ECJ Judgment – Dumping – Imports of ceramic tableware and kitchenware originating in the People’s Republic of China – Definitive anti-dumping duty – Definition of the product concerned
S. Papasavvas (Rapporteur), P
T-394/13, [2014] EUECJ T-394/13, ECLI:EU:T:2014:964
Bailii
European, Commercial
Updated: 23 December 2021; Ref: scu.538884
The claimants sought to restrain the defendant publishing magazines related to individual footballers and managers, and particularly now to strike out a defence that the claimant was acting anti-competitively, in disallowing use of photographs not taken by approved photographers in football stadia.
Held: Though there may be an arguable case, the defendants had not otherwise properly detailed their defence, and an order could not presently be made.
[2007] EWHC 3171 (Ch)
Bailii
England and Wales
Commercial, Intellectual Property
Updated: 23 December 2021; Ref: scu.263855
ECJ (Judgment) (French Text) Appeal – Agreements – World market of aluminum fluoride – Rights of the defense – Content of the Statement of Objections – Calculation of the amount of the fine – 2006 Guidelines for setting fines – Item 18 – Total value of sales goods or services in relation to the infringement – Obligation to state reasons – Reasonable time – Reduction in the amount of the fine
E. Juhasz, P
C-467/13, [2014] EUECJ C-467/13
Bailii
European
Commercial
Updated: 22 December 2021; Ref: scu.537475
ECJ (Judgment) Arbitration clause – Contract relating to Community financial support for a project in the framework of the ‘eContent’ programme – Termination of the contract by the Commission – Reimbursement of eligible costs
S. Frimodt Nielsen, P
T-340/07, [2014] EUECJ T-340/07, ECLI:EU:T:2014:847
Bailii
European
Commercial
Updated: 22 December 2021; Ref: scu.537312
JUDGMENT OF THE COURT (Grand Chamber) Reference for a preliminary ruling – Competition – Compensation for harm caused by a practice prohibited under Article 101(1) TFEU – Determination of the undertakings liable to provide compensation – Action for compensation directed against the subsidiary of a parent company and brought following a decision finding only that the parent company participated in a cartel – Concept of an ‘undertaking’ – Concept of ‘economic unit’
President K Lenaerts,Vice President R Silva De Lapuerta
[2021] EUECJ C-882/19, Case C-882/19, EU:C:2021:800, [2021] Bus LR 1755, [2021] WLR(D) 511, ECLI:EU:C:2021:800
Bailii, WLRD
England and Wales
Citing:
Opinion – Sumal (Opinion) ECJ 15-Apr-2021
. .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 22 December 2021; Ref: scu.670628
The Honourable Mr Justice Calver
[2021] EWHC 2666 (Comm), [2021] Bus LR 1788
England and Wales
Commercial, Arbitration
Updated: 22 December 2021; Ref: scu.670540
ECJ Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Article 81(1) EC – Payment cards system in France – Decision by an association of undertakings – Issuing market – Pricing measures applicable to ‘new entrants’ – Membership fee, mechanism for ‘regulating the acquiring function’ and ‘dormant member ‘wake-up” mechanism – Concept of restriction of competition ‘by object’ – Examination of the degree of harm to competition
C-67/13, [2014] EUECJ C-67/13, ECLI:EU:C:2014:2204
Bailii
EC 81(1)
European, Commercial
Updated: 21 December 2021; Ref: scu.536550
ECJ The agreements laying down a selective distribution system based on criteria for admission which go beyond a mere objective selection of a qualitative nature exhibit features making them incompatible with article 85(1) of the EEC treaty where such agreements, either individually or together with others, may, in the economic and legal context in which they occur and on the basis of a set of objective factors of law or of fact, affect trade between member states and have either as their objective or effect the prevention, restriction or distortion of competition. It is for the commission alone, subject to review by the court, to grant an exemption in respect of such agreements under article 85(3).
A letter signed by an official of the commission indicating that there is no reason for the commission to take action pursuant to article 85(1) of the EEC treaty against a distribution system which has been notified to it, may not be relied upon as against third parties and is not binding on the national courts. It merely constitutes an element of fact of which the national courts may take account in considering the compatibility of the system in question with community law.
Decisions to grant exemption under articles 85(3) of the EEC treaty give rise to rights in the sense that the parties to an agreement which has been the subject of such a decision may rely on that decision as against third parties who claim that the agreement is void on the basis of article 85(2).
The behaviour of an undertaking may be considered as an abuse of a dominant position within the meaning of article 86 of the treaty where the undertaking enjoys in a particular market the power to behave to an appreciable extent independently of its competitors, its customers and the consumers and where its behaviour on that market, through recourse to methods different from those which condition normal competition on the basis of the transactions of traders, hinders the maintenance or development of competition and may effect trade between member states.
R-31/80, [1980] EUECJ R-31/80, [1980] ECR 3775
Bailii
European
Cited by:
Cited – Inntrepreneur 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: . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 20 December 2021; Ref: scu.214956
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 exemption. The appeal against the judge’s grant of an injunction was dismissed. A list of beer prices in a pub tie agreement was a reference to prices from time to time, not to prices at start of lease. The tenant was bound by the tie agreement. It was not necessary to decide whether the tie was within the exemption, but: ‘[A] close analysis of Arts 6, 7 and 8 shows that it is only the type of beer or other drink which must be specified in the contract, and that these articles do not require the brand or trade mark to be so specified, so that the supplier is at liberty to add or vary the brands or trademarks to which the tie extends by amending his price list from time to time, although he may not extend the scope of the tie by adding further types of drinks. That is the submission which is made to us on behalf of the plaintiff, and I, for my part, find it convincing.’ Staughton LJ: ‘I am not yet convinced that a supplier can unilaterally extend a list of commodities as to which the tenant is bound by the tie.’
Millett LJ, Judge LJ, Staughton LJ
Times 20-Aug-1997, [1997] EWCA Civ 2240, [1998] EuLR 507
Commission Regulation 1984/83/EEC (OJ 1983 L173)
England and Wales
Citing:
See Also – Greenalls Management Limited v Canavan CA 29-Apr-1997
An appellant should notify the respondent if wishes to apply again for leave to add further grounds of appeal. . .
Cited by:
Cited – Crehan 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 . .
Cited – 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 . .
See Also – Greenalls Management Limited v Canavan CA 29-Apr-1997
An appellant should notify the respondent if wishes to apply again for leave to add further grounds of appeal. . .
Lists of cited by and citing cases may be incomplete.
Landlord and Tenant, Commercial
Updated: 20 December 2021; Ref: scu.142637
ECJ Appeal – Dumping – Imports of cotton-type bed linen originating in Pakistan – Regulation (EC) No 384/96 – Article 3(7) – Concept of ‘other factors’
T. von Danwitz, P
[2013] EUECJ C-638/11
Bailii
Regulation (EC) No 384/96 3(7)
Citing:
See Also – Council of The European Union v Gul Ahmed Textile Mills Ltd ECJ 25-Apr-2013
ECJ Opinion – Appeal – Dumping – Imports of cotton-type bed linen originating in Pakistan – Causal link between dumping and injury – Known factors causing injury, other than dumped imports – Attribution or . .
Lists of cited by and citing cases may be incomplete.
European, Commercial
Updated: 20 December 2021; Ref: scu.536063
Sales J
[2014] CAT 13
Bailii
Enterprise Act 2002 22(1)
Commercial
Updated: 20 December 2021; Ref: scu.535737
Application for review under section 179 of the Enterprise Act 2002 to challenge a decision of the Competition and Markets Authority requiring, among other things, HCA to divest itself of some of the private hospitals it owns. Application for disclosure.
Sales J
[2014] CAT 11
Bailii
Commercial, Health Professions
Updated: 20 December 2021; Ref: scu.535736
The claimant appealed against a decision accepting commitments to remove certain discounting restrictions for online travel agents.
Freeman QC
[2014] CAT 12
Bailii
Competition Act 1998 47(1)(c)
Commercial
Updated: 20 December 2021; Ref: scu.535738
Ruling on application to amend. Applications re overcharging allegations.
Roth J
[2014] CAT 4
Bailii
Communications Act 2003 186
Commercial
Updated: 20 December 2021; Ref: scu.535732
Order for disclosure
Marcus Smith QC
[2014] CAT 2
Bailii
Commercial, Litigation Practice
Updated: 20 December 2021; Ref: scu.535733
Application for costs following principal judgment
Marcus Smith QC
[2014] CAT 1
Bailii
Commercial, Costs
Updated: 20 December 2021; Ref: scu.535731
The claimant appealed against an order requiring it to divest itself of part of a holding of shares in Aer Lingus, a competing airline.
Hodge Malek QC
[2014] CAT 3
Bailii
Commercial, Transport
Updated: 20 December 2021; Ref: scu.535734
Application by HCA International Limited to adduce expert evidence in the form of a report by an economist on an application for review under section 179 of the Enterprise Act 2002 to challenge a decision of the Competition and Markets Authority requiring, among other things, HCA to divest itself of some of the private hospitals it owns.
Sales J
[2014] CAT 10
Bailii
Commercial, Health Professions
Updated: 20 December 2021; Ref: scu.535735
The claimant sought damages, alleging that the defendants had breached competition law in the arrangements for sales of drugs for the treatment of heart disease.
Henderson J
[2014] EWHC 2720 (Ch)
Bailii
England and Wales
Citing:
See Also – Secretary of State for Health and Others v Servier Laboratories Ltd and Others CA 22-Oct-2013
The French company defendants had been ordered to disclose documents which they said might expose them to criminal prosecution in France. They now appealed.
