Orkem v Commission (Judgment): ECJ 18 Oct 1989

The court considered the powers of the Commission to demand information in an investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to ‘obtain all necessary information’ from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions which in effect required Orkem to confess that it had acted unlawfully.
Held: The Commission was entitled to ask for factual information, even if it might be incriminating: ‘Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation.’ It followed that: ‘the questions . . relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant’s possession relating thereto, are not open to criticism.’ What was objectionable was questions such as the request for particulars of ‘every step or concerted measure which may have been envisaged or adopted to support such price initiatives’ which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the ‘need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order.’ The court concluded: ‘The Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.’

Citations:

C-374/87, [1989] ECR 3283, [1989] EUECJ C-374/87

Links:

Bailii

Jurisdiction:

European

Cited by:

CitedOffice of Fair Trading v Not Named (D) ComC 14-May-2003
The Office sought a warrant to enter the respondent’s premises.
Held: The powers which allowed entry by force into the premises by the Office were granted in pursuace of a legitimate aim. The Office had vital responsibility for the maintenance . .
CitedRegina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 23 May 2022; Ref: scu.134766

Gestetner Holdings v Council and Commission: ECJ 14 Mar 1990

ECJ 1. The rejection by the Commission of a proposed undertaking in the course of an anti-dumping proceeding is not a measure having binding legal effects of such a kind as to affect the interests of the traders concerned, because the Commission may revoke its decision or the Council may decide not to introduce an anti-dumping duty . Such a rejection is an intermediate measure whose purpose is to prepare for the final decision, and is not therefore a measure which may be challenged by an action for its annulment.
It is by challenging the regulation introducing definitive anti-dumping duties that traders can raise any irregularity associated with the rejection of their proposed undertakings.
2. A regulation imposing different anti-dumping duties on a series of traders is of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings.
3. Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally. Nevertheless, it is conceivable that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping.
This is true in general of producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations.
The same is true of those importers whose resale prices were taken into account for the construction of export prices, and those traders, limited in number and identified by the institutions, whose business dealings with the producer of the products concerned display particular features which were taken into account in the construction of the normal value and in the calculation of the weighted dumping margin on the basis of which the anti-dumping duty was fixed.
4. The fact that Article 2(8)(b ) of Regulation No 2176/84 mentions only the allowances to be made for all costs incurred between importation and resale does not preclude the making of allowances, when the export price is constructed on the basis of the price paid by the first independent purchaser, to take account of the costs associated with the activities prior to importation of a subsidiary of the exporting manufacturer, where such costs are normally borne by the importer and, in practice, reduce the amount received by the exporting manufacturer.
5. Article 4(5 ) of Regulation No 2176/84 shows that it is for the institutions, in the exercise of their discretion, to determine whether they should, for the purpose of determining whether there is injury justifying the imposition of an anti-dumping duty, exclude from the ‘Community industry’ producers which are related to exporters or importers or are themselves importers of the dumped product . The discretion must be exercised on a case-by-case basis, subject to review by the Court, by reference to all the relevant facts.
6. The question whether, in the event of dumping by producers in non-member countries, the interests of the Community call for Community intervention involves appraisal of complex economic situations . Judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.
7. Article 10 of Regulation No 2176/84 does not rule out the possibility for the Commission of accepting an undertaking offered by an importer, but its wording implies that such an undertaking may be accepted only in exceptional cases . Article 10(4) and (6), dealing with the continuation of the investigation after the acceptance of undertakings and the introduction of anti-dumping duties after the withdrawal of an undertaking or the discovery that it has been infringed, refers only to exporters, that is to say, those traders whose undertakings may a priori be accepted .

Citations:

C-156/87, [1990] EUECJ C-156/87

Links:

Bailii

Statutes:

Regulation No 2176/84

European, Commercial

Updated: 23 May 2022; Ref: scu.134626

British-American Tobacco Company Ltd, R J Reynolds Industries Inc v Commission Of The European Communities: ECJ 17 Nov 1987

ECJ (Competition )
1. An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation.
Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing.
The obligation of professional secrecy laid down in article 214 of the treaty and article 20(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets.
The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.

2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty.
Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business.
That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company.
Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1 ) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.

5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.

Citations:

C-156/84, [1987] EUECJ C-156/84

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 22 May 2022; Ref: scu.215536

Sharp Corporation v Council of the European Communities: ECJ 5 Oct 1988

ECJ 1. Common commercial policy – Protection against dumping practices – Dumping margin – Determination of the normal value – Constructed value – Taking into account a reasonable profit margin (Council Regulation No 2176/84, Art. 2 (3) (b) (ii)) 2. Common commercial policy – Protection against dumping practices – Dumping margin – Comparison between the normal value and the export price – Choice of the level of trade at which the values to be compared are determined -Taking into account the specific features of the commercial organization of the manufacturer concerned – Legality (Council Regulation No 2176/84, Art. 2 (9))
1. Where the Community institutions are obliged, under the procedure for calculating anti-dumping duties, to take the constructed value as a basis for establishing the normal value, they are entitled to adopt as a reasonable profit margin the margin obtained on the domestic market of the country of manufacture for similar products by a competitor of the manufacturer practising the dumping, particularly where they adopt the margin of the competitor with the lowest profit, and it is no defence to argue that the information in question is not known to the manufacturer concerned. Where it is impossible to take real prices as a basis, references to factors not known to the manufacturer concerned are often necessary under the system laid down by Regulation No 2176/84 and the degree of unforeseeability resulting therefrom has to be accepted. 2. Under the procedure for calculating anti-dumping duties, the Community institutions are not mistaken in making, for the purpose of establishing the dumping margin, a comparison between export prices established at the manufacturer’ s ‘ex-factory’ level and a constructed normal value at the ‘ex-exclusive distributor’ level, where it is apparent that, in view of the particular commercial structure adopted by the manufacturers of the exporting country which consists in entrusting to an exclusive distributor tasks normally carried out by a sales department, only the price charged by that distributor can be regarded as the normal value of the product. It is of little importance that the exclusive distributor does not sell the dumped products, since the normal value of those products must be constructed as if they had been sold on the domestic market.

Citations:

Case 301/85, C-301/85, [1988] EUECJ C-301/85

Links:

Bailii

European, Commercial

Updated: 22 May 2022; Ref: scu.134223

Brother Industries Ltd v Commission of the European Communities (Rec 1988,P 5655) (Judgment): ECJ 5 Oct 1988

Europa Application for a declaration that a measure is void – Action brought against a regulation imposing a provisional anti-dumping duty – Adoption during the proceedings of a regulation (also challenged) imposing a definitive anti-dumping duty at a lower rate, which was rendered applicable ab initio – Application devoid of purpose – Decision unnecessary (EEC Treaty, Art. 173)
An application against a regulation imposing a provisional anti-dumping duty becomes devoid of purpose, with the result that the Court no longer has to give a decision upon it, where that regulation is replaced during the proceedings by a regulation – which is also challenged by the applicant -imposing a definitive anti-dumping duty and the definitive rate of duty, which is lower than the rate of the provisional duty, applies to the collection of the amounts secured by the latter.

