Category: European

Alexandre Achughbabian v Prefet du Val-de-Marne: ECJ 26 Oct 2011

ECJ Opinion – Directive 2008/115/EC – Return of illegally-staying third-country nationals – National legislation making provision for a term of imprisonment solely on the ground of illegal entry into or staying in national territory – Compatibility

Judges:

Mazak AG

Citations:

C-329/11, [2011] EUECJ C-329/11

Links:

Bailii

Statutes:

Directive 2008/115/EC

Cited by:

See Also – Achughbabian v Prefet du Val-de-Marne ECJ 6-Dec-2011
Achughbabia2ECJ2011
ECJ Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – National legislation making provision, in the event of . .
Lists of cited by and citing cases may be incomplete.

European, Immigration, Crime

Updated: 01 October 2022; Ref: scu.449969

Chalkor v Commission: ECJ 8 Dec 2011

ECJ Appeal – Competition – Agreements, decisions and concerted practices – Market for copper plumbing tubes – Fines – Size of the market, duration of the infringement and cooperation capable of being taken into consideration – Effective judicial remedy

Judges:

Cunha Rodrigues P

Citations:

[2011] EUECJ C-386/10, C-386/10, [2011] EUECJ C-386/10 – P

Links:

Bailii, Bailii

European

Updated: 01 October 2022; Ref: scu.449972

ITV Broadcasting Ltd and Others v TV Catch Up Ltd: ChD 25 Nov 2010

The defendant sought summary judgment saying that the claim was doomed to fail. The claimants alleged copyright infringement in the rebroadcasting by the defendants of their materials.

Judges:

Kitchin J

Citations:

[2010] EWHC 3063 (Ch)

Links:

Bailii

Statutes:

Copyright Designs and Patents Act 1988 6, Copyright and Related Rights Regulations 2003 (SI 2003/2498), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001

Jurisdiction:

England and Wales

Intellectual Property, Media, European

Updated: 01 October 2022; Ref: scu.426711

Littlewoods Retail Ltd and Others v Revenue and Customs: ChD 4 Nov 2010

Overpayments of VAT had been repaid with interest. The claimants suggested that the interest should have been compounded. The court had decided that a reference to the ECJ was necessary. The Court now considered the form of that reference.
Held: 4 questions were submitted.

Judges:

Vos J

Citations:

[2010] EWHC 2771 (Ch), [2011] BVC 14, [2011] STC 171

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

1st hearing – Littlewoods Retail Ltd and Others v HM Revenue and Customs ChD 19-May-2010
The claimants had overpaid large sums of VAT over several years, and been, eventually, refunded, with simple interest. The claimants now said that the interest should have been compounded. The revenue contended that such a claim was excluded under . .

Cited by:

At ChD (1) – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
See Also – Littlewoods Retail Ltd and Others v HM Revenue and Customs (No 2) ChD 28-Mar-2014
The claimants had recovered very substantial overpayments made of VAT. They sought recovery of compound interest. The ECJ, on reference, said that this was a matter for national law.
Held: The claim succeeded. The sections of the 1994 Act were . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 01 October 2022; Ref: scu.425783

Littlewoods Retail Ltd and Others v HM Revenue and Customs: ChD 19 May 2010

The claimants had overpaid large sums of VAT over several years, and been, eventually, refunded, with simple interest. The claimants now said that the interest should have been compounded. The revenue contended that such a claim was excluded under European law.
Held: As a matter of statutory construction, the claims were excluded by sections 78 and 80 of the 1994 Act. The case required a reference to the ECJ. The case was adjourned to prepare to decide the form of question.

Judges:

Vos J

Citations:

[2010] EWHC 1071 (Ch), [2010] BVC 673, [2010] STC 2072, [2010] STI 1616

Links:

Bailii

Statutes:

Value Added Tax Act 1994 78 80

Jurisdiction:

England and Wales

Citing:

Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .

Cited by:

1st hearing – Littlewoods Retail Ltd and Others v Revenue and Customs ChD 4-Nov-2010
Overpayments of VAT had been repaid with interest. The claimants suggested that the interest should have been compounded. The court had decided that a reference to the ECJ was necessary. The Court now considered the form of that reference.
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 01 October 2022; Ref: scu.415935

Philips Electronics UK Ltd v Revenue and Customs: FTTTx 18 Aug 2009

EUROPEAN LAW – group relief (consortium claim) – whether claimant company not exercising Community rights can seek to disapply UK law affecting a Dutch surrendering company with a UK branch – yes – whether TA 1988 s 406(2) and 403D(1)(c) contain restrictions on the right of establishment – yes – whether such restrictions can be justified – no – whether (if it could be justified) s 403D(1)(c) would be proportional – no

Citations:

[2009] UKFTT 226 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Corporation Tax, European

Updated: 01 October 2022; Ref: scu.409032

FJ Chalke Ltd and Another v Revenue and Customs: CA 25 Mar 2010

Judges:

Mummery, Etherton, Patten LJJ

Citations:

[2010] EWCA Civ 313, [2010] Eu LR 539, [2010] BVC 573, [2010] STI 1280, [2010] STC 1640

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – FJ Chalke Ltd and Another v Revenue and Customs ChD 8-May-2009
The court was asked as to the effectiveness under European law of sections 78 and 80 of the 1994 Act.
Held: Henderson J focused on the fact that section 80(7) excludes any common law liability to repay the overpaid VAT, and inferred that it . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 01 October 2022; Ref: scu.406410

FJ Chalke Ltd and Another v Revenue and Customs: ChD 8 May 2009

The court was asked as to the effectiveness under European law of sections 78 and 80 of the 1994 Act.
Held: Henderson J focused on the fact that section 80(7) excludes any common law liability to repay the overpaid VAT, and inferred that it must also exclude any common law liability to pay interest: ‘the exclusion in section 80(7) of any liability to repay overpaid VAT save as provided for by section 80 necessarily prevents the recovery of any interest on the overpaid VAT, except where section 78 or some other statutory provision provides an entitlement to such interest’

Judges:

Henderson J

Citations:

[2009] EWHC 952 (Ch), [2009] 3 CMLR 14, [2009] BVC 486, [2009] STC 2027, [2009] STI 1694

Links:

Bailii

Statutes:

Value Added Tax Act 1994 94

Jurisdiction:

England and Wales

Cited by:

Appeal from – FJ Chalke Ltd and Another v Revenue and Customs CA 25-Mar-2010
. .
Criticised – Littlewoods Ltd and Others v HM Revenue and Customs CA 21-May-2015
The company sought repayment by way of restitution for overpaid taxes. The tax had been repaid, but only as simple interest, and not compounded. Both parties now appealed from a decision that the Act did not apply to exclude under sections 78 and 80 . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 01 October 2022; Ref: scu.344033

O2 Holdings Ltd and Another v Hutchison 3G UK Ltd: ChD 11 Mar 2005

The idea of the ‘average consumer’, the arbiter of similarity in trade mark disputes, is a legal construct which tends to emphasise that similarity is an autonomous concept of European law. Similarity and likelihood of confusion are intimately bound together. The court declined to refer questions to the ECJ for a preliminary ruling before trial, holding in essence that such a reference would be premature.

Judges:

Sir Andrew Morritt V-C

Citations:

[2005] EWHC 344 (Ch), [2006] RPC 29, [2005] ETMR 62

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
At First instance – O2 Holdings Limited and O2 (UK) Limited -v -Hutchison 3G UK Limited ECJ 31-Jan-2008
ECJ (Opinion of Advocate General Mengozzi) Directive 84/450/EEC Comparative advertising Use of a competitor’s trade mark or of a sign similar to a competitor’s trade mark in comparative advertising Applicability . .
Cited – Interflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 01 October 2022; Ref: scu.223379

Amministrazione Delle Finanze Dello Stato v Ariete Spa: ECJ 10 Jul 1980

ECJ 1. The prohibition on the levying of charges having an effect equivalent to customs duties, whether it has its origin in the general rule contained in article 13 of the treaty with effect from 1 january 1970, at the end of the transitional period, or in the special provision of article 12 of regulation no 13/64 with effect, as regards the products referred to by the regulation, from 1 november 1964, has a direct effect in the relations between the member states and their subjects throughout the community as from the date provided for the implementation of the provisions in question.
2. The interpretation which, in the exercise of the jurisdiction conferred upon it by article 177 of the eec treaty, the court of justice gives to a rule of community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted must be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied.
it is only exceptionally that the court may, in application of the general principle of legal certainty inherent in the community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.
3. It is the courts of the member states, applying the principle of cooperation laid down in article 5 of the eec treaty, which are entrusted with ensuring the legal protection which subjects derive from the direct effect of the provisions of community law.
4. In the absence of community rules in the matter it is for the legal order of each member state to lay down the conditions in which taxpayers may contest taxation wrongly levied because of its incompatibility with community law or claim repayment thereof, provided that those conditions are no less favourable than the conditions relating to similar applications of a domestic nature and that they do not make it impossible in practice to exercise the rights conferred by the community legal order.
however, community law does not require an order for the recovery of charges improperly levied to be granted in conditions such as would involve an unjustified enrichment of those entitled. There is therefore nothing from the point of view of community law to prevent national courts from taking account, in accordance with their national law, of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to purchasers.
5. The system of protection which subjects have as a result of the direct effect of the provisions of community law in conjunction with the special features of national laws which govern in the various member states matters of form and substance in relation to recovering national taxes which have been paid in contravention of community law cannot be regarded as incompatible with the provisions of community law on the establishment of a system ensuring that competition within the common market is not distorted.