Held: The court was not obliged to make use of the Council Regulation. Orders for . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 18 December 2021; Ref: scu.535483
Reference for a preliminary ruling – Competition – Agreements – Article 101, paragraphs 1 and 3, TFEU – Vertical agreements – Restriction ‘by object’ or ‘by effect’ – Exemption – Registration by the distributor of the potential transaction with the end user – Clause conferring to the distributor a ‘priority for the completion of the sale transaction’ for six months from the registration – Exception – User opposition – Jurisdiction of the Court – Purely internal situation – National legislation complying with the solutions adopted by Union law
C-306/20, [2021] EUECJ C-306/20, ECLI:EU:C:2021:935
Bailii
European
Commercial
Updated: 18 December 2021; Ref: scu.670054
ECJ Judgment Of The Court – Appeal – Competition – Article 86, paragraph 3, CE – Continuing special rights granted by the Hellenic Republic in favor of a public company for the exploration and exploitation of lignite deposits – Offence – Decision – Conflict with the Law Union – Subsequent Decision – Implementation of specific measures – Solution competitive effects of the infringement – Action for annulment
Ilesic Rap P
C-554/12, [2014] EUECJ C-554/12, ECLI: EU: C: 2014:2085
Bailii
European, Commercial
Updated: 17 December 2021; Ref: scu.534444
ECFI Judgment – Competition – Agreements, decisions and concerted practices – Paraffin waxes market – Slack wax market – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Liability of a parent company for the infringements of the competition rules committed by its subsidiaries and by a joint venture owned in part by it – Decisive influence exercised by the parent company – Presumption where the parent company holds 100% of the shares – Succession of undertakings – Proportionality – Equal treatment -2006 Guidelines on the method of setting fines – Aggravating circumstances – Role of leader – Setting a limit on the fine – Unlimited jurisdiction
O. Czucz (Rapporteur), P
T-541/08, [2014] EUECJ T-541/08
Bailii
European, Commercial
Updated: 17 December 2021; Ref: scu.534346
Mr Justice Colman
[2003] EWHC 3088 (Comm), [2004] 2 Costs LR 267, [2004] 1 Lloyd’s Rep 636
Bailii
England and Wales
Citing:
See Also – Arkin v Borchard Lines Limited Andzim Israel Navigation Company Ltd and others v Managers and Processors of Claims QBD 27-Nov-2003
. .
Cited by:
Appeal from – Arkin v Borchard Lines Ltd and others CA 26-May-2005
The court considered the costs aftermath of a huge claim undertaken on a no win no fee basis and failing. The funder of the claim complained at an award of costs against it.
Held: Those who fund litigation must accept that their risks extend . .
Lists of cited by and citing cases may be incomplete.
Commercial, European, Costs
Updated: 16 December 2021; Ref: scu.188862
The claim was for damages after alleged price fixing by the defendants. The claimants sought to recover for themselves and as representatives of others who had similarly suffered. The defendants sought that the representative element of the claim be struck out, saying that the class purported to be represented had not been sufficently clearly established.
Held: The power was derived entirely from the rules. It did not matter that the number of people who might be represented was large.
The persons said to have the relevant common interest, must have it at the time the claim is begun. The claimant here failed in that element. Membership of the class asserted here could only be determined at the conclusion of the proceedings; ‘Rule 19.6 does not authorise these claimants to represent the class described in the particulars of claim. The simple reason is that it is impossible to say of any given person that he was a member of the class at the time the claim form was issued. It is not that the class consists of a fluctuating body of persons but that the criteria for inclusion in the class cannot be satisfied at the time the action is brought because they depend on the action succeeding.’
[2009] EWHC 741 (Ch), [2009] UKCLR 801, [2009] CP Rep 32
Bailii
England and Wales
Citing:
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Duke of Bedford v Ellis HL 10-Dec-1900
Ellis and five others sued on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs to enforce rights conferred on them by the Covent Garden Act 1828 against the Duke of Bedford as the owner of the market. The Duke . .
Cited – Aberconway v Whetnall 1918
Lord Aberconway and others sought to recover for themselves and all other subscribers to a fund for the benefit of the defendant the amounts they had collectively subscribed on the grounds that they were induced to do so by misrepresentation.
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Cited – Smith and others v Cardiff Corporation (No.1) CA 1954
Four plaintiffs set out to represent 13,000 tenants, and sought to challenge a proposed rent increase. The scheme they sought to challenge provided for different rents taking into consideration the financial circumstances of individual tenants. Of . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd ChD 1979
Members of the defendant company had approved in general meeting, of an acquisition of the assets of another company in which its directors were substantially interested. The shareholders’ approval was given on the basis of a circular. The action . .
Cited – Irish Shipping Ltd v Commercial Union Assurance Co Ltd CA 1991
77 underwriters entered into separate insurances but on the same terms including one which obliged that underwriter to abide by any judgment obtained by the insured against the lead underwriter.
Held: The principle in Duke of Bedford applied . .
Cited – National Bank Of Greece SA and Another v RM Outhwaite 317 Syndicate and Others ComC 16-Jan-2001
Smith J emphasised that CPR Rule 19.6 is to be interpreted and applied with the overriding objective in mind. That principle was applied to enable one Lloyd’s syndicate who subscribed to a particular policy to represent all the other syndicates who . .
Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Cited by:
See Also – Emerald Supplies Ltd and Another v British Airways Plc CA 18-Nov-2010
. .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and Others (3514) ChD 28-Oct-2014
Two applications in this action: 1) The Defendants’ application for the striking out and/or summary dismissal of the Claimants’ claims in the torts of unlawful means conspiracy and unlawful interference; and 2) The Claimants’ application for two . .
See Also – Emerald Supplies Ltd and Others v British Airways Plc and (3513) ChD 28-Oct-2014
A hearing of an Application whereby the Claimants requested the Court to review (with such judicial assistance as might be necessary) the appropriateness / lawfulness of the redactions made by the Defendant airline (‘BA’) and other airlines to the . .
See Also – Emerald Supplies Ltd v British Airways ChD 22-Jul-2015
The judge was hearing a very substantial action between the parties. He had recently travelled to Italy and came back on one of the defendant’s aircraft. The defendant lost the luggage of all passengers and had failed to deal adequately or at all . .
See Also – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .
Lists of cited by and citing cases may be incomplete.
Commercial, European
Updated: 15 December 2021; Ref: scu.331153
ECJ (Judgment) 1. The procedure laid down by Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be observed irrespective of the nationality or seat of the tenderers. The obligation, imposed on contracting entities by Article 4(1) of the directive, to apply procedures which are adapted to the provisions of the directive is not subject to any such condition and it is always possible that undertakings established in other Member States may be concerned directly or indirectly by the award of a contract.
Although under Article 15(1) of the directive contracting entities obliged to apply the procedures in the directive do indeed have a degree of choice regarding the procedure to be applied to a contract, once they have issued an invitation to tender under one particular procedure they are required to observe the rules applicable to it, until the contract has been finally awarded.
2. It follows from the terms of Directive 90/531 on the procurement procedures of entitites operating in the water, energy, transport and telecommunications sectors that the contracting entity’ s procedure for comparing tenders has to comply at every stage with both the principle of the equal treatment of tenderers and the principle of transparency.
A Member State which, in the procedure for the award of a public contract by a public undertaking operating a bus service:-
takes into account fuel consumption figures submitted by a tenderer after the opening of tenders, where those figures exceed a limit which the tenderer himself stipulated in his initial tender in regard to any change in fuel consumption figures,
awards the contract to the same tenderer on the basis of figures which do not correspond to the prescriptive requirements of the contract documents for calculating the notional penalty of the tenderer in question for maintenance costs in respect of engine and gear box replacement,
takes into account, when comparing tenders for certain lots, the cost-saving features suggested by the same tenderer, without having referred to them in the contract documents or in the tender notice, uses them to offset the financial differences between the tenders in first place and those of the tenderer in question and accepts some of the same tenderer’ s tenders as a result of taking those features into account,
fails to fulfil that obligation.
[1996] ECR I-2043, [1996] EUECJ C-87/94
Bailii
European
Cited by:
Cited – The Law Society, Regina (on the Application of) v Legal Services Commission CA 29-Nov-2007
The Law Society challenged the new contract proposed for legal aid providers, saying that the Unified Contract reserved too great powers to alter its terms unilaterally, and was in breach of the European Directive on standards for public procurement . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 11 December 2021; Ref: scu.161315
The claimant sought an injunction to prevent the defendant using its overwhelming resources to enter into and take over the provision of computer based mapping services in the UK.
Held: The proper issue was not the use or origin of the resources to be used by a dominant member of the market, save only when such resources had been acquired themselves through anti-competitive, or other wrongful behaviour. The use of such funds to support predatory pricing would not be allowed, but that was not alleged here. Injunction refused.
