Action for failure to fulfil obligations – Agreements, decisions and concerted practices – Fixing of business tariffs – Customs agents – Legislation reinforcing the effects of an agreement
C Gulmann P
[1998] ECR I-3851, C-35/96, [1998] EUECJ C-35/96
Updated: 03 June 2022; Ref: scu.161774
ECJ (Judgment) Public procurement – Procedure for the award of public works contracts – State printing office – Subsidiary pursuing commercial activities
G.C. Rodriguez Iglesias, P
[1998] EUECJ C-44/96
European
Updated: 03 June 2022; Ref: scu.161781
ECJ Reference for a preliminary ruling: Tribunale amministrativo regionale per il Lazio – Italy. Competition law – National legislation anti-competitive – National competition authority’s power to declare such legislation inapplicable – Circumstances in which undertakings not answerable for anti-competitive conduct.
C-198/01, [2003] EUECJ C-198/01
European
Updated: 03 June 2022; Ref: scu.186318
ECJ (Judgment) Competition – Articles 85, 86 and 90 of the EC Treaty – Rejection of a complaint concerning both State measures and private conduct – Applicability of Articles 85 and 86 to undertakings complying with national legislation)
C-359/95, [1997] EUECJ C-359/95P
Updated: 03 June 2022; Ref: scu.161724
(Judgment) Harbour company – Prevention of pollution – Legal monopoly – Abuse of a dominant position.
C-343/95, [1997] EUECJ C-343/95
European
Updated: 03 June 2022; Ref: scu.161710
(Judgment) Appeal – Competition – Complaint – Action for failure to act – Notification under Article 6 of Regulation No 99/63/EEC – Definition of a position terminating the failure to act – Cross-appeal limited to costs.
C-282/95, [1997] EUECJ C-282/95P
European
Updated: 03 June 2022; Ref: scu.161667
ECJ Judgment – Competition – Infringement of Article 85 of the EEC Treaty
C-219/95, [1997] EUECJ C-219/95P, [1997] ECR I-4411
Updated: 03 June 2022; Ref: scu.161616
When defining the relevant market for the purpose of applying Article 86 of the Treaty, the competitive conditions and the structure of supply and demand on the market are relevant criteria for determining whether certain products are interchangeable with others. Application of Article 86 presupposes a link between the dominant position and the alleged abusive conduct, which is normally not present where conduct on a market distinct from the dominated market produces effects on that distinct market. In the case of distinct, but associated, markets, application of Article 86 to conduct found on the associated, non-dominated, market and having effects on that associated market can only be justified by special circumstances. An undertaking which enjoys a quasi-monopoly on certain markets and a leading position on distinct, though closely associated, markets is placed in a situation comparable to that of holding a dominant position on those markets as a whole. Conduct by such an undertaking on those distinct markets which is alleged to be abusive may therefore be covered by Article 86 of the Treaty without any need to show that it is dominant on them. The list of abusive practices set out in the second paragraph of Article 86 of the Treaty is not exhaustive. Consequently, even where tied sales of two products are in accordance with commercial usage or there is a natural link between the two products in question, such sales may still constitute abuse within the meaning of Article 86 unless they are objectively justified. When determining whether an undertaking has practised predatory pricing for the purposes of applying Article 86 of the Treaty, a distinction must be drawn between prices below average variable costs, which must always be considered abusive, and prices below average total costs but above average variable costs, which are only to be considered abusive if an intention to eliminate can be shown. It would not be appropriate to require in addition, in order to categorize its pricing as predatory, proof that the undertaking concerned had a realistic chance of recouping its losses. It must be possible to penalize predatory pricing whenever there is a risk that competitors will be eliminated.
C-333/94, [1997] 4 CMLR 662, [1996] EUECJ C-333/94P
European
Cited – Carter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.161482
ECJ Judgment – 1. Community law – Principles – Legal certainty – Application by the Commission of competition rules – Compliance in adopting an individual decision with the interpretation of a regulation on block exemption set out in a Commission communication
2. Competition – Agreements, decisions and concerted practices – Prohibition – Block exemption – Regulation No 123/85 – Article 3(11) – Involvement of an intermediary between the distributor and the final consumer – Authorized intermediary – Concept
(Commission Regulation No 123/85, Art. 3(11))
C-322/93, [1994] EUECJ C-322/93P
European
Updated: 03 June 2022; Ref: scu.161159
ECJ 1. Article 85(1) of the Treaty must be interpreted as meaning that it prohibits an obligation imposed by the leading manufacturer of motor vehicles in a Member State on all its dealers established in that State to develop activities as agents for leasing transactions exclusively for the account of its own leasing company.
By restricting the access of leasing companies competing with the company owned by the manufacturer to leasing transactions concerning the manufacturer’ s vehicles and by preventing the manufacturer’ s dealers from developing a leasing business in their own name and for their own account, such exclusive agency agreements have the object, or at least effect, of restricting competition to an appreciable extent. Secondly, such contracts affect trade between Member States, since those dealers are unable to act either as intermediaries for leasing companies established in other Member States or to conclude leasing contracts for their own account with consumers established in other Member States.
2. Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements must be interpreted as meaning that it does not exempt an obligation imposed by the leading motor vehicle manufacturer in a Member State on all its dealers established in that State to develop activities as agents for leasing transactions exclusively for the account of its own leasing company.
C-266/93, [1995] EUECJ C-266/93
England and Wales
Updated: 03 June 2022; Ref: scu.161122
ECJ (Judgment) 1. Article 85(1) of the Treaty must be interpreted as meaning that it precludes a motor vehicle manufacturer which sells its vehicles through a selective distribution system from agreeing with its authorized dealers that they are not to deliver vehicles to independent leasing companies where, without granting an option to purchase, those companies make them available to lessees whose residence or seat is outside the contract territory of the dealer in question, or from calling on such dealers to act in that manner.
By establishing absolute territorial protection for the various dealers and reducing each dealer’ s freedom of commercial action, in so far as each individual dealer’ s choice of customer is confined exclusively to those leasing companies which have concluded contracts with lessees established within its contract territory, such an agreement has as its object and effect the restriction to an appreciable extent of trade within the common market. Secondly, since such an agreement relates to products which are the subject of significant international trade, it may affect trade between Member States.
2. Regulation No 123/85 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements must be interpreted as meaning that it does not exempt an agreement whereby a motor vehicle manufacturer which sells its vehicles through a selective distribution system agrees with its dealers that they are not to deliver vehicles to independent leasing companies where, without granting an option to purchase, those companies make them available to lessees whose residence or seat is outside the contract territory of the dealer in question, or calls on such dealers to act in that manner.
C-70/93, [1995] EUECJ C-70/93
European
Updated: 03 June 2022; Ref: scu.161092
Europa The importation of lottery advertisements and tickets into a Member State with a view to the participation by residents of that State in a lottery conducted in another Member State relates to a ‘service’ within the meaning of Article 60 of the Treaty and accordingly falls within the scope of Article 59 of the Treaty. Lottery activities, as services normally provided for remuneration constituted by the price of the ticket, do not, even as regards the cross-border sending and distribution of material objects necessary for their organization or operation, fall within the scope of the rules on the free movement of goods. Nor do they fall within the scope of the rules on the free movement of persons, or of those on free movement of capital, which concern capital movements as such and not all monetary transfers necessary to economic activities. Moreover, their classification as services is not affected by the fact that they are subject to particularly strict regulation and close control by the public authorities in the various Member States of the Community, since they cannot be regarded as activities whose harmful nature causes them to be prohibited in all the Member States and whose position under Community law may be likened to that of activities involving illegal products. Finally, neither the chance character of the winnings, as consideration for the payment received by the operator, nor the fact that, although lotteries are operated with a view to profit, participation in them may be recreational, nor even the fact that profits arising from a lottery may generally only be allocated in the public interest, prevents lottery activities from having an economic nature. National legislation which prohibits, subject to specified exceptions, the holding of lotteries in a Member State and which thus wholly precludes lottery operators from other Member States from promoting their lotteries and selling their tickets, whether directly or through independent agents, in the Member State which enacted that legislation, restricts, even though it is applicable without distinction, the freedom to provide services. However, since the legislation in question involves no discrimination on grounds of nationality, that restriction may be justified if it is for the protection of consumers and the maintenance of order in society.