Citations:

R-811/79, [1980] EUECJ R-811/79

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 October 2022; Ref: scu.214929

Sas Prodotti Alimentari Folci v Amministrazione Delle Finanze Dello Stato: ECJ 16 Oct 1980

ECJ Common customs tariff – scheme of generalized preferences in favour of developing countries – cut mushrooms coming under sub-heading 07.04 B – exclusion (regulations nos 3055/74 and 3011/75 of the council, annex A)
Tariff heading 07.04 ‘ex b. Other’ set out in annex a to regulations (eec) no 3055/74 and (eec) no 3011/75 of the council establishing in respect of certain products falling within chapters 1 to 24 of the common customs tariff a scheme of generalized preferences in favour of developing countries for the years 1975 and 1976 must be interpreted as meaning that the reduced rate does not apply to cut or sliced mushrooms even if all the parts are present.

Citations:

R-824/79, [1980] EUECJ R-824/79

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 01 October 2022; Ref: scu.214949

Amministrazione Delle Finanze Dello Stato v Sas Mediterranea Importazione, Rappresentanze, Esportazione, Commercio (Mireco).: ECJ 10 Jul 1980

ECJ 1. The prohibition on the levying of charges having an effect equivalent to customs duties, whether it has its origin in the general rule contained in article 13 of the treaty with effect from 1 january 1970, at the end of the transitional period, or in the special provision of article 12 of regulation no 14/64 with effect, as regards the products referred to by the regulation, from 1 november 1964, has a direct effect in the relations between the member states and their subjects throughout the community as from the date pro- vided for the implementation of the provisions in question.
2. The interpretation which, in the exercise of the jurisdiction conferred upon it by article 177 of the eec treaty, the court of justice gives to a rule of community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule as thus interpreted must be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation, provided that in other respects the conditions enabling an action relating to the application of that rule to be brought before the courts having jurisdiction are satisfied.
It is only exceptionally that the court may, in application of the general principle of legal certainty inherent in the community legal order and in taking account of the serious effects which its judgment might have, as regards the past, on legal relationships established in good faith, be moved to restrict for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships.
3. It is the courts of the member states, applying the principle of cooperation laid down in article 5 of the eec treaty, which are entrusted with ensuring the legal protection which subjects derive from the direct effect of the provisions of community law.
4. In the absence of community rules concerning the contesting or recovery of national charges which have been unlawfully demanded or wrongfully levied by reason of their incompatibility with community law it is for the domestic legal system of each member state to designate the courts having jurisdiction and determine the procedural conditions governing actions at law intended to safeguard the rights which subjects derive from the direct effect of community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature and that under no circumstances may they be so adapted as to make it impossible in practice to exercise the rights which the national courts have a duty to protect.
However, community law does not require an order for the recovery of charges improperly levied to be granted in conditions such as would involve an unjustified enrichment of those entitled. There is therefore nothing from the point of view of community law to prevent national courts from taking account, in accordance with their national law, of the fact that it has been possible for charges unduly levied to be incorporated in the prices of the undertaking liable for the charge and to be passed on to purchasers.
5. The system of protection which subjects have as a result of the direct effect of the provisions of community law in conjunction with the special features of national laws which govern in the various member states matters of form and substance in relation to recovering national taxes which have been paid in contravention of community law cannot be regarded as incompatible either with articles 9, 12, 13, 92, 93 and 95 of the EEC Treaty or, in a more general way, with the principles of community law relating to the free movement of goods, the establishment of a system ensuring that competition within the common market is not distorted or the prohibition of discrimination in tax matters.

Citations:

R-826/79, [1980] EUECJ R-826/79

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 October 2022; Ref: scu.214930

Fantask and others v Industriministeriet: ECJ 2 Dec 1997

ECJ Directive 69/335/EEC – Registration charges on companies – Procedural time-limits under national law.

Citations:

C-188/95, [1997] EUECJ C-188/95, [1997] ECR-1 6783

Links:

Bailii

Statutes:

Directive 69/335/EEC

Jurisdiction:

European

Cited by:

Cited – Walker-Fox v Secretary of State for Work and Pensions CA 29-Nov-2005
The claimant pensioner had moved to France. He sought to claim a retrospective winter fuel allowance claim. The government had eventually agreed to make payments to UK residents abroad.
Held: The claimant was deemed to have had knowledge of . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

Company, Limitation

Updated: 01 October 2022; Ref: scu.161611

Amministrazione Delle Finanze Dello Stato v Simmenthal SpA (No 2): ECJ 9 Mar 1978

ECJ The Court of Justice considered a reference for a preliminary ruling, pursuant to article 1977 of the Treaty, as having been validly brought before it so long as the reference has not been withdrawn by the court from which it emanates or has not been quashed on appeal by a superior court.
The direct applicability of community law means that its rules must be fully and uniformly applied in all the member states from the date of their entry into force and for so long as they continue in force. Directly applicable provisions are a direct source of rights and duties for all those affected thereby, whether member states or individuals; this consequence also concerns any national court whose task it is as an organ of a member to protect the rights conferred upon individuals by community law.
In accordance with the principle of the precedence of community law, the relationship between provisions of the treaty and directly applicable measures of the institutions on the one hand and the national law of the member states on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the member states – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with community provisions.
Any recognition that national legislative measures which encroach upon the field within which the community exercises its legislative power or which are otherwise incompatible with the provisions of community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by member states pursuant to the treaty and would thus imperil the very foundations of the community.
A national court which is called upon, within the limits of its jurisdiction, to apply provisions of community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means.

Citations:

C-106/77, R-106/77, [1978] EUECJ R-106/77, [1978] 3 CMLR 263, [1978] ECR 629

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Lists of cited by and citing cases may be incomplete.

Taxes Management

Updated: 01 October 2022; Ref: scu.132534

M H Marshall v Southampton And South West Hampshire Area Health Authority (Teaching): ECJ 26 Feb 1986

ECJ The court considered the measure of compensation in a successful claim for sex discrimination arising from the health authority’s provision of an earlier compulsory retirement age for women compared with that for men in the same employment. The health authority paid her the maximum sum of pounds 6,250 which was then permitted as compensation under the Sex Discrimination Act 1975 and the House of Lords referred to the CJEU the question whether it was essential to the due implementation of article 6 of Council Directive 76/207/EEC (‘the Equal Treatment Directive’) that her compensation should not be less than the loss she had sustained and that it should include an award of interest.
Held: The term ‘dismissal’ contained in article 5(1) of Directive no 76/207 must be given a wide meaning; an age limit for the compulsory dismissal of workers pursuant to an employer’s general policy concerning retirement falls within the term ‘dismissal’ construed in that manner, even if the dismissal involves the grant of a retirement pension. In view of the fundamental importance of the principle of equality of treatment for men and women, article 1(2) of Directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7(1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits. Article 5(1) of directive no 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained the qualifying age for a state pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive. Wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the state where that state fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly. It would in fact be incompatible with the binding nature which article 189 confers on the directive to hold as a matter of principle that the obligation imposed thereby cannot be relied on by those concerned. Consequently, a member state which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails. In that respect the capacity in which the state acts, whether as employer or public authority, is irrelevant. In either case it is necessary to prevent the state from taking advantage of its own failure to comply with community law. According to article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to ‘each member state to which it is addressed’. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person.
Article 5(1) of council directive no 76/207, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, may be relied upon as against a state authority acting in its capacity as employer, in order to avoid the application of any national provision which does not conform to article 5(1).

Citations:

C-152/84, [1986] IRLR 140, [1986] ICR 335, R-152/84, [1986] EUECJ R-152/84, [1986] 2 WLR 780, [1986] 1 CMLR 688, [1986] 2 All ER 584, [1986] ECR 723, [1986] QB 401

Links:

Bailii

Statutes:

Directive no 76/207 5(1)

Jurisdiction:

European

Cited by:

Cited – Nottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
Cited – Rutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
Cited – Alabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – Meikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
Cited – Doughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Damages

Updated: 01 October 2022; Ref: scu.133907

International Stem Cell Corporation v Comptroller General of Patents: ECJ 18 Dec 2014

ECJ Grand Chamber – Reference for a preliminary ruling – Directive 98/44/EC – Article 6(2)(c) – Legal protection of biotechnological inventions – Parthenogenetic activation of oocytes – Production of human embryonic stem cells – Patentability – Exclusion of ‘uses of human embryos for industrial or commercial purposes’ – Concepts of ‘human embryo’ and ‘organism capable of commencing the process of development of a human being’
Ruling – Article 6(2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions must be interpreted as meaning that an unfertilised human ovum whose division and further development have been stimulated by parthenogenesis does not constitute a ‘human embryo’, within the meaning of that provision, if, in the light of current scientific knowledge, it does not, in itself, have the inherent capacity of developing into a human being, this being a matter for the national court to determine.