Laddie J
Times 25-Jun-2002, Gazette 11-Jul-2002
Competition Act 1998 18
England and Wales
Commercial
Updated: 11 December 2021; Ref: scu.174249
ECJ (Judgment Of The Court) Appeal – Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Unlimited jurisdiction of the General Court – Obligation to state reasons – Attribution to the parent company of the infringement committed by the subsidiary – Liability of the parent company for payment of the fine imposed on the subsidiary – Proportionality – Proceedings before the General Court – Adjudication within a reasonable time
C-243/12, [2014] EUECJ C-243/12
Bailii
European
Commercial
Updated: 05 December 2021; Ref: scu.527240
Judgment – Competition – Cartels – European market of phosphates for animal feed – Fines – installment payment – Commission decision ordering the provision of a bank guarantee – Obligation to state reasons – Proportionality
T-564/10, [2014] EUECJ T-564/10, ECLI:EU:T:2014:583, [2017] EUECJ T-564/10
Bailii, Bailii
European, Commercial
Updated: 05 December 2021; Ref: scu.527251
Competition – Agreements, decisions and concerted practices – Market for aluminium electrolytic capacitors and tantalum electrolytic capacitors – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Statement of objections – 2006 Guidelines on the method of setting fines – Value of sales – Proportionality – Equal treatment – Gravity of the infringement – Mitigating circumstances
T-343/18, [2021] EUECJ T-343/18, ECLI:EU:T:2021:636
Bailii
European
Commercial
Updated: 05 December 2021; Ref: scu.668527
ECJ (Judgment Of The Court Of First Instance) Competition – Abuse of dominant position – Microprocessors market – Decision finding an infringement of Article 82 EC and Article 54 of the EEA Agreement – Loyalty rebates – ‘Naked’ restrictions – Classification as abuse – As-efficient-competitor analysis – Commission’s international jurisdiction – Obligation on the Commission to investigate – Limits – Rights of the defence – Principle of sound administration – Overall strategy – Fines – Single and continuous infringement – 2006 Guidelines on the method of setting fines
ECLI:EU:T:2014:547, [2014] EUECJ T-286/09, [2014] 5 CMLR 9
Bailii
European, Commercial
Updated: 04 December 2021; Ref: scu.526683
Europa Article 30 of the EEC treaty applies also to prohibitions on imports inasmuch as they are the most extreme form of restriction. The expression used in article 30 must therefore be understood as being the equivalent of the expression ‘ ‘ prohibitions or restrictions on imports ‘ ‘ occurring in article 36. Hence a law of a member state prohibiting any importation of pornographic articles into that state constitutes a quantitative restriction on imports within the meaning of article 30 of the treaty. Under the first sentence of article 36 of the EEC treaty it is in principle for each member state to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. Each member state is entitled to impose prohibitions on imports justified on grounds of public morality for the whole of its territory, as defined in article 227 of the treaty, whatever the structure of its constitution may be and however the powers of legislating in regard to the subject in question may be distributed. The fact that certain differences exist between the laws enforced in the different constituent parts of a member state does not thereby prevent that state from applying a unitary concept in regard to prohibitions on imports imposed, on grounds of public morality, on trade with other member states. The first sentence of article 36 upon its true construction thus means that a member state may, in principle, lawfully impose prohibitions on the importation from any other member state of articles which are of an indecent or obscene character as understood by its domestic laws. Such prohibitions may lawfully be applied to the whole of its national territory even if, in regard to the field in question, variations exist between the laws in force in the different constituent parts of the member state concerned. The second sentence of article 36 of the EEC treaty is designed to prevent restrictions on trade based on the grounds mentioned in the first sentence of that article from being diverted from their proper purpose and used in such a way as either to create discrimination in respect of goods originating in other member states or indirectly to protect certain national products. If a prohibition on the importation of goods is justifiable on grounds of public morality and if it is imposed with that purpose the enforcement of that prohibition cannot, in the absence within the member state concerned of a lawful trade in the same goods, constitute a means of arbitrary discrimination or a disguised restriction on trade contrary to article 36 of the EEC treaty. In so far as a member state avails itself of the reservation relating to the protection of public morality provided for in article 36 of the EEC treaty, the provisions of article 234 of that treaty do not preclude that state from fulfilling the obligations arising from the Geneva convention, 1923, for the suppression of traffic in obscene publications and from the universal postal convention (renewed at Lausanne in 1974, which came into force on 1 January 1976).
C-34/79
Citing:
Reference from – Henn and Darby v Director of Public Prosecutions HL 1980
The House referred to the ECJ questions concerning the impact of Article 30 of the Treaty of Rome upon a prohibition against the importation of pornographic articles.
Lord Diplock said: ‘The European Court, in contrast to English courts, . .
Cited by:
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Referred to – Henn and Darby v Director of Public Prosecutions HL 1980
The House referred to the ECJ questions concerning the impact of Article 30 of the Treaty of Rome upon a prohibition against the importation of pornographic articles.
Lord Diplock said: ‘The European Court, in contrast to English courts, . .
Lists of cited by and citing cases may be incomplete.
European, Crime, Commercial
Updated: 04 December 2021; Ref: scu.132830
ECJ Appeal – Competition – Doping Regulations – Classification of a complaint filed with the Commission – Definition of locus standi – Persistence of this interest after the termination of the occupation
C-269/12, [2013] EUECJ C-269/12
Bailii
European
Commercial
Updated: 03 December 2021; Ref: scu.526055
ECJ Failure to fulfill obligations – State aid – Aid granted by the Italian Republic to Alcoa Trasformazioni – Decision 2010/460/CE of the Commission that the incompatibility of the aid and ordering its recovery – Failure to comply in the deadline
C-344/12, [2013] EUECJ C-344/12
Bailii
European
Commercial
Updated: 03 December 2021; Ref: scu.526061
ECJ (Judgment Of The Court Of First Instance) Competition – Cartels – Market calcium carbide and magnesium for the steel and gas sector in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Decision finding an infringement Article 81 EC – price fixing and market-sharing – fines – Article 23 of Regulation (EC) No 1/2003 – Guidelines for calculating the amount of the 2006 fines – mitigating circumstances – Cooperation during the administrative procedure – obligation to state reasons – Equal treatment – Proportionality – Ability to
[2014] EUECJ T-406/09
Bailii
European
European, Commercial
Updated: 03 December 2021; Ref: scu.525833
ECJ Appeal – Competition – Agreements, decisions and concerted practices – Plastic industrial bags market – Attribution to the parent company of the infringement committed by the subsidiary – Obligation to state reasons
C-36/12, [2014] EUECJ C-36/12
Bailii
European, Commercial
Updated: 03 December 2021; Ref: scu.525827
The respondent had imposed a fine under the 1998 Act. Having once paid the fine, the claimant now sought recovery of it saying that it had been imposed incorrectly.
Morgan J
[2014] EWHC 1613 (Ch)
Bailii
Competition Act 1998
Commercial
Updated: 03 December 2021; Ref: scu.525578
ECJ Competition – Abuse of dominant position – Margin squeeze (margin squeeze) – Wholesale prices charged by Telefonica SA on the access Spanish broadband market – Fines – Obligation to state reasons for the Commission – Method of calculation – Prohibition -discrimination – Principle of proportionality – Unlimited jurisdiction of the Tribunal
C-295/12, [2013] EUECJ C-295/12
Bailii
European
Cited by:
AG Opinion – Telefonica Sa and Telefonica De Espana v Commission (Advocate General’s Opinion) ECJ 10-Jul-2014
ECJ Article 102 TFEU – Abuse of dominant position – Spanish markets for access to broadband internet – Margin squeeze – Article 263 TFEU – Review of legality – Article 261 TFEU – Unlimited jurisdiction – Article . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 03 December 2021; Ref: scu.525515
ECJ (Advocate General’s Opinion) International Organizations – Procedure for conclusion of an agreement – Determination of positions to be adopted on behalf of the Union in a forum established by an agreement – Resolutions of the International Organization of Vine and Wine (OIV) Article 218 (9) TFEU – Agreements of the Member States – Legal effect – Analogy
C-399/12, [2014] EUECJ C-399/12
Bailii
European
Cited by:
Opinion – Germany v Council C-399/12 ECJ 7-Oct-2014
EJ Action for annulment – EU external action – Article 218(9) TFEU – Establishing the position to be adopted on behalf of the European Union in a body set up by an international agreement – International . .
Lists of cited by and citing cases may be incomplete.
International, Commercial
Updated: 03 December 2021; Ref: scu.524604
Richards, Beatson, Briggs LJJ
[2014] EWCA Civ 482, [2014] WLR(D) 171
Bailii, WLRD
Enterprise Act 2002 86(1)
England and Wales
Commercial
Updated: 02 December 2021; Ref: scu.523734
ECJ Appeal – Competition – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price for road pavement bitumen – Setting of a rebate for road builders – Regulation (EC) No 1/2003 – Article 27 – Rights of the defence – Reduction of the fine
T. von Danwitz, P
C-612/12, [2014] EUECJ C-612/12
Bailii
Regulation (EC) No 1/2003 27
European, Commercial
Updated: 02 December 2021; Ref: scu.523329
ECFI Competition – Cartels – Markets tin heat stabilizers and heat stabilizers ESBO / esters – Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement – Business consulting not operating markets involved – Fines – Application for annulment – Concept of undertaking – Principle of legality of criminal offenses and penalties – Duration of the infringement – Limitation period – Duration of the administrative procedure – Reasonable time – Rights of the defense – the late Information Ceiling of 10% of turnover – investigation procedure Sanction of two offenses in a single decision – Concept of single infringement – Application for Review – Amount of fines – Duration of the infringements – Time Administrative Procedure – Guidelines for the calculation of fines in 2006 – Value of sales – symbolic fine – Powers of full jurisdiction
T-27/10, [2014] EUECJ T-27/10
Bailii
European, Commercial
Updated: 01 December 2021; Ref: scu.522465
ECJ Opinion – Common commercial policy – Dumping – Regulation (EC) No 384/96 – Wire of iron or steel originating in Russia – Regulation (EC) No 1601/2001 – Price undertakings – Interim Review – Review under the expiry of the measures – Regulation (EC) No 1279/2007 – Determination of export price – Reliability of export prices to the Community – Consideration of price undertakings – Change of circumstances – Application of method different from that used in the original investigation – Assessment of validity
Cruz Vilalon AG
C-374/12, [2014] EUECJ C-374/12, [2014] EUECJ C-374/12 – 2
Bailii, Bailii
European, Commercial
Updated: 01 December 2021; Ref: scu.522475
(Outer House) British Telecommunications plc (BT) sought an order under regulation 48 of the 2012 Regulations setting aside the defender’s decision to appoint Capita plc as the preferred bidder in relation to the procurement exercise concerning the Scottish Wide Area Network (SWAN), failing which for payment of damages of andpound;20m.