The particular features of lotteries justify national authorities having a sufficient degree of latitude to determine what is required to protect the players and, more generally, in the light of the specific social and cultural features of each Member State, to maintain order in society, as regards the manner in which lotteries are operated, the size of the stakes, and the allocation of the profits they yield, and to decide either to restrict or to prohibit them.
Times 30-Mar-1994, C-275/92, [1994] EUECJ C-275/92
Cited – Regina v Human Fertilisation and Embryology Authority ex parte DB Admn 17-Oct-1996
Sperm which had been taken from a dying and unconscious man may not be used for the later insemination of his surviving wife. The Act required his written consent.
Held: Community Law does not assist the Applicant. The question had been . .
Cited – Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberburgermeisterin der Bundesstadt Bonn ECJ 14-Oct-2004
The claimant company operated a gaming system in which players chased around inside a darkened building shooting at targets either on the builkding or on the garments of other players. The local licensing authority ruled that such a game simulated . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.160950
Breach of competition laws leading to substantial financial penalties are regarded by the European Court as criminal rather than civil in nature.
Europa College of Members of the Commission – Competition rules applicable to undertakings – Concepts of agreement and concerted practice – Limitation rules – Fine.
C-235/92, [1999] ECR 1-4539, [1999] EUECJ C-235/92P, [1999] ECR I-4539
Cited – Office of Fair Trading v Not Named (D) ComC 14-May-2003
The Office sought a warrant to enter the respondent’s premises.
Held: The powers which allowed entry by force into the premises by the Office were granted in pursuace of a legitimate aim. The Office had vital responsibility for the maintenance . .
Cited – Sony Computer Entertainment Europe Ltd v Customs and Excise ChD 27-Jul-2005
The appellants had imported Playstation computer games. They appealed refusal of a rebate of 50 million euros paid in VAT before a reclassification of the equipment so as to make it exempt from VAT.
Held: ‘The effect of the annulment of a . .
Lists of cited by and citing cases may be incomplete.
Updated: 03 June 2022; Ref: scu.160941
Proceedings in front of an administrative body (the Commission) which were subsequently appealed to a court (CFI and ECJ) did not give rise to an issue of estoppel between the investigatee/appellant and the complainant / intervener. The fact that the ‘victim’ of the abuse intervened in the appeal brought by an investigatee to a court did not mean that the victim and investigatee were parties to a lis before a court for the purposes of issue estoppel.
Laddie J
[1997] ICR 164, [1996] 2 CMLR 601, [1997] EuLR 1
England and Wales
Cited – The Secretary of State for Business, Innovation and Skills v Weston and Another ChD 5-Sep-2014
The Secretary of State sought company director disqualification orders against the defendants saying they had been convicted of making false instruments. The Insolvency service had decided against such proceedings, and the Crown Court judge, when . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 June 2022; Ref: scu.536467
Willmer LJ said that a particular agreement did not involve the acceptance of restrictions: ‘This, in the picturesque phrase used by [counsel for the Association], did not have the effect of closing any door that was previously open to the contractors; its effect was merely to open a door through which the selected contractor might pass.’
Willmer LJ
(1963) LR 3RP 462
England and Wales
Cited – The Football Association Premier League Limited, The Football Association Limited, The Football League Limited (And Their Respective Member Clubs) v British Sky Broadcasting Limited, British Broadcasting Limited RPC 28-Jul-1999
Agreements had been made controlling the broadcasting of football matches. The director general sought to challenge them as restrictive practices, since the individual clubs had signed away their right themselves to arrange for the broadcasting of . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 June 2022; Ref: scu.182971
ECJ 1. An application brought under Article 169 of the Treaty can be based only on the arguments and pleas in law already set out in the reasoned opinion. 2. In the absence of harmonization of Community legislation in the field of offences committed in the context of the Community temporary importation arrangements for travellers’ personal effects, the Member States are competent to adopt such penalties as appear to them to be appropriate. When making use of that competence they are, however, required to comply with Community law and its general principles, and consequently, the principle of proportionality. In that respect, the administrative measures or penalties must not go beyond what is strictly necessary for the objectives pursued and the control procedures must not be accompanied by a penalty which is so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the Treaty. 3. Where, in proceedings based on Article 169 of the Treaty, the Commission requests the Court to declare that a Member State has failed to fulfil its obligations under the Treaty, it is for the Commission itself to adduce evidence of the alleged infringement.
C-210/91, [1992] EUECJ C-210/91
Updated: 01 June 2022; Ref: scu.160761
ECJ Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays. Such legislation, which is not intended to regulate the flow of goods and affects the sale of both domestic and imported products, pursues an aim which is justified under Community law; it reflects certain choices relating to particular national or regional socio-cultural characteristics and it is for the Member States to make those choices in compliance with the requirements of Community law, in particular the principle of proportionality. As far as that principle is concerned, the restrictive effects on Community trade which might result from such rules would not appear to be excessive in relation to the aim pursued.
[1992] EUECJ C-169/91
Updated: 01 June 2022; Ref: scu.160732
ECJ (Judgment) 1. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, constitutes a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty. If those advantages only partly offset the burden borne by domestic products, such a charge constitutes discriminatory taxation within the meaning of Article 95 of the Treaty, the collection of which is prohibited as regards the proportion used to offset the burden borne by domestic products. 2. Articles 12, 13 and 95 of the Treaty have direct effect and create rights for individuals which the national courts must protect. 3. A compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset the burden borne by those products, may, depending on how the revenue from it is used, constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty are met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty. In that respect, regard must be had to the jurisdiction of the national courts where, in introducing that charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty has found the levying of the charge as a method of financing State aid to be incompatible with the common market.
[1992] ECR I-6559, C-114/91, [1992] EUECJ C-114/91
Updated: 01 June 2022; Ref: scu.160694
ECJ Regulation No 2473/86 on outward processing relief arrangements and the standard exchange system is to be interpreted as meaning that, in calculating the total or partial relief from import duty on the compensating products, the calculation of import duty theoretically payable on those products must in principle be based on their transaction value, while the value of the temporary export goods, which is required in order to determine the duty actually payable, must be calculated using one of the two methods set out in the second subparagraph of Article 13(2) of that regulation. If the value of the compensating products has been determined without any adjustment for the purposes of Article 8(1)(b)(i) of Regulation No 1224/80 on the valuation of goods for customs purposes, the value of the temporary export goods corresponds to the difference between the customs value of the compensating products and the processing costs determined by reasonable means, such as taking account of the transaction value of the temporary export goods.
[1992] EUECJ C-16/91
European
Updated: 01 June 2022; Ref: scu.160632
ECJ Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays. Any measure which is capable of directly or indirectly, actually or potentially, hindering intra-Community trade constitutes a measure having equivalent effect to a quantitative restriction, prohibited between Member States by Article 30 of the Treaty. That definition covers obstacles to the free movement of goods which, in the absence of harmonization of legislation, are the consequence of applying to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging). This is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods. By contrast, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder trade between Member States, within the meaning of that definition, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. Provided that those conditions are fulfilled, the application of such rules to the sale of products from another Member State meeting the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products. Such rules therefore fall outside of Article 30 of the Treaty. It follows that Article 30 of the Treaty is to be interpreted as not applying to legislation of a Member State imposing a general prohibition on resale at a loss.
