Donau Chemie v Commission: ECFI 14 May 2014

ECJ (Judgment Of The Court Of First Instance) Competition – Cartels – Market calcium carbide and magnesium for the steel and gas sector in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Decision finding an infringement Article 81 EC – price fixing and market-sharing – fines – Article 23 of Regulation (EC) No 1/2003 – Guidelines for calculating the amount of the 2006 fines – mitigating circumstances – Cooperation during the administrative procedure – obligation to state reasons – Equal treatment – Proportionality – Ability to

[2014] EUECJ T-406/09
Bailii
European

European, Commercial

Updated: 03 December 2021; Ref: scu.525833

Telefonica Sa and Telefonica De Espana v Commission: ECJ 26 Sep 2013

ECJ Competition – Abuse of dominant position – Margin squeeze (margin squeeze) – Wholesale prices charged by Telefonica SA on the access Spanish broadband market – Fines – Obligation to state reasons for the Commission – Method of calculation – Prohibition -discrimination – Principle of proportionality – Unlimited jurisdiction of the Tribunal

C-295/12, [2013] EUECJ C-295/12
Bailii
European
Cited by:
AG OpinionTelefonica Sa and Telefonica De Espana v Commission (Advocate General’s Opinion) ECJ 10-Jul-2014
ECJ Article 102 TFEU – Abuse of dominant position – Spanish markets for access to broadband internet – Margin squeeze – Article 263 TFEU – Review of legality – Article 261 TFEU – Unlimited jurisdiction – Article . .

Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 03 December 2021; Ref: scu.525515

Germany v Council C-399/12: ECJ 29 Apr 2014

ECJ (Advocate General’s Opinion) International Organizations – Procedure for conclusion of an agreement – Determination of positions to be adopted on behalf of the Union in a forum established by an agreement – Resolutions of the International Organization of Vine and Wine (OIV) Article 218 (9) TFEU – Agreements of the Member States – Legal effect – Analogy

C-399/12, [2014] EUECJ C-399/12
Bailii
European
Cited by:
OpinionGermany v Council C-399/12 ECJ 7-Oct-2014
EJ Action for annulment – EU external action – Article 218(9) TFEU – Establishing the position to be adopted on behalf of the European Union in a body set up by an international agreement – International . .

Lists of cited by and citing cases may be incomplete.

International, Commercial

Updated: 03 December 2021; Ref: scu.524604

Ballast Nedam v Commission: ECJ 27 Mar 2014

ECJ Appeal – Competition – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price for road pavement bitumen – Setting of a rebate for road builders – Regulation (EC) No 1/2003 – Article 27 – Rights of the defence – Reduction of the fine

T. von Danwitz, P
C-612/12, [2014] EUECJ C-612/12
Bailii
Regulation (EC) No 1/2003 27

European, Commercial

Updated: 02 December 2021; Ref: scu.523329

AC-Treuhand Ag v European Commission: ECFI 6 Feb 2014

ECFI Competition – Cartels – Markets tin heat stabilizers and heat stabilizers ESBO / esters – Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement – Business consulting not operating markets involved – Fines – Application for annulment – Concept of undertaking – Principle of legality of criminal offenses and penalties – Duration of the infringement – Limitation period – Duration of the administrative procedure – Reasonable time – Rights of the defense – the late Information Ceiling of 10% of turnover – investigation procedure Sanction of two offenses in a single decision – Concept of single infringement – Application for Review – Amount of fines – Duration of the infringements – Time Administrative Procedure – Guidelines for the calculation of fines in 2006 – Value of sales – symbolic fine – Powers of full jurisdiction

T-27/10, [2014] EUECJ T-27/10
Bailii

European, Commercial

Updated: 01 December 2021; Ref: scu.522465

Valimar OOD v Nachalnik na Mitnitsa Varna: ECJ 27 Feb 2014

ECJ Opinion – Common commercial policy – Dumping – Regulation (EC) No 384/96 – Wire of iron or steel originating in Russia – Regulation (EC) No 1601/2001 – Price undertakings – Interim Review – Review under the expiry of the measures – Regulation (EC) No 1279/2007 – Determination of export price – Reliability of export prices to the Community – Consideration of price undertakings – Change of circumstances – Application of method different from that used in the original investigation – Assessment of validity

Cruz Vilalon AG
C-374/12, [2014] EUECJ C-374/12, [2014] EUECJ C-374/12 – 2
Bailii, Bailii

European, Commercial

Updated: 01 December 2021; Ref: scu.522475

British Telecommunications Plc v Common Services Agency: SCS 7 Feb 2014

(Outer House) British Telecommunications plc (BT) sought an order under regulation 48 of the 2012 Regulations setting aside the defender’s decision to appoint Capita plc as the preferred bidder in relation to the procurement exercise concerning the Scottish Wide Area Network (SWAN), failing which for payment of damages of andpound;20m.

Lord Malcolm
[2014] ScotCS CSOH – 44
Bailii
Public Contracts (Scotland) Regulations 2012 48

Scotland, Commercial

Updated: 01 December 2021; Ref: scu.522130

Mediaset v Ministero Dello Sviluppo Economico: ECJ 13 Feb 2014

ECJ (Judgment Of The Court) Request for a preliminary ruling – State aid – Subsidised purchase or renting of digital decoders – Commission decision declaring an aid scheme unlawful and incompatible with the internal market – Recovery – Quantification of the amount to be recovered – Role of the national court – Taking into consideration by the national court of the positions of the Commission in the enforcement of its decision – Principle of cooperation in good faith

C-69/13, [2014] EUECJ C-69/13
Bailii
European

Commercial

Updated: 30 November 2021; Ref: scu.521832

YKK And Others v European Commission: ECJ 12 Feb 2014

ECJ (Advocate Generals Opinion) Appeal – Cartels – Markets for zip fasteners and other fasteners, and also for attaching machines – Successive liabilities – Legal upper limit of the fine – Regulation (EC) No 1/2003 – Article 23(2) – Concept of ‘undertaking’ – Personal responsibility – Principle of proportionality – Multiplier for deterrence

Wathelet AG
C-408/12, [2014] EUECJ C-408/12, [2014] EUECJ C-408/12
Bailii, Bailii
Regulation (EC) No 1/2003

European, Commercial

Updated: 29 November 2021; Ref: scu.521195

Achema and Achema Gas Trade v Commission (State Aid – Aid To Litgas for The Supply of A Minimum Quantity of LNG – Judgment): ECFI 8 Sep 2021

State aid – Aid to Litgas for the supply of a minimum quantity of LNG to the LNG terminal at the sea port of Klaipeda – Decision not to raise objections – Safeguarding procedural rights – EU framework for State aid in the form of public service compensation – Service of general economic interest – Compensation for a service of general economic interest – Boil-off costs – Balancing costs – Security of supply – Article 14 of Directive 2004/18/EC – Body of consistent evidence

A Kornezov (Rapporteur), Presiden
T-193/19, [2021] EUECJ T-193/19, ECLI:EU:T:2021:558
Bailii
European

Commercial

Updated: 29 November 2021; Ref: scu.668079

Siemens v Commission: ECJ 19 Dec 2013

ECJ Judgment of The Court – Appeals – Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Market sharing – Regulation (EC) No 1/2003 – Proof of the infringement – Single and continuous infringement – Distortion of the evidence – Probative value of statements which run counter to the interests of the declarant – Fines – Starting amount – Reference year – Deterrent multiplier – Powers of unlimited jurisdiction – Equal treatment – Rights of the defence – Duty to state reasons

C-239/11, [2013] EUECJ C-239/11
Bailii
Regulation (EC) No 1/2003

European, Commercial

Updated: 28 November 2021; Ref: scu.519488

Solvay Solexis Spa v European Commission: ECJz 5 Dec 2013

ECJ Appeals – Cartels – European market in hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Concept of” agreement ‘and’ concerted practice ‘- Meaning of” single and continuous infringement ‘- Calculation of the fine’

C-449/11, [2013] EUECJ C-449/11
Bailii
European

Commercial

Updated: 28 November 2021; Ref: scu.519490

Commission / Dei (Bibliographic Notice): ECJ 5 Dec 2013

ECJ Opinion – Appeals – Competition – Articles 82 EC and 86, paragraph 1, CE – Continuing special rights granted by Greece in favor of a public company for the exploration and exploitation of lignite deposits – Competitive Advantage in the markets the supply of lignite and electricity wholesale through the exercise of these rights – Extension of the dominant position of the first to the second of these markets – Obligation for the Commission to establish abusive behavior on the part of the company public

Melchior Wathelet AG
C-553/12, [2013] EUECJ C-553/12, [2014] EUECJ C-553/12, [2013] EUECJ C-553/12 – O
Bailii, Bailii, Bailii

European, Commercial

Updated: 28 November 2021; Ref: scu.519466

Kuwait Petroleum Corp v European Commission: ECJ 21 Nov 2013

ECJ Appeals – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price of road pavement bitumen – Setting of a rebate for road builders – 2002 Leniency Notice – Last paragraph of point 23(b) – Partial immunity – Evidence relating to facts previously unknown to the Commission – Appeal manifestly inadmissible or manifestly unfounded

C-581/12, [2013] EUECJ C-581/12
Bailii
European

Commercial

Updated: 26 November 2021; Ref: scu.518758

Groupe Eurotunnel SA v Competition Commission: CAT 30 Aug 2013

[2013] CAT 21
Bailii
England and Wales
Cited by:
See AlsoGroupe Eurotunnel Sa v Competition Commission and Others CAT 4-Dec-2013
. .
See AlsoGroupe Eurotunnel SA v Competition and Markets Authority CAT 9-Jan-2015
Judgment . .
See AlsoThe Societe Cooperative De Production Seafrance SA v Competition and Markets Authority (Ruling (Permission To Appeal) CAT 20-Jan-2015
. .
See AlsoSociete Cooperative De Production Seafrance Sa v Competition and Markets Authority CA 15-May-2015
The company appealed against the rejection of its challenge to a decision that the conditions had arisen allowing the defendant to intervene in its purchase of certain shares in a rival cross channel ferry company. he question was whether part of . .
See AlsoSociete Cooperative De Production Seafrance SA v Competition and Markets Authority CA 10-Jul-2015
The CA had earlier allowed an appeal by the company to hold the respondent’s decsion wrong that an event had occurred allowing it to intervene in the acquisition of a competitor’s assets. Leave to appeal to the Supreme Court remained pending, but . .
See AlsoSociete Cooperative De Production Seafrance Sa v The Competition and Markets Authority and Another SC 16-Dec-2015
The CMA had decided to intervene in purchases by the appellant from a competitor when it ceased trading.The French court had ordered the sale of the assts.
Held: UK law distinguishes between the acquisition of assets constituting a business . .

Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 20 November 2021; Ref: scu.515492

Laufen Austria Ag v European Commission: ECFI 16 Sep 2013

ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Multipliers – Mitigating circumstances – Economic crisis – Pressure exerted by wholesalers – 2002 Leniency Notice – Reduction of the fine – Significant added value

T-411/10, [2013] EUECJ T-411/10, [2017] EUECJ T-411/10
Bailii, Bailii

European, Commercial

Updated: 20 November 2021; Ref: scu.515270

Roca v European Commission: ECFI 16 Sep 2013

ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of the unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Mitigating circumstances – Economic crisis – 2002 Leniency Notice – Reduction of the fine – Significant added value

T-412/10, [2013] EUECJ T-412/10
Bailii

European, Commercial

Updated: 20 November 2021; Ref: scu.515273

Roca Sanitario, SA v European Commission: ECFI 16 Sep 2013

ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Multipliers – Mitigating circumstances – Reduction of the fine – Significant added value

Pelikanova P
T-408/10, [2013] EUECJ T-408/10
Bailii

European, Commercial

Updated: 20 November 2021; Ref: scu.515272

Kattner Stahlbau GmbH v Maschinenbauund Metall-Berufsgenossenschaft: ECJ 5 Mar 2009

ECJ Competition Articles 81 EC, 82 EC and 86 EC Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases Concept of an ‘undertaking’ Abuse of dominant position Freedom to provide services Articles 49 EC and 50 EC Restriction Justification Risk of serious harm to the financial equilibrium of the social security scheme

A Rosas, P
C-350/07, [2009] EUECJ C-350/07
Bailii
Citing:
OpinionKattner Stahlbau GmbH v Maschinenbauund Metall-Berufsgenossenschaft ECJ 18-Nov-2008
ECJ Opinion – Preliminary reference – Competition – Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases Whether such a body is to be treated as an undertaking . .

Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 19 November 2021; Ref: scu.514935

Degussa v Commission (Competition): ECFI 5 Apr 2006

Europa Competition – Article 81 EC – Cartels – Methionine market – Single continuous nature of the infringement – Fine – Guidelines on the method of setting fines – Gravity and duration of the infringement – Cooperation during the administrative procedure – Article 15(2) of Regulation No 17 – Presumption of innocence

T-279/02, [2006] EUECJ T-279/02, [2006] EUECJ T-279/02
Bailii, Bailii
European

Commercial

Updated: 19 November 2021; Ref: scu.240076

Philips Lighting Poland SA v Council of The European Union: ECFI 11 Jul 2013

ECJ Dumping – Imports of integrated electronic compact fluorescent lamps (CFL-i) originating in China, Vietnam, Pakistan and the Philippines – Expiry of anti-dumping measures – Review – Articles 4(1), 5(4) and 9(1) of Regulation (EC) No 384/96 (now Articles 4(1), 5(4), and 9(1) of Regulation (EC) No 1225/2009) – Concept of Community industry – Determination of injury – Obligation to state the reasons

T-469/07, [2013] EUECJ T-469/07
Bailii
Regulation (EC) No 1225/2009
European

Commercial

Updated: 15 November 2021; Ref: scu.512343

Versalis Spa v European Commission: ECJ 13 Jun 2013

ECJ Appeals – Agreements, decisions and concerted practices – Market in butadiene rubber and styrene-butadiene rubber manufactured by emulsion polymerisation – Fixing price targets, sharing clients by non-aggression agreements and exchanging commercial information – Evidence – Attributability of unlawful conduct – Amount of the fine – Gravity and duration of the infringement – Aggravating circumstance – Repeated infringement

A. Tizzano, P
C-511/11, [2013] EUECJ C-511/11
Bailii

European, Commercial

Updated: 14 November 2021; Ref: scu.511018

Paltrade EOOD v Nachalnik Na Mitnicheski Punkt – Pristanishte Varna Pri Mitnitsa Varna: ECJ 6 Jun 2013

ECJ Commercial policy – Regulation (EC) No 1225/2009 – Articles 13 and 14 – Imports of products originating in China – Anti-dumping duties – Circumvention – Re-consignment of goods via Malaysia – Implementing Regulation (EU) No 723/2011 – Registration of imports – Recovery of anti-dumping duties – Retroactivity

C-667/11, [2013] EUECJ C-667/11
Bailii
Regulation (EC) No 1225/2009, Regulation (EU) No 723/2011

European, Commercial

Updated: 12 November 2021; Ref: scu.510331

Quinn Barlo Ltd, Established In Ballyconnell (Ireland) v European Commission: ECJ 30 May 2013

ECJ Appeal – Agreements, decisions and concerted practices – European market for methacrylates – Duration of the infringement – Presumption of innocence – Statement of reasons – Unlimited jurisdiction – General principles of the protection of legitimate expectations and equal treatment – Proportionality of the fine

Arestis P
C-70/12, [2013] EUECJ C-70/12
Bailii

European, Commercial

Updated: 12 November 2021; Ref: scu.510319

Chamberlains Wharf Limited v Smith: CA 18 Jul 1900

The rules of an association, called the Tea Clearing House, the members of which were dock companies and tea warehouse keepers carrying on the business of warehousing tea in bond, provided (rule 11) that every member should charge on teas the respective rates and adhere to the terms and conditions specified in a schedule to the rules, and should not be at liberty to depart from them in any way, except that a discount not exceeding 10 per cent, might be allowed on the said rates. No other discount, no money gratuities, and no advantages, direct or indirect, should be offered or allowed by any member to any merchant, broker, or other person in connection with any matter or thing in anywise relating to the Tea Clearing House agreement.
By rule 14, No subscriber should be entitled to warehouse or deposit tea with, or employ in connection with tea, any dock company or tea warehouse keeper who was not a member of the Clearing House, or to purchase or sample any tea from the warehouse of any non-member.
By rule 15, Any member breaking or failing to observe any of the rules was to be liable to expulsion by resolution of the committee.
The committee passed a resolution expelling the plaintiffs for an alleged breach of the rules, and they brought an action against the members of the committee to restrain them from acting on the resolution, on the ground (inter alia) that the plaintiffs had not had an opportunity of being heard in their defence. Kekewich J. granted an interlocutory injunction.
Held, on appeal, that the association was a ‘trade union’ within the meaning of s. 16 of the Trade Union Act Amendment Act, 1876 ; that its objects were illegal independently of the Trade Union Act, 1871, and that s. 4 of that Act prevented the Court from directly enforcing the agreement between the members:
Held, also, that by granting the injunction the Court would be directly
enforcing the agreement.
The injunction was accordingly dissolved.

(1900) 2 Ch 605, [1900] UKLawRpCh 147
Commonlii
England and Wales
Cited by:
CitedYorkshire Miners’ Association and Others v Howden and Others HL 14-Apr-1905
A miners’ association, registered under the Trade Union Act 1871, made certain payments from its funds to its members, who were out of employment, in circumstances which involved a direct contravention of the rules of the association. Held (Lords . .

Lists of cited by and citing cases may be incomplete.

Employment, Company, Commercial

Updated: 12 November 2021; Ref: scu.653366

Gem-Year And Jinn-Well Auto-Parts (Zhejiang) v Council: ECJ 11 Sep 2014

gemyearECJ1409

ECJ Judgment – Appeal – Dumping – Regulation (EC) No 384/96 – First indent of Article 2(7)(c) – Regulation (EC) No 2026/97 – Regulation (EC) No 91/2009 – Imports of certain iron or steel fasteners originating in the People’s Republic of China – Market economy treatment – Costs of major inputs substantially reflecting market values – State subsidy for the steel sector in general – Effect

J. L. da Cruz Vilaca P
C-602/12, [2014] EUECJ C-602/12, ECLI:EU:C:2014:2203
Bailii
Regulation (EC) No 384/96 2(7)(c), Regulation (EC) No 91/2009

European, Commercial

Updated: 11 November 2021; Ref: scu.536558

Azam and Co v Legal Services Commission: ChD 5 May 2010

The claimant solicitors had failed to submit their tender for a new contract in time. The respondent refused to accept the late submission. The claimant said that the respondent had not directly notified it of the deadline and so failed to meet its obligations under the 2006 Act and European law, and that the refusal to extend time was a disproportionate response. The information had been provided by email and on the LSC web-site.
Held: The claim failed. Past dealings had given rise to no sufficient expectation that the defendant would write to existing franchisees. It was not appropriate to try to derive any principle for tender procedures in criminal law.
The purpose of the equal treatment obligation is to ensure the development of effective competition for public contracts, leading to the selection of the best bid, and therefore generally forbids differential treatment of entities in a comparable competitive position. This obligation will generally require all potential bidders to be given access to substantially the same information, but it does not absolutely prevent the contracting authority from drawing the tender process to the attention of particular firms, provided that they are not thereby given access to information which is either unavailable to or less readily intelligible by other firms. The objective of the equal treatment obligation is to afford equality of opportunity to all reasonably well-informed and diligent potential tenderers, exercising ordinary care. Equal treatment does not necessarily require identical treatment. The objective of affording equality of opportunity may permit, and in some cases require, differences in the mode of advertisement of a tender, provided that the end result is that substantially the same information is made available to all potential tenderers. The equal treatment obligation does not of itself require that every possible tenderer is in fact notified.
The defendant had acted reasonably in not extending the deadline. The claimant was itself at fault in not making the application: ‘the firm had in my view demonstrated a lack of reasonable care and diligence in the protection of its own commercial interests in failing either to monitor the LSC website, to subscribe to its Update service or to study the Law Society Gazette with proper care.’

Briggs J
[2010] EWHC 960 (Ch)
Bailii
Public Contracts Regulations 2006 47, Directive 2004/18/EC
England and Wales
Citing:
CitedCommission v France C-225/98 ECJ 26-Sep-2000
Europa (Judgment) Failure of a Member State to fulfil its obligations – Public works contracts – Directives 71/305/EEC, as amended by Directive 89/440/EEC, and 93/37/EEC – Construction and maintenance of school . .
CitedCommission v France C-16/98 ECJ 5-Oct-2000
ECJ (Judgment) Failure of a Member State to fulfil its obligations – Directive 93/38/EEC – Public works contracts in the water, energy, transport and telecommunications sectors – Electrification and street . .
CitedTideland Signal v Commission ECFI 27-Sep-2002
Europa Public procurement – Rejection of tender – Failure to exercise power to seek clarification of tender – Action for annulment – Expedited procedure. . .
CitedCommission v CAS Succhi di Frutta (Judgment) ECJ 29-Apr-2004
Europa Appeal – Common agricultural policy – Food aid – Tendering procedure – Commission decision amending the conditions after the auction – Payment of successful tenderers in fruit other than those specified in . .
CitedJ B Leadbitter and Co Ltd v Devon County Council ChD 1-May-2009
The claimant said that its tender had been wrongfully excluded from the defendant’s procurement process. . .
CitedCommission v Greece (Law Relating To Undertakings) ECJ 12-Nov-2009
ECJ Failure of a Member State to fulfil obligations – Public procurement -Directive 93/38/EEC Contract notice – Consultancy project – Criteria for automatic exclusion – Qualitative selection and award criteria. . .
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, European, Commercial, Legal Aid

Updated: 11 November 2021; Ref: scu.415084

Scotch Whisky Association And Others v Lord Advocate, Advocate General for Scotland: ECJ 23 Dec 2015

ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative restrictions – Measures having equivalent effect – Minimum price of alcoholic drinks calculated according to the alcoholic strength of the product – Justification – Article 36 TFEU – Protection of human life and health – Assessment by the national court
‘I consider that the existence of a CMO covering the wine sector does not prevent the national authorities from taking action in the exercise of their competence in order to adopt measures to protect health and, in particular, to combat alcohol abuse. However, where the national measure constitutes a breach of the principle of the free formation of selling prices that constitutes a component of the single CMO Regulation, the principle of proportionality requires that the national measure must actually meet the objective of the protection of human health and must not go beyond what is necessary in order to attain that objective.
As the commission suggests, I consider that the examination of the proportionality of the measure must be undertaken in the context of the analysis that must be carried out by reference to article 36 TFEU.
Consequently, I propose that the answer to the first question should be that the single CMO Regulation must be interpreted as meaning that it does not preclude national rules, such as those at issue, which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.’
‘A barrier to the free movement of goods may be justified on one of the public interest grounds set out in article 36 TFEU or in order to meet overriding requirements. In either case, the restrictions imposed by the member states must none the less satisfy the conditions laid down in the court’s case law as regards their proportionality. In that regard, in order for national rules to comply with the principle of proportionality, it is necessary to ascertain not only whether the means which they implement are appropriate to ensure attainment of the objective pursued, but also that those means do not go beyond what is necessary to attain that objective: Berlington Hungary Tanacsado es Szolgaltato kft v Magyar Allam (Case C-98/14) [2015] 3 CMLR 45, para 64.
Although the words generally used by the court seem most frequently to result in only two different stages of the control of proportionality being distinguished, the intellectual exercise followed in order to determine whether a national measure is proportionate is generally broken down into three successive stages.
The first stage, corresponding to the test of suitability or appropriateness, consists in ascertaining that the act adopted is suitable for attaining the aim sought.
The second stage, relating to the test of necessity, sometimes also known as the ‘minimum interference test’, entails a comparison between the national measure at issue and the alternative solutions that would allow the same objective as that pursued by the national measure to be attained but would impose fewer restrictions on trade.
The third stage, corresponding to the test of proportionality in the strict sense, assumes the balancing of the interests involved. More precisely, it consists in comparing the extent of the interference which the national measure causes to the freedom under consideration and the contribution which that measure could secure for the protection of the objective pursued.’

R. Silva de Lapuerta, P
ECLI:EU:C:2015:845, [2015] EUECJ C-333/14, [2016] 1 WLR 2283, [2015] WLR(D) 544
Bailii, WLRD
Regulation (EU) No 1308/2013, TFEU 34
European
Citing:
See AlsoScotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See AlsoThe Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See AlsoThe Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See AlsoScotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
CitedCommission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .

Cited by:
At ECJThe Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
At ECJScotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .

Lists of cited by and citing cases may be incomplete.

Commercial, Health

Updated: 10 November 2021; Ref: scu.565749

Hitachi And Others v Commission: ECFI 12 Jul 2011

ECFI Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Rights of the defence – Proof of the infringement – Single and continuous infringement – Fines – Gravity and duration of the infringement – Deterrent effect – Cooperation.

[2011] EUECJ T-112/07
Bailii
European

Commercial

Updated: 10 November 2021; Ref: scu.441788

Bollore v Commission: ECFI 27 Jun 2012

bolloreecfi2012

ECFI Competition – Cartels – Carbonless paper – Pricing – Decision finding an infringement of Article 101 TFEU – Decision taken following the cancellation of a first decision – Allocation of the offense to the parent, taken as the author directly – Legality of criminal offenses and penalties – Legal – Personality sentences – Fair trial – Equal treatment – Reasonable period – Rights of defense – Fines – Limitations – Mitigating circumstances – Cooperation

Forwood P
T-372/10, [2012] EUECJ T-372/10
Bailii

European, Commercial

Updated: 10 November 2021; Ref: scu.461734

Unipart Group Ltd v O2 (UK) Ltd and Another: CA 30 Jul 2004

The court considered the applicability of Article 81 in Chapter 1 of Part III of the EC Treaty to allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones. Unipart, an independent service provider (‘ISP’) purchased airtime from Cellnet, a mobile network operator under various agreements which provided that the price would be at Cellnet’s charges from time to time. There were also a number of service providers, competing with Unipart, that were tied to Cellnet (tied service providers or ‘TSPs’). Unipart claimed that Cellnet was in breach of Article [101] by operating a margin squeeze whereby the price for airtime that Unipart (and other ISPs) were charged relative to the retail price charged to the TSPs was such as to eliminate its margin and thus place the TSPs at a competitive advantage.
Held: The judge’s grant of summary judgment in favour of Cellnet was correct in finding that even if there was such a margin squeeze, this was not the subject of any relevant agreement between the undertakings within the meaning of Article [101(1)].
Jonathan Parker LJ referred to the ADALAT case and said: ‘Approaching Article [101(1)] on that basis, the first step, in my judgment, is to identify as precisely as possible the conduct of which complaint is made: that is to say the conduct which is alleged to have caused the loss in respect of which damages are claimed. For in my judgment it is that conduct which must be the subject of an agreement between undertakings if Article [101(1)] is to be engaged in respect of it.
In my judgment it is clear on the face of the Particulars of Claim . . that the conduct of which complaint is made in the instant case is not that Cellnet set its own prices for airtime (most suppliers set the prices for their products); nor is it merely that Cellnet set its prices at a level which was excessively high (a supplier who does that risks going out of business as a result). The anti-competitive conduct which is alleged in the instant case is that Cellnet set its prices at an excessively high level as part of its policy of ‘margin squeeze’ – a policy which is described in detail in paragraphs 14 and 15 of the Particulars of Claim. . : hence the allegation of ‘unlawful margin squeeze’ in paragraph 36 of the Particulars of Claim . . Take away that allegation, and in my judgment there is nothing left of Unipart’s complaint.
Accordingly, given that Unipart does not seek to invoke Article [102], the relevant inquiry, in my judgment, is whether Cellnet’s conduct in adopting a policy of ‘margin squeeze’ (assuming for present purposes that it in fact adopted such a policy) was the subject of an ‘agreement’ between Cellnet and Unipart; or whether it was ‘unilateral’ conduct on Cellnet’s part and thus outside the scope of Article [101(1)]. To put it another way, the issue is whether Unipart can establish to the requisite legal standard a concurrence of wills between it and Cellnet concerning Cellnet’s adoption of the policy of ‘margin squeeze’ (see paragraph 77 of the CFI’s judgment in Bayer. . ).’

Jonathan Parker LJ, Peter Gibson LJ and Laddie J
[2004] EWCA Civ 1034, [2004] UKCLR 1453
Bailii
EC Treaty A81
England and Wales
Cited by:
CitedSel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .

Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 10 November 2021; Ref: scu.199631

Oracle America Inc v M-Tech Data Ltd: SC 27 Jun 2012

The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding information which would allow it to trade lawfully. The Court was now asked: ‘whether a person who has imported goods bearing the mark into the EEA and offered them for sale there without the consent of the trade mark proprietor, is entitled to defend an action for infringement on the ground that the proprietor of the mark is engaged in conduct calculated to obstruct the free movement of such goods between member states or to distort competition in the EEA market for them.’
Held: The appeal was allowed and the judgment at first instance restored. The Court declined to refer a case to the European Court. Even if proved, the defence put forward by M-Tech would not have succeeded: ‘once the scheme of articles 5 and 7 of the directive are correctly understood, it is clear that the unlawful conduct alleged by M-Tech is collateral to the particular right which Sun is seeking to enforce.’. The drives at issue were not marketed in the EEA until imported by M-Tech without Oracle’s consent, and Oracle has the right to first market their own products within the EEA if they so chose.
It is settled law: ‘(i) that the Directive must be construed as a definitive statement of the harmonised law concerning the rights of trade mark proprietors, and (ii) that it confers on trade mark proprietors a right to control the first marketing of their goods in the EEA save in cases where that right had been unequivocally renounced.’

Lord Walker , Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2012] UKSC 27, [2012] 1 WLR 2026, UKSC 2010/0203, [2012] ETMR 43, [2012] Bus LR 1631, [2012] 1 WLR 2026, [2012] 3 CMLR 28, [2012] 4 All ER 338, [2012] ECC 27, [2012] Eu LR 727
Bailii, Bailii Summary, SC Summary, SC
Directive 89/104/EC 5 7, Trade Marks Act 1994, EU Treaty 34 36
England and Wales
Citing:
At First InstanceSun Microsystems Inc v M-Tech Data Ltd and Another PatC 25-Nov-2009
The claimant manufactured computer disk drives, marketing them under its trade marks. It complained that the defendant had resold them within the European Economic Area in breach of its rights.
Held: Summary judgment was granted, and an order . .
CitedEMI Records v CBS United Kingdom ECJ 15-Jun-1976
ECJ Neither the rules of the Treaty on the free movement of goods nor those on the putting into free circulation of products coming from third countries nor, finally, the principles governing the common . .
CitedTedeschi v Denkavit Commerciale SRL ECJ 5-Oct-1977
ECJ 1. Article 177 is based on a distinct separation of functions between national courts and tribunals on the one hand and the court of justice on the other, and it does not give the court jurisdiction to take . .
CitedCriminal proceedings against Richardt ECJ 4-Oct-1991
The existence, as a consequence of the Customs Union, of a general principle of freedom of transit of goods within the Community does not, as Article 10 of Regulation No 222/77 affirms, have the effect of precluding the Member States from verifying . .
CitedGenerics and Harris Pharmaceuticals v Smith Kline and French Laboratories ECJ 27-Oct-1992
When deciding upon the terms upon which licenses for the use of patented drugs are to be granted, a member state must not take into account issues other than those properly involved in such decisions. Protection of existing licences were not a . .
CitedBristol-Myers Squibb and others v Paranova ECJ 11-Jul-1996
ECJ 1. Reliance by a trade mark owner on his rights as owner in order to prevent an importer from marketing a product which was put on the market in another Member State by the owner or with his consent where . .
CitedPhytheron International v Bourdon ECJ 20-Mar-1997
ECJ 1 Preliminary rulings – Jurisdiction of the Court – Limits – Presentation during the procedure before the Court of facts which differ from those described in the order for reference – Obligation of the Court . .
CitedSilhouette International Schmied GmbH and Co KG v Hartlauer Handelsgesellschaft mbH ECJ 16-Jul-1998
National Trade Mark rules providing for exhaustion of rights in Trade Marks for goods sold outside area of registration were contrary to the EU first directive on trade marks. A company could prevent sale of ‘grey goods’ within the internal market. . .
CitedZino Davidoff SA v A and G Imports Ltd ChD 24-May-1999
Though a company could prevent parallel import within the EU, it could not prevent goods sold outside the EU but without restriction on re-sale, being subsequently re-sold into the EU. The removal of a numbering mark did not materially reduce its . .
CitedSebago and Maison Dubois et Fils SA v GB-Unic SA ECJ 1-Jul-1999
The fact that specific goods bearing a Trade Mark had been authorised for distribution within the EEA, did not mean that the relative trade mark rights had been exhausted. They would only be exhausted where the consent related to each individual . .
Appeal FromOracle America Inc v M-Tech Data Ltd and Another CA 24-Aug-2010
The claimant sought to prevent import from China of its own second hand computer disc drives said to infringe its trade marks. It had granted an exclusive licence for the sale of its equipment in Europe and alleged that this was a parallel import. . .
ApprovedLevi Strauss and Co and Another v Tesco Stores Ltd and Others ChD 31-Jul-2002
Pumfrey J discussed the principle of European law disallowing so called grey imports in breach of trade mark law, as set out in EMI v CBS, and said that it: ‘could hardly be clearer. It has formed, with the principle of exhaustion, the basis for the . .
CitedZino Davidoff SA v A and G Imports Ltd etc ECJ 20-Nov-2001
An injunction was sought to prevent retailers marketing in the EEA products which had been obtained outside the EEA for resale within the EEA but outside the controlled distribution system.
Held: Silence alone was insufficient to constitute . .
CitedHoffmann La Roche Ag v Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse Mbh ECJ 24-May-1977
The court considered the application of the doctrine of exhaustion of rights in the context of trade marks. The exercise of trade mark rights had to take account of and might be restricted by the prohibitions contained in the Treaty of Rome intended . .
CitedHoffman-La Roche v Centrafarm ECJ 23-May-1978
ECJ (Judgement) 1. It is clear from article 36 of the EEC treaty, in particular its second sentence, as well as from the context, that whilst the treaty does not affect the existence of rights recognized by the . .
CitedMPA Pharma v Rhone-Poulenc Pharma GmbH ECJ 11-Jul-1996
ECJ 1. Although a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against him, the national court which applies national law and is required to . .
CitedEurim-Pharm Arzneimittel v Beiersdorf and others ECJ 11-Jul-1996
ECJ 1. Although a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against him, the national court which applies national law and is required to . .
CitedLoendersloot v Ballantine and Son and others ECJ 11-Nov-1997
ECJ Article 36 of the EC Treaty – Trade mark rights – Relabelling of whisky bottles. . .
CitedPharmacia and Upjohn SA, formerly Upjohn SA v Paranova A/S ECJ 12-Oct-1999
ECJ Trade-mark rights – Pharmaceutical products – Parallel imports – Replacement of a trade mark. . .
CitedCourage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
CitedClass International v Colgate Palmolive ECJ 18-Oct-2005
ECJ Trade marks – Directive 89/104/EEC – Regulation (EC) No 40/94 – Rights conferred by the trade mark – Use of the mark in the course of trade – Importation of original goods into the Community – Goods placed . .
CitedVan Doren + Q GmbH v Lifestyle sports + sportsewar Handelgesellschaft mbH and another ECJ 8-Apr-2003
The claimant was exclusive agent for the trademark holder for Germany. The defendant sold goods it had not bought from the claimant, but bearing the mark. The defendant alleged exhaustion of the claimant’s rights.
Held: The burden of proving . .
CitedKeurkoop Bv v Nancy Kean Gifts Bv ECJ 14-Sep-1982
ECJ The protection of designs comes under the protection of industrial and commercial property within the meaning of article 36 inasmuch as its aim to define exclusive rights which are characteristic of that . .
CitedHalifax plc etc v Commissioners of Customs and Excise ECJ 21-Feb-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) – Economic activity – Supplies of goods – Supplies of services – Abusive practice – Transactions designed solely to . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Commercial

Updated: 10 November 2021; Ref: scu.460912

Innolux v Commission: ECFI 27 Feb 2014

innolux_commECFI0214

ECFI Competition – Agreements, decisions and concerted practices – Worldwide market for liquid crystal display (LCD) panels – Agreements and concerted practices concerning prices and production capacity – Territorial jurisdiction – Internal sales – Sales of finished products incorporating cartelised products – Single and continuous infringement – Fines – Rounding method – Unlimited jurisdiction

H Kanninen, P
T-91/11, [2014] EUECJ T-91/11
Bailii

European, Commercial

Updated: 10 November 2021; Ref: scu.521828

RKW v Commission: ECFI 16 Nov 2011

Fines for breach of Competion Law

ECFI (French Text) Competition – Cartels – Sector Industrial plastic bags – Decision finding an infringement of Article 81 EC – Fines – Guidelines for the calculation of fines – Maximum limit of 10% of sales – Implementation – legality – proportionality – Equal treatment – Single and continuous infringement – Attenuating circumstances – Exclusively passive role – Obligation to state reasons – Liability for unlawful conduct

Pelikanova P
T-66/06, [2011] EUECJ T-66/06
Bailii
European

Commercial

Updated: 10 November 2021; Ref: scu.448728

Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc: CA 14 Mar 1986

Weighing Interest of Seeker of Judicial Review

The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a merger situation qualifying for investigation.’
The test for the issue of judicial review proceedings was set out as follows: ‘The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.’
‘Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.’