Lord Malcolm
[2014] ScotCS CSOH – 44
Bailii
Public Contracts (Scotland) Regulations 2012 48
Scotland, Commercial
Updated: 01 December 2021; Ref: scu.522130
ECJ (Judgment Of The Court) Request for a preliminary ruling – State aid – Subsidised purchase or renting of digital decoders – Commission decision declaring an aid scheme unlawful and incompatible with the internal market – Recovery – Quantification of the amount to be recovered – Role of the national court – Taking into consideration by the national court of the positions of the Commission in the enforcement of its decision – Principle of cooperation in good faith
C-69/13, [2014] EUECJ C-69/13
Bailii
European
Commercial
Updated: 30 November 2021; Ref: scu.521832
ECJ (Advocate Generals Opinion) Appeal – Cartels – Markets for zip fasteners and other fasteners, and also for attaching machines – Successive liabilities – Legal upper limit of the fine – Regulation (EC) No 1/2003 – Article 23(2) – Concept of ‘undertaking’ – Personal responsibility – Principle of proportionality – Multiplier for deterrence
Wathelet AG
C-408/12, [2014] EUECJ C-408/12, [2014] EUECJ C-408/12
Bailii, Bailii
Regulation (EC) No 1/2003
European, Commercial
Updated: 29 November 2021; Ref: scu.521195
State aid – Aid to Litgas for the supply of a minimum quantity of LNG to the LNG terminal at the sea port of Klaipeda – Decision not to raise objections – Safeguarding procedural rights – EU framework for State aid in the form of public service compensation – Service of general economic interest – Compensation for a service of general economic interest – Boil-off costs – Balancing costs – Security of supply – Article 14 of Directive 2004/18/EC – Body of consistent evidence
A Kornezov (Rapporteur), Presiden
T-193/19, [2021] EUECJ T-193/19, ECLI:EU:T:2021:558
Bailii
European
Commercial
Updated: 29 November 2021; Ref: scu.668079
ECJ Appeals – Cartels – European market in hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Concept of” agreement ‘and’ concerted practice ‘- Meaning of” single and continuous infringement ‘- Calculation of the fine’
C-449/11, [2013] EUECJ C-449/11
Bailii
European
Commercial
Updated: 28 November 2021; Ref: scu.519490
ECJ Judgment of The Court – Appeals – Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Market sharing – Regulation (EC) No 1/2003 – Proof of the infringement – Single and continuous infringement – Distortion of the evidence – Probative value of statements which run counter to the interests of the declarant – Fines – Starting amount – Reference year – Deterrent multiplier – Powers of unlimited jurisdiction – Equal treatment – Rights of the defence – Duty to state reasons
C-239/11, [2013] EUECJ C-239/11
Bailii
Regulation (EC) No 1/2003
European, Commercial
Updated: 28 November 2021; Ref: scu.519488
ECJ Opinion – Appeals – Competition – Articles 82 EC and 86, paragraph 1, CE – Continuing special rights granted by Greece in favor of a public company for the exploration and exploitation of lignite deposits – Competitive Advantage in the markets the supply of lignite and electricity wholesale through the exercise of these rights – Extension of the dominant position of the first to the second of these markets – Obligation for the Commission to establish abusive behavior on the part of the company public
Melchior Wathelet AG
C-553/12, [2013] EUECJ C-553/12, [2014] EUECJ C-553/12, [2013] EUECJ C-553/12 – O
Bailii, Bailii, Bailii
European, Commercial
Updated: 28 November 2021; Ref: scu.519466
ECJ Competition – Concentrations – European markets for internet communications services – Decision declaring the concentration compatible with the internal market – Manifest errors of assessment – Obligation to state reasons
T-79/12, [2013] EUECJ T-79/12
Bailii
European
Commercial
Updated: 26 November 2021; Ref: scu.518930
Claim by 21 members of the Travis Perkins group of companies for damages arising out of the Copper Plumbing Tubes cartel.
Rose LJ
[2013] EWHC 3788 (Ch)
Bailii
England and Wales
Commercial, Torts – Other
Updated: 26 November 2021; Ref: scu.518776
ECJ Appeals – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price of road pavement bitumen – Setting of a rebate for road builders – 2002 Leniency Notice – Last paragraph of point 23(b) – Partial immunity – Evidence relating to facts previously unknown to the Commission – Appeal manifestly inadmissible or manifestly unfounded
C-581/12, [2013] EUECJ C-581/12
Bailii
European
Commercial
Updated: 26 November 2021; Ref: scu.518758
The court considered the scope of the statutory remedy for a breach of competition law.
Arden, Patten, Beatson LJJ
[2013] EWCA Civ 1377
Bailii
Competition Act 1998
England and Wales
Commercial, Damages
Updated: 25 November 2021; Ref: scu.517610
This appeal concerns the correct application of section 86(1)(b) of the Communications Act 2003
McFarlane LJ, Sir Bernard Rix, Sitr Timothy Lloyd
[2013] EWCA Civ 1318
Bailii
England and Wales
Commercial, Media
Updated: 23 November 2021; Ref: scu.517236
Allegation of abuse of dominant position
Rimer, Lewison, Treacy LJJ
[2013] EWCA Civ 1338
Bailii
England and Wales
Commercial
Updated: 25 November 2021; Ref: scu.517461
Claim for damages on the basis of alleged unlawful restriction on use of GMS gateway.
Rose J
[2013] EWHC 3091 (Ch)
Bailii
England and Wales
European, Commercial
Updated: 22 November 2021; Ref: scu.516971
[2013] CAT 21
Bailii
England and Wales
Cited by:
See Also – Groupe Eurotunnel Sa v Competition Commission and Others CAT 4-Dec-2013
. .
See Also – Groupe Eurotunnel SA v Competition and Markets Authority CAT 9-Jan-2015
Judgment . .
See Also – The Societe Cooperative De Production Seafrance SA v Competition and Markets Authority (Ruling (Permission To Appeal) CAT 20-Jan-2015
. .
See Also – Societe Cooperative De Production Seafrance Sa v Competition and Markets Authority CA 15-May-2015
The company appealed against the rejection of its challenge to a decision that the conditions had arisen allowing the defendant to intervene in its purchase of certain shares in a rival cross channel ferry company. he question was whether part of . .
See Also – Societe Cooperative De Production Seafrance SA v Competition and Markets Authority CA 10-Jul-2015
The CA had earlier allowed an appeal by the company to hold the respondent’s decsion wrong that an event had occurred allowing it to intervene in the acquisition of a competitor’s assets. Leave to appeal to the Supreme Court remained pending, but . .
See Also – Societe Cooperative De Production Seafrance Sa v The Competition and Markets Authority and Another SC 16-Dec-2015
The CMA had decided to intervene in purchases by the appellant from a competitor when it ceased trading.The French court had ordered the sale of the assts.
Held: UK law distinguishes between the acquisition of assets constituting a business . .
Lists of cited by and citing cases may be incomplete.
Commercial
Updated: 20 November 2021; Ref: scu.515492
ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Multipliers – Mitigating circumstances – Economic crisis – Pressure exerted by wholesalers – 2002 Leniency Notice – Reduction of the fine – Significant added value
T-411/10, [2013] EUECJ T-411/10, [2017] EUECJ T-411/10
Bailii, Bailii
European, Commercial
Updated: 20 November 2021; Ref: scu.515270
ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of the unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Mitigating circumstances – Economic crisis – 2002 Leniency Notice – Reduction of the fine – Significant added value
T-412/10, [2013] EUECJ T-412/10
Bailii
European, Commercial
Updated: 20 November 2021; Ref: scu.515273
ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Multipliers – Mitigating circumstances – Reduction of the fine – Significant added value
Pelikanova P
T-408/10, [2013] EUECJ T-408/10
Bailii
European, Commercial
Updated: 20 November 2021; Ref: scu.515272
ECJ Competition Articles 81 EC, 82 EC and 86 EC Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases Concept of an ‘undertaking’ Abuse of dominant position Freedom to provide services Articles 49 EC and 50 EC Restriction Justification Risk of serious harm to the financial equilibrium of the social security scheme
A Rosas, P
C-350/07, [2009] EUECJ C-350/07
Bailii
Citing:
Opinion – Kattner Stahlbau GmbH v Maschinenbauund Metall-Berufsgenossenschaft ECJ 18-Nov-2008
ECJ Opinion – Preliminary reference – Competition – Compulsory affiliation to a body providing insurance against accidents at work and occupational diseases Whether such a body is to be treated as an undertaking . .
Lists of cited by and citing cases may be incomplete.