[1992] ECR I-6493, [1992] EUECJ C-304/90
European
Updated: 01 June 2022; Ref: scu.160571
ECJ 1. The concept of worker within the meaning of Article 48 of the Treaty pre-supposes that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. That description is not affected by the fact that the worker, whilst being linked to the undertaking by a relationship of employment, is linked to other workers by a relationship of association.
2. Although the simple fact of creating a dominant position by granting exclusive rights within the meaning of Article 90(1) of the Treaty is not as such incompatible with Article 86 of the Treaty, a State is in breach of those two provisions if the undertaking in question, merely by exercising the exclusive rights granted to it, cannot avoid abusing its dominant position or when such rights are liable to create a situation such that it is induced to commit such abuses.
Such is the case when an undertaking to which a monopoly to perform dock work has been granted is induced either to demand payment for services which have not been requested, to charge disproportionate prices, to refuse to have recourse to modern technology or to grant price reductions to certain consumers and at the same time to offset such reductions by an increase in the charges to other consumers.
3. A national measure which has the effect of facilitating the abuse of a dominant position capable of affecting trade between Member States is normally incompatible with Article 30 of the Treaty in so far as it has the effect of making more difficult and hence of impeding the importation of goods from other Member States.
4. Even within the framework of Article 90 of the Treaty, the provisions of Articles 30, 48 and 86 of the Treaty have direct effect and give rise for individuals to rights which the national courts must protect.
5. Dock work is not, in principle, a service of general economic interest exhibiting special characteristics, as compared with the general economic interest of other economic activities, which might bring it within the field of application of Article 90(2) of the Treaty. In any case, the fact that the public authorities have entrusted an undertaking with the operation of services of general economic interest does not, by virtue of the aforesaid provision, absolve it from compliance with the rules of the Treaty unless the application of those rules may obstruct the performance of the particular tasks assigned to it and unless the interests of the Community are not affected.
C-179/90, [1991] EUECJ C-179/90
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.
Updated: 01 June 2022; Ref: scu.160499
(Judgment) here it is found that, for sales on its domestic market, a manufacturer assigns tasks which are normally the responsibility of an internal sales department to distribution companies which are under the manufacturer’ s economic control and form a single economic entity with it, it is justified for the institutions to rely, in determining the normal value, on the prices paid by the first independent buyer to those related sales companies, since those prices may properly be regarded as the prices actually paid or payable in the ordinary course of trade within the meaning of Article 2(3)(a) of Regulation No 2423/88, the basic anti-dumping regulation. In such a case, there is no ground for applying Article 2(3)(b) of that regulation, which comes into play only where there are no sales of the like product in the ordinary course of trade.
Furthermore, the fact that a number of sales functions are performed by the manufacturer itself does not affect the existence of a single economic entity, particularly where those functions are merely complementary to those performed by the related sales companies.
C-104/90, [1993] EUECJ C-104/90
European
Updated: 01 June 2022; Ref: scu.160477
Europa A public employment agency engaged in the business of employment procurement may be classified as an undertaking for the purpose of applying the Community competition rules since, in the context of competition law, that classification applies to every entity engaged in an economic activity, regardless of its legal status and the way in which it is financed.
As an undertaking entrusted with the operation of services of general economic interest, a public employment agency engaged in employment procurement activities is, pursuant to Article 90(2) of the Treaty, subject to the prohibition contained in Article 86 of the Treaty, so long as the application of that provision does not obstruct the performance of the particular task assigned to it. A Member State which has granted it an exclusive right to carry on that activity is in breach of Article 90(1) of the Treaty where it creates a situation in which that agency cannot avoid infringing Article 86 of the Treaty. That is the case, in particular, where the following conditions are satisfied: – the exclusive right extends to executive recruitment activities; – the public employment agency is manifestly incapable of satisfying demand prevailing on the market for such activities; – the actual pursuit of those activities by private recruitment consultants is rendered impossible by the maintenance in force of a statutory provision under which such activities are prohibited and non-observance of that prohibition renders the contracts concerned void; – the activities in question may extend to the nationals or to the territory of other Member States. 3. The provisions of the Treaty on freedom of movement cannot be applied to activities which are confined in all respects within a single Member State and therefore a recruitment consultant in a Member State may not rely on Articles 7 and 59 of the Treaty regarding the procurement of nationals of that Member State for posts in undertakings in the same State.
C-41/90, [1991] E C R I-1979, [1991] EUECJ C-41/90
Cited – Alderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 June 2022; Ref: scu.160437
Europa Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Type-approval by a public body of radio equipment which it has not supplied – Possibility of challenging the decision before the courts – Permissible (EEC Treaty, Art. 30)
State monopolies of a commercial nature – Prohibition of marketing radio equipment not granted type-approval by the competent public body – Inapplicability of Article 37 of the Treaty (EEC Treaty, Art. 37) 3. Competition – Public undertakings and undertakings to which the Member States grant special or exclusive rights – Market in telecommunications terminal equipment – National rules prohibiting the marketing of equipment not granted type-approval by a public undertaking present on the telecommunications market – Not permissible (Commission Directive 88/301, Art. 6)
Competition – Community rules – Provisions applicable to public undertakings and to undertakings to which Member States grant special and exclusive rights – Matters covered – National rules prohibiting the possession of radio equipment without ministerial authorization and the marketing of such equipment without type-approval granted by the competent minister – Excluded (EEC Treaty, Arts 86 and 90(1)).
C-46/90, [1993] EUECJ C-46/90
Updated: 01 June 2022; Ref: scu.160441
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that member state for the individuals adversely affected.
Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 03-Nov-1999, Gazette 10-Nov-1999, [1999] UKHL 44, [1999] 3 WLR 1062, [2000] Eu LR 40, [1999] 3 CMLR 597, [2000] 1 AC 524, [1999] 4 All ER 906
House of Lords, House of Lords, House of Lords, Bailii
England and Wales
See Also – Regina v Secretary of State for Transport ex parte Factortame Ltd HL 26-Jul-1990
(Interim Relief Order) . .
See Also – Regina v Secretary of State for Transport, Ex parte Factortame Ltd HL 18-May-1989
The applicants were companies owned largely by Spanish nationals operating fishing vessels within UK waters. The 1988 Act required them to re-register the vessels as British fishing vessels. The sought suspension of enforcement pending a reference . .
See Also – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 May 2022; Ref: scu.159028
The plaintiff sought an injunction restraining the import of citrus fruit from Northern Cyprus.
Lord Goff of Chieveley, Lord Slyn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Hutton
[1998] UKHL 21
Council Directive 77/93/EEC 12(1)(b)
England and Wales
Updated: 31 May 2022; Ref: scu.158951
The appellant dairy sold milk to the defendant roundsmen, each agreeing not to sell milk by retail to the others customers. The defendant began to buy his milk elsewhere, and claimed the agreement should have been registered as a restrictive trade practice.
Held: The agreement did not come within the first exemption from registration. The Act applies to agreements and arrangements, however made (‘any agreement or arrangement’), and whether legally enforceable or not. Registerability should depend upon substance not form. The result should not be determined by asking whether the condition was a term of or a restriction in the agreement. The test for registration under the Act should be as simple and clear as possible. The court discussed the danger of of over-literal interpretation of the language of a statute: ‘Linguistic arguments of this character should be handled warily. They are a legitimate and useful aid in statutory interpretation, but they are no more than this. Sometimes a difference in language is revealing and therefore important, other times not. In the process of statutory interpretation there always comes a stage, before reaching a final decision, when one should stand back and view a suggested interpretation in the wider context of the scheme and purpose of the Act. After all, the object of the exercise is to elucidate the intention fairly and reasonably attributable to Parliament when using the language under consideration.’
Lord Goff of Chieveley, Lord Mustill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Clyde
[1997] 2 WLR 364, [1997] UKHL 7, [1997] AC 524, [1997] 1 All ER 833
Restrictive Trade Practices Act 1976
England and Wales
Appeal from – MD Foods v Baines and others CA 1996
The parties agreed to buy and sell milk but not to each others customers. The agreement was a restricve trade parctice and was void for not having been registered. . .