Sir John Donaldson MR, Dillon LJ, Neill LJ
[1986] 1 WLR 763, [1987] QB 815, (1986) 2 BCC 99086, [1986] EWCA Civ 8, [1986] 2 All ER 257
Bailii
Senior Courts Act 1981 31(3)
England and Wales
Cited by:
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedBrown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
CitedRegina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
CitedRegina v Cotswold District Council and others ex parte Barrington Parish Council Admn 24-Apr-1997
The parish council sought judicial review of the district council’s planning decision. The respondents complained at the lack of promptness in the application, and suggested a lack of standing to complain. . .
CitedWalton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .

Lists of cited by and citing cases may be incomplete.

Commercial, Judicial Review

Leading Case

Updated: 10 November 2021; Ref: scu.194045

FL Smidth and Co A/S v Commission: ECJ 30 Apr 2014

ECJ Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Unlimited jurisdiction of the General Court – Duty to state reasons – Attribution to the parent company of the infringement committed by the subsidiary – Liability of the parent company for payment of the fine imposed on the subsidiary – Proportionality – Proceedings before the General Court – Adjudication within a reasonable time

A. Tizzano, P
C-238/12, [2014] EUECJ C-238/12
Bailii
European

Commercial

Updated: 10 November 2021; Ref: scu.525428

Moser Baer India v Council (Commercial Policy): ECJ 2 Oct 2008

Europa Appeal Subsidies Imports of recordable CDs from India Article 8(7) of Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports Anti-competitive behaviour affecting all manufacturers Other factors Causation Calculation of injury elimination level ‘Lesser duty’ rule.

C-535/06, [2008] EUECJ C-535/06 – O, [2009] EUECJ C-535/06
Bailii, Bailii
European

Customs and Excise, Commercial

Updated: 09 November 2021; Ref: scu.276780

Office of Communications and Another v Floe Telecom Ltd: CA 10 Feb 2009

The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were capable of being damaging to the public interest. Even though the Regulator had won, it should be allowed to appeal against the relevant element of the judgment. It was not the task of tribunals to provide general guidance, and their judgments should avoid this.

Mummery LJ, Lawrence Collins LJ, Sir John Chadwick
[2009] EWCA Civ 47, Times 23-Feb-2009, [2009] UKCLR 659, [2009] Bus LR 1116
Bailii
Competition Act 1998 49(1)(c)
England and Wales
Citing:
CitedLake v Lake CA 1955
Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to . .
CitedAustralia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another ComC 21-Feb-2007
Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of . .
CitedCompagnie Noga D’Importation et D’Exportation Sa v Australia and New Zealand Banking Group Ltd. and others CA 31-Jul-2002
If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding. . .
CitedSecretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .

Lists of cited by and citing cases may be incomplete.

Commercial, Litigation Practice

Updated: 09 November 2021; Ref: scu.282606

Alliance One International Inc v European Commission: ECJ 13 Dec 2012

ECJ Appeal – Competition – Agreements, decisions or concerted practices – Italian market for the purchase and first processing of raw tobacco – Price-fixing and market-sharing – Attributability of unlawful conduct of subsidiaries to their parent companies – Presumption of innocence – Rights of the defence – Obligation to state reasons

A. Rosas
C-593/11, [2012] EUECJ C-593/11
Bailii
European

Commercial

Updated: 09 November 2021; Ref: scu.468759

T-Mobile (Uk) Ltd. and Another v Office of Communications: CA 12 Dec 2008

The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way of appeal to the Competition Appeal Tribunal or by judicial review. The CAT had declined jurisdiction. The question now was whether judicial review rovided a satisfactory means of appeal.
Held: The proposal was subject to judicial review, and that remedy was sufficient to satisfy European law. ‘It is not the function of a statutory tribunal to impugn statutory instruments or regulations made pursuant to statutory powers. Challenges to these are classically matters for JR and that is so in the case of the Award.’ The European case law was neutral on this topic.

Tuckey LJ, Jacob LJ, Sir William Aldous
[2008] EWCA Civ 1373, Times 18-Dec-2008
Bailii
Supreme Court Act 1981 31, Directive 2002/21/EC (Framework Directive)
England and Wales
Citing:
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedBegum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
CitedUnibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 13-Mar-2007
(Grand Chamber) Principle of judicial protection National legislation not providing for a self-standing action to challenge the compatibility of a national provision with Community law Procedural autonomy Principles of equivalence and effectiveness . .
CitedUnibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 30-Nov-2006
CJEU Effective judicial protection of Community law rights – National rules not providing for self-standing application for annulment of national legislation conflicting with Community law – Right to interim . .
CitedMobistar SA v Institut belge des services postaux et des telecommunications (IBPT) (Approximation Of Laws) ECJ 13-Jul-2006
ECJ Telecommunications – Mobile telephony – Number portability – Per-line or per-number set-up costs for the provision of number portability – Article 30 of Directive 2002/22/EC (Universal Service Directive) – . .
CitedJB, Regina (on the Application of) v Responsible Medicial Officer, Dr Haddock CA 11-Jul-2006
JB challenged his detention under the 1983 Act.
Held: The judicial review procedure afforded a sufficient appeal procedure for a detainee. . .
CitedOffice of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
CitedRegina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
CitedRegina 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.
CitedConnect Austria Gesellschaft fur Telekommunikation GmbH v Telekom-Control-Kommission, intervener: Mobilkom Austria AG, ECJ 22-May-2003
Europa Telecommunications – Mobile telecommunications services – Article 5a(3) of Directive 90/387/EEC – Appeal to an independent body against a decision of the national regulatory authority – Articles 82 EC and . .
CitedBarber v Staffordshire County Council CA 29-Jan-1996
A dismissal of a claim without consideration by the tribunal created an issue estoppel. Issue estoppel rules apply equally to Industrial Tribunal decisions as elsewhere. Redundancy claim once withdrawn on one ground could not be revived on another. . .
CitedManson v Ministry of Defence CA 4-Nov-2005
. .
CitedImpact v Minister for Agriculture and Food ECJ 15-Apr-2008
ECJ Grand Chamber – Fixed-term employment – Directive 1999/70/EC – Framework agreement on fixed-term work – Abuse through use of successive fixed – term employment contracts – Civil and public servants – . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Licensing, Commercial, European

Updated: 09 November 2021; Ref: scu.278674

BHB Enterprises Plc v Victor Chandler (International) Ltd: ChD 27 May 2005

The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its rights to prevent unauthorised extractions or utilisations of the database. Allegations were made that it had sought to abuse its dominant position, and to make excess profits. After the decision in the ECJ, the defendant bookmakers believed that the claimant had no continuing right to restrict use of the data, and ceased to make payments under its licences.
Held: The proposition advanced by the defendant was startling, and failed. The defendant remained bound by the licence whether or not the claimant had the right to control the use of the data. The defendant had acknowledged the claimant’s rights in the contract. The right to refuse to provide the data was separate from the requirement that there be copyright or other arrangements between the customer and the licensor. A non-challenge provision did not seek to oust the jurisdiction of the court, and was not void or unenforceable. As to the assertion of abuse of dominant position ‘we still live in a free market economy where traders are allowed to run their businesses without undue interference. What Article 82 and section 18 of the Act are concerned with is unfair prices, not high prices. In determining whether a price is unfair it is necessary to consider the impact on the end consumer and all of the market conditions. In a case where unfair pricing is alleged, assessment of the value of the asset both to the vendor and the purchaser must be a crucial part of the assessment.’

Laddie J
[2005] EWHC 1074 (Ch), [2005] EuLR 924
Bailii
EC Directive 96/9, Competition Act 1998 18
England and Wales
Citing:
CitedOscar Bronner v Mediaprint (Judgment) ECJ 26-Nov-1998
A major newspaper proprietor had refused to allow a small competitor access to its efficient distribution service.
Held: That amounted to an abuse of a dominant position: ‘First, it is apparent that the right to choose one’s trading partners . .
CitedJohn Zinc Co Ltd. v Wilkinson CA 1973
Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings. . .
CitedUnited Brands Company and United Brands Continentaal BV v Commission of the European Communities ECJ 14-Feb-1978
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic . .
CitedAntaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .

Cited by:
CitedAttheraces Ltd and Another v The British Horseracing Board Ltd and Another CA 2-Feb-2007
The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly . .
CitedSel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .
CitedHumber Oil Terminals Trustee Ltd v Associated British Ports ChD 24-Feb-2011
The claimant sought to renew its leases of docking facilities from the landlord defendant. The defendant resisted saying it intended to operate its own business, and the claimant now alleged that the defendant was abusing its dominant position to . .

Lists of cited by and citing cases may be incomplete.

Information, Commercial, Contract, European

Updated: 09 November 2021; Ref: scu.225995

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 Court of Justice, on the grounds that the Regulation was invalid as infringing a basic tenet of European Law, namely the requirement for the free movement of goods.
Held: Though the Trade Marks Act was intended to implement the Directive, this had not been done by a straightforward implementation. European law was supreme. A provision of the Act not providing the full protection awarded by the Directive was unlawful. The respondent also sought to assert its human rights to sell the jeans it had acquire. That point however had been dealt with, and the result could not be described as disproportionate given the additional requirement to balance the rights of the Trade Mark owner. The legislation had not been tested in the European Courts against any conflict with the Treaty. The Treaty rights were not absolute, and again a balance had to be found. The Trade Marks system was not unlawful under the Treaty.