European, Commercial
Updated: 19 November 2021; Ref: scu.514935
Europa Competition – Article 81 EC – Cartels – Methionine market – Single continuous nature of the infringement – Fine – Guidelines on the method of setting fines – Gravity and duration of the infringement – Cooperation during the administrative procedure – Article 15(2) of Regulation No 17 – Presumption of innocence
T-279/02, [2006] EUECJ T-279/02, [2006] EUECJ T-279/02
Bailii, Bailii
European
Commercial
Updated: 19 November 2021; Ref: scu.240076
judgment following the trial of two preliminary issues
HH Judge Russen QC
[2020] EWHC 1803 (TCC)
Bailii
England and Wales
European, Commercial
Updated: 15 November 2021; Ref: scu.653342
The Hon. Mr Justice Stuart-Smith
[2020] EWHC 164 (TCC)
Bailii
Defence and Security Public Contracts Regulations 2011
England and Wales
Commercial
Updated: 15 November 2021; Ref: scu.653336
ECJ Dumping – Imports of integrated electronic compact fluorescent lamps (CFL-i) originating in China, Vietnam, Pakistan and the Philippines – Expiry of anti-dumping measures – Review – Articles 4(1), 5(4) and 9(1) of Regulation (EC) No 384/96 (now Articles 4(1), 5(4), and 9(1) of Regulation (EC) No 1225/2009) – Concept of Community industry – Determination of injury – Obligation to state the reasons
T-469/07, [2013] EUECJ T-469/07
Bailii
Regulation (EC) No 1225/2009
European
Commercial
Updated: 15 November 2021; Ref: scu.512343
ECJ Appeals – Agreements, decisions and concerted practices – Market in butadiene rubber and styrene-butadiene rubber manufactured by emulsion polymerisation – Fixing price targets, sharing clients by non-aggression agreements and exchanging commercial information – Evidence – Attributability of unlawful conduct – Amount of the fine – Gravity and duration of the infringement – Aggravating circumstance – Repeated infringement
A. Tizzano, P
C-511/11, [2013] EUECJ C-511/11
Bailii
European, Commercial
Updated: 14 November 2021; Ref: scu.511018
ECJ Commercial policy – Regulation (EC) No 1225/2009 – Articles 13 and 14 – Imports of products originating in China – Anti-dumping duties – Circumvention – Re-consignment of goods via Malaysia – Implementing Regulation (EU) No 723/2011 – Registration of imports – Recovery of anti-dumping duties – Retroactivity
C-667/11, [2013] EUECJ C-667/11
Bailii
Regulation (EC) No 1225/2009, Regulation (EU) No 723/2011
European, Commercial
Updated: 12 November 2021; Ref: scu.510331
ECJ Appeal – Agreements, decisions and concerted practices – European market for methacrylates – Duration of the infringement – Presumption of innocence – Statement of reasons – Unlimited jurisdiction – General principles of the protection of legitimate expectations and equal treatment – Proportionality of the fine
Arestis P
C-70/12, [2013] EUECJ C-70/12
Bailii
European, Commercial
Updated: 12 November 2021; Ref: scu.510319
The rules of an association, called the Tea Clearing House, the members of which were dock companies and tea warehouse keepers carrying on the business of warehousing tea in bond, provided (rule 11) that every member should charge on teas the respective rates and adhere to the terms and conditions specified in a schedule to the rules, and should not be at liberty to depart from them in any way, except that a discount not exceeding 10 per cent, might be allowed on the said rates. No other discount, no money gratuities, and no advantages, direct or indirect, should be offered or allowed by any member to any merchant, broker, or other person in connection with any matter or thing in anywise relating to the Tea Clearing House agreement.
By rule 14, No subscriber should be entitled to warehouse or deposit tea with, or employ in connection with tea, any dock company or tea warehouse keeper who was not a member of the Clearing House, or to purchase or sample any tea from the warehouse of any non-member.
By rule 15, Any member breaking or failing to observe any of the rules was to be liable to expulsion by resolution of the committee.
The committee passed a resolution expelling the plaintiffs for an alleged breach of the rules, and they brought an action against the members of the committee to restrain them from acting on the resolution, on the ground (inter alia) that the plaintiffs had not had an opportunity of being heard in their defence. Kekewich J. granted an interlocutory injunction.
Held, on appeal, that the association was a ‘trade union’ within the meaning of s. 16 of the Trade Union Act Amendment Act, 1876 ; that its objects were illegal independently of the Trade Union Act, 1871, and that s. 4 of that Act prevented the Court from directly enforcing the agreement between the members:
Held, also, that by granting the injunction the Court would be directly
enforcing the agreement.
The injunction was accordingly dissolved.
(1900) 2 Ch 605, [1900] UKLawRpCh 147
Commonlii
England and Wales
Cited by:
Cited – Yorkshire Miners’ Association and Others v Howden and Others HL 14-Apr-1905
A miners’ association, registered under the Trade Union Act 1871, made certain payments from its funds to its members, who were out of employment, in circumstances which involved a direct contravention of the rules of the association. Held (Lords . .
Lists of cited by and citing cases may be incomplete.
Employment, Company, Commercial
Updated: 12 November 2021; Ref: scu.653366
ECJ Judgment – Appeal – Dumping – Regulation (EC) No 384/96 – First indent of Article 2(7)(c) – Regulation (EC) No 2026/97 – Regulation (EC) No 91/2009 – Imports of certain iron or steel fasteners originating in the People’s Republic of China – Market economy treatment – Costs of major inputs substantially reflecting market values – State subsidy for the steel sector in general – Effect
J. L. da Cruz Vilaca P
C-602/12, [2014] EUECJ C-602/12, ECLI:EU:C:2014:2203
Bailii
Regulation (EC) No 384/96 2(7)(c), Regulation (EC) No 91/2009
European, Commercial
Updated: 11 November 2021; Ref: scu.536558
The claimant solicitors had failed to submit their tender for a new contract in time. The respondent refused to accept the late submission. The claimant said that the respondent had not directly notified it of the deadline and so failed to meet its obligations under the 2006 Act and European law, and that the refusal to extend time was a disproportionate response. The information had been provided by email and on the LSC web-site.
Held: The claim failed. Past dealings had given rise to no sufficient expectation that the defendant would write to existing franchisees. It was not appropriate to try to derive any principle for tender procedures in criminal law.
The purpose of the equal treatment obligation is to ensure the development of effective competition for public contracts, leading to the selection of the best bid, and therefore generally forbids differential treatment of entities in a comparable competitive position. This obligation will generally require all potential bidders to be given access to substantially the same information, but it does not absolutely prevent the contracting authority from drawing the tender process to the attention of particular firms, provided that they are not thereby given access to information which is either unavailable to or less readily intelligible by other firms. The objective of the equal treatment obligation is to afford equality of opportunity to all reasonably well-informed and diligent potential tenderers, exercising ordinary care. Equal treatment does not necessarily require identical treatment. The objective of affording equality of opportunity may permit, and in some cases require, differences in the mode of advertisement of a tender, provided that the end result is that substantially the same information is made available to all potential tenderers. The equal treatment obligation does not of itself require that every possible tenderer is in fact notified.
The defendant had acted reasonably in not extending the deadline. The claimant was itself at fault in not making the application: ‘the firm had in my view demonstrated a lack of reasonable care and diligence in the protection of its own commercial interests in failing either to monitor the LSC website, to subscribe to its Update service or to study the Law Society Gazette with proper care.’
Briggs J
[2010] EWHC 960 (Ch)
Bailii
Public Contracts Regulations 2006 47, Directive 2004/18/EC
England and Wales
Citing:
Cited – Commission v France C-225/98 ECJ 26-Sep-2000
Europa (Judgment) Failure of a Member State to fulfil its obligations – Public works contracts – Directives 71/305/EEC, as amended by Directive 89/440/EEC, and 93/37/EEC – Construction and maintenance of school . .
Cited – Commission v France C-16/98 ECJ 5-Oct-2000
ECJ (Judgment) Failure of a Member State to fulfil its obligations – Directive 93/38/EEC – Public works contracts in the water, energy, transport and telecommunications sectors – Electrification and street . .
Cited – Tideland Signal v Commission ECFI 27-Sep-2002
Europa Public procurement – Rejection of tender – Failure to exercise power to seek clarification of tender – Action for annulment – Expedited procedure. . .
Cited – Commission v CAS Succhi di Frutta (Judgment) ECJ 29-Apr-2004
Europa Appeal – Common agricultural policy – Food aid – Tendering procedure – Commission decision amending the conditions after the auction – Payment of successful tenderers in fruit other than those specified in . .
Cited – J B Leadbitter and Co Ltd v Devon County Council ChD 1-May-2009
The claimant said that its tender had been wrongfully excluded from the defendant’s procurement process. . .
Cited – Commission v Greece (Law Relating To Undertakings) ECJ 12-Nov-2009
ECJ Failure of a Member State to fulfil obligations – Public procurement -Directive 93/38/EEC Contract notice – Consultancy project – Criteria for automatic exclusion – Qualitative selection and award criteria. . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, European, Commercial, Legal Aid
Updated: 11 November 2021; Ref: scu.415084
ECJ (Judgment) Reference for a preliminary ruling – Common organisation of the markets in agricultural products – Regulation (EU) No 1308/2013 – Free movement of goods – Article 34 TFEU – Quantitative restrictions – Measures having equivalent effect – Minimum price of alcoholic drinks calculated according to the alcoholic strength of the product – Justification – Article 36 TFEU – Protection of human life and health – Assessment by the national court
‘I consider that the existence of a CMO covering the wine sector does not prevent the national authorities from taking action in the exercise of their competence in order to adopt measures to protect health and, in particular, to combat alcohol abuse. However, where the national measure constitutes a breach of the principle of the free formation of selling prices that constitutes a component of the single CMO Regulation, the principle of proportionality requires that the national measure must actually meet the objective of the protection of human health and must not go beyond what is necessary in order to attain that objective.
As the commission suggests, I consider that the examination of the proportionality of the measure must be undertaken in the context of the analysis that must be carried out by reference to article 36 TFEU.