Cited – Registrar of Restrictive Trading Agreements v Schweppes Ltd (No. 2) 1971
. .
Appeal from – Associated Dairies Ltd v Baines and Others CA 6-Jul-1995
A milkman’s round agreement with the dairy supplying him with milk for sale, was registerable as a restrictive agreement if the words so require despite alternative remedies, and even though in this instance it might be borderline. . .
Appealed to – Associated Dairies Ltd v Baines and Others CA 6-Jul-1995
A milkman’s round agreement with the dairy supplying him with milk for sale, was registerable as a restrictive agreement if the words so require despite alternative remedies, and even though in this instance it might be borderline. . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 May 2022; Ref: scu.158882
[2010] CAT 4, [2010] Comp AR 229
England and Wales
Updated: 31 May 2022; Ref: scu.421777
One tobacco company licensed another to distribute and sell its products in the UK. When control of the licensee changed, the licensor sought to revoke the licence. The licensee appealed against a refusal of an injunction to maintain the licence. The agreement did provide for a revocation if there was a change of control of a member of the partnership. One licensee’s business was taken over by a competitor tobacco group (BAT), and the arrangement involved the issue of a special share in the company. The agreement recognised the difference between direct and indirect control, and the words ‘such control’ should be taken to mean ‘direct control.’ The result was that a partner who did not have direct control of the licensee before the change, did by that change come to acquire direct control, and control had changed allowing revocation.
Schieman LJ, Chadwick LJ, Tuckey LJ
Times 17-Aug-2001, Gazette 06-Sep-2001, [2001] EWCA Civ 1043
England and Wales
Appeal from – Philip Morris Products Inc and Another v Rothmans International Enterprises Ltd and Another ChD 10-Aug-2000
For the purposes of the Takeover Panel, a party could trigger the provision which applied on obtaining more than 30% of the share capital of a target company, where his shareholding, together with that of a party with whom he was acting in concert . .
Appealed to – Philip Morris Products Inc and Another v Rothmans International Enterprises Ltd and Another ChD 10-Aug-2000
For the purposes of the Takeover Panel, a party could trigger the provision which applied on obtaining more than 30% of the share capital of a target company, where his shareholding, together with that of a party with whom he was acting in concert . .
Lists of cited by and citing cases may be incomplete.
Updated: 31 May 2022; Ref: scu.147605
[1999] EWCA Civ 1865
England and Wales
Updated: 31 May 2022; Ref: scu.146780
[2001] EWHC Admin 367
Updated: 29 May 2022; Ref: scu.140333
Competetive tendering.
[1999] EWHC Admin 52
Updated: 28 May 2022; Ref: scu.139316
ECFI Competition – Cartels – Italy’s first purchase and processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Immunity from fines – Cooperation – Penalties – Proportionality – Gravity of the infringement – Attenuating circumstances
[2011] EUECJ T-12/06
European
Updated: 26 May 2022; Ref: scu.444096
Failure to fulfill obligations – Charges having equivalent effect – Common commercial policy – Imports of goods from Member States and third countries – Fees collected during the validation of invoices
C-426/02, [2004] EUECJ C-426/02
European
Updated: 26 May 2022; Ref: scu.219062
[2020] EWCA Civ 617, [2020] Costs LR 695, [2021] 5 CMLR 9, [2021] ECC 16
Competition Appeal Tribunal Rules 2015 104
England and Wales
Appeal from – Flynn Pharma Ltd and Another v Competition and Markets Authority CAT 29-Mar-2019
Interim Relief . .
Appeal from (CA) – Competition and Markets Authority v Flynn Pharma Ltd and Another SC 25-May-2022
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 May 2022; Ref: scu.651849
Interim Relief
[2019] CAT 9
England and Wales
Appeal from – Competition and Markets Authority v Flynn Pharma Ltd and Others CA 12-May-2020
. .
At CAT – Competition and Markets Authority v Flynn Pharma Ltd and Another SC 25-May-2022
. .
Lists of cited by and citing cases may be incomplete.
Updated: 26 May 2022; Ref: scu.636205
Europa Article 30 of the Treaty is to be interpreted as meaning that the prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays.
C-306/88, R-306/88, [1992] EUECJ R-306/88
Updated: 23 May 2022; Ref: scu.134965
Europa 1. Action against a Member State for failure to fulfil its obligations -Reasoned opinion – Need for a detailed statement of the complaints (EEC Treaty, Art. 169) 2. Action against a Member State for failure to fulfil its obligations -Application initiating the proceedings – Statement of complaints and submissions – Mere reference to the letter giving formal notice and to the reasoned opinion – Not sufficient (EEC Treaty, Art. 169) 3. Action against a Member State for failure to fulfil its obligations -Examination by the Court to determine whether the action is well founded -Situation to be taken into consideration – Situation upon the expiry of the time-limit set by the reasoned opinion (EEC Treaty, Art. 169) 4. State monopolies of a commercial character – Rules requiring companies engaged in the distribution of petroleum products to obtain a proportion of their supplies from public-sector refineries – Not permissible -Discrimination against exporters established in other Member States -Infringement of Article 30 of the Treaty (EEC Treaty, Arts 30 and 37(1)) 5. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – Rules enabling the public authorities to interfere with the procurement programmes of companies engaged in the distribution of petroleum products and establishing a system of marketing quotas (EEC Treaty, Art. 30)
Case C-347/88, C-347/88, [1990] EUECJ C-347/88
Updated: 23 May 2022; Ref: scu.134983
Judgment – Competition – Investigative powers of the Commission – Rights of the defence.
C-27/88, [1989] EUECJ C-27/88
European
Updated: 23 May 2022; Ref: scu.134806
The court considered the powers of the Commission to demand information in an investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to ‘obtain all necessary information’ from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions which in effect required Orkem to confess that it had acted unlawfully.
Held: The Commission was entitled to ask for factual information, even if it might be incriminating: ‘Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation.’ It followed that: ‘the questions . . relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant’s possession relating thereto, are not open to criticism.’ What was objectionable was questions such as the request for particulars of ‘every step or concerted measure which may have been envisaged or adopted to support such price initiatives’ which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the ‘need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order.’ The court concluded: ‘The Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.’
C-374/87, [1989] ECR 3283, [1989] EUECJ C-374/87
European
Cited – Office of Fair Trading v Not Named (D) ComC 14-May-2003
The Office sought a warrant to enter the respondent’s premises.
Held: The powers which allowed entry by force into the premises by the Office were granted in pursuace of a legitimate aim. The Office had vital responsibility for the maintenance . .
Cited – Regina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 May 2022; Ref: scu.134766
ECJ 1. The rejection by the Commission of a proposed undertaking in the course of an anti-dumping proceeding is not a measure having binding legal effects of such a kind as to affect the interests of the traders concerned, because the Commission may revoke its decision or the Council may decide not to introduce an anti-dumping duty . Such a rejection is an intermediate measure whose purpose is to prepare for the final decision, and is not therefore a measure which may be challenged by an action for its annulment.
It is by challenging the regulation introducing definitive anti-dumping duties that traders can raise any irregularity associated with the rejection of their proposed undertakings.
2. A regulation imposing different anti-dumping duties on a series of traders is of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings.
3. Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally. Nevertheless, it is conceivable that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping.
This is true in general of producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations.
The same is true of those importers whose resale prices were taken into account for the construction of export prices, and those traders, limited in number and identified by the institutions, whose business dealings with the producer of the products concerned display particular features which were taken into account in the construction of the normal value and in the calculation of the weighted dumping margin on the basis of which the anti-dumping duty was fixed.
4. The fact that Article 2(8)(b ) of Regulation No 2176/84 mentions only the allowances to be made for all costs incurred between importation and resale does not preclude the making of allowances, when the export price is constructed on the basis of the price paid by the first independent purchaser, to take account of the costs associated with the activities prior to importation of a subsidiary of the exporting manufacturer, where such costs are normally borne by the importer and, in practice, reduce the amount received by the exporting manufacturer.