Judges:

V Skouris, P

Citations:

[2014] EUECJ C-364/13, (2015) 142 BMLR 67, [2015] BUS LR 98, ECLI:EU:C:2014:2451, [2015] 2 CMLR 26, [2015] All ER (EC) 362, [2014] WLR(D) 546, [2015] RPC 19

Links:

Bailii, WLRD

Statutes:

Directive 98/44/EC 6(2)(c)

Jurisdiction:

European

Citing:

Opinion – International Stem Cell Corporation v Comptroller General of Patents ECJ 17-Jul-2014
ECJ (Advocate General’s Opinion) – Directive 98/44/EC – Legal protection of biotechnological inventions – Patentability – Stem cells – Stimulation by parthenogenesis of unfertilised human ova to create stem cells . .
Reference – International Stem Cell Corporation v Comptroller General of Patents ChD 17-Apr-2013
The company appealed against refusal of patentunder the provision restricting such for ‘uses of human embryos for industrial or commercial purposes’
Held: The matter was referred to the ECJ. . .
At IPO – International Stem Cell Corporation (Patent) IPO 16-Aug-2012
IPO Patent applications GB0621068.6 and GB0621069.4 relate to methods where parthenogenesis is used to activate a human oocyte (i.e. stimulation of a human oocyte, without fertilisation by a sperm cell) to . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 01 October 2022; Ref: scu.557902

MO Industries v OHIM (Splendid): ECFI 21 May 2015

ECJ Judgment – Community trade mark – Application for Community figurative mark Splendid – Absolute ground for refusal – Lack of distinctive character – Article 7(1)(b) and Article 7(2) of Regulation (EC) No 207/2009 – Equal treatment – Principle of sound administration

Judges:

S. Papasavvas, P

Citations:

T-203/14, [2015] EUECJ T-203/14

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 01 October 2022; Ref: scu.547041

Ziegler v Commission: ECFI 15 Jan 2015

ECJ Judgment – Non-contractual liability – Competition – International removal services market in Belgium – Removals of officials and other servants of the Union – Decision finding an infringement of Article 101 TFEU – complacency Quote – Scope of responsibility of an institution – Res judicata – Duty of care – Causation

Judges:

A. Dittrich (Rapporteur), P

Citations:

T-539/12, [2015] EUECJ T-539/12, ECLI: EU: T: 2015: 15

Links:

Bailii

Jurisdiction:

European

European

Updated: 01 October 2022; Ref: scu.541503

Evyap v OHMI – Megusta Trading (Nuru): ECFI 21 May 2015

ECJ Judgment – Community trade mark – Opposition proceedings – Application for a Community figurative mark representing a wiggly line – Earlier national and international word and figurative marks DURU – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009

Judges:

D. Gratsias, P

Citations:

T-56/14, [2015] EUECJ T-56/14, ECLI:EU:T:2015:304

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 01 October 2022; Ref: scu.547038

Perenicova And Perenic French Text: ECJ 29 Nov 2011

ECJ Opinion – Consumer protection – Directive 93/13/EEC – Article 4, paragraph 1 and Article 6, paragraph 1 – Unfair terms in consumer contracts – Directive 2005/29/EC – Unfair commercial practices of companies vis-a-vis consumers – Contract consumer credit stating a usurious interest rates – Effect of unfair trade practices and unfair terms of the overall validity of the contract

Judges:

Trstenjak AG

Citations:

C-453/10, [2011] EUECJ C-453/10

Links:

Bailii

Statutes:

Directive 93/13/EEC

Cited by:

Opinion – Perenicova And Perenic ECJ 15-Mar-2012
ECJ Consumer protection – Consumer credit agreement – Incorrect statement of annual percentage rate of charge – Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole
Lists of cited by and citing cases may be incomplete.

European, Consumer

Updated: 29 September 2022; Ref: scu.449367

Hartmann v OHIM (Complete): ECFI 30 Nov 2011

ECJ Community trade mark – Application for Community word mark Complete – Absolute grounds for refusal – Lack of distinctive character – Descriptive character – Motivation – Products constituting a homogeneous group – Article 7, paragraph 1 b) and c) of Regulation (EC) No 207/2009

Judges:

Azizi P

Citations:

T-123/10, [2011] EUECJ T-123/10

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009

European, Intellectual Property

Updated: 29 September 2022; Ref: scu.449365

Quinn Barlo And Others v Commission: ECFI 30 Nov 2011

ECFI Competition – Agreements, decisions and concerted practices – Market for methacrylates – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Concept of single infringement – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances

Judges:

Czucz R P

Citations:

T-208/06, [2011] EUECJ T-208/06

Links:

Bailii

European

Updated: 29 September 2022; Ref: scu.449368

Se-Blusen Stenau v OHMI – Sport Eybl and Sports Experts (SE Sports Equipment): ECFI 30 Nov 2011

ECFI Community trade mark – Opposition proceedings – Application for Community figurative mark SE (c) SPORTS EQUIPMENT – Earlier national word mark SE So Easy – Relative ground for refusal – Similarity of signs – Article 8, paragraph 1 b) of Regulation (EC) No 207/2009

Judges:

Czucz P

Citations:

T-477/10, [2011] EUECJ T-477/10

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009

European, Intellectual Property

Updated: 29 September 2022; Ref: scu.449370

Asociacion Nacional De Establecimientos Financieros De Credito v Administracion Del Estado: ECJ 24 Nov 2011

ECJ (Approximation Of Laws – Processing Personal Data) Processing of personal data – Directive 95/46/EC – Article 7(f) – Direct effect

Judges:

K. Lenaerts

Citations:

C-469/10, [2011] EUECJ C-469/10

Links:

Bailii

Citing:

See Also – Asociacion Nacional De Establecimientos Financieros De Credito v Administracion Del Estado ECJ 24-Nov-2011
ECJ (Approximation Of Laws – Processing Personal Data) Processing of personal data – Directive 95/46/EC – Article 7(f) – Direct effect . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 29 September 2022; Ref: scu.449349

Association Nationale D’Assistance Aux Frontieres Pour Les Etrangers v Ministre de l’Interieur, de l’Outre-mer, des Collectivites territoriales et de l’Immigration: ECJ 29 Nov 2011

ECJ Regulation (EC) No 562/2006 – Schengen Borders Code – Article 13 – Refusal of entry – Article 5 – Entry into the Schengen nationals of third countries subject to the visa requirement – Ministerial Circular – Back of third countries subject to the visa requirement and hold a temporary residence permit – Visa back – Transit for third-country nationals – Legal certainty – Protection of legitimate expectations

Judges:

Trstenjak AG

Citations:

C-606/10, [2011] EUECJ C-606/10

Links:

Bailii

Statutes:

Regulation (EC) No 562/2006

Cited by:

Opinion – Association Nationale D’Assistance Aux Frontieres Pour Les Etrangers v Ministre de l’Interieur, de l’Outre-mer, des Collectivites territoriales et de l’Immigration ECJ 14-Jun-2012
ECJ Regulation (EC) No 562/2006 – Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) – Article 13 – Third-country nationals holding a temporary residence permit – . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 29 September 2022; Ref: scu.449350

Commission v Dittert: ECFI 30 Nov 2011

ECFI (Staff Regulations) French Text – Appeal – Civil Service – Officials – Promotion – 2005 promotion procedure – Priority Points – No award due to a technical problem – A * Promotion Committee – Award of a number of additional priority points lower than the proposal of the hierarchy – Non-listing of promotions

Judges:

Azizi

Citations:

T-51/08, [2011] EUECJ T-51/08

Links:

Bailii

European

Updated: 29 September 2022; Ref: scu.449355

Commission v Carpi Badia: ECFI 30 Nov 2011

ECFI (Staff Regulations) French Text Appeal – Civil Service – Officials – Promotion – 2005 promotion procedure – Priority Points – No award due to a technical problem – Promotion Committee – Award of a number of additional priority points lower than the proposal of the hierarchy – Non-listing of promotions

Judges:

Azizi

Citations:

T-52/08, [2011] EUECJ T-52/08

Links:

Bailii

European

Updated: 29 September 2022; Ref: scu.449354

Circul Globus Bucuresti: ECJ 24 Nov 2011

(Intellectual Property) Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Article 3 – Concept of ‘communication of a work to a public present at the place where the communication originates’- Dissemination of musical works in the presence of an audience without paying the collective management organisation the appropriate copyright fee – Entry into contracts, with the authors of the works, for copyright waiver – Scope of Directive 2001/29

Judges:

K. Lenaerts, P

Citations:

C-283/10, [2011] EUECJ C-283/10

Links:

Bailii

Statutes:

Directive 2001/29/EC

European, Intellectual Property

Updated: 29 September 2022; Ref: scu.449353

Rossi Ferreras v Commission (Staff Regulations): ECFI 14 Sep 2006

ECJ Officials – Career development report – Action for annulment – 2001/2002 evaluation period – Opinion of previous immediate superior – Lack of consideration by the evaluator – Claim for damages – Inadmissible

Citations:

T-119/04, [2006] EUECJ T-119/04

Links:

Bailii, Bailii

Jurisdiction:

European

European

Updated: 29 September 2022; Ref: scu.245116

Marks and Spencer v Commissioners of Customs and Excise: ECJ 11 Jul 2002

ECJ Sixth VAT directive – National legislation retroactively curtailing a limitation period for repayment of sums unduly paid – Compatibility with the principles of effectiveness and of the protection of legitimate expectations.

Citations:

C-62/00, [2003] QB 866, [2002] STC 1036

Jurisdiction:

European

Cited by:

Opinion – Marks and Spencer plc v Commissioners of Customs and Excise ECJ 11-Jul-2002
The claimant challenged the reduction of the limitation period from six years to three for the reclaiming of overpaid VAT with immediate effect, depriving it of the opportunity to recover sums paid in excess. The company sold vouchers. It paid VAT . .
Opinion on first reference – Marks and Spencer Plc v Customs and Excise HL 4-Feb-2009
The taxpayer requested refund of VAT overpaid on chocolate covered cakes. The CandE resisted saying that the money had been substantially already paid by its customers. The case had been referred twice to the ECJ, who answered that the maintenance . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 29 September 2022; Ref: scu.232347

Societe Veleclair v Minister of Budget, Public Accounts and State Reform: ECJ 17 Nov 2011

ECJ (Opinion) Common system of value added tax – Sixth Directive – the value added tax on imports – Right to deduct – National legislation making the right to deduct the actual payment of the tax by the taxpayer.