Consequently, I propose that the answer to the first question should be that the single CMO Regulation must be interpreted as meaning that it does not preclude national rules, such as those at issue, which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.’
‘A barrier to the free movement of goods may be justified on one of the public interest grounds set out in article 36 TFEU or in order to meet overriding requirements. In either case, the restrictions imposed by the member states must none the less satisfy the conditions laid down in the court’s case law as regards their proportionality. In that regard, in order for national rules to comply with the principle of proportionality, it is necessary to ascertain not only whether the means which they implement are appropriate to ensure attainment of the objective pursued, but also that those means do not go beyond what is necessary to attain that objective: Berlington Hungary Tanacsado es Szolgaltato kft v Magyar Allam (Case C-98/14) [2015] 3 CMLR 45, para 64.
Although the words generally used by the court seem most frequently to result in only two different stages of the control of proportionality being distinguished, the intellectual exercise followed in order to determine whether a national measure is proportionate is generally broken down into three successive stages.
The first stage, corresponding to the test of suitability or appropriateness, consists in ascertaining that the act adopted is suitable for attaining the aim sought.
The second stage, relating to the test of necessity, sometimes also known as the ‘minimum interference test’, entails a comparison between the national measure at issue and the alternative solutions that would allow the same objective as that pursued by the national measure to be attained but would impose fewer restrictions on trade.
The third stage, corresponding to the test of proportionality in the strict sense, assumes the balancing of the interests involved. More precisely, it consists in comparing the extent of the interference which the national measure causes to the freedom under consideration and the contribution which that measure could secure for the protection of the objective pursued.’
R. Silva de Lapuerta, P
ECLI:EU:C:2015:845, [2015] EUECJ C-333/14, [2016] 1 WLR 2283, [2015] WLR(D) 544
Bailii, WLRD
Regulation (EU) No 1308/2013, TFEU 34
European
Citing:
See Also – Scotch Whisky Association and Others v The Lord Advocate and Another SCS 30-Apr-2014
(Extra Division, Inner House, Court of Session) Reclaiming motion is brought against the Lord Ordinary’s decision rejecting the petitioners’ challenge to the provisions of the 2012 Act. Reference to ECJ . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 26-Sep-2012
Outer House – application by Alcohol Focus Scotland for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine . .
See Also – The Scotch Whisky Association and Others, Re Judicial Review SCS 3-May-2013
(Outer House, Court of Session) The petitioners challenged the legality of an enactment of the Scottish Parliament – the Act. They also challenged the legality of the Scottish Ministers’ decision that they would make an Order setting the minimum . .
See Also – Scotch Whisky Association and Others for Judicial Review SCS 11-Jul-2014
Extra Division, Inner House – Further application for leave to intervene. . .
Cited – Commission v Italy (Free Movement Of Goods) ECJ 10-Feb-2009
ecJ Failure of a Member State to fulfil obligations Article 28 EC Concept of ‘measures having equivalent effect to quantitative restrictions on imports’ Prohibition on mopeds, motorcycles, motor tricycles and . .
Cited by:
At ECJ – The Scotch Whisky Association and Others v The Lord Advocate and Another SCS 21-Oct-2016
The Association sought to challenge the legality of the 2012 Act and orders made under it. The Government’s contended that the Act would bring health benefits of one sort or another to at least part of the population.
Held: In a reclaiming . .
At ECJ – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Lists of cited by and citing cases may be incomplete.
Commercial, Health
Updated: 10 November 2021; Ref: scu.565749
ECFI Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Rights of the defence – Proof of the infringement – Single and continuous infringement – Fines – Gravity and duration of the infringement – Deterrent effect – Cooperation.
[2011] EUECJ T-112/07
Bailii
European
Commercial
Updated: 10 November 2021; Ref: scu.441788
ECFI Competition – Cartels – Carbonless paper – Pricing – Decision finding an infringement of Article 101 TFEU – Decision taken following the cancellation of a first decision – Allocation of the offense to the parent, taken as the author directly – Legality of criminal offenses and penalties – Legal – Personality sentences – Fair trial – Equal treatment – Reasonable period – Rights of defense – Fines – Limitations – Mitigating circumstances – Cooperation
Forwood P
T-372/10, [2012] EUECJ T-372/10
Bailii
European, Commercial
Updated: 10 November 2021; Ref: scu.461734
The court considered the applicability of Article 81 in Chapter 1 of Part III of the EC Treaty to allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones. Unipart, an independent service provider (‘ISP’) purchased airtime from Cellnet, a mobile network operator under various agreements which provided that the price would be at Cellnet’s charges from time to time. There were also a number of service providers, competing with Unipart, that were tied to Cellnet (tied service providers or ‘TSPs’). Unipart claimed that Cellnet was in breach of Article [101] by operating a margin squeeze whereby the price for airtime that Unipart (and other ISPs) were charged relative to the retail price charged to the TSPs was such as to eliminate its margin and thus place the TSPs at a competitive advantage.
Held: The judge’s grant of summary judgment in favour of Cellnet was correct in finding that even if there was such a margin squeeze, this was not the subject of any relevant agreement between the undertakings within the meaning of Article [101(1)].
Jonathan Parker LJ referred to the ADALAT case and said: ‘Approaching Article [101(1)] on that basis, the first step, in my judgment, is to identify as precisely as possible the conduct of which complaint is made: that is to say the conduct which is alleged to have caused the loss in respect of which damages are claimed. For in my judgment it is that conduct which must be the subject of an agreement between undertakings if Article [101(1)] is to be engaged in respect of it.
In my judgment it is clear on the face of the Particulars of Claim . . that the conduct of which complaint is made in the instant case is not that Cellnet set its own prices for airtime (most suppliers set the prices for their products); nor is it merely that Cellnet set its prices at a level which was excessively high (a supplier who does that risks going out of business as a result). The anti-competitive conduct which is alleged in the instant case is that Cellnet set its prices at an excessively high level as part of its policy of ‘margin squeeze’ – a policy which is described in detail in paragraphs 14 and 15 of the Particulars of Claim. . : hence the allegation of ‘unlawful margin squeeze’ in paragraph 36 of the Particulars of Claim . . Take away that allegation, and in my judgment there is nothing left of Unipart’s complaint.
Accordingly, given that Unipart does not seek to invoke Article [102], the relevant inquiry, in my judgment, is whether Cellnet’s conduct in adopting a policy of ‘margin squeeze’ (assuming for present purposes that it in fact adopted such a policy) was the subject of an ‘agreement’ between Cellnet and Unipart; or whether it was ‘unilateral’ conduct on Cellnet’s part and thus outside the scope of Article [101(1)]. To put it another way, the issue is whether Unipart can establish to the requisite legal standard a concurrence of wills between it and Cellnet concerning Cellnet’s adoption of the policy of ‘margin squeeze’ (see paragraph 77 of the CFI’s judgment in Bayer. . ).’
Jonathan Parker LJ, Peter Gibson LJ and Laddie J
[2004] EWCA Civ 1034, [2004] UKCLR 1453
Bailii
EC Treaty A81
England and Wales
Cited by:
Cited – Sel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .
Lists of cited by and citing cases may be incomplete.
European, Commercial
Updated: 10 November 2021; Ref: scu.199631
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding information which would allow it to trade lawfully. The Court was now asked: ‘whether a person who has imported goods bearing the mark into the EEA and offered them for sale there without the consent of the trade mark proprietor, is entitled to defend an action for infringement on the ground that the proprietor of the mark is engaged in conduct calculated to obstruct the free movement of such goods between member states or to distort competition in the EEA market for them.’
Held: The appeal was allowed and the judgment at first instance restored. The Court declined to refer a case to the European Court. Even if proved, the defence put forward by M-Tech would not have succeeded: ‘once the scheme of articles 5 and 7 of the directive are correctly understood, it is clear that the unlawful conduct alleged by M-Tech is collateral to the particular right which Sun is seeking to enforce.’. The drives at issue were not marketed in the EEA until imported by M-Tech without Oracle’s consent, and Oracle has the right to first market their own products within the EEA if they so chose.
It is settled law: ‘(i) that the Directive must be construed as a definitive statement of the harmonised law concerning the rights of trade mark proprietors, and (ii) that it confers on trade mark proprietors a right to control the first marketing of their goods in the EEA save in cases where that right had been unequivocally renounced.’
Lord Walker , Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2012] UKSC 27, [2012] 1 WLR 2026, UKSC 2010/0203, [2012] ETMR 43, [2012] Bus LR 1631, [2012] 1 WLR 2026, [2012] 3 CMLR 28, [2012] 4 All ER 338, [2012] ECC 27, [2012] Eu LR 727
Bailii, Bailii Summary, SC Summary, SC
Directive 89/104/EC 5 7, Trade Marks Act 1994, EU Treaty 34 36
England and Wales
Citing:
At First Instance – Sun Microsystems Inc v M-Tech Data Ltd and Another PatC 25-Nov-2009
The claimant manufactured computer disk drives, marketing them under its trade marks. It complained that the defendant had resold them within the European Economic Area in breach of its rights.
Held: Summary judgment was granted, and an order . .
Cited – EMI Records v CBS United Kingdom ECJ 15-Jun-1976
ECJ Neither the rules of the Treaty on the free movement of goods nor those on the putting into free circulation of products coming from third countries nor, finally, the principles governing the common . .
Cited – Tedeschi v Denkavit Commerciale SRL ECJ 5-Oct-1977
ECJ 1. Article 177 is based on a distinct separation of functions between national courts and tribunals on the one hand and the court of justice on the other, and it does not give the court jurisdiction to take . .