5. Article 4(5 ) of Regulation No 2176/84 shows that it is for the institutions, in the exercise of their discretion, to determine whether they should, for the purpose of determining whether there is injury justifying the imposition of an anti-dumping duty, exclude from the ‘Community industry’ producers which are related to exporters or importers or are themselves importers of the dumped product . The discretion must be exercised on a case-by-case basis, subject to review by the Court, by reference to all the relevant facts.
6. The question whether, in the event of dumping by producers in non-member countries, the interests of the Community call for Community intervention involves appraisal of complex economic situations . Judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.
7. Article 10 of Regulation No 2176/84 does not rule out the possibility for the Commission of accepting an undertaking offered by an importer, but its wording implies that such an undertaking may be accepted only in exceptional cases . Article 10(4) and (6), dealing with the continuation of the investigation after the acceptance of undertakings and the introduction of anti-dumping duties after the withdrawal of an undertaking or the discovery that it has been infringed, refers only to exporters, that is to say, those traders whose undertakings may a priori be accepted .
C-156/87, [1990] EUECJ C-156/87
Updated: 23 May 2022; Ref: scu.134626
[2009] EWCA Civ 750
England and Wales
Updated: 22 May 2022; Ref: scu.365611
ECJ (Competition )
1. An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation.
Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing.
The obligation of professional secrecy laid down in article 214 of the treaty and article 20(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets.
The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty.
Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business.
That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company.
Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1 ) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.
C-156/84, [1987] EUECJ C-156/84
European
Updated: 22 May 2022; Ref: scu.215536
ECJ 1. Common commercial policy – Protection against dumping practices – Dumping margin – Determination of the normal value – Constructed value – Taking into account a reasonable profit margin (Council Regulation No 2176/84, Art. 2 (3) (b) (ii)) 2. Common commercial policy – Protection against dumping practices – Dumping margin – Comparison between the normal value and the export price – Choice of the level of trade at which the values to be compared are determined -Taking into account the specific features of the commercial organization of the manufacturer concerned – Legality (Council Regulation No 2176/84, Art. 2 (9))
1. Where the Community institutions are obliged, under the procedure for calculating anti-dumping duties, to take the constructed value as a basis for establishing the normal value, they are entitled to adopt as a reasonable profit margin the margin obtained on the domestic market of the country of manufacture for similar products by a competitor of the manufacturer practising the dumping, particularly where they adopt the margin of the competitor with the lowest profit, and it is no defence to argue that the information in question is not known to the manufacturer concerned. Where it is impossible to take real prices as a basis, references to factors not known to the manufacturer concerned are often necessary under the system laid down by Regulation No 2176/84 and the degree of unforeseeability resulting therefrom has to be accepted. 2. Under the procedure for calculating anti-dumping duties, the Community institutions are not mistaken in making, for the purpose of establishing the dumping margin, a comparison between export prices established at the manufacturer’ s ‘ex-factory’ level and a constructed normal value at the ‘ex-exclusive distributor’ level, where it is apparent that, in view of the particular commercial structure adopted by the manufacturers of the exporting country which consists in entrusting to an exclusive distributor tasks normally carried out by a sales department, only the price charged by that distributor can be regarded as the normal value of the product. It is of little importance that the exclusive distributor does not sell the dumped products, since the normal value of those products must be constructed as if they had been sold on the domestic market.
Case 301/85, C-301/85, [1988] EUECJ C-301/85
Updated: 22 May 2022; Ref: scu.134223
Europa Application for a declaration that a measure is void – Action brought against a regulation imposing a provisional anti-dumping duty – Adoption during the proceedings of a regulation (also challenged) imposing a definitive anti-dumping duty at a lower rate, which was rendered applicable ab initio – Application devoid of purpose – Decision unnecessary (EEC Treaty, Art. 173)
An application against a regulation imposing a provisional anti-dumping duty becomes devoid of purpose, with the result that the Court no longer has to give a decision upon it, where that regulation is replaced during the proceedings by a regulation – which is also challenged by the applicant -imposing a definitive anti-dumping duty and the definitive rate of duty, which is lower than the rate of the provisional duty, applies to the collection of the amounts secured by the latter.
Case 56/85, C-56/85, [1988] EUECJ C-56/85
Updated: 22 May 2022; Ref: scu.134056
Europa In competition law, the term ‘ undertaking ‘ must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal. Regulation nr 67/67 of the commission on the application of article 85 (3) of the treaty to categories of exclusive dealing agreements must be applied even if several legally independent undertakings participate in the agreement as one contracting party provided that those undertakings constitute an economic unit for the purposes of the agreement. In those circumstances competition between the persons participating together, as a single party, in the agreement in question is impossible.
Regulation no 67/67 is applicable where the obligations entered into cover not only a defined area of the common market but also countries outside the community.
Article 3 (b) (1) of regulation no 67/67 must be interpreted as excluding an agreement from block exemption only if it is clear from the actual terms of the agreement or from the conduct of the parties that they intend to use, or are in fact using, an industrial property right in such a way as to prevent or impede, with the aid of that right, parallel imports into the territory covered by the exclusive dealership. The fact that an agreement does not contain any provision to prevent abuse of an industrial property right is not in itself a sufficient reason for excluding that agreement from the application of regulation no 67/67.
[1984] ECR 2999, C-170/83, R-67/67, [1984] EUECJ R-67/67
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 May 2022; Ref: scu.133688
[2019] CAT 12
England and Wales
Updated: 22 May 2022; Ref: scu.656480
[2020] CAT 19
England and Wales
Updated: 22 May 2022; Ref: scu.656472
[2019] CAT 26
England and Wales
Updated: 22 May 2022; Ref: scu.656488
[2020] CAT 20
England and Wales
Updated: 22 May 2022; Ref: scu.656471
[2020] CAT 21
England and Wales
Updated: 22 May 2022; Ref: scu.656473
[2019] CAT 20
England and Wales
Updated: 22 May 2022; Ref: scu.656481
ECJ When state financial aid strengthens the position of an undertaking compared with other undertakings competing in intra-community trade the latter must be regarded as affected by that aid. In the application of article 92 (3) of the EEC Treaty the commission has a discretion the exercise of which involves economic and social assessments which must be made in a community context. The commission is entitled to regard an aid project as not meeting the requirements of article 92 (3) (b) if such an aid would have permitted the transfer of an investment which could be effected in other member states in a less favourable economic situation than that of the member state in which the recipient undertaking is located.
C-730/79, [1980] EUECJ C-730/79
Updated: 21 May 2022; Ref: scu.132939
ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking’s opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.
Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.
Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called” english” clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.
C-85/76, [1979] EUECJ C-85/76, [1979] ECR 461
Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 May 2022; Ref: scu.132487
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic area in which it is marketed and where the conditions of competition are sufficiently homogeneous for the effect of the economic power of the undertaking concerned to be able to be evaluated. For the product to be regarded as forming a market which is sufficiently differentiated from other fruit markets it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible. The dominant position referred to in article 86 relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. In general a dominant position derives from a combination of several factors which, taken separately, are not necessarily determinative. A trader can only be in a dominant position on the market for a product if he has succeeded in winning a large part of this market. However an undertaking does not have to have eliminated all opportunity for competition in order to be in a dominant position. An undertaking’s economic strength is not measured by its profitability ; a reduced profit margin or even losses for a time are not incompatible with a dominant position, just as large profits may be compatible with a situation where there is effective competition. The fact that an undertaking’s profitability is for a time moderate or non-existent must be considered in the light of the whole of that undertaking’s operations. The fact that an undertaking forbids its duly appointed distributors to resell the product in question in certain circumstances is an abuse of the dominant position since it limits markets to the prejudice of consumers and affects trade between member states, in particular by partitioning national markets.