Citations:

Case 56/85, C-56/85, [1988] EUECJ C-56/85

Links:

Bailii

European, Commercial

Updated: 22 May 2022; Ref: scu.134056

Hydrotherm Geratebau gmbh v Compact del Dott Ing Mario andreoli and c Sas: ECJ 12 Jul 1984

Europa In competition law, the term ‘ undertaking ‘ must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal. Regulation nr 67/67 of the commission on the application of article 85 (3) of the treaty to categories of exclusive dealing agreements must be applied even if several legally independent undertakings participate in the agreement as one contracting party provided that those undertakings constitute an economic unit for the purposes of the agreement. In those circumstances competition between the persons participating together, as a single party, in the agreement in question is impossible.
Regulation no 67/67 is applicable where the obligations entered into cover not only a defined area of the common market but also countries outside the community.
Article 3 (b) (1) of regulation no 67/67 must be interpreted as excluding an agreement from block exemption only if it is clear from the actual terms of the agreement or from the conduct of the parties that they intend to use, or are in fact using, an industrial property right in such a way as to prevent or impede, with the aid of that right, parallel imports into the territory covered by the exclusive dealership. The fact that an agreement does not contain any provision to prevent abuse of an industrial property right is not in itself a sufficient reason for excluding that agreement from the application of regulation no 67/67.

Citations:

[1984] ECR 2999, C-170/83, R-67/67, [1984] EUECJ R-67/67

Links:

Bailii

Cited by:

CitedAdidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Commercial

Updated: 22 May 2022; Ref: scu.133688

Philip Morris v Commission: ECJ 17 Sep 1980

ECJ When state financial aid strengthens the position of an undertaking compared with other undertakings competing in intra-community trade the latter must be regarded as affected by that aid. In the application of article 92 (3) of the EEC Treaty the commission has a discretion the exercise of which involves economic and social assessments which must be made in a community context. The commission is entitled to regard an aid project as not meeting the requirements of article 92 (3) (b) if such an aid would have permitted the transfer of an investment which could be effected in other member states in a less favourable economic situation than that of the member state in which the recipient undertaking is located.

Citations:

C-730/79, [1980] EUECJ C-730/79

Links:

Bailii

European, Commercial

Updated: 21 May 2022; Ref: scu.132939

Hoffmann-La Roche v Commission: ECJ 13 Feb 1979

ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking’s opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.

Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.

Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called” english” clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.

Citations:

C-85/76, [1979] EUECJ C-85/76, [1979] ECR 461

Links:

Bailii

Cited by:

CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
CitedChester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.

European, Commercial, Natural Justice

Updated: 21 May 2022; Ref: scu.132487

United 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 area in which it is marketed and where the conditions of competition are sufficiently homogeneous for the effect of the economic power of the undertaking concerned to be able to be evaluated. For the product to be regarded as forming a market which is sufficiently differentiated from other fruit markets it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible. The dominant position referred to in article 86 relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. In general a dominant position derives from a combination of several factors which, taken separately, are not necessarily determinative. A trader can only be in a dominant position on the market for a product if he has succeeded in winning a large part of this market. However an undertaking does not have to have eliminated all opportunity for competition in order to be in a dominant position. An undertaking’s economic strength is not measured by its profitability ; a reduced profit margin or even losses for a time are not incompatible with a dominant position, just as large profits may be compatible with a situation where there is effective competition. The fact that an undertaking’s profitability is for a time moderate or non-existent must be considered in the light of the whole of that undertaking’s operations. The fact that an undertaking forbids its duly appointed distributors to resell the product in question in certain circumstances is an abuse of the dominant position since it limits markets to the prejudice of consumers and affects trade between member states, in particular by partitioning national markets.
Europa An undertaking in a dominant position for the purpose of marketing a product – which cashes in on the reputation of a brand name known to and valued by the consumers – cannot stop supplying a long- standing customer who abides by regular commercial practice, if the orders placed by that customer are in no way out of the ordinary. Such conduct is inconsistent with the objectives laid down in article 3 (f) of the treaty, which are set out in detail in article 86, especially in paragraphs (b) and (c), since the refusal to sell would limit markets to the prejudice of consumers and would amount to discrimination which might in the end eliminate a trading party from the relevant market. If the occupier of a dominant position, established in the common market, aims at eliminating a competitor who is also established in the common market, it is immaterial whether this behaviour relates to trade between member states once it has been shown that such elimination will have repercussions on the patterns of competition in the common market. The policy of differing prices enabling UBC to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage is an abuse of a dominant position. Charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied may be an abuse of a dominant position within the meaning of subparagraph (a) of article 86 ; this excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin.
Europa ‘ . . the charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied would be an abuse.
This excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin; . .
The questions therefore to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, if the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products.’

Citations:

C-27/76, [1978] EUECJ C-27/76, [1978] ECR 207

Links:

Bailii

Citing:

See AlsoUnited Brands v Commission ECJ 5-Apr-1976
. .

Cited by:

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 . .
CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
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 . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 21 May 2022; Ref: scu.132436

Procureur de la Republique de Besancon v Les Sieurs Bouhelier and others: ECJ 3 Feb 1977

The expression ‘quantitative restrictions on exports and any measures having equivalent effect’ contained in article 34 of the EEC Treaty must be understood as applying to rules adopted by a member state which require in respect only of the export of certain goods either a licence or a standards certificate which is issued in place of such licence and may be refused if the quality does not conform to certain standards laid down by the body issuing the said certificate, even if such certificate does not give rise to the imposition of a charge.

Citations:

R-53/76, [1977] EUECJ R-53/76, C-53/76

Links:

Bailii

European, Commercial

Updated: 21 May 2022; Ref: scu.132460

EGL And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Definition of the market – Effect on trade between Member States – Cooperation – Partial immunity from a fine

Citations:

T-251/12, [2016] EUECJ T-251/12, ECLI:EU:T:2016:114

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560481

Kuhne + Nagel International And Others v Commission: ECFI 29 Feb 2016

ECJ (Judgment) Competition – Cartels – International air transit services – Decision finding an infringement of Article 101 TFEU – Extra charges and pricing mechanisms that affect the final price – Effect on trade between Member States – Assessment errors – Duration of offense – amount of the fine – Paragraph 13 of the guidelines for calculating the amount of fines 2006 – sales value – mitigating circumstances – Proportionality – Rights of the defense

Citations:

T-254/12, [2016] EUECJ T-254/12, ECLI:EU:T:2016:113

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560485

Deutsche Bahn And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Evidence contained in an application for immunity – Protection of the confidentiality of communications between lawyers and clients – Code of Conduct rules on the duty of loyalty and prohibition on double representation – Fiduciary duties – Whether unlawful conduct can be attributed – Choice of companies – Fines – Proportionality – Gravity of the infringement – Mitigating circumstances – Equal treatment – Cooperation – Partial immunity from a fine – Unlimited jurisdiction – Settlement – 2006 Guidelines on the method of setting fines

Citations:

T-267/12, [2016] EUECJ T-267/12

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560480

Commission of the European Communities v Italian Republic: ECJ 10 Dec 1968

ECJ 1. Obligations of member states – failure to fulfil – action by the commission before the court of justice – bringing the action – timing – discretion of the commission (EEC treaty, article 169) 2. Free movement of goods – goods – concept – article possessing artistic or historic value (EEC treaty, article 9) 3. Free movement of goods – articles possessing artistic or historic value – charges on exports – charge having an effect equivalent to a customs duty (EEC treaty, article 16) 4. Free movement of goods – customs duties and quantitative restrictions – nature of each – difference – prohibitions and restrictions for the protection of national treasures – special nature – strict construction (EEC treaty, articles 16 and 36) 5. Free movement of goods – prohibitions and restrictions for the protection of national treasures – limits to be observed by member states regarding the object and nature of the means adopted – incompatibility with the treaty of a charge on the export of articles of artistic or historic value (EEC treaty, article 36) 1. It is for the commission, under article 169 of the treaty, to judge at what time it shall bring an action before the court; and the considerations which determine its choice of time cannot affect the admissibility of the action, which follows only objective rules. 2. By goods, within the meaning of article 9 of the EEC treaty, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. The rules of the common market apply to articles possessing artistic or historic value subject only to the exceptions expressly provided by the treaty. 3. Any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty is deemed to be a charge having an effect equivalent to a customs duty within the meaning of article 16 of the EEC treaty. A tax levied on the exportation of articles possessing artistic or historic value falls within the prohibition contained in article 16 by reason of the fact that export trade in the goods in question is hindered by the pecuniary burden which it imposes on the price of the exported articles. 4. The prohibitions or restrictions on imports and exports referred to in article 36 of the EEC treaty are by nature clearly distinguished from customs duties and assimilated charges whereby the economic conditions of importation or exportation are affected without restricting the freedom of decision of those involved in commercial transactions. Because such measures constitute an exception to the fundamental principle of the elimination of all obstacles to the free movement of goods between member states, they must be strictly construed. 5. The prohibitions and restrictions referred to in article 36 of the EEC treaty cannot justify the retention of measures, such as customs duties or charges having equivalent effect, which fall outside the scope of the prohibitions referred to in the chapter relating to the elimination of quantitative restrictions between member states. In order to avail themselves of article 36, member states must observe the limitations imposed by that provision both as regards the objective to be obtained and as regards the nature of the means used to attain it. The levy of a tax on the exportation of goods possessing artistic or historic value is incompatible with the provisions of the treaty.

Citations:

C-7/68, [1968] EUECJ C-7/68

Links:

Bailii

European, Commercial, Customs and Excise

Updated: 20 May 2022; Ref: scu.131870

Zenziper Grains and Feed Stuffs v Bulk Trading Corporation Ltd: CA 23 Jan 2001

Where a standard form free-on-truck (FOT) delivery contract provided for several possible destinations for delivery, the responsibility for specifying the place of delivery fell on the seller. There was no proper analogy with an FOB contract. The vessel would be chartered by the seller, and delivered to a port agreed between the seller and the ship-owner, and the characteristics of the ship itself could restrict and control the port of delivery. There would be likely to be other goods consigned also, and it would not make commercial sense for the buyer to specify the port of delivery.

Citations:

Times 23-Jan-2001, [2000] EWCA Civ 307

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Commercial, Transport

Updated: 20 May 2022; Ref: scu.90687

France v ECSC High Authority: ECJ 21 Dec 1954

ECJ Several related decisions may be contested in a single application. Nowhere does the treaty prescribe that any infringement of the rules governing price publication amounts in itself to one of the practices prohibited under article 60 (1). the absence of any precise definition by the high authority of the meaning of exceptional transactions and comparable transactions does not make the concept of discrimination meaningless. The comparability-like the exceptional nature-of a transaction can only be assessed in the light of the state of the market. The duty to make the price-lists and conditions of sale public allows of no exception. The price-lists must precede any sale effected in the common market. The treaty requires the publication of exact prices. It is not enough to publish average or approximate prices. The powers conferred on the high authority by the words contained in article 60 (2) ‘ to the extent and in the manner prescribed by the high authority ‘ are powers to prescribe the extent, that is to say, the scope, of publications, in so far as it is a question of settling their details. On the other hand, they do not make it possible to set up a system providing for mean variations from published prices, which would have the effect of authorizing disregard of published price-lists. The extent of the publication of price-lists is insufficient if they are communicated only to the high authority; the high authority must ensure that the price-lists are made available to anyone interested. The power to obtain information provided for in article 47 of the treaty can lawfully be used in order inter alia to supervise the observance of the rules on non-discrimination and on the publication of price-lists. When adopting the measures necessary for the implementation of article 60, the high authority has not merely a right but a duty to take into account all the aims laid down in articles 2, 3 and 4, such as the fixing of prices at as low a level as possible and the attempt to prevent prohibited agreements. Consequently, in order to achieve the latter two aims, the high authority is not bound to confine itself exclusively to the measures provided for in articles 61 and 65. Where more than one aim is being pursued, even if the grounds for a decision include improper grounds in addition to the valid ones, this would not make the decision invalid for misuse of powers, provided that the decision does not sacrifice the main aim.

Citations:

C-1/54

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.131527

K/S Merc-Scandia XXXXII v Underwriters to Lloyd’S Policy 25T 1054 87 and Others: QBD 20 Jul 2000

The Insurers had avoided a policy after a claim had been brought, and the insured had produced a fraudulent document. Having won their case, the applicants sought to enforce the award against the insurers. The insurers were held not to be excused under the policy. The duty of good faith applied on matters up to the claim, but need not apply to all questions which arose after a claim had been validly made. The forged document did not demand that the insurers assume any new risk, and the insurers remained answerable.

Citations:

Gazette 20-Jul-2000, Times 08-Aug-2000

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

CitedVersloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Appeal fromK/S Merc-Scandia XXXXII v Underwriters to Lloyd’s Policy 25T 1054 and Others CA 31-Jul-2001
The owners of the ‘MERCANDIAN CONTINENT’ had obtained judgment in earlier High Court proceedings against a Trinidadian shipyard for damage caused by negligent repair work. Jurisdiction in the earlier proceedings had been founded on an agreed . .
Lists of cited by and citing cases may be incomplete.

Commercial, Insurance

Updated: 20 May 2022; Ref: scu.82659

Telecom Corporation of New Zealand Ltd v Clear Communications Ltd: 1995

(New Zealand) A trader is entitled, before he enters upon a line of conduct which is designed to affect his competitors, to know with some certainty whether or not what he proposes to do is lawful. The meaning and effect of section 36 of the 1986 Act is that use of a dominant position otherwise than for one of the proscribed purposes does not constitute a breach. Nor does the fact that a person has acted in order to achieve one of the proscribed purposes constitute a breach unless he has used his dominant position to achieve those purposes. The minority say that the purpose of section 36 is to prevent use of a dominant position for the purpose of stifling competition.

Citations:

[1995] 1 NZLR 385

Statutes:

Commerce Act 1986 36(1)

Jurisdiction:

England and Wales

Cited by:

CitedCarter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 19 May 2022; Ref: scu.199227

MD Foods v Baines and others: ChD 1995

An agreement between a dairy and a milk roundsman under which the agreed not to sell milk to each others clients was not registerable as a restrictive trade practice.

Judges:

Sir John Vinelott

Citations:

[1995] ICR 296

Jurisdiction:

England and Wales

Cited by:

Appeal fromMD Foods v Baines and others CA 1996
The parties agreed to buy and sell milk but not to each others customers. The agreement was a restricve trade parctice and was void for not having been registered. . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 19 May 2022; Ref: scu.197745

British-American Tobacco Company Ltd and R J Reynolds Industries Inc v Commission of the European Communities: ECJ 17 Nov 1987

Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.

Citations:

Joined Cases 142 and 156/84, C-142/84

Jurisdiction:

European

Company, Judicial Review, Commercial

Updated: 19 May 2022; Ref: scu.133897

Ingmar 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 principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)

Citations:

Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O

Links:

Bailii, Bailii

Statutes:

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 17

Citing:

Reference fromIngmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .

Cited by:

At ECJIngmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
CitedHonyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
CitedRossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 19 May 2022; Ref: scu.82330

Ed Sri v Italo Fenocchio Case C-412-97 Ecj/Cfi Bulletin 18/99, 3: ECJ 6 Oct 1999

Where a seller of goods wished to pursue a debtor in another member state who defaulted, it was not in improper interference with the free movement of goods to make unavailable in a summary form an action which would require service of proceedings abroad.

Citations:

Gazette 06-Oct-1999

Statutes:

ECTreaty Art 29

Commercial, European

Updated: 19 May 2022; Ref: scu.80248

Deutsche Post Ag v Gesellschaft Mbh and Another: ECJ 15 Mar 2000

Where there was no agreement in place between two member states as to the terms upon which one would accept and deliver mail coming in to the receiving country for the other, it was proper to make a charge. That charge should not however seek to recover the entire cost of the onward delivery of the mail within the borders. Such a demand would be in breach of European law.

Judges:

G. Rodriguez Iglesias, P

Citations:

Times 15-Mar-2000, C-148/97, C-147/97, [2000] EUECJ C-147/97, [2000] EUECJ C-148/97

Links:

Bailii, Bailii

European, Commercial

Updated: 19 May 2022; Ref: scu.79940

Courage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey: CA 14 Jun 1999

There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to set of his claim against rent due. The claim for damages on the basis that the tie contravened the Treaty was referred to the European Court.

Citations:

Gazette 27-Jun-1999, Times 14-Jun-1999, [1999] EWCA Civ 1500, [2001] 3 WLR 1646, [1999] EuLR 834

Links:

Bailii

Statutes:

EC Treaty Art 81

Jurisdiction:

England and Wales

Citing:

See AlsoCrehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .
Appeal fromCourage Limited v Crehan ChD 25-Nov-1998
. .

Cited by:

Appeal fromCourage 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 . .
See AlsoCrehan 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 . .
See AlsoInntrepreneur 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: . .
See AlsoCourage Ltd v Crehan CA 12-Nov-2001
. .
See AlsoCrehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Contract, European

Updated: 19 May 2022; Ref: scu.79562

CMC Motorradcenter Gmbh v Baskiciullari: ECJ 13 Oct 1993

ECJ Obligation to provide information was too vague to be a restriction on trade – Article 30 of the Treaty does not preclude a rule established in the courts of a Member State from imposing an obligation to provide information prior to contract, as a result of which a parallel importer is under an obligation to inform purchasers of a given branded product that certain authorized dealers in that brand refuse to perform services under the guarantee for products which have been the subject of parallel imports.
On the one hand, such an obligation applies without distinction to all contractual relations and is not intended to regulate trade, and on the other hand an obstacle to the free movement of goods cannot result from that obligation but from the practice of authorized dealers, so that any restrictive effects which it might have are too indirect and uncertain to warrant the conclusion that it is liable to hinder trade between Member States.

Judges:

M Diez de Velasco, P

Citations:

Times 27-Oct-1993, C-93/92, [1993] EUECJ C-93/92

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 19 May 2022; Ref: scu.79238

Commission v Solvay Sa Joined Cases C-287/95P and C-288/95P; Same v Imperial Chemical Industries Plc Case C-286/95P: ECJ 6 Apr 2000

The text of a decision of the Commission only took effect if authenticated, and the decision was void unless so authenticated. The fact if so that no separate damage flowed from that failure, and that no other procedural defect applied could not rescue the decision. The requirement was fundamental and was required under the Treaty. It formed an essential part of the procedure and was necessary to allow certainty.
ECJ (Competition) Appeal – Actions for annulment – Pleas in law – Infringement of essential procedural requirements – Failure to authenticate decisions adopted by the college of Commissioners – Issue that may be raised of the Court’s own motion.

Citations:

Times 14-Apr-2000, [2000] EUECJ C-288/95P

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 19 May 2022; Ref: scu.79305

Barret Mckenzie and Co Ltd v Escada (UK) Ltd: QBD 1 Feb 2001

The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.

Judges:

Bowers J

Citations:

Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053

Citing:

CitedKing v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .

Cited by:

CitedLonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Commercial, European, Damages

Updated: 18 May 2022; Ref: scu.78249

Sinclair Collis Ltd v Lord Advocate: SCS 2012

The pursuer, a cigarette vending machine operator, challenged section 9 of the 2010 Act saying that the section was incompatible with its rights under article A1P1 of the Convention, and with article 34 of the Treaty on the Functioning of the European Union.
Held: The claim failed.

Citations:

[2012] CSIH 80

Statutes:

European Convention on Humana Rights A1P1

Cited by:

CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Lists of cited by and citing cases may be incomplete.

Scotland, European, Commercial, Human Rights

Updated: 15 May 2022; Ref: scu.468782

Close Asset Finance Ltd v Care Graphics Machinery Ltd: QBD 21 Mar 2000

A hire agreement provided that after the payment of substantial sums over the period of hire, the hirers could exercise an option to purchase the equipment for fifty pounds. They purported to sell the equipment before the end of the lease, but the question arose of whether they could give good title.
Held: However likely it was that the option would be exercised, there was no obligation on the hirer to exercise it, and there was therefore no binding agreement to buy, and he could not give good title, despite having possession of the equipment.

Citations:

Times 21-Mar-2000, Gazette 23-Mar-2000

Statutes:

Sale of Goods Act 1979 25(1)

Consumer, Contract, Commercial

Updated: 15 May 2022; Ref: scu.79231

Aberdeen Solicitor’s Property Centre Ltd and Another v Director General of Fair Trading: RPC 20 Feb 1996

A restrictive practice on advertising imposed by the Law Society of Scotland related to legal practice and so was exempt from registration.

Citations:

Times 20-Feb-1996

Statutes:

Restrictive Trade Practices Act 1976 26

Commercial, Legal Professions

Updated: 15 May 2022; Ref: scu.77609

Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 16 Jan 2002

Citations:

[2002] CAT 1, 1001/1/1/01

Links:

CAT, CAT

Jurisdiction:

England and Wales

Citing:

See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .

Cited by:

CitedAberdeen Journals Limited v Office of Fair Trading (No 2) CAT 2002
Sir Christopher Bellamy said: ‘. . the question whether a certain pricing practice by a dominant undertaking is to be regarded as abusive for the purposes of Chapter II is a matter to be looked at in the round, taking particularly into account (i) . .
CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See AlsoNapp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 13 May 2022; Ref: scu.227105

Volvox Hollandia: 1998

Citations:

[1998] 2 LLR 361

Cited by:

CitedTryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 13 May 2022; Ref: scu.197874

Regina v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd: HL 1993

One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance the judge held the area was not sufficiently large to justify a concern. On appeal the case was reversed.
Held: The appeal was allowed. On the true construction of the phrase ‘a substantial part’ it meant not necessarily a large part, but rather a part of considerable importance and character.
Lord Mustill said: ‘The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.’ and
‘The respondents say that the two stages of the Commission’s inquiry involved wholly different tasks. Once the Commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the Commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the Commission has reached a different answer it is wrong, and the court can and must intervene.
I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] A.C. 14. The present is such a case. Even after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment.’

Judges:

Lord Mustill

Citations:

[1993] 1 WLR 23, [1993] 1 All ER 289

Statutes:

Fair Trading Act 1973

Jurisdiction:

England and Wales

Citing:

CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .

Cited by:

CitedNorwich and Peterborough Building Society, Regina (on the Application of) v Financial Ombudsman Service Ltd Admn 14-Nov-2002
The Ombudsman had found that the applicant had unfairly failed to notify its customers of the availability of better accounts, once it discontinued accounts of one type. The Society appealed saying that the finding of unfairness arose from matters . .
CitedRegina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
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 . .
CitedBritish Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
CitedAl-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
CitedSugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Lists of cited by and citing cases may be incomplete.

Commercial, Licensing, Judicial Review

Updated: 12 May 2022; Ref: scu.183446

Slazenger and Sons v Feltham and Co: CA 1889

As to a party, a court will not ‘be astute to say that he cannot succeed in doing that which he is straining every nerve to do’.

Judges:

Lindley LJ

Citations:

(1889) 6 RPC 531 CA

Cited by:

CitedCadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 12 May 2022; Ref: scu.182307

In re Multi Guarantee Ltd: CA 1987

Nourse LJ said of the Condon Case: ‘The principle of cases such as those is that the court will direct a trustee in bankruptcy not to insist on his full legal rights if it would be unacceptable for him to do so. The principle is subject to qualifications, of which the most important is that the court will only take that course in a case where it would be dishonest or shabby or the like for the trustee to insist on his full legal rights.’
Lawton LJ said: ‘Various words have been used in the cases to indicate the kind of conduct to which the principle of Ex p James, Re Condon (1874) LR 9 Ch App 609 may apply, such as ‘a point of moral justice’, ‘dishonest’, ‘dishonourable’, ‘unworthy’, ‘unfair’ and ‘shabby’. Those words are not words of art at all. They are words of ordinary English usage and the concept behind them is, as I understand the cases, that an officer of the court, such as a trustee in bankruptcy or a liquidator, should not behave in a way which a reasonable member of the public, knowing all the facts, would regard as either dishonest, unfair or dishonourable.’

Judges:

Lawton LJ, Nourse LJ

Citations:

[1987] BCLC 257

Citing:

CitedIn re Condon, Ex parte James 1874
The Trustee in bankruptcy has relevant duties as the Trustee as an officer of the Court. Such a Trustee would not engage in conduct which could be seen to involve an unfair use of that position, and ‘where it would be unfair’ for a trustee in . .

Cited by:

CitedFlightline Ltd v Edwards and Another ChD 2-Aug-2002
Money had been paid into an account in the joint names of the parties’ solicitors in order to purchase the release of the applicants from an asset freezing order. The respondent company was in liquidation. It was argued that the payment of funds . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 12 May 2022; Ref: scu.182274

The Ship “Marlborough Hill” v Alex Cowan and Sons Limited: PC 1921

The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper’s order.
Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that ‘If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods’; and that it ‘ends in the time honoured form’, viz ‘In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void’ The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.

Judges:

Lord Phillimore

Citations:

[1921] AC 444

Statutes:

Admiralty Court Act 1861

Cited by:

CitedJ I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
CitedJ I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Commercial

Updated: 12 May 2022; Ref: scu.181886

Moccia Irme SpA v Commission of the European Communities: ECFI 17 Dec 1996

ECJ ECSC – State aid – Individual decision refusing to authorize the grant of State aid to a steel-making undertaking – Suspension of operation of a measure – Necessary interim measures – Interest in obtaining the interim measures sought – Application dismissed. A decision of the Commission refusing authorization for the grant of State aid to a steel undertaking is negative in character. Such an undertaking cannot establish an interest in obtaining the suspension of such a decision by way of interim relief since, in the absence of a positive decision of the Commission authorizing the aid in question, the prohibition on subsidies and aid laid down by Article 4(c) of the ECSC Treaty must apply. Nor can such an undertaking establish an interest in obtaining, by way of interim relief, the reopening of the procedure for examining the aid in question, inasmuch as to reopen the procedure would not necessarily lead the Commission to adopt a positive decision which alone could permit the State in question to grant the aid to that undertaking. Moreover, a measure of that kind would not be an interim measure since it would produce the same results as those sought in the main proceedings and prejudge the decision on the merits. Finally, where the aid in question is related to a system of aid, already approved by the Commission, for the permanent closure of steelworks, to uphold an application for interim relief seeking that the Commission be required to call upon the Member State concerned to suspend payment of aid for closure to the other undertakings which have applied for it is of only apparent usefulness, inasmuch as it does not prevent the expiry of the time-limit, laid down in Decision No 3855/91, beyond which no more aid can be paid. Moreover, such a measure – amounting to ordering a Member State to suspend an aid scheme already found to be compatible with the Treaty – would manifestly be beyond the powers conferred on the Commission.

Citations:

T-164/96

European, Commercial

Updated: 12 May 2022; Ref: scu.173279

Re Schebsman: CA 1944

The import into commercial law of equitable principles would be inconsistent with the certainty and speed which are the essential requirements for the orderly conduct of business affairs.
Lord Greene MR said: ‘The first question which arises is whether or not the debtor was a trustee for his wife and daughter of the benefit of the undertaking given by the English company in their favour. An examination of the decided cases does, it is true, show that the courts have on occasions adopted what may be called a liberal view on questions of this character, but in the present case I cannot find in the contract anything to justify the conclusion that a trust was intended. It is not legitimate to import into the contract the idea of a trust when the parties have given no indication that such was their intention. To interpret this contract as creating a trust would, in my judgment, be to disregard the dividing line between the case of a trust and the simple case of a contract made between two persons for the benefit of a third.’
du Parcq LJ said: ‘It now remains to consider the question whether, and if so to what extent, the principles of equity affect the position of the parties. It was argued by Mr. Denning that one effect of the agreement of September 20, 1940, was that a trust was thereby created, and that the debtor constituted himself trustee for Mrs. Schebsman of the benefit of the covenant under which payments were to be made to her. Uthwatt J. rejected this contention, and the argument has not satisfied me that he was wrong. It is true that, by the use possibly of unguarded language, a person may create a trust, as Monsieur Jourdain talked prose, without knowing it, but unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention.’

Judges:

Lord Greene MR, du Parcq LJ

Citations:

[1944] Ch 83

Cited by:

CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Lists of cited by and citing cases may be incomplete.

Equity, Commercial

Updated: 11 May 2022; Ref: scu.537034

Motis Exports Ltd v Dampskibsselskabet Af 1912 Akleselskab (‘the Motis): CA 20 Jan 2000

Shippers were liable under a bill of lading. The goods had been obtained from them fraudulently by means of forged bills of lading. They claimed under an exemption clause in the contract, but the claim failed since the exclusions from liability for loss or damage whilst in their possession before loading or after discharge, did not excuse them for what was a deliberate if mistaken act. Under a bill of lading contract a shipowner is both entitled and bound to deliver the goods against production of an original bill of lading, provided he has no notice of any other claim or better title to the goods.

Judges:

Stuart-Smith LJ

Citations:

Times 26-Jan-2000, Gazette 20-Jan-2000, [2000] 1 Lloyds Rep 211 (CA, [2000] 1 All ER (Comm) 91

Jurisdiction:

England and Wales

Citing:

Appeal fromMotis Exports Ltd v Dampskibsselskabet Af 1912, Aktieselskab and Another ComC 1-Mar-1999
Where goods were supposed only to be handed over by a shipper on receipt of a valid bill of lading, but were instead handed over for fraudulent bill, the shipper remained liable to the owners.
ComC . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Commercial

Updated: 11 May 2022; Ref: scu.83876

Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation): CA 17 Aug 2000

When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a quick and summary disposal, but that procedure might not be appropriate in cases involving insolvency of one party and or cross claims. Any creditor who owes a debt to an insolvent company, no matter how long overdue, may set off that debt in full against his own claim in the liquidation.