The Honourable Mr Justice Pumfrey
[2000] EWHC 1556 (Ch), [2002] ETMR 95
Bailii
Council Regulation (EC) No 40/94 of 20 December 1993 on the Community Trade Mark, Trade Marks Act 1994, Council Directive No. 89/104/EEC
England and Wales
Citing:
CitedSilhouette International Schmied GmbH and Co KG v Hartlauer Handelsgesellschaft mbH ECJ 16-Jul-1998
National Trade Mark rules providing for exhaustion of rights in Trade Marks for goods sold outside area of registration were contrary to the EU first directive on trade marks. A company could prevent sale of ‘grey goods’ within the internal market. . .
CitedZino Davidoff SA v A and G Imports Ltd ChD 24-May-1999
Though a company could prevent parallel import within the EU, it could not prevent goods sold outside the EU but without restriction on re-sale, being subsequently re-sold into the EU. The removal of a numbering mark did not materially reduce its . .
CitedThoburn 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 . .
CitedBritish 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 by:
CitedMastercigars Direct Ltd v Hunters and Frankau Ltd CA 8-Mar-2007
An allegation was made that Cuban cigars imported by the claimant infringed the trade marks of the respondents being either counterfeit or parallel imports, and were impounded. The claimant sought a declaration of non-infringement and their release, . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Commercial, European, Human Rights

Updated: 09 November 2021; Ref: scu.174770

Healthcare at Home Ltd v The Common Services Agency: SC 30 Jul 2014

The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an unsuccessful tenderer for a public contract challenges that award, the issue as to whether the criteria for the award of the contract had been sufficiently clearly set out was to be decided by the court by applying an objective legal standard with reference to a reasonably well informed and diligent tenderer. It did not depend on the evidence of witnesses as to how they had understood the document.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hughes
[2014] UKSC 49, [2014] WLR(D) 351, UKSC 2013/0108, [2014] PTSR 1081, 2014 GWD 25-505, 2014 SLT 769
Bailii, WLRD, Bailii Summary, SC Summary, SC
Scotland
Citing:
Outer HouseHealthcare At Home Ltd v The Common Services Agency SCS 1-Feb-2011
Outer House – The pursuer sought an order in terms of the Regulation, setting aside the decision of the defender to award the ‘NP 341/10 Trastuzumab Homecare and Near Patient Treatment Services’ Framework Agreement to BUPA Home Healthcare Ltd. . .
Outer House (2)Healthcare At Home Ltd v The Common Services Agency SCS 1-May-2012
Outer House – Healthcare challenged the award of a framework agreement contract to a competitor contractor. . .
Inner HouseHealthcare At Home Ltd v The Common Services Agency SCS 21-Mar-2013
Inner House – Healthcare challenged the loss of a contract for provision of cancer treatments for their patients to a competitor. . .
CitedDavis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
CitedSIAC Construction v County Council of the County of Mayo ECJ 18-Oct-2001
ECJ Public works contracts – Award to the most economically advantageous tender – Award criteria.
There was a disagreement between the parties as to the interpretation of tender documents.
Held: The . .
CitedCommission v Netherlands ECJ 10-May-2012
ECJ Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Procedures for the award of public works contracts, public supply contracts and public service contracts – Contract for the supply, . .
CitedEvropaiki Dynamiki v EMSA ECFI 2-Mar-2010
ECJ Law Relating To Undertakings – Public service contracts EMSA tendering procedures – Provision of information technology services – Rejection of the tender – Action for annulment – Jurisdiction of the Court – . .
CitedLammerzahl GmbH v Freie Hansestadt Bremen ECJ 7-Jun-2007
Judgment – Law Relating To Undertakings – Public contracts Directive 89/665/EEC Review procedures concerning the award of public contracts Limitation period Principle of effectiveness
Article 1 of the Directive required member states to take . .
CitedEVN AG et Wienstrom GmbH v Republik Osterreich ECJ 4-Dec-2003
ECJ Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive . .
CitedUniversale-Bau and others v Entsorgungsbetriebe Simmering GmbH ECJ 12-Dec-2002
ECJ Judgment – Directive 93/37/EEC – Public works contracts – Definition of ‘contracting authority’ – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates . .

Cited by:
CitedOwens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

European, Health Professions, Commercial

Updated: 09 November 2021; Ref: scu.535438

Spain v Commission: ECFI 29 Mar 2012

ECFI Competition – Abuse of dominant position – Spanish broadband internet access markets – Decision finding an infringement of Article 82 EC – Price-fixing – Margin squeeze – Sincere cooperation – Ultra vires application of Article 82 EC – Legal certainty – Protection of legitimate expectations

Truchot P
T-398/07, [2012] EUECJ T-398/07
Bailii
European

Commercial

Updated: 09 November 2021; Ref: scu.452640

Wabco Europe v European Commission: ECFI 16 Sep 2013

ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Distortion of competition – Proof – Calculation of the fine – Cooperation during the administrative procedure – 2002 Leniency Notice – Immunity from fines – Reduction of the fine – Significant added value – 2006 Guidelines on the method of setting fines – Principle of non-retroactivity

T-380/10, [2013] EUECJ T-380/10
Bailii
European

Commercial

Updated: 02 November 2021; Ref: scu.515274

Brent London Borough Council and Others v Risk Management Partners Ltd: SC 9 Feb 2011

The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. The authority argued that the arrangement was exempt under the judgment in Teckal which allowed the use of services without external tenders.
Held: The Authority’s appeal succeeded. The exemption did apply within the UK, and did apply to insurance contracts. The mutual company established by the local authorities working together satisfied the control requirement of Teckal. The Regulations had been intended to import the Directive, and the different wording used was not sufficient to an intention to impose a different regime. It was necessary only that an authority, or several authorities together, and without any private element of control, should exercise control.
Individual control is not necessary. No injury will be caused to the policy objective of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks. Asemfo shows that the decisive influence that a contracting public authority must exercise over the contractor may be present even if it is exercisable only in conjunction with the other public authorities.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Dyson
[2011] UKSC 7, UKSC 2009/0166, [2011] 2 WLR 166, [2011] PTSR 481, [2011] 2 AC 34
Bailii, SC Summ, SC, Bailii Summary
Public Contracts Regulations 2006, Council Directive 2004/18/EC on the co-ordination of procedures for the award of public work contracts, public supply
contracts and public service contracts

England and Wales
Citing:
At First InstanceRisk Management Partners Ltd, Regina (on the Application of) v The Council of London Borough of Brent Admn 22-Apr-2008
Several local authorities had come together to establish a mutual insurance company. The defendants issued a tender for insurance, and the claimants complained that though their tender had been most advantageous, the defendant had abandoned the . .
At First InstanceRisk Management Partners Ltd v The London Borough of Brent Admn 16-May-2008
Claim for damages – alleged breach of regulations by local council.
Held: Brent had acted in breach of the 2006 Regulations when it abandoned the tender process and awarded the insurance contracts to LAML. Issues of causation and damages were . .
Appeal fromBrent London Borough Council v Risk Management Partners Ltd CA 9-Jun-2009
Brent appealed from a finding that it had failed when redirecting a contract for insurance and had no power to become a member or participating member of London Authorities Mutual Limited or to make payments or to enter into commitments to make . .
CitedTeckal Srl v Comune di Viano, Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia ECJ 18-Nov-1999
AGAC was a corporate entity set up by a consortium of Italian local authorities to provide energy and environmental services to those participating. Prior to 1997 Teckal had supplied fuel to Viano and had serviced its heating systems. In May 1997 . .
CitedAsociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
CitedAsociaciacion Nacional De Empresas Forestales ECJ 19-Apr-2007
ECJ (Freedom of Establishment) Reference for a preliminary ruling – Admissibility Article 86(1) EC – No independent effect – Factors permitting material which enables the Court to give a useful answer to the . .
CitedStadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna ECJ 11-Jan-2005
ECJ Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC
CitedParking Brixen v Gemeinde Brixen ECJ 13-Oct-2005
The award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by sums paid by third parties for the use of that car park, is a public service concession to . .
CitedOakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
CitedCarbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio,AGESP SpA ECJ 11-May-2006
ECJ Opinion – Directive 93/36/EEC – Public supply contracts – Award of contract without a call for tenders – Award of the contract to an undertaking in which the contracting authority has a shareholding. . .
CitedSEA Srl v Comune di Ponte Nossa,third party: Servizi Tecnologici Comuni SeT Co SpA (Law Relating To Undertakings) ECJ 10-Sep-2009
ECJ Public procurement – Award procedures – Contract relating to a service for the collection, transport and disposal of urban waste – Awarded without any call for tenders – Awarded to a company limited by shares . .
CitedCommission v Germany – C-480/06 ECJ 9-Jun-2009
Failure by a Member State to fulfil its obligations – Admissibility – Legal interest in bringing proceedings – Directive 92/50/EEC – Procedures for the award of public service contracts – Negotiated procedure without prior publication of a contract . .
CitedAsociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
CitedAsociacion Profesional De Empresas De Reparto Y Manipulado De Correspondencia v Administracion General del Estado ECJ 18-Dec-2007
ECJ (Freedom To Provide Services) – Public procurement Liberalisation of postal services Directives 92/50/EEC and 97/67/EC’ Articles 43 EC, 49 EC and 86 EC National legislation allowing public authorities to . .
CitedCoditel Brabant v Commune d’Uccle, Region de Bruxelles-Capitale (Law Relating To Undertakings) ECJ 13-Nov-2008
ECJ Public procurement – Tendering procedures Public service concessions – Concession for the operation of a municipal cable television network – Awarded by a municipality to an inter-municipal cooperative . .

Cited by:
CitedTachie and Others v Welwyn Hatfield Borough Council QBD 13-Dec-2013
The three appellants each challenged decisions refusing their homelessness reviews, saying that the decisions had been made by outside contracters and were unlawful.
Held: The company was a subsidiary of the Council, and the Teckal exception . .
CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Commercial, Local Government, European

Updated: 02 November 2021; Ref: scu.428516

Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another: QBD 3 Oct 2011

Rossetti_diamondQBD2011

The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the meaning of the Directive or the Regulations is a straightforward matter, to be determined by reference to the terms and the context of the agreement at the date it is concluded. The Regulations envisaged two types of Agent, but ‘None of this means that the non-derogable obligations of the commercial agent under article 3.1 and regulation 3(1), to look after the interests of the principal, and to act dutifully and in good faith, are to be imported into the definition of a commercial agent so that an agent acting for multiple principals does not fall within it.’ The correspondence indicated an implied term allowing the claimants to conduct additional competing agencies. The agreement was subject to the 1993 Regulations.

Cranston J
[2011] EWHC 2482 (QB)
Bailii
Commercial Agents Regulations 1993, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents
Citing:
CitedCrane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another ChD 26-Jan-2007
The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
CitedSagal (T/A Bunz UK) v Atelier Bunz Gmbh CA 3-Jul-2009
The court was asked whether the the appellant was a commercial agent of the defendant within the regulations, and so would be entitled to compensation on termination of the agency.
Longmore LJ said: ‘It does not follow that every agent acting . .
CitedTamarind International Ltd and others v Eastern Natural Gas (Retail) Ltd and Another QBD 27-Jun-2000
Where self employed agents had been taken on to market the respondent’s services, and those agencies were terminated, such activities were those of commercial agents within the Directive, and they were entitled to compensation. Whether he was a . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedIngmar Gb Ltd v Eaton Leonard Technologies Inc ECJ 16-Nov-2000
When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the . .
CitedDirector General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
CitedCrane (T/A Indigital Satelite Services) v Sky In-Home Ltd and Another CA 3-Jul-2008
Arden LJ considered the principles to be applied when considering whether a party to civil litigation should be allowed to appeal a trial judge’s decision on the basis that a claim, which could have been brought before him but was not, would have . .
CitedCrane T/A Indigital Satellite Services v Sky In-Home Service Ltd and Another ChD 26-Jan-2007
The Directive’s substantive provisions were modelled primarily on the provisions of German domestic law. . .
CitedKelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedTolhurst v Associated Portland Cement Manufacturers (1900) Ltd HL 1903
Tolhurst had contracted to sell a quantity of chalk from his quarries to the Imperial Company for fifty years. The Imperial Company afterwards assigned the Contract and sold its land, works and business to the Associated Company, and went into . .
CitedAMB Imballaggi Plastici Srl v Pacflex Ltd CA 18-Jun-1999
A party who chose to contract as principal for the purpose of reselling the goods of the vendor on a speculative basis and for a profit, was not to be deemed to be a commercial agent of the first vendor, and so was not entitled to compensation on . .
CitedLinden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .

Lists of cited by and citing cases may be incomplete.

Agency, Commercial

Updated: 02 November 2021; Ref: scu.444873

Servaas Incorporated v Rafidain Bank and Others: ComC 14 Dec 2010

The claimant had supplied a factory to Iraq, but remained unpaid. Assets had been frozen in the respondent Iraqi bank, and with the new government, the liquidators were to pay assets to a fund who were, in turn to discharge debts pro rata. The appellant sought a third party debt order, but the respondent relied on section 13(4), saying that the buying in of the debts was a sovereign, and not a commercial, act, and it had certified it as such.
Held: The request was refused.
Arnold J said: ‘In my judgment SerVaas has no real prospect of successfully rebutting the presumption created by the Certificate for the reasons given by counsel for Iraq. In my view SerVaas’s argument wrongly conflates the transactions by which Iraq acquired the debts that are the subject of the Admitted Claims with the intended use of those assets. Iraq is not presently using those assets, but intends to pay the dividends on them to the DFI. That property is not being used to provide finance to Iraq, and it is immaterial that that property was acquired by means of bonds in the cases where the consideration took the form of bonds. Nor is the property being used or intended to be used for transactions ‘otherwise than in the exercise of sovereign authority’. Iraq has decided to transfer the distributions to the DFI in the exercise of its sovereign authority, albeit constrained in this respect by Resolution 1483, for the purposes set out in the resolution. I therefore conclude that Iraq’s Admitted Claims are entitled to immunity from execution by virtue of section 13(2)(b) of the 1978 Act.’