Judges:

Kokott AG

Citations:

C-414/10, [2011] EUECJ C-414/10

Links:

Bailii

Cited by:

Opinion – Societe Veleclair v Minister of Budget, Public Accounts and State Reform ECJ 29-Mar-2012
ECJ VAT – Sixth Directive – Article 17(2)(b) – Taxation of a product imported from a third country – National legislation – Right to deduct VAT on importation – Condition – Actual payment of VAT by the taxable . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 28 September 2022; Ref: scu.448730

Procureur-generaal bij het hof van beroep te Antwerpen v Zaza Retail: ECJ 17 Nov 2011

ECJ (Area Of Freedom, Security And Justice) Regulation (EC) No 1346/2000 – Insolvency proceedings – Opening of territorial insolvency proceedings – Conditions laid down by the applicable national law preventing the opening of main insolvency proceedings – Creditor empowered to request the opening of territorial insolvency proceedings

Judges:

Tizzano, President

Citations:

C-112/10, [2011] EUECJ C-112/10

Links:

Bailii

European, Insolvency

Updated: 28 September 2022; Ref: scu.448734

Low and Bonar And Bonar Technical Fabrics v Commission: ECFI 16 Nov 2011

ECFI (Competition) Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Single and continuous infringement – Fines – Attenuating circumstances – Passive role – Proportionality – Equal treatment – Unlimited jurisdiction

Judges:

Pelikanova P

Citations:

T-59/06, [2011] EUECJ T-59/06

Links:

Bailii

European

Updated: 28 September 2022; Ref: scu.448720

LG Electronics v OHIM (Direct Drive): ECFI 22 Nov 2011

ECFI Community trade mark – Application for Community word mark DIRECT DRIVE – Absolute grounds for refusal – Descriptive character and lack of distinctive character – Article 7(1)(b) and (c) of Regulation (EC) No 207/2009

Judges:

Czucz P

Citations:

T-561/10, [2011] EUECJ T-561/10

Links:

Bailii

European, Intellectual Property

Updated: 28 September 2022; Ref: scu.448719

Mpay24 v OHMI- Ultra (Mpay24): ECFI 22 Nov 2011

ECFI Community trade mark – Invalidity proceedings – Community word mark MPAY24 – Absolute grounds for refusal – Descriptive character – Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 – Correction of the decision by the Board of Appeal – Non-existent act – Rule 53 of Regulation (EC) No 2868/95.

Judges:

Czuzc P

Citations:

T-275/10, [2011] EUECJ T-275/10

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009, Regulation (EC) No 2868/95 53

European, Intellectual Property

Updated: 28 September 2022; Ref: scu.448723

Pukka Luggage v OHMI- Azpiroz Arruti (Pukka): ECFI 23 Nov 2011

ECFI Intellectual Property – Community trade mark – Opposition proceedings – Application for Community word mark PUKKA – Opposition by the proprietor of Community and national figurative marks featuring the word element pukas – Article 8(1)(b) of Regulation (EC) No 207/2009 – Partial refusal to register.

Judges:

Pelikanova P

Citations:

T-483/10, [2011] EUECJ T-483/10

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009 8(1)(b)

European, Intellectual Property

Updated: 28 September 2022; Ref: scu.448726

Van Ardennen v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen: ECJ 17 Nov 2011

ECJ (Social Policy) Directive 80/987/EEC – Protection of employees in the event of the insolvency of their employer – Insolvency benefit – Payment subject to registration as a job-seeker

Judges:

Bonichot P

Citations:

C-435/10, [2011] EUECJ C-435/10

Links:

Bailii

Statutes:

Directive 80/987/EEC

European, Employment

Updated: 28 September 2022; Ref: scu.448733

McLoughney v OHMI- Kern (Powerball): ECFI 16 Nov 2011

ECFI Community trade mark – Opposition proceedings – Application for Community word mark Powerball – Earlier word mark unregistered POWERBALL – Relative grounds for refusal – Article 8, paragraphs 3 and 4 of Regulation (EC) No 207/2009

Judges:

Pelikanova P

Citations:

T-484/09, [2011] EUECJ T-484/09

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009 8

European, Intellectual Property

Updated: 28 September 2022; Ref: scu.448721

Nolin v Commission: ECFI 15 Nov 2011

ECFI (Staff Regulations) French Text – Appeal – Civil Service – Officials – Promotion – Removal of merit points and priority as a result of a promotion based on Article 29 of the Statute – Legal basis – Jurisdiction of the perpetrator – Principle of non- discrimination

Judges:

Jaeger P

Citations:

T-58/11, [2011] EUECJ T-58/11

Links:

Bailii

European

Updated: 28 September 2022; Ref: scu.448724

EMA v Commission: ECFI 18 Nov 2011

Order – Arbitration Clause – Interim measures – Programme for Research and Technological Development – Decision terminating the project participation – Debit note – Application for stay of execution – Lack of urgency

Citations:

T-116/11, [2011] EUECJ T-116/11

Links:

Bailii

European

Updated: 28 September 2022; Ref: scu.448710

Monster Cable Products v OHMI- Live Nation (Music): ECFI 23 Nov 2011

ECFI Community trade mark – Opposition proceedings – Application for Community word mark MONSTER ROCK – Earlier national mark MONSTERS OF ROCK – Relative ground for refusal – Likelihood of confusion – Similarity of the goods – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009

Judges:

Pelikanova P

Citations:

T-216/10, [2011] EUECJ T-216/10

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009 8(1)(b)

European, Intellectual Property

Updated: 28 September 2022; Ref: scu.448722

Interflora Inc and Another v Marks and Spencer Plc and Another: ChD 29 Apr 2010

Response to request for clarification of reference to the ECJ.

Judges:

Arnold J

Citations:

[2010] EWHC 925 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Interflora, Inc and Another v Marks and Spencer Plc and Another ChD 22-May-2009
Each of the parties provided a service delivering flowers. The claimant had a trade mark, and the defendants each purchased the use of that trade mark and variations of it with a search engine (Google) so that a search under the trade mark produced . .

Cited by:

See Also – Interflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 24-Mar-2011
ECJ (Opinion) Trade marks – Keyword advertising corresponding to the trade mark of a competitor of the advertiser – Trade marks with a reputation – Blurring – Tarnishment – Free-riding – Directive 89/104 – . .
See Also – Interflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 22-Sep-2011
ECJ Trade marks – Keyword advertising on the internet – Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation – Directive 89/104/EEC – Article 5(1)(a) and (2) – . .
See Also – Interflora Inc and Another v Marks and Spencer Plc and Another ChD 20-Jun-2012
Application for permission to to adduce witness evidence at trial from witnesses gathered from two pilot surveys. . .
See Also – Marks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
See Also – Interflora Inc and Another v Marks and Spencer Plc and Another ChD 21-Feb-2013
‘The Claimants (‘Interflora’) seek the permission of the Court to adduce in evidence the witness statements of 13 witnesses at the trial of this action scheduled for mid April 2013. Interflora do not accept that they need the Court’s permission, but . .
See also – Interflora Inc v Marks and Spencer Plc CA 22-Mar-2013
Interflora had been refused permision to adduce survey evidence, but now appealed against refusal of permission to adduce evidence of confusion by witness statements.
Held: Appeal allowed. Reasons to follow. . .
See Also – Interflora Inc and Another v Marks and Spencer Plc CA 5-Apr-2013
The court gave its reasons for allowing the claimant to bring additional witness evidence as to confusion as opposed to survey evidence. . .
See Also – Interflora Inc and Another v Marks and Spencer Plc and Another ChD 15-Apr-2013
The defendant objected to the introduction of certain evidence by the claimant under a Civil Evidence Act notice. Claimants seeking to adduce academic journals as expert evidence . .
See Also – Interflora Inc and Another v Marks and Spencer Plc and Another ChD 21-May-2013
Mark use in search engine was infringing use
The claimant mark owner alleged that the defendant, in paying a search engine to use the claimants mark as a search keyword was infringing its rights. The defendant argued that the use of the same sign in different contexts could amount to a . .
See Also – Interflora Inc and Another v Marks and Spencer Plc and Another ChD 12-Jun-2013
The court considered the form of the injunction requested to give effect to the earlier full judgment in the case brought, requiring the defendant to discontinue any use of the terms complained of as infringing the claimant’s registered marks as . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 27 September 2022; Ref: scu.408848

Diageo North America, Inc and Another v Intercontinental Brands (ICB) Ltd and Others: ChD 19 Jan 2010

The parties disputed the right to use various terms to describe and sell their alcoholic drinks, arguing for passing off. Diageo sought an unqualified injunction restraining ICB from advertising, offering for sale or selling or supplying any alcoholic beverage under the name VODKAT unless (1) the beverage in question was vodka with a minimum ABV of 37.5% or (2) in the case where the beverage was to be a combination of an alcoholic component diluted with a non-alcoholic component (other than water) which together formed a product having an ABV of less than 37.5%, the sole alcoholic component was vodka. Their contention before the judge was that the use of the name VODKAT either alone or in conjunction with a get-up reminiscent of vodka amounted to a misrepresentation that it was vodka or, at the very least, would do so absent a clear product description.
Held: Arnold J assessed the claim by reference to the so-called classical trinity of reputation, misrepresentation and damage which it is common ground have to be established in every case of passing-off. He found that vodka denoted a clearly defined class of goods in accordance with the 2008 Regulation.
Arnold J said: ‘It is also true that various products have been sold which contain, and are stated to contain, vodka, but which are not themselves vodka. The two principal categories of such products are vodka-containing RTDs and vodka-based liqueurs. RTDs form a well-established category of product, which is well understood by the public. On the whole, vodka-containing RTDs are marketed in a manner which clearly informs the consumer that they contain vodka rather than being vodka. In my view, the only possible exception to this in evidence is SMIRNOFF BLACK ICE in a 70cl bottle, which post-dates 2005. Even in that case, confusion is unlikely since SMIRNOFF ICE and SMIRNOFF BLACK ICE are well known to be RTDs. Vodka-based liqueurs are a very minor category. Again, they are marketed in a manner which informs the consumer that they contain, or are made from, vodka rather than being vodka. In my judgment neither of these categories detract from the existence, or definiteness, of the class of products denoted by the term ‘vodka’.’

