, bearing in mind that, by virtue of the above mentioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible inasmuch as it does not enable the Court to give a useful interpretation of Community law where the order for reference merely sets out offences contrary to national law with regard to employment procurement and temporary employment and indicates neither the contents of the provisions of national law to which it refers nor the precise reasons which prompted it to question their compatibility with Community law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling.
C-2/96, [1996] EUECJ C-2/96
Updated: 03 June 2022; Ref: scu.161756
Judgment
C-4/96, [1998] EUECJ C-4/96
Updated: 03 June 2022; Ref: scu.161758
European Union Law – Other
[2019] UKUT 26 (AAC)
England and Wales
Updated: 03 June 2022; Ref: scu.635128
ECJ Judgment – Directive 69/335/EEC – Regional charge on vehicle registration certificates
C-8/96, [1997] EUECJ C-8/96
Updated: 03 June 2022; Ref: scu.161759