Judges:

Chadwick LJ

Citations:

Times 17-Aug-2000, Gazette 14-Sep-2000, [2000] BLR 522

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Jurisdiction:

England and Wales

Citing:

Appeal fromBouygues UK Limited v Dahl-Jensen UK Limited TCC 17-Dec-1999
An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: . .

Cited by:

CitedCarillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
CitedCarillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
CitedMelville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration, Commercial, Insolvency

Updated: 10 May 2022; Ref: scu.78510

Vine Products Ltd v Mackenzie and Co Ltd (the Sherry Case): ChD 1969

Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to begin proceedings for a declaration that they were entitled to describe their wines as ‘British Sherry’, this being something they had done for very many years. The sherry producers then counterclaimed for an injunction to restrain the producers and importers of British sherry from passing off their wine as and for wine produced in Jerez.
Held: despite the long established and widespread use of the expressions ‘British Sherry’ and ‘South African Sherry’ and the like, the word ‘sherry’ standing alone still denoted a wine from the Jerez district of Spain and not a type of wine or alcoholic drink which might be produced anywhere or in any way. Nevertheless, it remained to be considered whether objection could now be raised to the use of the expression ‘British Sherry’. The judge concluded it could not because the Spanish producers had delayed while the producers and importers of British sherry had built up a substantial goodwill, and in consequence it would be unjust to prevent the further use of the expression. However, there had been no acquiescence in the use of the term ‘sherry’ simpliciter and so an injunction would be granted to restrain the use of that word otherwise than as part of a composite phrase such as ‘British Sherry’ or ‘South African Sherry’.
There was no distinction in principle between a champagne shipper and a sherry shipper and a claimant had to establish in a claim of this sort was that the district in which the goods in question were produced and which gave the goods their name was defined with reasonable precision.
Cross J said of the Bollinger case: ‘The decision went beyond the well trodden paths of passing-off into the area of ‘unfair trading’ or ‘unfair competition”. And: ‘That being, as I see it, the scope of the decision in the Spanish Champagne case, it remains to see how far, if at all, it applies to the facts of this case. It was not suggested by the plaintiffs that there was any distinction to be drawn between a Champagne shipper and a sherry shipper so far as concerned his title to bring the action. No doubt a plaintiff in this sort of action must establish that the district in which goods in question were produced and which gives the goods their name is defined with reasonable precision either by law or custom. The court must obviously be in a position to decide in case of dispute whether or not any given plaintiff is a producer in the district in question. But the evidence in this case shows that there would not be the least difficulty in saying whether or not anyone claiming to be producer and shipper of ‘sherry’ was entitled to be so described. It can, of course, make no difference in this connection that the boundaries of the district are not static but are liable to change, provided that there is no uncertainty as to when this change occurs and what is its extent. Thus the fact that Montilla used to be classed as sherry but now has its own separate system of control does not affect the question at issue one way or another.’

Judges:

Cross J

Citations:

[1969] RPC 1

Citing:

CitedBollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .

Cited by:

CitedChocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .
CitedHP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Intellectual Property, Commercial

Updated: 10 May 2022; Ref: scu.239099

Scandlines Svergie AB v Port of Helsingborg Case: 2000

(Year?) The Commission dismissed a complaint by a ferry company of excessive and discriminatory port charges by the port operator. The Commission said that, in calculating the production costs, it was necessary to take account not only of the costs actually incurred by the port in providing its services, but also additional costs and other factors which were not reflected in the audited profits and losses, such as high sunk costs, and the benefits to customers conferred by the particular location of the port.

Citations:

COMP/A.36.568.D3

Cited by:

CitedAttheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 10 May 2022; Ref: scu.236660

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 8 Aug 2001

Judgment on application to disallow parts of the defence.

Citations:

1001/1/1/01, [2001] CAT 3

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .

Cited by:

See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See AlsoNapp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222107

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 10 Jul 2001

Judgment on application to extend time for service of defence.

Judges:

Bellamy QC

Citations:

1001/1/1/01, [2001] CAT 2

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .

Cited by:

See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See AlsoNAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See AlsoNapp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See AlsoNapp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222106

Marchant and Eliot Underwriting Ltd v Dr Higgins: ComC 24 Oct 1995

cw European Union – competition – Lloyd’s – article 85(1) – RSC Order 14 – cash call on underwriters – unlawful attempt to enforce anti-competitive object of Central Fund – Agency Agreement Bye-law – standard terms – per se illegality – complex agreement – anti-competitive object – incidental restrictions on competition -effect on inter-Member State trade

Judges:

Rix J

Citations:

[1996] 1 Lloyd’s Rep 313, [1996] CLC 301, [1996] 3 C M L R 313, [1997] E C C 11, Lloyd’s List January 10 1996 (I D )

Citing:

Appealed toMarchant and Eliot Underwriting Ltd v Higgins CA 12-Jan-1996
‘Pay now sue later’ clauses in agency contracts is not breach of EU treaty. . .

Cited by:

Appeal fromMarchant and Eliot Underwriting Ltd v Higgins CA 12-Jan-1996
‘Pay now sue later’ clauses in agency contracts is not breach of EU treaty. . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 08 May 2022; Ref: scu.183293

Gardano and Giampieri v Greek Petroleum George Mamidakis and Co: 1961

The shipment was made under a candf sale contract, a straight bill of lading, pursuant to a charterparty between the defendant and the claimant shipowner, Gardano. The bill named the Greek Ministry as consignee. The shipowner argued, relying on the 1855 Act that the shipper had lost its title to sue by the transfer of the bill of lading to the consignee.
Held: That argument failed. The section did not operate where property had passed under the express terms of the sale contract not on or by reason of the consignment but ex the loading installation. In an ordinary contract of sale in the traditional c.i.f or c. and f. form, the seller discharges his obligations as regards delivery by tendering a bill of lading covering the goods. The contract is one which, though not a sale, is a sale of goods performed by delivery of documents, and the property passes when the documents are taken up.

Judges:

McNair J

Citations:

[1961] 2 Lloyds Rep 259

Statutes:

Bills of Lading Act 1855 1

Cited by:

CitedJ I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Lists of cited by and citing cases may be incomplete.

Transport, Commercial, Contract

Updated: 08 May 2022; Ref: scu.181890

Shansal v Al-Kishtaini: CA 8 Mar 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Times 08-Mar-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89190

Shansal v Al-Kishtaini: CA 26 Apr 2001

The restrictions imposed on trading with residents of Iraq continued to apply even if the person involved left Iraq. A simple change of address could not be allowed to be used to circumvent important international provisions. Provisions existed for assessing such residence. Even so, surprising effects might follow. In this case, the former resident would not be allowed to enforce what was an illegal contract. A claimant could not recover where to do so he would have to rely upon his own illegal act. This fell within the exemption allowed under human rights law as being in the public interest and subject to law.

Citations:

Gazette 26-Apr-2001

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616), Human Rights Act 1998

Jurisdiction:

England and Wales

International, Commercial, Human Rights

Updated: 08 May 2022; Ref: scu.89191

Solo Industries UK Ltd v Canara Bank: CA 3 Jul 2001

The claimant sought payment under a guarantee issued by the bank. The bank refused to honour the bond, arguing that it had been obtained by some fraud. The claimant was refused summary judgment on the basis that since the defence went to the validity of the bond, arguments about it being similar to a cheque or other promissory note were not effective.
Held: The appeal failed. There was no basis for seeking to extend the principal that such instruments were to be treated like cash to situations where the underlying validity of the bond was being challenged. The bank had a real prospect of establishing its defence, and summary judgment was properly refused.