Judges:

Arnold J

Citations:

[2010] EWHC 17 (Ch), [2010] RPC 12, [2010] ETMR 17, [2010] 3 All ER 147, (2010) 33(3) IPD 33015

Links:

Bailii

Statutes:

Council Regulation 110/2008/EC

Jurisdiction:

England and Wales

Cited by:

Appeal from – Diageo North America Inc and Another v Intercontinental Brands (ICB) Ltd and Others CA 30-Jul-2010
The claimant sought to prevent the respondent from marketing its VODKAT drinks range under that name unless it contained minimum levels of vodka. It said that the name was misleading: ‘This was . . a case of . . extended passing-off where protection . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 27 September 2022; Ref: scu.392991

Foulser and Another v HM Inspector of Taxes: ChD 20 Dec 2005

The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of establishment under European law since the company was not restricted from setting up business. It would lose only the fees associated with the transactions. The court should no rule on hypothetical questions: ‘Taxation provisions may have any number of incidental effects on the ability of financial institutions and professionals established in other Member States to charge fees, but that cannot of itself engage the right of freedom of establishment.’

Judges:

Lawrence Collins J

Citations:

[2005] EWHC 2958 (Ch), Times 13-Jan-2006

Links:

Bailii

Statutes:

Taxation of Chargeable Gans Tax Act 1992 165(4)

Jurisdiction:

England and Wales

Citing:

Cited – Steele v EVC International NV 1996
Control of a company within the section means shareholder control. . .
Cited – X and Y v Riksskatteverket ECJ 21-Nov-2002
Europa Freedom of establishment – Free movement of capital – Income tax – Tax advantages for the transfer at undervalue of shares to companies in which the transferor has a holding
Swedish legislation . .
Cited – Ainsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame ECJ 25-Jul-1991
ECJ Member States – Obligations – Exercise of residual powers in the field of the registration of vessels – Compliance with Community law. Free movement of persons – Freedom of establishment – Registration of a . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Bacardi-Martini and Cellier des Dauphins v Newcastle United Football Company Ltd ECJ 21-Jan-2003
Europa Reference for a preliminary ruling – Freedom to provide services – Refusal to display advertisements for alcoholic drinks at a sporting event taking place in a Member State whose law allows television . .
Cited – Lourenco Dias v Director da Alfandega do Porto ECJ 16-Jul-1992
Europa 1. In the framework of the procedure for cooperation between the Court of Justice and the courts of the Member States provided for by Article 177 of the Treaty, the national court, which alone has direct . .
Cited – Regina v International Stock Exchange, ex parte Else (1982) Ltd CA 1993
The court gave guidance on the circumstances under which questions should be referred to the European Court of Justice. . .
Cited – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
Cited – Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2) HL 18-Nov-1999
Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards . .
Cited – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .
Cited – Lankhorst-Hohorst GmbH v Finanzamt Steinfurt ECJ 12-Dec-2002
German law taxed interest paid on loan repayments made by a company against a loan from a shareholder, but only where the shareholder was not resident in the same country as the company. The tax authority took the view that the payments were a . .
Cited – C. Baars v Inspecteur der Belastingdienst Particulieren/Ondernemingen Gorinchem ECJ 13-Apr-2000
Europa Freedom of establishment – Assets invested in shares in companies established in the taxing Member State – Exemption from wealth tax – Assets invested in shares in companies established in another Member . .
Cited – Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro ECJ 31-Jan-1984
The freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions, even in relation to payments. Tourists, persons . .
Cited – Eurowings Luftverkehrs AG v Finanzamt Dortmund-Unna ECJ 26-Oct-1999
Freedom to provide services – Commercial tax on capital and operating profit – Reinstatement in tax base – Exemption not applicable to lessee of property whose owner is established in another Member State and therefore not subject to tax . .
Appeal From – Foulser v HM Inspector of Taxes SCIT 22-Feb-2005
CAPITAL GAINS TAX – shareholder giving shares in private company to a company held within an insurance bond – whether the former shareholder and the insurance company were connected persons as acting together to secure or exercise control of the . .

Cited by:

Appeal from – Foulser and Another v Macdougall CA 17-Jan-2007
The taxpayers sought relief after giving shares in a company to another company owned by themselves. The taxpayers appealed refusal of hold over relief in respect of chargeable gains.
Held: The holdings in the recipient company made the . .
Lists of cited by and citing cases may be incomplete.

Capital Gains Tax, European

Updated: 27 September 2022; Ref: scu.236571

Attheraces Ltd and Another v The British Horseracing Board Ltd and Another: ChD 15 Jul 2005

Citations:

[2005] EWHC 1553 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 – 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.

Information, Intellectual Property, European

Updated: 27 September 2022; Ref: scu.228592

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 Community act under Articles 230 and 231 EC Treaty is to render that act void ab initio, and Sony must be placed in the situation it would have been in, had the annulled Community act not been adopted.’ the tribunal had erred in law. However, if the revocation decision was a separate decision, not dependent on the Regulation for its validity, then an annulled Regulation which produces no effects in Community law cannot be used to strike it down. The revocation decision was made before the Regulation came into force. The Regulation was not a legal basis for the separate revocation decision, as such. Sony sought to have the issue referred to the ECJ. The Chancery Division is unable to make such a reference itself since a further appeal was available. The issue also was essentially one of fact and as such not capable of reference.

Judges:

Collins J

Citations:

[2005] EWHC 1644 (Ch), [2003] ECR II-418

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – France v Commission ECJ 14-Dec-1995
ECJ By including, by means of Article 1 of Regulation No 1641/94, in residues from the manufacture of starch from maize within the meaning of tariff subheading 2303 10, residues resulting from the screening of . .
Cited – Sony Computer Entertainment Europe v Commission ECFI 18-Mar-2005
. .
Cited – Holz Geenen v Oberfinanzdirektion Munchen ECJ 28-Mar-2000
Europa Common Customs Tariff – Tariff headings – Classification in the combined nomenclature – Regulation (EC) No 1509/97 – Rectangular wood blocks used in the construction of window frames.
‘It is settled . .
Cited – Sony Computer Entertainment Europe v Commission ECFI 30-Sep-2003
Europa Action for annulment – Common Customs Tariff – Tariff headings – Game console – Classification in the Combined Nomenclature. . .
Cited – Vtech Electronics (UK) Plc v The Commissioners of Customs and Excise ChD 29-Jan-2003
. .
Cited – Hewlett Packard BV v Directeur General des Douanes et Droits Indirects ECJ 17-May-2001
Europa Common Customs Tariff – Combined nomenclature – Classification of a multi-function machine combining the functions of printer, photocopier, facsimile machine and computer scanner – Principal function – . .
Cited – Hyper Srl v Commission ECFI 11-Jul-2002
Europa Customs duties – Importation of television sets from India – Invalid certificates of origin – Application for remission of import duties – Article 13(1) of Regulation (EEC) No 1430/79 – Rights of the . .
Cited – Bioforce v Oberfinanzdirektion Munchen ECJ 14-Jan-1993
ECJ The Common Customs Tariff must be interpreted as meaning that an extract of hawthorn with added alcohol, entitled ‘Weissdorn-Tropfen’ (hawthorn drops), must be classified under heading 30.04 of the Combined . .
Cited – Ikegami Electronics (Europe) GmbH v Oberfinanzdirektion Nurnberg ECJ 17-Mar-2005
Europa Common Customs Tariff – Tariff headings – Tariff classification of a digital recording machine – Classification under the Combined Nomenclature . .
Cited – Wiener SI GmbH v Hauptzollamt Emmerich ECJ 20-Nov-1997
ECJ Subheading 60.04 B IV b 2 bb of the Common Customs Tariff, in the version resulting from Regulation No 3400/84 amending Regulation No 950/68 on the Common Customs Tariff, must be construed as covering under . .
Cited – Neckermann Versand v Hauptzollamt Frankfurt am Main-Ost ECJ 9-Aug-1994
Europa Heading 61.08 (‘women’s or girls’ … pyjamas, …, knitted or crocheted’) of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulation No 2658/87 on the tariff and statistical . .
Cited – Develop Dr Eisbein v Hautpzollamt Stuttgart-West ECJ 16-Jun-1994
ECJ Whilst the customs tariff does indeed in certain cases contain references to manufacturing processes of goods, the preference is, in the interests of legal certainty and ease of verification, to have recourse . .
Cited – Cabletron Systems Ltd v The Revenue Commissioners ECJ 10-May-2001
ECJ Regulations No 1638/94 and No 1165/95 concerning the classification of certain goods in the Combined Nomenclature are invalid inasmuch as they classify under heading No 8517 of the Combined Nomenclature . .
Cited – ELBA Elektroapparate Und Maschinenbau Walter Goettmann Kg v Hauptzollamt Berlin-Packhof ECJ 14-Jul-1981
Europa Common customs tariff – tariff headings – ‘entertainment articles; carnival articles’ . . . Within the meaning of tariff heading 97.05 – concept – flashing light circles – inclusion – ‘flashing light . .
Cited – Turbon International GmbH v Oberfinanzdirektion Koblenz ECJ 7-Feb-2002
ECJ Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 1734/96, must be interpreted as meaning that an ink-cartridge without . .
Cited – VauDe Sport GmbH and Co KG v Oberfinanzdirektion Koblenz ECJ 10-May-2001
Europa The Combined Nomenclature, set out in Annex I to Regulation No 1359/95 amending Annexes I and II to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, and . .
Cited – Fratelli Variola Spa v Amministrazione Delle Finanze Dello Stato ECJ 10-Oct-1973
Europa The concept of ‘charge having equivalent effect’ under the agricultural regulations must be taken to have the same meaning as in articles 9 et seq . Of the treaty.
The prohibition of all customs . .
Cited – Timmermans Transport and Logistics BV v Inspecteur der Belastingdienst – Douanedistrict Roosendaal and Hoogenboom Production Ltd v Inspecteur der Belastingdienst – Douanedistrict Rotterdam ECJ 22-Jan-2004
Classification of goods for customs tariff purposes – Binding tariff information – Conditions for the revocation of an information.
Customs authorities which had issued binding tariff information were ‘not entitled to revoke that information at . .
Cited – Commissioners of Customs and Excise v Alzitrans SL ChD 29-Jan-2003
The Commissioners had seized a lorry which had been carrying goods on which duty had not been paid. The respondent asked them to review their decision under section 14. They failed to give their determination and under section 15, were deemed to . .
Cited – Montecatini SPA v Commission ECJ 8-Jul-1999
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 . .
Cited – Fratelli Zerbone Snc v Amministrazione Delle Finanze Dello Stato ECJ 31-Jan-1978
ECJ The direct application of a community regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure adopting it into national law. . .
Cited – Commission v Belgium ECJ 19-Mar-1991
Europa 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 . .
Cited – Rank Xerox Manufacturing v Inspecteur der Invoerrechten en Accijnzen ECJ 9-Oct-1997
ECJ The Common Customs Tariff must be interpreted as meaning that apparatuses which can both send faxes and make copies, and comprise a scanning device (scanner), a digital storage device (memory) and a printing . .
Cited – Federal Republic of Germany v Council of the European Union ECJ 5-Oct-1994
Europa Bananas – Common organization of the markets – Import regime. In the procedure for the adoption of a regulation by the Council, the fact that the proposal from the Commission, amended in accordance with a . .
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 – Commissioners of Customs and Excise v General Instrument (UK) Limited (Formerly Next Level Systems (Europe) Limited) Admn 24-Mar-1999
Tariff classification was in essence a matter of factual evaluation in view of the features and properties of the products to be classified, and continued: ‘The cases show that the European Court of Justice employs a limited number of principles and . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 27 September 2022; Ref: scu.229040