Cited – Criminal proceedings against Richardt ECJ 4-Oct-1991
The existence, as a consequence of the Customs Union, of a general principle of freedom of transit of goods within the Community does not, as Article 10 of Regulation No 222/77 affirms, have the effect of precluding the Member States from verifying . .
Cited – Generics and Harris Pharmaceuticals v Smith Kline and French Laboratories ECJ 27-Oct-1992
When deciding upon the terms upon which licenses for the use of patented drugs are to be granted, a member state must not take into account issues other than those properly involved in such decisions. Protection of existing licences were not a . .
Cited – Bristol-Myers Squibb and others v Paranova ECJ 11-Jul-1996
ECJ 1. Reliance by a trade mark owner on his rights as owner in order to prevent an importer from marketing a product which was put on the market in another Member State by the owner or with his consent where . .
Cited – Phytheron International v Bourdon ECJ 20-Mar-1997
ECJ 1 Preliminary rulings – Jurisdiction of the Court – Limits – Presentation during the procedure before the Court of facts which differ from those described in the order for reference – Obligation of the Court . .
Cited – Silhouette International Schmied GmbH and Co KG v Hartlauer Handelsgesellschaft mbH ECJ 16-Jul-1998
National Trade Mark rules providing for exhaustion of rights in Trade Marks for goods sold outside area of registration were contrary to the EU first directive on trade marks. A company could prevent sale of ‘grey goods’ within the internal market. . .
Cited – Zino Davidoff SA v A and G Imports Ltd ChD 24-May-1999
Though a company could prevent parallel import within the EU, it could not prevent goods sold outside the EU but without restriction on re-sale, being subsequently re-sold into the EU. The removal of a numbering mark did not materially reduce its . .
Cited – Sebago and Maison Dubois et Fils SA v GB-Unic SA ECJ 1-Jul-1999
The fact that specific goods bearing a Trade Mark had been authorised for distribution within the EEA, did not mean that the relative trade mark rights had been exhausted. They would only be exhausted where the consent related to each individual . .
Appeal From – Oracle America Inc v M-Tech Data Ltd and Another CA 24-Aug-2010
The claimant sought to prevent import from China of its own second hand computer disc drives said to infringe its trade marks. It had granted an exclusive licence for the sale of its equipment in Europe and alleged that this was a parallel import. . .
Approved – Levi Strauss and Co and Another v Tesco Stores Ltd and Others ChD 31-Jul-2002
Pumfrey J discussed the principle of European law disallowing so called grey imports in breach of trade mark law, as set out in EMI v CBS, and said that it: ‘could hardly be clearer. It has formed, with the principle of exhaustion, the basis for the . .
Cited – Zino Davidoff SA v A and G Imports Ltd etc ECJ 20-Nov-2001
An injunction was sought to prevent retailers marketing in the EEA products which had been obtained outside the EEA for resale within the EEA but outside the controlled distribution system.
Held: Silence alone was insufficient to constitute . .
Cited – Hoffmann La Roche Ag v Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse Mbh ECJ 24-May-1977
The court considered the application of the doctrine of exhaustion of rights in the context of trade marks. The exercise of trade mark rights had to take account of and might be restricted by the prohibitions contained in the Treaty of Rome intended . .
Cited – Hoffman-La Roche v Centrafarm ECJ 23-May-1978
ECJ (Judgement) 1. It is clear from article 36 of the EEC treaty, in particular its second sentence, as well as from the context, that whilst the treaty does not affect the existence of rights recognized by the . .
Cited – MPA Pharma v Rhone-Poulenc Pharma GmbH ECJ 11-Jul-1996
ECJ 1. Although a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against him, the national court which applies national law and is required to . .
Cited – Eurim-Pharm Arzneimittel v Beiersdorf and others ECJ 11-Jul-1996
ECJ 1. Although a directive may not of itself impose obligations on an individual and cannot therefore be relied upon as such against him, the national court which applies national law and is required to . .
Cited – Loendersloot v Ballantine and Son and others ECJ 11-Nov-1997
ECJ Article 36 of the EC Treaty – Trade mark rights – Relabelling of whisky bottles. . .
Cited – Pharmacia and Upjohn SA, formerly Upjohn SA v Paranova A/S ECJ 12-Oct-1999
ECJ Trade-mark rights – Pharmaceutical products – Parallel imports – Replacement of a trade mark. . .
Cited – 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 . .
Cited – Class International v Colgate Palmolive ECJ 18-Oct-2005
ECJ Trade marks – Directive 89/104/EEC – Regulation (EC) No 40/94 – Rights conferred by the trade mark – Use of the mark in the course of trade – Importation of original goods into the Community – Goods placed . .
Cited – Van Doren + Q GmbH v Lifestyle sports + sportsewar Handelgesellschaft mbH and another ECJ 8-Apr-2003
The claimant was exclusive agent for the trademark holder for Germany. The defendant sold goods it had not bought from the claimant, but bearing the mark. The defendant alleged exhaustion of the claimant’s rights.
Held: The burden of proving . .
Cited – Keurkoop Bv v Nancy Kean Gifts Bv ECJ 14-Sep-1982
ECJ The protection of designs comes under the protection of industrial and commercial property within the meaning of article 36 inasmuch as its aim to define exclusive rights which are characteristic of that . .
Cited – Halifax plc etc v Commissioners of Customs and Excise ECJ 21-Feb-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2), Article 5(1) and Article 6(1) – Economic activity – Supplies of goods – Supplies of services – Abusive practice – Transactions designed solely to . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, European, Commercial
Updated: 10 November 2021; Ref: scu.460912
ECFI Competition – Agreements, decisions and concerted practices – Worldwide market for liquid crystal display (LCD) panels – Agreements and concerted practices concerning prices and production capacity – Territorial jurisdiction – Internal sales – Sales of finished products incorporating cartelised products – Single and continuous infringement – Fines – Rounding method – Unlimited jurisdiction
H Kanninen, P
T-91/11, [2014] EUECJ T-91/11
Bailii
European, Commercial
Updated: 10 November 2021; Ref: scu.521828
ECFI (French Text) Competition – Cartels – Sector Industrial plastic bags – Decision finding an infringement of Article 81 EC – Fines – Guidelines for the calculation of fines – Maximum limit of 10% of sales – Implementation – legality – proportionality – Equal treatment – Single and continuous infringement – Attenuating circumstances – Exclusively passive role – Obligation to state reasons – Liability for unlawful conduct
Pelikanova P
T-66/06, [2011] EUECJ T-66/06
Bailii
European
Commercial
Updated: 10 November 2021; Ref: scu.448728
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a merger situation qualifying for investigation.’
The test for the issue of judicial review proceedings was set out as follows: ‘The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be re-applied as a matter of discretion on the hearing of the substantive application. At this second stage, the strength of the applicant’s interest is one of the factors to be weighed in the balance.’
‘Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.’
Sir John Donaldson MR, Dillon LJ, Neill LJ
[1986] 1 WLR 763, [1987] QB 815, (1986) 2 BCC 99086, [1986] EWCA Civ 8, [1986] 2 All ER 257
Bailii
Senior Courts Act 1981 31(3)
England and Wales
Cited by:
Cited – Office 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 . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
Cited – Regina v Cotswold District Council and others ex parte Barrington Parish Council Admn 24-Apr-1997
The parish council sought judicial review of the district council’s planning decision. The respondents complained at the lack of promptness in the application, and suggested a lack of standing to complain. . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Lists of cited by and citing cases may be incomplete.
Commercial, Judicial Review
Leading Case
Updated: 10 November 2021; Ref: scu.194045
ECJ Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Unlimited jurisdiction of the General Court – Duty to state reasons – Attribution to the parent company of the infringement committed by the subsidiary – Liability of the parent company for payment of the fine imposed on the subsidiary – Proportionality – Proceedings before the General Court – Adjudication within a reasonable time
A. Tizzano, P
C-238/12, [2014] EUECJ C-238/12
Bailii
European
Commercial
Updated: 10 November 2021; Ref: scu.525428
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were capable of being damaging to the public interest. Even though the Regulator had won, it should be allowed to appeal against the relevant element of the judgment. It was not the task of tribunals to provide general guidance, and their judgments should avoid this.
Mummery LJ, Lawrence Collins LJ, Sir John Chadwick
[2009] EWCA Civ 47, Times 23-Feb-2009, [2009] UKCLR 659, [2009] Bus LR 1116
Bailii
Competition Act 1998 49(1)(c)
England and Wales
Citing:
Cited – Lake v Lake CA 1955
Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to . .
Cited – Australia and New Zealand Banking Group Ltd v Compagnie Noga D’Importation Et D’Exportation Sa and Another ComC 21-Feb-2007
Non-payment of bills of exchange – construction of settlement agreement. It was said that the compromise agreement ws unenforceable as being against public policy in restraining one party.
Held: The restraint ‘does not affect the course of . .
Cited – Compagnie Noga D’Importation et D’Exportation Sa v Australia and New Zealand Banking Group Ltd. and others CA 31-Jul-2002
If the court wishes to enable a party to appeal against a particular finding contained in the judgment, it may make a declaration embodying that finding. . .
Cited – Secretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .
Lists of cited by and citing cases may be incomplete.
Commercial, Litigation Practice
Updated: 09 November 2021; Ref: scu.282606
Europa Appeal Subsidies Imports of recordable CDs from India Article 8(7) of Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports Anti-competitive behaviour affecting all manufacturers Other factors Causation Calculation of injury elimination level ‘Lesser duty’ rule.