Arnold J
[2010] EWHC 3287 (Ch)
State Immunity Act 1978 13(4)
England and Wales
Citing:
See AlsoServaas Inc v Rafidain Bank and Others ChD 14-Dec-2010
Application for third party debt order. . .

Cited by:
At Commercial CourtServaas Incorporated v Rafidain Bank and Others CA 3-Nov-2011
A commercial debt due to the claimant from the former Iraqi government, and for which judgment had been obtained in France, had been bought from receivers by the new Iraqi Development fund. The appellants sought to secure their judgment in full by a . .
At Commercial CourtSerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International, Commercial

Updated: 02 November 2021; Ref: scu.427223

Toshiba Corporation And Others v Urad pro ochranu hospodarske souteze: ECJ 14 Feb 2012

ECJ (Grand Chamber) Competition – Cartel, in the territory of a Member State, which commenced before the accession of that State to the European Union – Cartel of international scope having effects in the territory of the Union and the European Economic Area – Article 81 EC and Article 53 of the EEA Agreement – Prosecution and sanction of the infringement for the period prior to the date of accession and the period following that date – Fines – Delimitation of the powers of the Commission and those of the national competition authorities – Imposition of fines by the Commission and by the national competition authority – Ne bis in idem principle – Regulation (EC) No 1/2003- Articles 3(1) and 11(6) – Consequences of the accession of a new Member State to the Union
The European Court considered whether Regulation 1/2003 could be applied retrospectively to conduct on the Czech market prior to date of accession: ‘According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force ( . . )
Regulation No 1/2003 contains procedural and substantive rules.
As the Advocate General has pointed out in point 43 of her Opinion, the said regulation, like Article 81 EC, contains substantive provisions which govern the assessment by the competition authorities of agreements between undertakings and therefore constitute substantive rules of EU law.
Such substantive rules cannot in principle be applied retroactively, irrespective of whether such application might produce favourable or unfavourable effects for the persons concerned. The principle of legal certainty requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained ( . . ).
51 According to settled case-law, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, the substantive rules of Community law must be interpreted as applying to situations existing before their entry into force only in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them ( . . ).
However, in the present case, neither the wording, nor the purpose, nor the general system of Article 81 EC, Article 3 of Regulation No 1/2003 and the Act of Accession contain any clear indications that those two provisions should be applied retroactively.’
The provisions of Article 81 and Article 3 of Regulation 1/2003 must be interpreted as meaning that in the context of a proceeding initiated after 1 May 2004, they do not apply to a cartel which produced effects in the territory of a Member State which acceded to the Union on 1 May 2004, during periods prior to that date.

Skouris P
C-17/10, [2012] EUECJ C-17/10 – O, [2012] EUECJ C-17/10
Bailii, Bailii
European
Cited by:
CitedEmerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .

Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 02 November 2021; Ref: scu.451295

European Commission v Stichting Administratiekantoor Portielje And Gosselin Group Nv: ECJ 29 Nov 2012

ECJ (Opinion) Appeal – Competition – Agreements, decisions and concerted practices – Article 81(1) EC and Article 53(1) EEA – Concept of an undertaking – Imputation of the infringement of the cartel rules by a trading company to a foundation which controls, directly or indirectly, all of the shares in that company, but is not economically active as such – ‘Removals cartel’ – Belgian market in international removal services

AG Kokott
C-440/11, [2012] EUECJ C-440/11, [2013] EUECJ C-440/11
Bailii, Bailii
European

Commercial

Updated: 02 November 2021; Ref: scu.466423

Sanofi-Aventis Deutschland Gmbh v Demo Anonimos Viomikhaniki Kai Emporiki Etairia Farmakon: ECJ 18 Jul 2013

sanofis-aventis_davECJ072013

ECJ Grand Chamber – Common commercial policy – Article 207 TFEU – Commercial aspects of intellectual property – Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) – Article 27 – Patentable subject-matter – Article 70 – Protection of existing subject-matter

V Skouris, P, P Cruz Villalon AG
C-414/11, [2013] EUECJ C-414/11
Bailii

European, Commercial

Updated: 01 November 2021; Ref: scu.513416

International Confederation of Societies of Authors And Composers v European Broadcasting Union: ECFI 12 Apr 2013

ECJ Competition – Agreements, decisions and concerted practices – Copyright relating to public performance of musical works via the internet, satellite and cable retransmission – Decision finding an infringement of Article 81 EC – Sharing of the geographic market – Bilateral agreements between national collecting societies – Concerted practices precluding the possibility of granting multi-territory and multi-repertoire licences – Proof – Presumption of innocence

H. Kanninen (Rapporteur), P
T-442/08, [2013] EUECJ T-442/08
Bailii
European

European, Commercial, Media, Intellectual Property

Updated: 01 November 2021; Ref: scu.472585

Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd: HL 1968

Agreement in Restraint of Trade Unenforceable

The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an agreement in restraint of trade.
Held: An agreement in restraint of trade is not generally unlawful if the parties choose to abide by it: it is only unenforceable if a party chooses not to abide by it. It was necessary to ascertain the legitimate interests of the landlords which they were entitled to protect and to discover whether those restraints exceeded what was adequate for that purpose. The doctrine of restraint of trade had no application to restraints imposed on persons who, before the transaction by which the restraints were imposed, had no right whatsoever to trade at all on the land in question.
Lord Hodson said: ‘When one remembers that the basis of the doctrine of restraint of trade is the protection of the public interest, it is not difficult to see how the law developed in its conception of reasonableness as the test which must be passed in order to save a contract in restraint of trade from unenforceability.’
Lord Reid said: ‘It has often been said that a person is not entitled to be protected against mere competition. I do not find that very helpful in a case like the present. I think it better to ascertain what were the legitimate interests of the appellants which they were entitled to protect and then to see whether these restraints were more than adequate for that purpose.’

Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Wilberforce
[1968] AC 269, [1967] UKHL 1, [1967] 1 All ER 699
Bailii
England and Wales
Citing:
CitedYoung v Timmins 1831
The servant had agreed not to work for anyone else bu the employer, but he might have been given no work and he received no remuneration for considerable periods.
Held: He had been deprived of a livelihood, and the agreement was in restraint . .
CitedNordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
CitedAttorney General of the Commonwealth of Australia v Adelaide Steamship Company PC 1913
ag_adeleaidePC1913
There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine . .
CitedMogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
CitedFoley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
CitedEnglish Hop Growers v Dering CA 1928
The defendant farmer had agreed to sell his crop of hops to the Society for five years. He failed to do so and was sued. He replied that the contract was in restraint of trade.
Held: The restraint was reasonable. Scrutton LJ allowed that it . .
CitedMcEllistrim v Ballymacelligott Co-operative Society HL 1919
The Co-operative had changed its rules to prevent any member from selling (except under heavy penalty) any milk produced by him in a large area of County Kerry to anyone except the Society, and a member could not terminate his membership without the . .
CitedServais Bouchard v Princes Hall Restaurant CA 1904
A contract by which defendant Restaurant agreed to take all burgundy sold there from the plaintiffs was held not to be void for being in restraint of trade. . .
CitedHerbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .
CitedUnited Shoe Machinery Company of Canada v Brunet PC 23-Mar-1909
(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer.
Held: The condition was not in restraint of trade. . .
CitedBiggs v Hoddinott 1898
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money. . .
CitedWarner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .

Cited by:
CitedWWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
CitedAlec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.180312

Dickson v Pharmaceutical Society of Great Britain: HL 1970

The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of the members. The effect of the rule would be that new pharmacies would have to be situated in physically distinct premises and their trading activities confined to pharmaceutical and traditional goods as defined in a report of one of the society’s committees. The main object of the society was ‘to maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy’. The respondent, a member of the society, brought an action for a declaration that the motion was ultra vires the society’s objects and in unreasonable restraint of trade.
Held: The rules against arrangement imposing restrictions on trade are not limited to particular kinds of restraint, and are not confined to contractual arrangements but apply to all restraints of trade, howsoever imposed. If the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid.
Lord Reid said: ‘ There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemist’s shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first ‘professional’, which include, besides medicines and sick room requirements, agricultural, horticultural, and industrial chemicals and various scientific and other appliances; secondly, ‘traditional’, which, largely for historical reasons include cosmetics and photographic requisites; and thirdly ‘non-traditional’, which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemist’s shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work. That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemist’s shops could survive without engaging in some degree of trading . .
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can show that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the court must be able to intervene, and in the present case there is a question whether these restrictions are within the objects of the society. In Jenkin v. Pharmaceutical Society of Great Britain it was held that certain attempts to regulate trading by the members were ultra vires. But the respondent does not dispute that the society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the society’s objects set out in the Charter. So it becomes a question whether these restrictions can properly be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemist’s shop can only sell professional or traditional goods in it, and in any existing chemist’s shop no new classes of non-traditional goods can be sold unless the council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspects of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.’

Lord Reid
[1970] AC 403
England and Wales
Cited by:
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
CitedBermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .

Lists of cited by and citing cases may be incomplete.

Company, Commercial

Leading Case

Updated: 02 November 2021; Ref: scu.221578

Union Royale Belge des societes de Football Association and others v Bosman and others: ECJ 15 Dec 1995