Abbott Laboratories v OHIM (Restore): ECFI 15 Nov 2011

ECFI Community trade mark – Application for Community word mark RESTORE – Absolute grounds for refusal – Descriptive character – Article 7, paragraph 1, sub c) of Regulation (EC) No 207/2009 – Lack of distinctive character – Article 7, paragraph 1 , b) of Regulation No 207/2009 – Violation of the right to be heard – Obligation to state reasons – Article 75, first and second sentences of Regulation No 207/2009

Judges:

Moavero Milanesi R

Citations:

T-363/10, [2011] EUECJ T-363/10

Links:

Bailii

Statutes:

Regulation No 207/2009

European, Intellectual Property

Updated: 27 September 2022; Ref: scu.448689

Bonnier Audio AB v Perfect Communication Sweden AB: ECJ 17 Nov 2011

ECJ (Opinion) Copyright and related rights – Right to effective protection of intellectual property – Directive 2004/48/EC – Article 8 – Protection of personal data – Electronic communications – Retention of data generated some – Transmission of data staff in particular – Directive 2002/58/EC – Article 15 – Directive 2006/24/EC – Article 4 – Audiobooks – File Sharing – addressed to a judicial injunction Internet access provider to disclose the name and address a user IP address

Judges:

M Niloo Jaaskinen AG

Citations:

[2011] EUECJ C-461/10, C-461/10

Links:

Bailii

Statutes:

Directive 2006/24 4, Directive 2004/48/EC 8, Directive 2002/58/EC 15

Cited by:

Opinion – Bonnier Audio AB v Perfect Communication Sweden AB ECJ 19-Apr-2012
ECJ The applicants, publishers with exclusive rights to reproduce etc, certain audio books, claimed that their exclusive rights had been infringed by the public distribution of the works without their consent by . .
Lists of cited by and citing cases may be incomplete.

European, Information

Updated: 27 September 2022; Ref: scu.448695

Walton v Commission: ECFI 8 Nov 2011

ECFI Law Governing The Institutions – Implementation of the budget – Recovery – Offsetting of amounts receivable – Retroactive effect – Judgment of the General Court ordering the Commission to pay damages and interest – Amount receivable to be certain, of a fixed amount and due

Citations:

T-37/08, [2011] EUECJ T-37/08

Links:

Bailii

European

Updated: 26 September 2022; Ref: scu.448357

Foggia-Sociedade Gestora De Participacoes Sociais (Taxation): ECJ 10 Nov 2011

ECJ Approximation of laws – Directive 90/434/EEC – Common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States – Article 11(1)(a) – Valid commercial reasons – Restructuring or rationalisation of the activities of companies participating in operations – Definition

Judges:

M. Safjan, P

Citations:

C-126/10, [2011] EUECJ C-126/10

Links:

Bailii

Statutes:

Directive 90/434/EEC

Jurisdiction:

England and Wales

European, Corporation Tax

Updated: 26 September 2022; Ref: scu.448347

Commission v Poland: ECJ 27 Oct 2011

ECJ (Industrial Policy) French Text – Opinion – Failure to fulfill obligations – Directive 2003/98/EC – Re-use of Public Sector Information – Incorrect transposition or non-implementation of certain items within the prescribed time

Judges:

U. Lohmus P

Citations:

C-362/10, [2011] EUECJ C-362/10

Links:

Bailii

Statutes:

Directive 2003/98/EC

European

Updated: 26 September 2022; Ref: scu.448330

Commissioners for Her Majesty’s Revenue and Customs v Rank Group plc C-260/10: ECJ 10 Nov 2011

ECJ Taxation – Sixth VAT Directive – Exemptions – Article 13B(f) – Betting, lotteries and other forms of gambling – Principle of fiscal neutrality – Mechanised cash bingo – Slot machines – Administrative practice departing from the legislative provisions – ‘Due diligence’ defence

Citations:

C-260/10, [2011] EUECJ C-260/10

Links:

Bailii

Jurisdiction:

European

Citing:

At VDT (1) – The Rank Group Plc v Revenue and Customs VDT 27-May-2008
VDT EXEMPT SUPPLIES – Gaming – Mechanised cash bingo under Gaming Act 1968 s.14 excluded from exemption – Similar supplies under s.21 exempt – Whether principle of fiscal neutrality infringed – Same company . .
At VDT (2) – Rank Group Ltd v Revenue and Customs VDT 19-Aug-2008
VDT COMMUNITY LAW – Fiscal neutrality – Exemption – Gaming – Provision of gaming machines excluded from exemption – Similar supplies under Part III of Gaming Act 1968 exempt – Whether principle of fiscal . .
At ChD – Revenue and Customs v The Rank Group ChD 8-Jun-2009
The court was asked whether the VAT treatment of mechanised cash bingo breaches the principle of fiscal neutrality: and the core issue on the appeal is whether the burden lay on Rank to adduce evidence to prove not only that there was a difference . .
At FTTTx – The Rank Group Plc v Revenue and Customs FTTTx 11-Dec-2009
FTTTx Community Law – Fiscal neutrality – Exemption – Exclusion of provision of ‘gaming machines’ from exemption – Whether taxed machines similar to exempt machines – Relevance of regulatory regime – TNT [2009] . .

Cited by:

See Also – Commissioners for Her Majesty’s Revenue and Customs v Rank Group plc C-259/10 ECJ 10-Nov-2011
ECJ Taxation – Sixth VAT Directive – Exemptions – Article 13B(f) – Betting, lotteries and other forms of gambling – Principle of fiscal neutrality – Mechanised cash bingo – Slot machines – Administrative practice . .
At ECJ (1) – HMRC v The Rank Group Plc UTTC 4-Oct-2012
Taxation – whether gaming or betting and the different VAT Treatment of newer gaming machines. . .
At ECJ (1) – HM Revenue and Customs v The Rank Group Plc CA 30-Oct-2013
The tax payer had sought repayment of sums of VAT charged to a particular form of gaming, saying that the rules infringed the principles of fiscal neutrality under European law. HMRC now appealed against a finding that the machines were exempt from . .
At ECJ (1) – Revenue and Customs v The Rank Group Plc SC 8-Jul-2015
The question raised by this appeal is whether, during the period 1 October 2002 to 5 December 2005, the takings on a particular category of gaming machines operated by the appellants were subject to VAT. The answer depends on whether the takings . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 26 September 2022; Ref: scu.448354

Idromacchine Others v Commission: ECFI 8 Nov 2011

ECFI (State Aid) – Non-contractual liability – State aid – Commission decision to open a formal investigation – Legal prejudicial to a third party – Sufficiently serious breach of a rule of law conferring rights on individuals – Obligation of professional secrecy – Damage intangible – material damage – Causal link – Default interest and compensatory

Citations:

T-88/09, [2011] EUECJ T-88/09

Links:

Bailii

European

Updated: 26 September 2022; Ref: scu.448349

Hofmann v Freistaat Bayern: ECJ 10 Nov 2011

ECJ Opinion – Directive 2006/126 / EC – Mutual recognition of driving licenses – Refusal of a Member State to recognize, to a person whose driving license has been withdrawn in its territory, the validity of a driving license issued by another Member State

Judges:

Bot AG

Citations:

C-419/10, [2011] EUECJ C-419/10

Links:

Bailii

Statutes:

Directive 2006/126/EC

Cited by:

Opinion – Hofmann v Freistaat Bayern ECJ 26-Apr-2012
ECJ Directive 2006/126/EC – Mutual recognition of driving licences – Refusal by a Member State to recognise, in favour of a person whose driving licence was withdrawn on its territory, the validity of a driving . .
Lists of cited by and citing cases may be incomplete.