Europa An undertaking in a dominant position for the purpose of marketing a product – which cashes in on the reputation of a brand name known to and valued by the consumers – cannot stop supplying a long- standing customer who abides by regular commercial practice, if the orders placed by that customer are in no way out of the ordinary. Such conduct is inconsistent with the objectives laid down in article 3 (f) of the treaty, which are set out in detail in article 86, especially in paragraphs (b) and (c), since the refusal to sell would limit markets to the prejudice of consumers and would amount to discrimination which might in the end eliminate a trading party from the relevant market. If the occupier of a dominant position, established in the common market, aims at eliminating a competitor who is also established in the common market, it is immaterial whether this behaviour relates to trade between member states once it has been shown that such elimination will have repercussions on the patterns of competition in the common market. The policy of differing prices enabling UBC to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage is an abuse of a dominant position. Charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied may be an abuse of a dominant position within the meaning of subparagraph (a) of article 86 ; this excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin.
Europa ‘ . . the charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied would be an abuse.
This excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin; . .
The questions therefore to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, if the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products.’
C-27/76, [1978] EUECJ C-27/76, [1978] ECR 207
See Also – United Brands v Commission ECJ 5-Apr-1976
. .
Cited – BHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 May 2022; Ref: scu.132436
The expression ‘quantitative restrictions on exports and any measures having equivalent effect’ contained in article 34 of the EEC Treaty must be understood as applying to rules adopted by a member state which require in respect only of the export of certain goods either a licence or a standards certificate which is issued in place of such licence and may be refused if the quality does not conform to certain standards laid down by the body issuing the said certificate, even if such certificate does not give rise to the imposition of a charge.
R-53/76, [1977] EUECJ R-53/76, C-53/76
Updated: 21 May 2022; Ref: scu.132460
[2019] CAT 17
England and Wales
Updated: 21 May 2022; Ref: scu.656479
ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Definition of the market – Effect on trade between Member States – Cooperation – Partial immunity from a fine
T-251/12, [2016] EUECJ T-251/12, ECLI:EU:T:2016:114
European
Updated: 20 May 2022; Ref: scu.560481
ECJ (Judgment) Competition – Cartels – International air transit services – Decision finding an infringement of Article 101 TFEU – Extra charges and pricing mechanisms that affect the final price – Effect on trade between Member States – Assessment errors – Duration of offense – amount of the fine – Paragraph 13 of the guidelines for calculating the amount of fines 2006 – sales value – mitigating circumstances – Proportionality – Rights of the defense
T-254/12, [2016] EUECJ T-254/12, ECLI:EU:T:2016:113
European
Updated: 20 May 2022; Ref: scu.560485
ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Evidence contained in an application for immunity – Protection of the confidentiality of communications between lawyers and clients – Code of Conduct rules on the duty of loyalty and prohibition on double representation – Fiduciary duties – Whether unlawful conduct can be attributed – Choice of companies – Fines – Proportionality – Gravity of the infringement – Mitigating circumstances – Equal treatment – Cooperation – Partial immunity from a fine – Unlimited jurisdiction – Settlement – 2006 Guidelines on the method of setting fines
T-267/12, [2016] EUECJ T-267/12
European
Updated: 20 May 2022; Ref: scu.560480
ECJ 1. Obligations of member states – failure to fulfil – action by the commission before the court of justice – bringing the action – timing – discretion of the commission (EEC treaty, article 169) 2. Free movement of goods – goods – concept – article possessing artistic or historic value (EEC treaty, article 9) 3. Free movement of goods – articles possessing artistic or historic value – charges on exports – charge having an effect equivalent to a customs duty (EEC treaty, article 16) 4. Free movement of goods – customs duties and quantitative restrictions – nature of each – difference – prohibitions and restrictions for the protection of national treasures – special nature – strict construction (EEC treaty, articles 16 and 36) 5. Free movement of goods – prohibitions and restrictions for the protection of national treasures – limits to be observed by member states regarding the object and nature of the means adopted – incompatibility with the treaty of a charge on the export of articles of artistic or historic value (EEC treaty, article 36) 1. It is for the commission, under article 169 of the treaty, to judge at what time it shall bring an action before the court; and the considerations which determine its choice of time cannot affect the admissibility of the action, which follows only objective rules. 2. By goods, within the meaning of article 9 of the EEC treaty, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. The rules of the common market apply to articles possessing artistic or historic value subject only to the exceptions expressly provided by the treaty. 3. Any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty is deemed to be a charge having an effect equivalent to a customs duty within the meaning of article 16 of the EEC treaty. A tax levied on the exportation of articles possessing artistic or historic value falls within the prohibition contained in article 16 by reason of the fact that export trade in the goods in question is hindered by the pecuniary burden which it imposes on the price of the exported articles. 4. The prohibitions or restrictions on imports and exports referred to in article 36 of the EEC treaty are by nature clearly distinguished from customs duties and assimilated charges whereby the economic conditions of importation or exportation are affected without restricting the freedom of decision of those involved in commercial transactions. Because such measures constitute an exception to the fundamental principle of the elimination of all obstacles to the free movement of goods between member states, they must be strictly construed. 5. The prohibitions and restrictions referred to in article 36 of the EEC treaty cannot justify the retention of measures, such as customs duties or charges having equivalent effect, which fall outside the scope of the prohibitions referred to in the chapter relating to the elimination of quantitative restrictions between member states. In order to avail themselves of article 36, member states must observe the limitations imposed by that provision both as regards the objective to be obtained and as regards the nature of the means used to attain it. The levy of a tax on the exportation of goods possessing artistic or historic value is incompatible with the provisions of the treaty.
C-7/68, [1968] EUECJ C-7/68
Updated: 20 May 2022; Ref: scu.131870
Where a standard form free-on-truck (FOT) delivery contract provided for several possible destinations for delivery, the responsibility for specifying the place of delivery fell on the seller. There was no proper analogy with an FOB contract. The vessel would be chartered by the seller, and delivered to a port agreed between the seller and the ship-owner, and the characteristics of the ship itself could restrict and control the port of delivery. There would be likely to be other goods consigned also, and it would not make commercial sense for the buyer to specify the port of delivery.
Times 23-Jan-2001, [2000] EWCA Civ 307
England and Wales
Updated: 20 May 2022; Ref: scu.90687
ECJ Several related decisions may be contested in a single application. Nowhere does the treaty prescribe that any infringement of the rules governing price publication amounts in itself to one of the practices prohibited under article 60 (1). the absence of any precise definition by the high authority of the meaning of exceptional transactions and comparable transactions does not make the concept of discrimination meaningless. The comparability-like the exceptional nature-of a transaction can only be assessed in the light of the state of the market. The duty to make the price-lists and conditions of sale public allows of no exception. The price-lists must precede any sale effected in the common market. The treaty requires the publication of exact prices. It is not enough to publish average or approximate prices. The powers conferred on the high authority by the words contained in article 60 (2) ‘ to the extent and in the manner prescribed by the high authority ‘ are powers to prescribe the extent, that is to say, the scope, of publications, in so far as it is a question of settling their details. On the other hand, they do not make it possible to set up a system providing for mean variations from published prices, which would have the effect of authorizing disregard of published price-lists. The extent of the publication of price-lists is insufficient if they are communicated only to the high authority; the high authority must ensure that the price-lists are made available to anyone interested. The power to obtain information provided for in article 47 of the treaty can lawfully be used in order inter alia to supervise the observance of the rules on non-discrimination and on the publication of price-lists. When adopting the measures necessary for the implementation of article 60, the high authority has not merely a right but a duty to take into account all the aims laid down in articles 2, 3 and 4, such as the fixing of prices at as low a level as possible and the attempt to prevent prohibited agreements. Consequently, in order to achieve the latter two aims, the high authority is not bound to confine itself exclusively to the measures provided for in articles 61 and 65. Where more than one aim is being pursued, even if the grounds for a decision include improper grounds in addition to the valid ones, this would not make the decision invalid for misuse of powers, provided that the decision does not sacrifice the main aim.