bosmanECJ1995

A request for the Court to order a measure of inquiry under Article 60 of the Rules of Procedure, made by a party after the close of the oral procedure, can be admitted only if it relates to facts which may have a decisive influence and which the party concerned could not put forward before the close of the oral procedure.
In the context of the cooperation between the Court of Justice and the national courts provided for by Article 177 of the Treaty, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling
Nevertheless, in order to determine whether it has jurisdiction, the Court should examine the conditions in which the case was referred to it by the national court. The spirit of cooperation which must prevail in the preliminary-ruling procedure requires the national court, for its part, to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions.
Europa
That is why the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.
Questions submitted by a national court called upon to decide on declaratory actions seeking to prevent the infringement of a right which is seriously threatened are to be regarded as meeting an objective need for the purpose of settling the dispute brought before that court, even though they are necessarily based on hypotheses which are, by their nature, uncertain, if it holds them to be admissible under its interpretation of its national law.
Having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty, as in the case of the activities of professional or semi-professional footballers, where they are in gainful employment or provide a remunerated service.
Europa
It is not necessary, for the purposes of the application of the Community provisions on freedom of movement for workers, for the employer to be an undertaking; all that is required is the existence of, or the intention to create, an employment relationship.
Rules governing business relationships between employers in a sector of activity fall within the scope of the Community provisions relating to freedom of movement for workers if their application affects the terms of employment of workers.
That is true of rules relating to the transfer of players between football clubs which, although they govern the business relationships between clubs rather than the employment relationships between clubs and players, affect, because the employing clubs must pay fees on recruiting a player from another club, players’opportunities for finding employment and the terms under which such employment is offered.
The Community provisions concerning freedom of movement for persons and freedom to provide services do not preclude rules or practices in sport which are justified on non-economic grounds which relate to the particular nature and context of certain competitions. Such a restriction on the scope of the provisions in question must remain limited to its proper objective and cannot, therefore, be relied upon to exclude the whole of a sporting activity from the scope of the Treaty.
Europa
Freedom of movement for workers, guaranteed by Article 48 of the Treaty, is a fundamental freedom in the Community system and its scope cannot be limited by the Community’s obligation to respect the national and regional cultural diversity of the Member States when it uses the powers of limited extent conferred upon it by Article 128(1) of the EC Treaty in the field of culture.
The principle of freedom of association, enshrined in Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and resulting from the constitutional traditions common to the Member States, is one of the fundamental rights which, as the Court has consistently held and as is reaffirmed in the preamble to the Single European Act and in Article F(2) of the Treaty on European Union, are protected in the Community legal order.
However, rules likely to restrict freedom of movement for professional sportsmen, laid down by sporting associations, cannot be seen as necessary to ensure enjoyment of that freedom by those associations, by the clubs or by their players, nor can they be seen as an inevitable result thereof.
The principle of subsidiarity, even when interpreted broadly to the effect that intervention by Community authorities in the area of organization of sporting activities must be confined to what is strictly necessary, cannot lead to a situation in which the freedom of private associations to adopt sporting rules restricts the exercise of rights conferred on individuals by the Treaty.
Europa
Article 48 of the Treaty not only applies to the action of public authorities but extends also to rules of any other nature aimed at regulating gainful employment in a collective manner.
The abolition as between Member States of obstacles to freedom of movement for persons would be compromised if the abolition of State barriers could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations not governed by public law. Furthermore, if the scope of Article 48 were confined to acts of a public authority there would be a risk of creating inequality in its application, inasmuch as working conditions in the different Member States are governed sometimes by provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons.
There is nothing to preclude individuals from relying, to justify restrictions on freedom of movement for workers which they may be alleged to have set up, on the grounds of public policy, public security or public health permitted by Article 48 of the Treaty. Neither the scope nor the content of those grounds of justification is in any way affected by the public or private nature of the restrictive rules in support of which they are adduced.
Europa
Article 48 of the Treaty applies to rules laid down by sporting associations which determine the terms on which professional sportsmen can engage in gainful employment.
13. The situation of a professional footballer who is a national of a Member State and, by entering into a contract of employment with a club in another Member State with a view to exercising gainful employment in that State, has accepted an offer of employment actually made within the meaning of Article 48(3)(a) of the Treaty, cannot be classified as purely internal and therefore not covered by Community law.
Article 48 of the Treaty precludes the application of rules laid down by sporting associations, under which a professional footballer who is a national of one Member State may not, on the expiry of his contract with a club, be employed by a club of another Member State unless the latter club has paid to the former club a transfer, training or development fee.
Such rules, even though they do not differ from those governing transfers within the same Member State, are likely to restrict the freedom of movement of players who wish to pursue their activity in another Member State by preventing or deterring them from leaving the clubs to which they belong even after the expiry of their contracts of employment with those clubs.
Nor are they an adequate means of achieving such legitimate aims as maintaining a financial and competitive balance between clubs and supporting the search for talent and the training of young players, since
– those rules neither preclude the richest clubs from securing the services of the best players nor prevent the availability of financial resources from being a decisive factor in competitive sport, thus considerably altering the balance between clubs,
– the fees provided for in those rules are by nature contingent and uncertain and are in any event unrelated to the actual cost of training borne by clubs and
– the same aims can be achieved at least as efficiently by other means which do not impede freedom of movement for workers.
Europa
Article 48 of the Treaty precludes the application of rules laid down by sporting associations under which, in matches in competitions which they organize, football clubs may field only a limited number of professional players who are nationals of other Member States.
Such rules are contrary to the principle of the prohibition of discrimination based on nationality as regards employment, remuneration and conditions of work and employment and it is of no relevance that they concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches, since, in so far as participation in such matches is the essential purpose of a professional player’s activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned.
Nor can those rules, which do not concern specific matches between teams representing their countries but apply to all official matches between clubs, be justified for reasons which are not of an economic nature and are of sporting interest only, such as: preserving the traditional link between each club and its country, since a football club’s links with the Member State in which it is established cannot be regarded as inherent in its sporting activity; creating a sufficient pool of national players to provide the national teams with top players to field in all team positions, since, whilst national teams must be made up of players having the nationality of the relevant country, those players need not necessarily be registered to play for clubs in that country; or maintaining a competitive balance between clubs, since there are no rules limiting the possibility for richer clubs to recruit the best national players, thus undermining that balance to just the same extent.
Europa
Except where such powers are expressly conferred upon it, the Commission may not give guarantees concerning the compatibility of specific practices with the Treaty and in no circumstances does it have the power to authorize practices which are contrary to the Treaty.
The interpretation which the Court, in the exercise of the jurisdiction conferred upon it by Article 177 of the Treaty, gives to a rule of Community law clarifies and where necessary defines the meaning and scope of that rule as it must be, or ought to have been, understood and applied from the time of its coming into force. It follows that the rule as thus interpreted can, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing before the courts having jurisdiction an action relating to the application of that rule are satisfied.
It is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the Community legal order, be moved to restrict the opportunity for any person concerned to rely upon the provision as thus interpreted with a view to calling in question legal relationships established in good faith. Such a restriction may be allowed only by the Court, in the actual judgment ruling upon the interpretation sought.
Since the specific features of the rules laid down by the sporting associations for transfers of players between clubs of different Member States, together with the fact that the same or similar rules applied to transfers both between clubs belonging to the same national association and between clubs belonging to different national associations within the same Member State, may have caused uncertainty as to whether those rules were compatible with Community law, overriding considerations of legal certainty militate against calling in question legal situations whose effects have already been exhausted.
It must therefore be held that the direct effect of Article 48 of the Treaty cannot be relied upon in support of claims relating to a fee in respect of transfer, training or development which has already been paid on, or is still payable under an obligation which arose before, the date of this judgment, except by those who have brought court proceedings or raised an equivalent claim under the applicable national law before that date.

C-415/93, [1995] EUECJ C-415/93, [1995] ECR I-4921
Bailii
Cited by:
CitedMeca-Medina and Majcen v Commission ECFI 30-Sep-2004
ECJ Competition – Freedom to provide services – Anti-doping legislation adopted by the International Olympic Committee (IOC) – Purely sporting legislation
The claimants were athletes who complained that . .
CitedViking Line Abp v International Transport Workers’ Federation and Another ComC 16-Jun-2005
The claimant sought an injunction against the respondent international union of trades unions to restrain industrial action intended to prevent its transfer of registration of a ferry plying between Finland and Estonia to Estonia. It sought also a . .
CitedInternational 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 . .
CitedApis-Hristovich v Lakorda AD (Approximation Of Laws) ECJ 5-Mar-2009
apishristovichECJ2009
Europa Directive 96/9/EC Legal protection of databases – Sui generis right – Obtaining, verification or presentation of the contents of a database – Extraction – Substantial part of the contents of a database – . .

Lists of cited by and citing cases may be incomplete.

European, Employment, Commercial, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.161205

Kone And Others (Advocate Generals Opinion): ECJ 30 Jan 2014

ECJ Opinion – Competition – Antitrust law – Private enforcement – Action for damages – Claim for compensation brought by the customer of a person not party to the cartel against the undertakings belonging to the cartel on the ground that a person not party to the cartel, benefiting from the protection of the cartel, charges inflated prices – Umbrella pricing – Direct causal link – Principle of effectiveness

Kokott AG
ECLI:EU:C:2014:45, [2014] EUECJ C-557/12
Bailii
European

Commercial

Updated: 01 November 2021; Ref: scu.521181

Team Relocations Nv v European Commission: ECJ 11 Jul 2013

ECJ Appeals – Competition – Agreements, decisions and concerted practices – Article 81 EC and Article 53 of the EEA Agreement – International removal services market in Belgium – Direct and indirect price-fixing, market-sharing and manipulation of the procedures for the submission of tenders – Single and continuous infringement – Imputability – Guidelines on the method of setting fines (2006) – Value of sales – Concept – Proportion – Additional amount – Mitigating circumstances – Obligation to state reasons – Imputability to the parent company of the infringement – Regulation (EC) No 1/2003 – Article 23(2) – Ceiling of 10% of turnover – Proportionality

M Ilesic P
C-444/11, [2013] EUECJ C-444/11
Bailii
European

Commercial

Updated: 01 November 2021; Ref: scu.512344

Shell Nederland Verkoopmaatschappij Bv v European Commission: ECFI 27 Sep 2012

ECFI Competition – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Joint control – Fines – Aggravating circumstances – Role of instigator and leader – Repeated infringement – Duration of the infringement – Rights of the defence – Unlimited jurisdiction – Conduct of the undertaking during the administrative procedure

Jaeger, P
T-343/06, [2012] EUECJ T-343/06
Bailii
European

Commercial

Updated: 01 November 2021; Ref: scu.464588

Somerfield Plc v Competition Commission: CAT 13 Feb 2006

Somerfield applied under section 120 of the 2002 Act for judicial review of the decision of the respondent, the CC as to its acquisition of stores Report concluded that the completed acquisition by Somerfield of 115 stores previously owned by Wm Morrison Supermarkets plc (‘Morrisons’) may be expected to result in a substantial lessening of competition in twelve local grocery markets in Great Britain. By way of remedial action pursuant to section 35(3) of the Act, the CC ordered Somerfield to divest itself of twelve of its stores to suitable grocery retailers approved by the CC.
Held: The request ro review failed.

[2006] CAT 4
Bailii
Enterprise Act 2002

Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.241225

Masterfoods Ltd v HB Ice Cream Ltd: ECJ 14 Dec 2000

Masterfoods Ltd, a subsidiary of Mars Inc, brought proceedings in Ireland against HB Ice Cream Ltd, a subsidiary of Unilever, for a declaration that its agreements to provide retailers with freezer cabinets on terms that they stocked only HB ice cream contravened articles 81 and 82. On 28 May 1992 the High Court dismissed the action and, on HB’s counterclaim, granted an injunction to restrain Masterfoods from inducing retailers to break their agreements by stocking Masterfoods ice cream. Masterfoods complained to the Commission, who in due course appeared to gicve conflicting opinions. The Supreme Court of Ireland referred questions as to what the duty of sincere co-operation required of it in the circumstances.
Held: Domestic courts must therefore accept a Commission decision that a prohibited agreement or practice exists. Despite the fact that the Irish proceedings were concerned with HB’s distribution arrangements prior to 1992 whereas the Commission’s decision was concerned with the altered distribution arrangements, the duty of sincere co-operation required the Supreme Court to stay its own proceedings pending final judgment in the action for annulment (unless it considered a reference on the validity of the Commission decision was warranted). When a national court has to make decision on an agreement whose compatibility with the EC Treaty had already been considered by the Commission, and there is a conflict between a decision of its own courts, and that decision of the Commission of the European Communities, it had to follow the decision of the Commission.

Times 02-Feb-2001, C-344/98, [2001] 4 CMLR 14, [2000] ECR 1-11369, [2000] EUECJ C-344/98
Bailii
EC Treaty 81(1) 82
European
Cited by:
CitedCrehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
CitedInntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
CitedDevenish Nutrition Ltd v Sanofi-Aventis Sa (France) and others CA 14-Oct-2008
The defendant had been involved in price fixing arrangements, and the claimant sought damages for breach of its proprietary rights. The claimant appealed refusal of an award an account of profits for what was akin to a breach of statutory duty.
CitedDeutsche Bahn Ag and Others v Morgan Advanced Materials Plc SC 9-Apr-2014
The Court was asked whether claims against MAM for losses suffered by reason of a cartel infringing article 81(1) TEC (now article 101 TFEU) were time-barred, and also as to substantive questions about the nature of the decisions of the European . .

Lists of cited by and citing cases may be incomplete.

Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.162491

Attorney General of the Commonwealth of Australia v Adelaide Steamship Company: PC 1913

ag_adeleaidePC1913

There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine of restraint of trade: ‘Monopolies and contracts in restraint of trade have this in common, that they both, if enforced, involve a derogation from the common law right in virtue of which any member of the community may exercise any trade or business he pleases and in such manner as he thinks best in his own interests.’
and ‘Contracts in restraint of trade were subject to somewhat different considerations. There is little doubt that the common law in the earlier stages of its growth treated all such contracts as contracts of imperfect obligation, if not void for all purposes; they were said to be against public policy in the sense that it was deemed impolitic to enforce them.’
and ‘It is only necessary to add that no contract was ever an offence at common law merely because it was in restraint of trade. The parties to such a contract, even if unenforceable, were always at liberty to act on it in the manner agreed. Similarly combinations, not amounting to contracts, in restraint of trade were never unlawful at common law. To make any such contract or combination unlawful it must amount to a criminal conspiracy, and the essence of a criminal conspiracy is a contract or combination to do something unlawful, or something lawful by unlawful means. The right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others

Lord Parker
[1913] AC 781
Citing:
CitedMogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .

Cited by:
CitedEsso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.259685

Emerald Supplies Ltd and Others v British Airways Plc: ChD 4 Oct 2017

EC has sole jurisdiction over old cartels

Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had brought into force the EU competition rules. The cartel was said to hve started in2001, but the Treaty provisions applied within the UK only from 2004.
Held: The court did ot have such jurisdiction. At the applicable time such matters were within the sole ambit of the European Commission. The UK rules had not listed the High Court as having jurisdiction. The decisions in Bosch and Asjes apply even in a case where there is very little possibility of the agreement or concerted practice in question benefiting from the application of Article 85(3).