European, Road Traffic

Updated: 26 September 2022; Ref: scu.448348

Cox v Ergo Versicherung Ag and Another: QBD 28 Oct 2011

The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 of the German regulations was to restore the claimant to the financial position that she would have been in as a dependant of the deceased, but for his death, taking account of any subsequent benefits received which impact on the loss of dependancy, apart from insurance recoveries. These subsequent benefits may include the income that the claimant has made or would be likely to make by taking paid employment, together with any maintenance accruing to the claimant through her remarriage or through some other relationship following the birth of a child. ‘Fundamental to the foregoing, is a substantive requirement of German law: the duty to mitigate, such justifying ongoing reference to her earning capacity and to benefits accruing from remarriage or from a similar relationship.’
The defendants case was to be preferred, and the calculation of damages undertaken according to German Law.

Judges:

Sir Christopher Holland

Citations:

[2011] EWHC 2806 (QB)

Links:

Bailii

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995, Fatal Accidents Act 1976 1 3 4, European Communities (Rights against Insurers) Regulations 2002, Directive 2009/103/EC

Jurisdiction:

England and Wales

Citing:

Cited – Welsh Ambulance Services NHS Trust and Another v Williams CA 15-Feb-2008
The court considered the essential philosophy underwriting the 1976 Act. Smith LJ said: ‘nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – FBTO Schadeverzekeringen v Jack Odenbreit ECJ 13-Dec-2007
ECJ Regulation (EC) No 44/2001 – Jurisdiction in matters relating to insurance – Liability insurance – Action brought by the injured party directly against the insurer – Rule of jurisdiction of the courts for the . .
Cited – Welsh Ambulance Services NHS Trust and Another v Williams CA 15-Feb-2008
The court considered the essential philosophy underwriting the 1976 Act. Smith LJ said: ‘nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the . .
Cited – Maher and Another v Groupama Grand Est CA 12-Nov-2009
Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .
Cited – Seward v The Vera Cruz HL 1884
The House was asked to rule upon the nature of a fatal accident claim as established by the 1846 Act, Lord Campbell’s Act – was it such as to be within the jurisdiction of the Admiralty Division?
Held: Earl of Selbourne LC said: ‘Lord . .

Cited by:

Appeal from – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
See Also – Cox v Ergo Versicherung Ag and Another CA 19-Jul-2012
The deceased army officer had been injured in a road traffic accident in Germany. His widow brought proceedings in the UK, anticipating a better damages award than might be available in Germany. She had assigned certain elements of her claim to the . .
At first instance – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages, European

Updated: 26 September 2022; Ref: scu.448154

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 controlled the market, and by threatening to terminate the licence of the claimant had abused that dominant position. The prices demanded by the defendant were excessive and unfair, being greater than to broadcasters. Plans to use money from the commercial exploitation of the data to improve British Racing could not justify such abuse.

Judges:

Etherton J

Citations:

[2005] EWHC 3015 (Ch)

Links:

Bailii

Statutes:

Competition Act 1998 18

Jurisdiction:

England and Wales

Citing:

Cited – Attheraces Ltd and Another v The British Horseracing Board Ltd and Another ChD 15-Jul-2005
. .
Cited – The British Horseracing Board Ltd and Others v William Hill Organization Ltd ECJ 9-Nov-2004
bhb_whECJ2004
The claimant sought to prevent re-use by the defendant of information from its horse racing subscription service. They claimed that they had a database right in the information. It cost andpound;4m per year to assemble.
Held: The expression . .
Cited – British Horseracing Board Ltd and Another v William Hill Organization Ltd CA 13-Jul-2005
The Court allowed William Hill’s appeal, holding that BHB had not established that the ECJ had given its earlier ruling on the basis of an erroneous assumption of fact and that the result of applying the ruling was that BHB’s Database did not fall . .
Cited – Racing UK Ltd v Doncaster Racecourse Ltd and Another CA 20-Jul-2005
. .
Cited – Racecourse Association and others v Office of Fair Trading CAT 2-Aug-2005
. .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
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 – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
Cited – Aeroports de Paris v Commission ECFI 12-Dec-2000
ECJ Competition – Air transport – Airport management – Applicable regulation – Regulation No 17 and Regulation (EEC) No 3975/87 – Abuse of dominant position – Discriminatory fees.
The burden on Aeroports de . .
Cited – United Brands Company and United Brands Continentaal BV v Commission of the European Communities ECJ 14-Feb-1978
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic . .
Cited – Hoffmann-La Roche v Commission ECJ 13-Feb-1979
ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected . .
Cited – Irish Sugar v Commission T-228/97 ECFI 7-Oct-1999
Article 86 of the EC Treaty (now Article 82 EC) – Dominant position and joint dominant position – Abuse – Fine. . .
Cited – General Motors NV v Commission ECJ 13-Nov-1975
Europa When combined with the freedom of the manufacturer or its authorized agent appointed by the public authority to fix the price for its service, the delegation by a member state to such person in the form of . .
Cited – Portugal v Commission (Judgment) ECJ 29-Mar-2001
. .
Cited – Scandlines Svergie AB v Port of Helsingborg Case 2000
(Year?) The Commission dismissed a complaint by a ferry company of excessive and discriminatory port charges by the port operator. The Commission said that, in calculating the production costs, it was necessary to take account not only of the costs . .
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 . .
Cited – Tierce Ladbroke SA v Commission ECFI 1997
‘According to settled case-law, for the purposes of applying Article [82] of the Treaty, the relevant product or service market includes products or services which are substitutable or sufficiently interchangeable with the product or service in . .

Cited by:

Appeal from – 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.

Intellectual Property, European

Updated: 25 September 2022; Ref: scu.236616

Bayerische Asphaltmischwerke v OHMI – Koninklijke Bam Groep (Bam): ECFI 26 Oct 2011

ECFI Community trade mark – Opposition proceedings – Application for the Community figurative mark BAM – Earlier national figurative mark BAM – Relative ground for refusal – Likelihood of confusion – No similarity of the goods – Article 8(1)(b) of Regulation (EC) No 207/2009

Citations:

T-426/09, [2011] EUECJ T-426/09

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009 8(1)(b)

European, Intellectual Property

Updated: 25 September 2022; Ref: scu.447599

Microban International And Microban (Europe) v Commission: ECFI 25 Oct 2011

ECFI Public health – List of additives which may be used in the manufacture of plastic materials and articles intended to come into contact with foodstuffs – Withdrawal by the original applicant of the application for inclusion of an additive on the list – Commission decision not to include 2,4,4′-trichloro-2′-hydroxydiphenyl ether in the list – Actions for annulment – Admissibility – Regulatory act – Whether directly concerned – No implementing measures – Legal basis

Citations:

T-262/10, [2011] EUECJ T-262/10

Links:

Bailii

European

Updated: 25 September 2022; Ref: scu.447603

Regina v Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd: QBD 28 Jul 1995

A Chief Constable may not limit his duty to his immediate community if this interfered with lawful exports within the community. It was for the Chief Constable to decide on the disposition of his forces and the use of his resources. He was fully entitled to take into account the size of his force, the need to perform other police functions and his budget. ‘We are quite unable to say that this Chief Constable’s decisions, taken as a whole, were such that as a matter of domestic law we can intervene.’

Citations:

Times 31-Jul-1995, Independent 28-Jul-1995, [1996] QB 197

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Chief Constable of Sussex Ex Parte International Trader’s Ferry Ltd CA 28-Jan-1997
A restriction placed by a chief constable on the police support he would make available to support a lawful trade was reasonable, even though it might amount to trade interference. The allocation of resources available to the Chief Constable was for . .
At First Instance – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Lists of cited by and citing cases may be incomplete.

Police, European

Updated: 22 September 2022; Ref: scu.86361

France v Commission: ECFI 19 Oct 2011

Law Governing The Institutions – Breach of a decision of the Court establishing a breach of State – Periodic penalty payment – Adoption by the Member State of measures – Request for Payment – Jurisdiction of the Commission – Jurisdiction of the Tribunal

Citations:

T-139/06, [2011] EUECJ T-139/06

Links:

Bailii

European

Updated: 22 September 2022; Ref: scu.445993

X v Y: ECJ 20 Oct 2011

ECJ (Opinion) Police and judicial cooperation in criminal matters – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Hearing of minors as witnesses – Incident probation – Refusal of the public prosecutor to ask the judge to conduct a hearing in the proceedings incident to taking of evidence called ‘interlocutory witness exam’ – Right of appeal against decisions of the prosecution

Judges:

MP Cruz Villalon

Citations:

C-507/10, [2011] EUECJ C-507/10

Links:

Bailii

Cited by:

Opinion – X v Y ECJ 21-Dec-2011
ECJ Police and judicial cooperation in criminal matters – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable persons – Hearing of minors as witnesses – . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 September 2022; Ref: scu.446000

Commission v Electricite de France: ECJ 20 Oct 2011

ECJ Opinion – State Aid – Appeal – State aid – Selective tax exemption linked to an increase in share capital during the recapitalisation of an undertaking – Market economy investor principle – State acting as shareholder and State wielding public power

Judges:

Mazak AG

Citations:

C-124/10, [2011] EUECJ C-124/10 – P, [2011] EUECJ C-124/10 – P

Links:

Bailii, Bailii

Citing:

See Also – Commission v Electricite de France ECJ 2-Sep-2010
ECJ (Order) – Intervention – EFTA Surveillance Authority – Article 40, second and third paragraphs of the Statute of the Court’ . .