C-1/54
European
Updated: 20 May 2022; Ref: scu.131527
No presumption as to size of area for investigation by Monopolies Commission.
Times 29-Oct-1996
Scotland
Updated: 20 May 2022; Ref: scu.89482
The Insurers had avoided a policy after a claim had been brought, and the insured had produced a fraudulent document. Having won their case, the applicants sought to enforce the award against the insurers. The insurers were held not to be excused under the policy. The duty of good faith applied on matters up to the claim, but need not apply to all questions which arose after a claim had been validly made. The forged document did not demand that the insurers assume any new risk, and the insurers remained answerable.
Gazette 20-Jul-2000, Times 08-Aug-2000
Third Parties (Rights Against Insurers) Act 1930
England and Wales
Cited – Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Appeal from – K/S Merc-Scandia XXXXII v Underwriters to Lloyd’s Policy 25T 1054 and Others CA 31-Jul-2001
The owners of the ‘MERCANDIAN CONTINENT’ had obtained judgment in earlier High Court proceedings against a Trinidadian shipyard for damage caused by negligent repair work. Jurisdiction in the earlier proceedings had been founded on an agreed . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.82659
[2019] CAT 28
England and Wales
Updated: 20 May 2022; Ref: scu.656491
[2020] CAT 13
England and Wales
Updated: 20 May 2022; Ref: scu.656467
[2008] CAT 18
England and Wales
Updated: 20 May 2022; Ref: scu.276914
(New Zealand) A trader is entitled, before he enters upon a line of conduct which is designed to affect his competitors, to know with some certainty whether or not what he proposes to do is lawful. The meaning and effect of section 36 of the 1986 Act is that use of a dominant position otherwise than for one of the proscribed purposes does not constitute a breach. Nor does the fact that a person has acted in order to achieve one of the proscribed purposes constitute a breach unless he has used his dominant position to achieve those purposes. The minority say that the purpose of section 36 is to prevent use of a dominant position for the purpose of stifling competition.
[1995] 1 NZLR 385
England and Wales
Cited – Carter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.199227
An agreement between a dairy and a milk roundsman under which the agreed not to sell milk to each others clients was not registerable as a restrictive trade practice.
Sir John Vinelott
[1995] ICR 296
England and Wales
Appeal from – MD Foods v Baines and others CA 1996
The parties agreed to buy and sell milk but not to each others customers. The agreement was a restricve trade parctice and was void for not having been registered. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.197745
Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission’ s investigation, and the limits of such rights are reached where they begin to interfere with those companies’ rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission’ s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.
Joined Cases 142 and 156/84, C-142/84
European
Updated: 19 May 2022; Ref: scu.133897
When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)
Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O
Reference from – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
At ECJ – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Cited – Honyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.82330
[2019] CAT 24
England and Wales
Updated: 19 May 2022; Ref: scu.656485
[2019] CAT 19
England and Wales
Updated: 19 May 2022; Ref: scu.656482
[2019] CAT 29
England and Wales
Updated: 19 May 2022; Ref: scu.656490
[2019] CAT 21
England and Wales
Updated: 19 May 2022; Ref: scu.656483
Where a seller of goods wished to pursue a debtor in another member state who defaulted, it was not in improper interference with the free movement of goods to make unavailable in a summary form an action which would require service of proceedings abroad.
Gazette 06-Oct-1999
Updated: 19 May 2022; Ref: scu.80248
Where there was no agreement in place between two member states as to the terms upon which one would accept and deliver mail coming in to the receiving country for the other, it was proper to make a charge. That charge should not however seek to recover the entire cost of the onward delivery of the mail within the borders. Such a demand would be in breach of European law.
G. Rodriguez Iglesias, P
Times 15-Mar-2000, C-148/97, C-147/97, [2000] EUECJ C-147/97, [2000] EUECJ C-148/97
Updated: 19 May 2022; Ref: scu.79940
There is not to be read into a beer tie term any implied provision that the beer to be supplied under the term was to be supplied at any kind of advantageous price. A tenant seeking damages for failure to supply under such a term was not entitled to set of his claim against rent due. The claim for damages on the basis that the tie contravened the Treaty was referred to the European Court.
Gazette 27-Jun-1999, Times 14-Jun-1999, [1999] EWCA Civ 1500, [2001] 3 WLR 1646, [1999] EuLR 834
England and Wales
See Also – Crehan v Courage Limited and Byrne and Inntrepreneur Beer Supply Co Ltd and Langton v Inntrepreneur Beer Supply Co Ltd CA 27-May-1999
The court considered the validity of beer ties affecting public houses. . .
Appeal from – Courage Limited v Crehan ChD 25-Nov-1998
. .
Appeal from – 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 . .
See Also – 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 . .
See Also – 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: . .
See Also – Courage Ltd v Crehan CA 12-Nov-2001
. .
See Also – Crehan v Inntrepreneur Pub Company (Cpc), Brewman Group Limited ChD 26-Jun-2003
The landlord had signed agreements tieing him to sales of beers. After falling into debt, he challnged the prices he had been obliged to pay as contravening the Treaty. The European Court had held that there was a possible claim under the Treaty. . .
Lists of cited by and citing cases may be incomplete.
Updated: 19 May 2022; Ref: scu.79562
The text of a decision of the Commission only took effect if authenticated, and the decision was void unless so authenticated. The fact if so that no separate damage flowed from that failure, and that no other procedural defect applied could not rescue the decision. The requirement was fundamental and was required under the Treaty. It formed an essential part of the procedure and was necessary to allow certainty.
ECJ (Competition) Appeal – Actions for annulment – Pleas in law – Infringement of essential procedural requirements – Failure to authenticate decisions adopted by the college of Commissioners – Issue that may be raised of the Court’s own motion.
Times 14-Apr-2000, [2000] EUECJ C-288/95P
European
Updated: 19 May 2022; Ref: scu.79305
ECJ Obligation to provide information was too vague to be a restriction on trade – Article 30 of the Treaty does not preclude a rule established in the courts of a Member State from imposing an obligation to provide information prior to contract, as a result of which a parallel importer is under an obligation to inform purchasers of a given branded product that certain authorized dealers in that brand refuse to perform services under the guarantee for products which have been the subject of parallel imports.
On the one hand, such an obligation applies without distinction to all contractual relations and is not intended to regulate trade, and on the other hand an obstacle to the free movement of goods cannot result from that obligation but from the practice of authorized dealers, so that any restrictive effects which it might have are too indirect and uncertain to warrant the conclusion that it is liable to hinder trade between Member States.
M Diez de Velasco, P
Times 27-Oct-1993, C-93/92, [1993] EUECJ C-93/92
European
Updated: 19 May 2022; Ref: scu.79238
The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.
Bowers J
Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78
Commercial Agents (Council Directive) Regulations 1993 No 3053
Cited – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .
Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 May 2022; Ref: scu.78249
Restrictions on international cold calling for financial services sales were unlawful.
Times 16-Jun-1995, Gazette 29-Nov-1995, [1995] 2 CLMR 209
Updated: 17 May 2022; Ref: scu.77766
[2019] CAT 22
England and Wales
Updated: 17 May 2022; Ref: scu.656484
Comp/38.369 – Antitrust
[2003] ECComm 46
European
Updated: 16 May 2022; Ref: scu.216281
[2019] EWCA Civ 162
England and Wales
Updated: 16 May 2022; Ref: scu.633436
The pursuer, a cigarette vending machine operator, challenged section 9 of the 2010 Act saying that the section was incompatible with its rights under article A1P1 of the Convention, and with article 34 of the Treaty on the Functioning of the European Union.
Held: The claim failed.