Rose J
[2017] EWHC 2420 (Ch), [2017] WLR(D) 638
Bailii, WLRD
EUTreaty 101
England and Wales
Citing:
CitedKledingverkoopbedrijf De Geus En Uitdenbogerd v Robert Bosch Gmbh and Van Rijn ECJ 6-Apr-1962
1. Procedure – preliminary ruling – jurisdiction of the court exclusively dependent on the existence of a request
(EEC Treaty, article 177)
2. Procedure – preliminary ruling on the interpretation of the EEC treaty – request by a national . .
CitedVan Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
CitedEtablissements Consten S a R L and Grundig-Verkaufs-GmbH v Commission of the European Economic Community ECJ 13-Jul-1966
Europa Individual measure adopted by an institution – authentic text (EEC treaty, article 189) 2. Policy of the EEC – rules on competition applicable to undertakings – application of article 85 of the EEC treaty . .
CitedBelgische Radio En Televisie v Sv Sabam And Nv Fonior ECJ 30-Jan-1974
Preliminary Questions – The Brussels Tribunal de premiere instance referred a questions in proceedings relating to the enforceability of contracts between an authors’ royalties collecting society and its members who had assigned their copyrights to . .
CitedCriminal Proceedings against Asjes and Others, Gray And Others, Maillot and Others And Ludwig And Others. ECJ 30-Apr-1986
The tribunal de police de Paris sought a preliminary ruling in criminal proceedings against the executives of airlines and travel agencies, who were charged with infringing the French Civil Aviation Code when selling air tickets by applying tariffs . .
CitedAhmed Saeed Flugreisen And Silver Line Reisebuero Gmbh v Zentrale Zur Bekampfung Unlauteren Wettbewerbs EV ECJ 11-Apr-1989
The Court was asked as to the enforcement of government approved airline tariffs which were being evaded by travel agents who bought air tickets between two airports both outside Germany with the passenger boarding the plane during its stopover at a . .
CitedStergios Delimitis v Henninger Brau AG ECJ 28-Feb-1991
ECJ A beer supply agreement is prohibited by Article 85(1) of the EEC Treaty if two cumulative conditions are met. The first is that, having regard to the economic and legal context of the agreement at issue, it . .
CitedCourage Ltd and Crehan v Crehan and Courage Ltd and Others ECJ 20-Sep-2001
The company had leased a public house to the respondent. The lease was subject to a tie, under which the respondent had to purchase supplies from the company. The company came to sue for the price of beer supplied. The respondent asserted that the . .
CitedAmministrazione Delle Finanze v Srl Meridionale Industria Salumi, Fratelli Vasanelli And Fratelli Ultrocchi ECJ 27-Mar-1980
Proceedings were taken to require Mr Salumi and others to pay additional sums as levies on imports of agricultural products, on the basis that the earlier lower levy had been applied in error. Subsequently an EU regulation was enacted and the . .
CitedToshiba Corporation And Others v Urad pro ochranu hospodarske souteze ECJ 14-Feb-2012
ECJ (Grand Chamber) Competition – Cartel, in the territory of a Member State, which commenced before the accession of that State to the European Union – Cartel of international scope having effects in the . .
CitedO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .

Lists of cited by and citing cases may be incomplete.

Commercial, European, Transport

Updated: 01 November 2021; Ref: scu.597467

Coditel Brabant v Commune d’Uccle, Region de Bruxelles-Capitale (Law Relating To Undertakings): ECJ 13 Nov 2008

ECJ Public procurement – Tendering procedures Public service concessions – Concession for the operation of a municipal cable television network – Awarded by a municipality to an inter-municipal cooperative society – Obligation of transparency – Conditions – Whether the control exercised by the concession-granting authority over the concessionaire is similar to that exercised over its own departments.
‘Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (Stadt Halle, para 48).
49. That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities . .’
And ‘According to the case law, the control exercised over the concessionaire by a concession-granting public authority must be similar to that which the authority exercises over its own departments, but not identical in every respect (see, to that effect, Parking Brixen, para 62). The control exercised over the concessionaire must be effective, but it is not essential that it be exercised individually.
Secondly, where a number of public authorities elect to carry out their public service tasks by having recourse to a municipal concessionaire, it is usually not possible for one of those authorities, unless it has a majority interest in that entity, to exercise decisive control over the decisions of the latter. To require the control exercised by a public authority in such a case to be individual would have the effect of requiring a call for competition in the majority of cases where a public authority seeks to join a grouping composed of other public authorities, such as an inter-municipal cooperative society.
Such a result, however, would not be consistent with Community rules on public procurement and concession contracts. Indeed, a public authority has the possibility of performing the public interest tasks conferred on it by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments (Stadt Halle, para 48).
That possibility for public authorities to use their own resources to perform the public interest tasks conferred on them may be exercised in cooperation with other public authorities (see, to that effect, Asemfo, para 65).
It must therefore be recognised that, where a number of public authorities own a concessionaire to which they entrust the performance of one of their public service tasks, the control which those public authorities exercise over that entity may be exercised jointly.’

[2008] ECR I-8457, [2008] EUECJ C-324/07
Bailii
European
Cited by:
CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
CitedBrent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .

Lists of cited by and citing cases may be incomplete.

Local Government, Commercial

Updated: 01 November 2021; Ref: scu.277858

The Case of Monopolies; Darcy v Allein: 1572

Origin of Patents Rights in the Crown

Darcy challenged the grant of an exclusive right to produce cards to the defendant.
Held: The grant of exclusive rights to produce any article was improper. However, where someone creates through his own actions and bring into trade a new and previously unknown engine, it is within the power of the king to grant hima monopoly patent for a reasonable time so that he may produce the item for the general benefit.

[1572] EngR 398, (1572-1616) 11 Co Rep 84, (1572) 77 ER 1260, (1602) Noy 173, (1602) Moore KB 671, (1602) 1 Web Pat Cas 1, (1602) 74 ER 1131
Commonlii
England and Wales

Intellectual Property, Commercial, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.432364

Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The “Diana Prosperity”): HL 1976

In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. The real issue is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the enquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind.
Lord Wilberforce commented on the Wooler case saying: ‘I think that all of their Lordships are saying, in different words, the same thing — what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were’.
Lord Wilberforce said: ‘No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.’

Lord Wilberforce
[1976] 1 WLR 989, [1976] 2 Lloyd’s Rep 621, [1976] 3 All ER 570
England and Wales
Citing:
ExplainedCharrington and Co Ltd v Wooler HL 1914
The court is entitled to know the surrounding circumstances which prevailed when the contract was made. A contract is not to be construed in a vacuum. The term ‘market’ did not have a ‘fixed legal significance’ .
Lord Dunedin said: ‘in order to . .

Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedYouell and Others v Bland Welch and Co Ltd and Others CA 1992
The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
Held: Staughton LJ said: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, . .
CitedBruton v London and Quadrant Housing Trust HL 24-Jun-1999
The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
Held: The housing association had a temporary licence to . .
CitedCatnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedMcDowall v Inland Revenue SCIT 26-Jun-2003
Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
CitedBarclays Bank Plc v Weeks Legg and Dean (a Firm); Barclays Bank Plc v Lougher and Others; Barclays Bank Plc v Hopkin John and Co CA 21-May-1998
The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
CitedCrancour Ltd v Da Silvaesa and Another CA 26-Feb-1986
The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
CitedPersimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
CitedIslam, Regina v HL 10-Jun-2009
The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
Held: The appeal failed. The court could take account of the illegal . .
CitedBerrisford v Mexfield Housing Co-Operative Ltd SC 9-Nov-2011
The tenant appealed against an order granting possession. The tenancy, being held of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it . .
CitedMarley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
CitedWood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .

Lists of cited by and citing cases may be incomplete.

Commercial, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.184430

Humber Oil Terminals Trustee Ltd v Associated British Ports: ChD 24 Feb 2011

The claimant sought to renew its leases of docking facilities from the landlord defendant. The defendant resisted saying it intended to operate its own business, and the claimant now alleged that the defendant was abusing its dominant position to demand excessive rents. The defendant sought to strike out that part of the claim.
Held: The allegation of abuse of dominant position failed. It was not the case that a proposal, made in the course of negotiations, of a rent or price which is excessive can without more constitute the imposition of an unfair rent or price for the purposes of section 18 and Article 102. Furthermore the claimant had failed to particularise the allegation. The related parts of the claim were struck out.

Sir Andrew Morritt
[2011] EWHC 352 (Ch)
Bailii
Landlord and Tenant Act 1954 30(1)(g), Competition Act 1998 18
England and Wales
Citing:
CitedCunliffe v Goodman CA 1950
The court looked at the intention required of a landlord to show an intended purpose to oppose renewal of a lease. Asquith LJ said: ‘An ‘intention’ to my mind connotes a state of affairs which the party ‘intending’ – I will call him X – does more . .
MentionedChez Gerard Ltd v Greene CA 1983
. .
CitedBHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
CitedSel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .
CitedNigeria v Santolina Investment Corp and others ChD 7-Mar-2007
The federal government sought to recover properties from the defendants which it said were the proceeds of corrupt behaviour by the principal defendant who had been State Governor of a province. The claimant sought summary judgment.
Held: . .
CitedNorthern Electric Plc v Addison CA 12-Jun-1997
The appellant challenged the terms of an order granting it a new lease under the Act. The landlord sought to have included an upwards only rent review. There was a ransom element since the plot was used as a base for an electricity sub-station which . .
CitedAttheraces Ltd and Another v The British Horseracing Board Ltd and Another CA 2-Feb-2007
The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly . .
CitedMerci Convenzionali Porto di Genova v Siderurgica Gabrielli (Judgment) ECJ 10-Dec-1991
ECJ 1. The concept of worker within the meaning of Article 48 of the Treaty pre-supposes that for a certain period of time a person performs services for and under the direction of another person in return for . .

Cited by:
See AlsoHumber Oil Terminals Trustee Ltd v Associated British Ports ChD 11-May-2011
. .
See AlsoHumber Oil Terminals Trustee Ltd v Associated British Ports ChD 27-Jun-2011
Pre-trial review of pending trial. The court ordered the hearing of a preliminary issue being: ‘the issue of whether the Defendant intends to occupy the holdings for the purposes, or partly for the purposes, of a business to be carried on by it . .
See AlsoHumber Oil Terminals Trustee Ltd v Associated British Ports ChD 29-Jul-2011
. .
See AlsoHumber Oil Terminals Trustee Ltd v Associated British Ports CA 27-Jan-2012
. .
See AlsoHumber Oil Terminals Trustee Ltd v Associated British Ports CA 10-May-2012
The tenant appealed against a finding that the landlord was entitled to resist renewal of its lease under the 1954 Act challenging the stated intention of the landlord to occupy the premises for its own business purposes. It said that the proposed . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Commercial

Updated: 01 November 2021; Ref: scu.430245

European Commission v Verhuizingen Coppens Nv: ECJ 6 Dec 2012

ECJ Appeal – Competition – Agreements, decisions and concerted practices – Article 81 EC and Article 53 of the EEA Agreement – International removal services market in Belgium – Cartel involving three individual agreements – Single and continuous infringement – Failure to prove that an undertaking party to an individual agreement was aware of the other individual agreements – Annulment, in whole or in part, of the Commission decision – Articles 263 TFEU and 264 TFEU

L. Bay Larsen AP
C-441/11, [2012] EUECJ C-441/11
Bailii
European

Commercial

Updated: 01 November 2021; Ref: scu.467083

Fresh Del Monte Produce, Inc v European Commission: ECFI 14 Mar 2013

ECFI Competition – Agreements, decisions and concerted practices – Market in bananas – Decision finding an infringement of Article 81 EC – Information exchange system – Concept of a concerted practice having an anti-competitive object – Causal link between the collusion and the conduct of the undertakings on the market – Single infringement – Imputation of the infringement – Rights of the defence – Fines – Gravity of the infringement – Cooperation – Mitigating circumstances

L. Truchot, P
T-587/08, [2013] EUECJ T-587/08
Bailii
European

Commercial

Updated: 01 November 2021; Ref: scu.471905

Masco Corp v European Commission: ECFI 16 Sep 2013

masco_ecECJ2013

ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Single infringement

Pelikanova P
T-378/10, [2013] EUECJ T-378/10
Bailii

European, Commercial

Updated: 01 November 2021; Ref: scu.515271