Judges:

Potter LJ, Mance LJ, Nourse

Citations:

Gazette 19-Jul-2001, Times 31-Jul-2001

Jurisdiction:

England and Wales

Banking, Commercial

Updated: 08 May 2022; Ref: scu.89394

Butler v Evans: 1980

The question of the ownership of goodwill in a company is a question of fact.

Citations:

[1980] STC 613

Jurisdiction:

England and Wales

Cited by:

CitedCondliffe and Another v Sheingold CA 31-Oct-2007
The defendant had taken an assignment of the goodwill of a restaurant from the company of which she was a director. The plaintiffs as assignees of any claims of the company, now in liquidation, said that she was liable to account to them for the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 07 May 2022; Ref: scu.260190

Corlett v Gordon And Another: 16 Dec 1813

Merchants in London receive from a mere stranger residing abroad a bill of lading of certain goods, in a letter requesting them to effeet insurance, they declining to do business for the consignor, but acting bona fide with a view to his interest, indorse the bilil of lading to a friend of his, who receives the goods, and afterwards fails with the proceeds iri his hands Held, that the merchants, by indorsing the bill of ladiug were liable to the consignor for the amount

Citations:

[1813] EngR 700, (1813) 3 Camp 472, (1813) 170 ER 1450 (A)

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial, Contract, Agency

Updated: 05 May 2022; Ref: scu.338465

Jones v North: 1875

Four parties were invited to tender for the supply of stone to a public authority. They agreed that one would buy stone from the others and submit the lowest tender, two parties were to submit a higher tender and the fourth party was to submit no tender. The defendants, in breach of the agreement, submitted a tender, which was accepted, and the party which was to supply under the agreement brought proceedings to restrain performance by the party which had broken ranks.
Held: The action succeeded.
Bacon V-C considered the plaintiff’s case as ‘very honest’. It was submitted that the plaintiff could not obtain equitable relief since the arrangement was a device to compel the authority, under the fiction of a public competition, to accept tenders not representing the real market price of the commodity, but this submission the vice-chancellor rejected, finding the agreement to be ‘perfectly lawful’, to contain ‘nothing illegal’, and not deserving to be characterised as a conspiracy.

Judges:

Bacon V-C

Citations:

(1888) 21 QBD 544

Cited by:

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.

Commercial, Contract

Updated: 05 May 2022; Ref: scu.270733

Industrie des poudres spheriques v Council: ECJ 3 Oct 2000

ECJ Appeal – Anti-dumping – Regulation (EEC) No 2423/88 – Calcium metal – Admissibility – Re-opening of an anti-dumping procedure after annulment of the regulation adopting an anti-dumping duty – Right to a fair hearing

Citations:

C-458/98, [2000] EUECJ C-458/98P

Links:

Bailii

Statutes:

Regulation (EEC) No 2423/88

Jurisdiction:

European

Commercial

Updated: 04 May 2022; Ref: scu.162568

The Case of The Tailors and Co of Ipswich: 1572

Resolved, 1. At common law tio man could be prohibited from working at any lawful trade. 3. The Corporation of the Tailors of Ipswich cannot by any ordinance make by them prohibit any one from exercising his trade, till he has presented himself before them, or till they allow him to be a workman, 3. The Act 5 ELiz. 4. Forbids not the private exercise of a trade in the house of any for the use uf the family. 4. The stat. 19 H. 7. 7. leaves the ordinances of corporations allowed etc According to that Act, to be affirmed as good or clisattirmecl as unlawful, by the law ; but exempte the corporation from the penalty of 40l. for puttiug in use any unlawful ordinances, which are allowed and approved as the statute speaks.

Citations:

[1572] EngR 418, (1572-1616) 11 Co Rep 53, (1572) 77 ER 1218

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial

Updated: 02 May 2022; Ref: scu.432384

British Airways v Commission: ECFI 17 Dec 2003

ECFI Competition – Abuse of a dominant position – Competence of the Commission – Discrimination between airlines – Relevant product and geographic market – Nexus between the product markets allegedly affected – Legal basis of the contested decision – Existence of a dominant position – Abuse of the dominant position – Proportionality of the amount of the fine.

Citations:

T-219/99

European

Updated: 30 April 2022; Ref: scu.233607

Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd: 1989

(Australia) The operation of section 46 of the 1974 Act, is predicated on the assumption that competition is a means to the end of protecting the interests of consumers: ‘Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way. This competition has never been a tort (see Keeble v Hickeringill (1809) 11 East 574) and these injuries are the inevitable consequence of the competition section 46 is designed to foster. In fact, the purpose provisions in section 46(1) are cast in such a way as to prohibit conduct designed to threaten that competition – for example, section 46(1)(c) prohibits a firm with a substantial degree of market power from using that power to deter or prevent a rival from competing in a market. The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.’

Judges:

Mason CJ and Wilson J

Citations:

(1989) 167 CLR 177

Statutes:

Trade Practices Act 1974 46 (Australia)

Cited by:

CitedCarter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Updated: 30 April 2022; Ref: scu.199228

Manchester Trust v Furness: CA 1895

Lindley LJ said: ‘In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralyzing the trade of the country.’

Judges:

Lindley LJ

Citations:

[1895] 2 QB 539

Cited by:

CitedCriterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Lists of cited by and citing cases may be incomplete.

Land, Commercial

Updated: 29 April 2022; Ref: scu.194960

Stadium Finance Ltd v Robbins: 1962

A motor car was goods for the purposes of the Act. The word ‘goods’ in the section does not appear to have anything other than the ordinary meaning, there is no reason why (a motor car) does not come within the definition ‘goods’. The word ‘goods’ must include all chattels of which physical possession is possible, notwithstanding that they are not easily moveable.

Judges:

Ormerod LJ, Danckwerts LJ

Citations:

[1962] 2 QB 664

Statutes:

Factors Act 1889

Jurisdiction:

England and Wales

Cited by:

CitedSpring House (Freehold) Ltd v Mount Cook Land Ltd CA 12-Dec-2001
A lease provided against the tenant leaving his goods outside the premises, and the landlords objected to motor vehicles being parked there.
Held: The words had to be interpreted in the light of the intentions of the parties at the time. Motor . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 29 April 2022; Ref: scu.184140

Regina v Secretary of State for Trade, Ex parte Anderson Strathclyde Plc: QBD 1983

A proposed takeover had been referred to the Monopolies and Mergers Commission under the 1973 Act. A majority of the Commission recommended against the takeover. The Deputy (acting instead of the Secretary who had an interest) overruled the Commission. AS challenged that decision, and sought to refer to statements made by the Secretary of State and his Deputy and which were reported in Hansard.
Held: The application to quash the decision failed. The discretion given to ministers was unfettered. He was entitled to listen all views within the Commission and to make his own assessment. It had not been shown that irrelevant factors had been taken into account. Reliance could not be placed on Hansard with respect to a decision taken outside Parliament.

Citations:

[1983] 2 All ER 233

Statutes:

Fair Trading Act 1973

Citing:

AppliedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
AppliedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .

Cited by:

OverruledPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 29 April 2022; Ref: scu.182422

Courage 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 tie agreement was unlawful, because the company sold beer to non-tied houses at lower prices, and so was anti-competitive. He also claimed damages.
Held: The agreement was automatically void under the article which embodies a fundamental principle of EU law. Nevertheless it was for each member state to put in place laws which dealt with the consequences of such illegality on the parties. The English law preventing a party to a an illegal agreement relying upon it where it was established that that party bore significant responsibility for the distortion of competition. ‘It follows that this court must rule in the abstract on a situation where a breach of article 81 EC has caused loss to one of the parties to the agreement. The question whether this abstract situation corresponds to the facts in the case is a question to be decided later by the referring court and does not concern this court.’
‘The full effectiveness of article 85 of the Treaty and, in particular, the practical effect of the prohibition laid down in article 85(1) would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition.’ and ‘However, in the absence of Community rules governing the matter, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive directly from Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness).’

Judges:

GC Rodriguez Iglesias, President and Judges C. Gulmann, M. Wathelet, V. Skouris, D. A. O. Edward, P. Jann, L. Sevon, F. Macken, N. Colneric, J. N. Cunha Rodrigues and C. W. A. Timmermans Advocate General J. Mischo

Citations:

Times 04-Oct-2001, C-453/99, [2002] QB 507, [2001] EUECJ C-453/99, [2001] 5 CMLR 28, [2002] ICR 457, [2001] ECR I-6297, , [2001] 3 WLR 1646, [2001] All ER (EC) 886, [2002] UKCLR 171, [2001] CEC 297, [2001] ECR I-6314

Links:

Bailii

Statutes:

EC Treaty 81

Jurisdiction:

European

Citing:

Appeal fromCourage Ltd v Crehan; The Inntrepreneur Beer Supply Co Ltd v Byrne; Same v Langton; Greenalls Management Ltd v Smith; Walker Cain Ltd v McCaughey CA 14-Jun-1999
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to . .
Remitted toCrehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
CitedS A Brasserie de Haecht v Consorts Wilkin-Janssen ECJ 12-Dec-1967
ECJ 1. Policy of the EEC- competition – agreements between undertakings – prohibition in article 85(1) – consideration of the economic and legal context 2. Policy of the EEC – competition – agreements which may . .
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 . .
See AlsoCourage Limited v Crehan ChD 25-Nov-1998
. .
See AlsoCrehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .

Cited by:

Remitted fromCrehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
At ECJInntrepreneur 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: . .
At ECJCrehan 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 . .
CitedDevenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .
CitedOracle 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 . .
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 . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Contract, Commercial

Updated: 29 April 2022; Ref: scu.166211

Gibbs Mew Plc v Gemmell and Gibbs Mew Plc and Centric Pub Company Ltd v Gemmell: CA 22 Jul 1998

The brewery sought possession of a public house, tied by type. The lessee claimed damages for breach of Art. 81 and a declaration that the Block Exemption was inapplicable to his lease. His appeal from the judge’s order in favour of the brewery was dismissed. The Court agreed with the majority in Greenalls. ‘There is no express requirement in [the Block Exemption] that the specification required must be by brand or denomination. Article 7 (1) (a) refers to beers supplied under the agreement as of a type; the tenant may be precluded from selling beers of that type supplied by other undertakings. Thus, the comparison between the agreement beers and those which he may not sell is by reference to the type of beer. The same comparison is apparent in Article 7 (1) (b), and there appears to be an assumption that the agreement will identify beers by type. Article 7 (2) defining drinks of the same type by reference to ‘their composition appearance and taste’, is consistent with the interpretation of Gibbs Mew. Article 8 (2) (b) requires the tenant to have the right to obtain from other undertakings non-beer drinks ‘of the same type’ as those supplied under the agreement but which bear different trademarks. ‘Type’ there cannot mean brand or denomination. The regulation, in short, does not point to the specification having to be by brand or denomination but is consistent with it having to be by type. The present case differs from Delimitis in that in the lease itself are specified the types of beer and other drinks. The landlord cannot unilaterally enlarge the scope of the tie beyond those types. The landlord can change the brands or denominations on the price list, but unless it has freedom to do that, no brand or denomination could be added to or removed from the price list without a variation of the lease itself, requiring the tenants consent. That consideration seems to me to add practical force to the considerations based on the language of [the Block Exemption] which persuaded the majority in the Greenalls case.’ Though the tenant had had the benefit of protection under the 1954 Act, by hus conduct he had surrenedered his tenancy and taken an unprotected tenancy at will.

Judges:

Peter Gibson LJ, Mantell LJ, Schiemann LJ

Citations:

[1998] EWCA Civ 1262, [1998] EuLR 588, [1999] 1 EGLR 43

Jurisdiction:

England and Wales

Citing:

AppliedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedGreenalls Management Limited v Canavan CA 30-Jul-1997
A lease of a pub contained a term by which the parties purported to agree that the Block Exemption applied. The claimants sought to enforce its beer tie which was by type. The lessee contended among other things that the tie was not within the . .

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 . .
CitedParks v Esso Petroleum Company Limited CA 23-Jul-1999
The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Commercial, European, Landlord and Tenant

Updated: 29 April 2022; Ref: scu.144741

Commission of the European Communities (supported by United Kingdom, intervener) v French Republic: ECJ 13 Dec 2001

Europe had banned the export of beef from England to prevent the sale of BSE infected meat. The ban was lifted under strict conditions set under Community veterinary advice. The French Republic retained their ban, and continued it despite instruction from the Commission to lift it, saying that their own national Food Safety Agency said there were still unresolved questions, regarding the traceability of certain product. Those concerns remained apposite as to some pre-packed products, but as to the rest the complaint was upheld.

Judges:

CJ Rodriguez Iglesias, P and Judges P Jann, F Macken, N. Colneric, S. von Bahr, C. Gulmann, DAO Edward, A. La Pergola, J-P Puissochet, L Sevon, M Wathelet, R Schintgen and V Skouris Advocate General J Mischo

Citations:

Times 19-Dec-2001, Case C-1/00

Jurisdiction:

European

Agriculture, European, Commercial

Updated: 28 April 2022; Ref: scu.167073

Geraets-Smits v Stichting Ziekenfonds VGZ Peerbooms v Stichting CZ Groep Zorgverzekeringen: ECJ 12 Jul 2001

Where a member of a sickness scheme sought treatment in another member state, it was proper to require prior authorisation, but any conditions imposed had to be justifiable and proportionate. In this case the scheme required the recognition of the treatment sought, and that immediate treatment in the country was not available. Hospital services were capable of constituting economic activity, and were accordingly required to be free of restraint by Community law. Re-imbursement by a member state’s sickness benefits scheme did not take it out of the scope of Article 60. The additional restrictions were valid only in so far as they required that the treatment be tried and tested, or that equivalent treatment was available locally without undue delay.

Judges:

GC Rodriguez Iglesias, President and Judges C. Gulmann, A. La Pergola, M. Wathelet, V. Skouris, D. A. O. Edward, J.-P. Puissochet, P.
Jann, L. Sevon, R. Schintgen and F. Macken Advocate General D. Ruiz-Jarabo Colomer

Citations:

Times 03-Sep-2001, Case C-157/99

Statutes:

EC Treaty Article 60 234

Jurisdiction:

European

Cited by:

AppliedWatts, Regina (on the Application of) v Bedford Primary Care Trust and others Admn 1-Oct-2003
The claimant sought hip-replacement treatment. She was first told that she would have to wait a year. As her lawyers pressed the respondent, she looked at obtaining treatment in France. As she decided to take the treatment, the respondent reduced . .
Lists of cited by and citing cases may be incomplete.

Health, Benefits, Commercial

Updated: 28 April 2022; Ref: scu.162937