[2012] CSIH 80
European Convention on Humana Rights A1P1
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.468782
[1858] EngR 1101, (1858) 5 CB NS 309, (1858) 144 ER 123
England and Wales
Updated: 15 May 2022; Ref: scu.289572
[1858] EngR 1102, (1858) 5 CB NS 366, (1858) 144 ER 146
England and Wales
Updated: 15 May 2022; Ref: scu.289573
A hire agreement provided that after the payment of substantial sums over the period of hire, the hirers could exercise an option to purchase the equipment for fifty pounds. They purported to sell the equipment before the end of the lease, but the question arose of whether they could give good title.
Held: However likely it was that the option would be exercised, there was no obligation on the hirer to exercise it, and there was therefore no binding agreement to buy, and he could not give good title, despite having possession of the equipment.
Times 21-Mar-2000, Gazette 23-Mar-2000
Updated: 15 May 2022; Ref: scu.79231
A restrictive practice on advertising imposed by the Law Society of Scotland related to legal practice and so was exempt from registration.
Times 20-Feb-1996
Restrictive Trade Practices Act 1976 26
Updated: 15 May 2022; Ref: scu.77609
[2019] CAT 27
England and Wales
Updated: 15 May 2022; Ref: scu.656489
[2002] CAT 1, 1001/1/1/01
England and Wales
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
Cited – Aberdeen Journals Limited v Office of Fair Trading (No 2) CAT 2002
Sir Christopher Bellamy said: ‘. . the question whether a certain pricing practice by a dominant undertaking is to be regarded as abusive for the purposes of Chapter II is a matter to be looked at in the round, taking particularly into account (i) . .
Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.227105
[2003] CAT 4
England and Wales
Updated: 13 May 2022; Ref: scu.656222
[1998] 2 LLR 361
Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.197874
One bus company took over another, giving it an effective monopoly within the region. The Commission considered that the area involved was sufficiently substantial to cause concern that it may operate against the public interest. At first instance the judge held the area was not sufficiently large to justify a concern. On appeal the case was reversed.
Held: The appeal was allowed. On the true construction of the phrase ‘a substantial part’ it meant not necessarily a large part, but rather a part of considerable importance and character.
Lord Mustill said: ‘The courts have repeatedly warned against the dangers of taking an inherently imprecise word, and by redefining it thrusting on it a spurious degree of precision.’ and
‘The respondents say that the two stages of the Commission’s inquiry involved wholly different tasks. Once the Commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the Commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the Commission has reached a different answer it is wrong, and the court can and must intervene.
I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] A.C. 14. The present is such a case. Even after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment.’
Lord Mustill
[1993] 1 WLR 23, [1993] 1 All ER 289
England and Wales
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Norwich and Peterborough Building Society, Regina (on the Application of) v Financial Ombudsman Service Ltd Admn 14-Nov-2002
The Ombudsman had found that the applicant had unfairly failed to notify its customers of the availability of better accounts, once it discontinued accounts of one type. The Society appealed saying that the finding of unfairness arose from matters . .
Cited – Regina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
Cited – 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 – British Broadcasting Corporation v Sugar and Another Admn 27-Apr-2007
The applicant sought publication of a report prepared for the respondent as to the even handedness of its reporting of matters in the middle east. The BBC had refused saying that the release of the report would have direct impact on its ability to . .
Cited – Al-Sweady and Others, Regina (on the Application of) v Secretary of State for the Defence Admn 2-Oct-2009
The claimant’s son had died whilst in the custody of the British Armed Forces in Iraq. His uncle now claimed that his human rights had been infringed. The case ‘raised a fundamental issue of jurisdiction under Article 1 of the ECHR because if the . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.183446
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty court for an action in rem. The claim had been brought by consignees which provided for delivery to the shipper’s order.
Held: It was a bill of lading within the Act. The court noted that it purported to be negotiable. If this document is a bill of lading, it is a negotiable instrument. Other incidents of the document were standard for a bill of lading, such as detailed terms and conditions in familiar form; the fact that the document was called a bill of lading many times in the course of such provisions and that it was made subject to the US Charter Act; the fact that it provides that ‘If required by the shipowner, one signed bill of lading, duly endorsed, must be surrendered on delivery of the goods’; and that it ‘ends in the time honoured form’, viz ‘In witness whereof the master or agent of said vessel has signed three bills of lading, all of this tenor and date, of which if one is accomplished, the others shall be void’ The court emphasised that the document would work as merchants would expect a bill of lading to work. It accorded wit hstandard commercial practiceand the parties agreed to call it a bill of lading, and entered into obligations and acquired rights proper to a bill of lading. All the other incidents in its very detailed language are such as are proper to such a document.
Lord Phillimore
[1921] AC 444
Cited – J I MacWilliam Co Inc v Mediterranean Shipping Company S A, ‘The Rafaela S’ CA 16-Apr-2003
Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A . .
Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.181886
ECJ ECSC – State aid – Individual decision refusing to authorize the grant of State aid to a steel-making undertaking – Suspension of operation of a measure – Necessary interim measures – Interest in obtaining the interim measures sought – Application dismissed. A decision of the Commission refusing authorization for the grant of State aid to a steel undertaking is negative in character. Such an undertaking cannot establish an interest in obtaining the suspension of such a decision by way of interim relief since, in the absence of a positive decision of the Commission authorizing the aid in question, the prohibition on subsidies and aid laid down by Article 4(c) of the ECSC Treaty must apply. Nor can such an undertaking establish an interest in obtaining, by way of interim relief, the reopening of the procedure for examining the aid in question, inasmuch as to reopen the procedure would not necessarily lead the Commission to adopt a positive decision which alone could permit the State in question to grant the aid to that undertaking. Moreover, a measure of that kind would not be an interim measure since it would produce the same results as those sought in the main proceedings and prejudge the decision on the merits. Finally, where the aid in question is related to a system of aid, already approved by the Commission, for the permanent closure of steelworks, to uphold an application for interim relief seeking that the Commission be required to call upon the Member State concerned to suspend payment of aid for closure to the other undertakings which have applied for it is of only apparent usefulness, inasmuch as it does not prevent the expiry of the time-limit, laid down in Decision No 3855/91, beyond which no more aid can be paid. Moreover, such a measure – amounting to ordering a Member State to suspend an aid scheme already found to be compatible with the Treaty – would manifestly be beyond the powers conferred on the Commission.
T-164/96
Updated: 12 May 2022; Ref: scu.173279
The import into commercial law of equitable principles would be inconsistent with the certainty and speed which are the essential requirements for the orderly conduct of business affairs.
Lord Greene MR said: ‘The first question which arises is whether or not the debtor was a trustee for his wife and daughter of the benefit of the undertaking given by the English company in their favour. An examination of the decided cases does, it is true, show that the courts have on occasions adopted what may be called a liberal view on questions of this character, but in the present case I cannot find in the contract anything to justify the conclusion that a trust was intended. It is not legitimate to import into the contract the idea of a trust when the parties have given no indication that such was their intention. To interpret this contract as creating a trust would, in my judgment, be to disregard the dividing line between the case of a trust and the simple case of a contract made between two persons for the benefit of a third.’
du Parcq LJ said: ‘It now remains to consider the question whether, and if so to what extent, the principles of equity affect the position of the parties. It was argued by Mr. Denning that one effect of the agreement of September 20, 1940, was that a trust was thereby created, and that the debtor constituted himself trustee for Mrs. Schebsman of the benefit of the covenant under which payments were to be made to her. Uthwatt J. rejected this contention, and the argument has not satisfied me that he was wrong. It is true that, by the use possibly of unguarded language, a person may create a trust, as Monsieur Jourdain talked prose, without knowing it, but unless an intention to create a trust is clearly to be collected from the language used and the circumstances of the case, I think that the court ought not to be astute to discover indications of such an intention.’
Lord Greene MR, du Parcq LJ
[1944] Ch 83
Cited – Williams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.537034