C-535/06, [2008] EUECJ C-535/06 – O, [2009] EUECJ C-535/06
Bailii, Bailii
European
Customs and Excise, Commercial
Updated: 09 November 2021; Ref: scu.276780
ECJ Appeal – Competition – Agreements, decisions or concerted practices – Italian market for the purchase and first processing of raw tobacco – Price-fixing and market-sharing – Attributability of unlawful conduct of subsidiaries to their parent companies – Presumption of innocence – Rights of the defence – Obligation to state reasons
A. Rosas
C-593/11, [2012] EUECJ C-593/11
Bailii
European
Commercial
Updated: 09 November 2021; Ref: scu.468759
The claimant telecoms companies objected to a proposed scheme for future licensing of available spectrum. The scheme anticipated a bias in favour of auctioniung such content. It was not agreed whether any challenge to the decision should be by way of appeal to the Competition Appeal Tribunal or by judicial review. The CAT had declined jurisdiction. The question now was whether judicial review rovided a satisfactory means of appeal.
Held: The proposal was subject to judicial review, and that remedy was sufficient to satisfy European law. ‘It is not the function of a statutory tribunal to impugn statutory instruments or regulations made pursuant to statutory powers. Challenges to these are classically matters for JR and that is so in the case of the Award.’ The European case law was neutral on this topic.
Tuckey LJ, Jacob LJ, Sir William Aldous
[2008] EWCA Civ 1373, Times 18-Dec-2008
Bailii
Supreme Court Act 1981 31, Directive 2002/21/EC (Framework Directive)
England and Wales
Citing:
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Unibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 13-Mar-2007
(Grand Chamber) Principle of judicial protection National legislation not providing for a self-standing action to challenge the compatibility of a national provision with Community law Procedural autonomy Principles of equivalence and effectiveness . .
Cited – Unibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 30-Nov-2006
CJEU Effective judicial protection of Community law rights – National rules not providing for self-standing application for annulment of national legislation conflicting with Community law – Right to interim . .
Cited – Mobistar SA v Institut belge des services postaux et des telecommunications (IBPT) (Approximation Of Laws) ECJ 13-Jul-2006
ECJ Telecommunications – Mobile telephony – Number portability – Per-line or per-number set-up costs for the provision of number portability – Article 30 of Directive 2002/22/EC (Universal Service Directive) – . .
Cited – JB, Regina (on the Application of) v Responsible Medicial Officer, Dr Haddock CA 11-Jul-2006
JB challenged his detention under the 1983 Act.
Held: The judicial review procedure afforded a sufficient appeal procedure for a detainee. . .
Cited – Office 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 . .
Cited – Regina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .
Cited – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Cited – Connect Austria Gesellschaft fur Telekommunikation GmbH v Telekom-Control-Kommission, intervener: Mobilkom Austria AG, ECJ 22-May-2003
Europa Telecommunications – Mobile telecommunications services – Article 5a(3) of Directive 90/387/EEC – Appeal to an independent body against a decision of the national regulatory authority – Articles 82 EC and . .
Cited – Barber v Staffordshire County Council CA 29-Jan-1996
A dismissal of a claim without consideration by the tribunal created an issue estoppel. Issue estoppel rules apply equally to Industrial Tribunal decisions as elsewhere. Redundancy claim once withdrawn on one ground could not be revived on another. . .
Cited – Manson v Ministry of Defence CA 4-Nov-2005
. .
Cited – Impact v Minister for Agriculture and Food ECJ 15-Apr-2008
ECJ Grand Chamber – Fixed-term employment – Directive 1999/70/EC – Framework agreement on fixed-term work – Abuse through use of successive fixed – term employment contracts – Civil and public servants – . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Licensing, Commercial, European
Updated: 09 November 2021; Ref: scu.278674
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its rights to prevent unauthorised extractions or utilisations of the database. Allegations were made that it had sought to abuse its dominant position, and to make excess profits. After the decision in the ECJ, the defendant bookmakers believed that the claimant had no continuing right to restrict use of the data, and ceased to make payments under its licences.
Held: The proposition advanced by the defendant was startling, and failed. The defendant remained bound by the licence whether or not the claimant had the right to control the use of the data. The defendant had acknowledged the claimant’s rights in the contract. The right to refuse to provide the data was separate from the requirement that there be copyright or other arrangements between the customer and the licensor. A non-challenge provision did not seek to oust the jurisdiction of the court, and was not void or unenforceable. As to the assertion of abuse of dominant position ‘we still live in a free market economy where traders are allowed to run their businesses without undue interference. What Article 82 and section 18 of the Act are concerned with is unfair prices, not high prices. In determining whether a price is unfair it is necessary to consider the impact on the end consumer and all of the market conditions. In a case where unfair pricing is alleged, assessment of the value of the asset both to the vendor and the purchaser must be a crucial part of the assessment.’
Laddie J
[2005] EWHC 1074 (Ch), [2005] EuLR 924
Bailii
EC Directive 96/9, Competition Act 1998 18
England and Wales
Citing:
Cited – Oscar Bronner v Mediaprint (Judgment) ECJ 26-Nov-1998
A major newspaper proprietor had refused to allow a small competitor access to its efficient distribution service.
Held: That amounted to an abuse of a dominant position: ‘First, it is apparent that the right to choose one’s trading partners . .
Cited – John Zinc Co Ltd. v Wilkinson CA 1973
Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings. . .
Cited – 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 . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited by:
Cited – Attheraces 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 . .
Cited – Sel-Imperial Ltd v The British Standards Institution ChD 23-Apr-2010
The defendant had developed a draft standard for automotive body repairs. It included a requirement that any replacement parts must be either the manufacturer’s own or certified under a recognised conformity certification scheme. The claimant . .
Cited – Humber Oil Terminals Trustee Ltd v Associated British Ports ChD 24-Feb-2011
The claimant sought to renew its leases of docking facilities from the landlord defendant. The defendant resisted saying it intended to operate its own business, and the claimant now alleged that the defendant was abusing its dominant position to . .
Lists of cited by and citing cases may be incomplete.
Information, Commercial, Contract, European
Updated: 09 November 2021; Ref: scu.225995
The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an unsuccessful tenderer for a public contract challenges that award, the issue as to whether the criteria for the award of the contract had been sufficiently clearly set out was to be decided by the court by applying an objective legal standard with reference to a reasonably well informed and diligent tenderer. It did not depend on the evidence of witnesses as to how they had understood the document.
Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hughes
[2014] UKSC 49, [2014] WLR(D) 351, UKSC 2013/0108, [2014] PTSR 1081, 2014 GWD 25-505, 2014 SLT 769
Bailii, WLRD, Bailii Summary, SC Summary, SC
Scotland
Citing:
Outer House – Healthcare At Home Ltd v The Common Services Agency SCS 1-Feb-2011
Outer House – The pursuer sought an order in terms of the Regulation, setting aside the decision of the defender to award the ‘NP 341/10 Trastuzumab Homecare and Near Patient Treatment Services’ Framework Agreement to BUPA Home Healthcare Ltd. . .
Outer House (2) – Healthcare At Home Ltd v The Common Services Agency SCS 1-May-2012
Outer House – Healthcare challenged the award of a framework agreement contract to a competitor contractor. . .
Inner House – Healthcare At Home Ltd v The Common Services Agency SCS 21-Mar-2013
Inner House – Healthcare challenged the loss of a contract for provision of cancer treatments for their patients to a competitor. . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – SIAC Construction v County Council of the County of Mayo ECJ 18-Oct-2001
ECJ Public works contracts – Award to the most economically advantageous tender – Award criteria.
There was a disagreement between the parties as to the interpretation of tender documents.
Held: The . .
Cited – Commission v Netherlands ECJ 10-May-2012
ECJ Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Procedures for the award of public works contracts, public supply contracts and public service contracts – Contract for the supply, . .
Cited – Evropaiki Dynamiki v EMSA ECFI 2-Mar-2010
ECJ Law Relating To Undertakings – Public service contracts EMSA tendering procedures – Provision of information technology services – Rejection of the tender – Action for annulment – Jurisdiction of the Court – . .
Cited – Lammerzahl GmbH v Freie Hansestadt Bremen ECJ 7-Jun-2007
Judgment – Law Relating To Undertakings – Public contracts Directive 89/665/EEC Review procedures concerning the award of public contracts Limitation period Principle of effectiveness
Article 1 of the Directive required member states to take . .
Cited – EVN AG et Wienstrom GmbH v Republik Osterreich ECJ 4-Dec-2003
ECJ Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive . .
Cited – Universale-Bau and others v Entsorgungsbetriebe Simmering GmbH ECJ 12-Dec-2002
ECJ Judgment – Directive 93/37/EEC – Public works contracts – Definition of ‘contracting authority’ – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates . .
Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Lists of cited by and citing cases may be incomplete.
European, Health Professions, Commercial
Updated: 09 November 2021; Ref: scu.535438
ECFI Competition – Abuse of dominant position – Spanish broadband internet access markets – Decision finding an infringement of Article 82 EC – Price-fixing – Margin squeeze – Sincere cooperation – Ultra vires application of Article 82 EC – Legal certainty – Protection of legitimate expectations
Truchot P
T-398/07, [2012] EUECJ T-398/07
Bailii
European
Commercial
Updated: 09 November 2021; Ref: scu.452640
ECJ Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Distortion of competition – Proof – Calculation of the fine – Cooperation during the administrative procedure – 2002 Leniency Notice – Immunity from fines – Reduction of the fine – Significant added value – 2006 Guidelines on the method of setting fines – Principle of non-retroactivity
T-380/10, [2013] EUECJ T-380/10
Bailii
European
Commercial
Updated: 02 November 2021; Ref: scu.515274