Cited by:

See Also – Commission v Electricite de France ECJ 5-Jun-2012
ECJ (Grand Chamber) Appeal – State aid – Waiver of a tax claim – Exemption from corporation tax – Increase in share capital – Conduct of a State acting as a prudent private investor in a market economy – Criteria . .
Lists of cited by and citing cases may be incomplete.

European, Utilities, Corporation Tax

Updated: 22 September 2022; Ref: scu.445988

Staatssecretaris van Justitie v Kahveci: ECJ 20 Oct 2011

ECJ (External Relations) – EEC-Turkey Association Agreement – Right of residence – Family members of a Turkish worker who has acquired the nationality of the host Member State – Date of naturalisation.

Citations:

C-9/10, [2011] EUECJ C-9/10

Links:

Bailii

Citing:

Order – Staatssecretaris van Justitie v Kahveci ECJ 9-Feb-2010
Order – Junction . .

Cited by:

See Also – Staatssecretaris van Justitie v Kahveci ECJ 20-Oct-2011
ECJ (External Relations) – EEC-Turkey Association Agreement – Right of residence – Family members of a Turkish worker who has acquired the nationality of the host Member State – Date of naturalisation. . .
See Also – Staatssecretaris van Justitie v Kahveci ECJ 29-Mar-2012
EEC-Turkey Association Agreement – Right of residence – Members of the family of a Turkish worker who has been naturalised – Retention of Turkish nationality – Date of naturalisation . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 September 2022; Ref: scu.445997

Poloplast v OHMI – Polypipe (P): ECFI 20 Oct 2011

ECJ French Text – Community trade mark – Opposition proceedings – Application for Community figurative mark P – Earlier Community figurative marks P and P Polypipe – Relative ground for refusal – Likelihood of confusion – Similarity of signs – Article 8, paragraph 1 b) of Regulation (EC) No 40/94 [now Article 8, paragraph 1 b) of Regulation (EC) No 207/2009]

Judges:

MM S Papasavvas, President, V. Vadapalas (Rapporteur) and K O’Higgins J

Citations:

T-189/09, [2011] EUECJ T-189/09

Links:

Bailii

European, Intellectual Property

Updated: 22 September 2022; Ref: scu.445998

Freixenet v OHIM: ECJ 20 Oct 2011

ECJ Appeal – Applications for registration of Community trade marks representing a frosted white bottle and a frosted black matt bottle – Refusal to register – Lack of distinctive character

Judges:

K Lenaerts, President of the Chamber

Citations:

C-345/10, [2011] EUECJ C-345/10

Links:

Bailii

European, Intellectual Property

Updated: 22 September 2022; Ref: scu.445995

Smith and Others v Trustees of Brooklands College: EAT 5 Sep 2011

EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE transfer more than two years earlier and was not in order to achieve harmonisation of all employees’ salaries.

Judges:

McMullen QC J

Citations:

[2011] UKEAT 0128 – 11 – 0509

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 2006, Council Directive 2001/23

Jurisdiction:

England and Wales

Citing:

Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Foreningen Af Arbejdsledere I Danmark v Daddy’s Dance Hall A/S ECJ 10-Feb-1988
The claimant, Mr Tellerup, was employed as a restaurant manager by the transferor, Irma Catering A/S. When its lease was terminated it dismissed all staff. Mr Tellerup’s statutory period of notice expired on 30 April 1983. But it continued to run . .
Cited – Wilson and Others v St Helens Borough Council EAT 10-Apr-1996
Variation of employment terms which arose on a transfer of an undertaking were ineffective. Mummery P J said: ‘It is also an error on the part of the tribunal to conclude that the affirmation of the contract by the subsequent conduct of the parties . .
Cited – London Metropolitan University v Sackur and others EAT 17-Aug-2006
The employees complained that their contracts had been varied after their transfer to a new employer.
Held: The reason for the variation was harmonisation.
McMullen QC J set out the test for the passage of time after a transfer and its . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – Martin and others v South Bank University ECJ 6-Nov-2003
Workers had been transferred from the NHS to the university sector and were required on their emergence into education to join the educational pension scheme.
Held: ‘In circumstances such as those in the main proceedings, the alteration of the . .
Cited – Berriman v Delabole Slate Ltd CA 1985
Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of . .
Cited – Martin and others v South Bank University ECJ 6-Nov-2003
Workers had been transferred from the NHS to the university sector and were required on their emergence into education to join the educational pension scheme.
Held: ‘In circumstances such as those in the main proceedings, the alteration of the . .
Cited – Thompson v SCS Consulting Ltd and others EAT 3-Sep-2001
. .
Cited – Klusova v London Borough of Hounslow CA 7-Nov-2007
Lord Justice Mummery said: ‘On the issue of ‘some other substantial reason’ for dismissal, I agree with the appeal tribunal. The employment tribunal erred in law in finding that the council did not genuinely believe that the continued employment of . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 20 September 2022; Ref: scu.445656

HM Revenue and Customs v Marks and Spencer Plc: CA 14 Oct 2011

The taxpayers claimed relief for losses incurred within their European subsidiaries. The claim having been referred to the ECJ, Moses LJ summarised the issues outstanding: ‘(i) Is the test that the ECJ established to identify those circumstances in which it would be unlawful to preclude cross-border relief for losses, the ‘no possibilities’ test, to be applied (as the Revenue contend) at the end of the accounting period in which the losses crystallised rather than (as MandS contends) the date of claim? This question involves deciding whether the Court of Appeal in the first appeal reached a binding decision on that issue and whether it remains binding on this court in light of subsequent decisions of the ECJ.
(ii) Can sequential / cumulative claims be made (as MandS contends) by the same company for the same losses of the same surrendering company in respect of the same accounting period? The Revenue assert that that is not a question decided by the Court of Appeal and is precluded both by UK fiscal rules and by the underlying jurisprudence of the ECJ.
(iii) If a surrendering company has some losses which it has or can utilise and others which it cannot, does the no possibilities test (as the Revenue contend) preclude transfer of that proportion of the losses which it has no possibility of using?
(iv) Does the principle of effectiveness require MandS to be allowed to make fresh ‘pay and file’ claims now that the ECJ has identified the circumstances in which losses may be transferred cross-border, when at the time MandS made those claims there was no means of foreseeing the test established by the court?
(v) What is the correct method of calculating the losses available to be transferred?’
Held: The Court efused HMRC’s appeal on the first, second, third and fifth issues. It refused MandS’s appeal on the fourth issue

Judges:

Lloyd, Moses, Etherton LJJ

Citations:

[2011] EWCA Civ 1156, [2011] STI 2843, [2011] BTC 589, [2012] STC 231, [2011] NPC 103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At FTTTx – Marks and Spencer plc v Revenue and Customs FTTTx 2-Apr-2009
FTTTx EUROPEAN LAW – group relief for losses of non-resident subsidiaries – whether there are no possibilities for those losses to be taken into account at the date of the group relief claim – no at the date of . .
Appeal from – Marks and Spencer Plc v HM Revenue and Customs UTTC 21-Jun-2010
UTTC EUROPEAN LAW – group relief for losses of non-resident subsidiaries – whether there are no possibilities for those losses to be taken into account at the date of the group relief claim – date of valid claim . .
See Also – Marks and Spencer Plc v Halsey (Inspector of Taxes) 2003
Marks and Spencer Plc appealed against the refusal of group relief, on the ground that the statutory limitations on the territorial scope of group relief were incompatible with, and overridden by, Community law. The Special Commissioners dismissed . .
At ECJ – Marks and Spencer v David Halsey (Inspector of Taxes) ECJ 13-Dec-2005
ECJ Articles 43 EC and 48 EC – Corporation tax – Groups of companies – Tax relief – Profits of parent companies – Deduction of losses incurred by a resident subsidiary- Allowed – Deduction of losses incurred in . .
See Also – Marks and Spencer plc v Halsey (Inspector of Taxes) ChD 10-Apr-2006
The court considered the implementation of the ECJ decision between the parties.
Held: The matter was to be remitted to the Special Commissioners. The ‘no possibilities’ test referred to in the ECJ’s judgment required an analysis of the . .
See Also – Halsey (HM Inspector of Taxes) v Marks and Spencer Plc CA 20-Feb-2007
The inspector appealed against a decision granting group relief to the taxpayer a UK resident company for losses by a group company in another European state.
Held: The appeal was denied. To refuse group relief in these circumstances would be . .

Cited by:

Appeal from – Revenue and Customs v Marks and Spencer Plc SC 22-May-2013
The company wished to assign losses in its European subsidiaries against its profits. Since the losses were first claimed, the subsidiaries had gone into insolvent liquidation.
Held: Lord Hope said: ‘I would answer the first issue by rejecting . .
At CA – Revenue and Customs v Marks and Spencer Plc SC 19-Feb-2014
For the purposes of corporation tax, MandS claimed group relief in respect of losses sustained by two of their subsidiaries, resident in Germany and in Belgium. Lord Hope observed that the claims were originally made and refused by HMRC over ten . .
Lists of cited by and citing cases may be incomplete.

European, Corporation Tax

Updated: 20 September 2022; Ref: scu.445635