Denkavit International and others v Bundesamt fur Finanzen: ECJ 17 Oct 1996

LMA The case concerned an incorrect implementation by Germany of a Directive on the taxation of parent companies and subsidiaries in different States, which allegedly caused loss to the plaintiff’s company.
Held: (does decision turn on discretion on implementation) Germany’s breach did not amount to a sufficiently serious breach. Almost all of the other MS had adopted the same interpretation.
ECJ 1. By authorizing Member States to grant exemption from withholding tax upon distribution of profits by a subsidiary to its parent company holding at least 25% of the subsidiary’ s capital, provided for by Article 5(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, only in so far as the parent company maintains that minimum holding for a period which Member States are free to lay down but which cannot exceed two years, Article 3(2) of Directive 90/435 introduces an option to derogate from the obligation to grant the exemption which, as such, must be strictly interpreted. It cannot therefore be interpreted as authorizing a Member State to make that exemption subject to the condition that, at the moment when the profits are distributed, the parent company should have had the required holding in the capital of its subsidiary for a period at least equal to that which the Member State has laid down pursuant to the option which it is recognized as having.
It is for Member States to draw up rules for ensuring compliance with this minimum period, in accordance with the procedures laid down in their domestic law. On no view are those States obliged under the directive to grant the advantage immediately on the basis of a unilateral undertaking by the parent company to observe the minimum holding period.
That being so, Community law does not require a Member State which, when transposing that directive into its national law, stipulated that the minimum holding period set pursuant to Article 3(2) must be completed at the time when the profits that are the subject of the tax advantage afforded by Article 5 are distributed, to compensate the parent company for damage which it may have incurred by reason of the error thus made.
The conditions required for a breach of Community law by a Member State, on the occasion of the legislative activity involving a margin of discretion consisting in the transposition of a directive, to give rise to an obligation on that Member State to compensate individuals for damage which they have incurred are not satisfied in this case. There is, in any event, no sufficiently serious breach of Community law if it appears, inter alia, that the Member State’ s interpretation of the directive corresponds to that of almost all the other Member States which have exercised the option to derogate.
2. Article 5(1) of Directive 90/435 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States clearly and unambiguously provides that a parent company holding a minimum of 25% of the capital of its subsidiary is to be exempt from withholding tax.
While it is true that Article 3(2) of the directive gives Member States the option of derogating from that principle where the parent company does not maintain its holding in the subsidiary for a minimum period and gives those States latitude as regards both the duration of that period, which may not exceed two years, and the administrative procedures applicable, this does not make it impossible to determine minimum rights on the basis of the provisions of principle contained in Article 5 of the directive. It follows that, where a Member State has exercised the option provided for in Article 3(2) of the directive, parent companies may, provided that they comply with the obligation to maintain their holding for the period set by that Member State, rely directly on the rights conferred by Article 5(1) and (3) of that directive before national courts.
3. Individuals injured by a breach of Community law attributable to a Member State are recognized as having a right to reparation when three conditions are met: the rule infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage suffered by the injured parties. Those conditions apply where a Member State incorrectly transposes a Community directive into national law. In this regard, a breach is sufficiently serious if a Community institution or a Member State, in the exercise of its rule-making powers, manifestly and gravely disregards the limits on those powers. One of the factors that may be taken into consideration is the clarity and precision of the rule breached.

JC Moitinho de Almeida, P
[1996] ECR I -5063, C-283/94, [1996] EUECJ C-283/94
Bailii
European

European, Company

Leading Case

Updated: 11 November 2021; Ref: scu.161447

Fish Legal v The Information Commissioner United Utilities, Yorkshire Water And Southern Water: ECJ 5 Sep 2013

fish_icUUECJ092013

ECJ Opinion – Access to environmental information – Obligation incumbent upon public authorities – ‘Natural or legal person performing public administrative functions under national law’ – Natural or legal person ‘under the control’ of the State or of a body performing public functions – Autonomous concept of European Union law

Cruz Villalon AG
C-279/12, [2013] EUECJ C-279/12, [2013] EUECJ C-279/12
Bailii, Bailii
Directive 2003/4/EC

European, Information, Environment

Updated: 11 November 2021; Ref: scu.515163

Field Fisher Waterhouse Llp v Commissioners For Her Majesty’s Revenue And Customs: ECJ 27 Sep 2012

ECJ VAT – Exemption for leasing of immovable property – Leasing of commercial premises – Services connected with the leasing – Classification of the transaction for VAT purposes – Transaction consisting of a single supply or several independent supplies

C-392/11, [2012] EUECJ C-392/11
Bailii, Gazette
European

VAT

Updated: 11 November 2021; Ref: scu.464581

Innospec Ltd and Others v Walker: EAT 18 Feb 2014

EAT Sex Discrimination : Sexual Orientation discrimination / transexualism : The recipient of an occupational pension since 2003, under the terms of a pension scheme which provided survivor’s benefits to spouses but not to those in a civil partnership, insofar as those benefits derived from service prior to the day the Civil Partnership Act 2004 came into force (5 December 2005), succeeded in his claim to the Tribunal that he was thereby unlawfully discriminated against on the grounds of sexual orientation. It was accepted that provisions of the Equality Act 2010 appeared to permit this, but the ET held those provisions incompatible with Directive 2000/78/EC, and that they could and should be interpreted to permit a Civil Partner to benefit from service at the time before it was unlawful to discriminate on grounds of sexual orientation.
Held
The ET was wrong to hold the provisions incompatible, but if it had not been, could not properly have interpreted the provisions as it did. Nor could those provisions have been disapplied.

Langstaff J
[2014] UKEAT 0232 – 13 – 1802, [2014] Eq LR 192, [2014] IRLR 334, [2014] Pens LR 237, [2014] ICR 645
Bailii
Civil Partnership Act 2004, Directive 2000/78/EC, Equality Act 2010 23(3)
England and Wales
Cited by:
Cited – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 11 November 2021; Ref: scu.521651

Verwertungsgesellschaft Wort v Kyocera Document Solutions Deutschland Gmbh And Others: ECJ 24 Jan 2013

ECJ Copyright and related rights in the information society – Temporal effect of Directive 2001/29/EC – Reproduction right – Exceptions or limitations – Fair compensation – Notion of ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects’ – Reproductions made by means of printers or personal computers – Reproductions from a digital source – Reproductions made using a chain of devices – Consequences of non-use of available technological measures designed to prevent or restrict unauthorised acts – Consequences of implicit or explicit authorisation to make reproductions

Sharpston AG
C-457/11, [2013] EUECJ C-457/11, C-457/11, C-458/11, C-459/11, C-460/11
Bailii
European

Intellectual Property

Updated: 11 November 2021; Ref: scu.470568

UPC Telekabel Wien v Constantin Film Verleih GmbH: ECJ 27 Mar 2014

ECJ Request for a preliminary ruling – Approximation of laws – Copyright and related rights – Information society – Directive 2001/29/EC – Website making cinematographic works available to the public without the consent of the holders of a right related to copyright – Article 8(3) – Concept of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’ – Internet service provider – Order addressed to an internet service provider prohibiting it from giving its customers access to a website – Balancing of fundamental rights

L. Bay Larsen, P
C-314/12, [2014] EUECJ C-314/12, ECLI:EU:C:2014:192, [2014] WLR(D) 148, [2014] Bus LR 541, [2014] ECDR 12
Bailii, WLRD
Directive 2001/29/EC
European
Cited by:
Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Media

Updated: 11 November 2021; Ref: scu.523335

Gruber v Unabhangiger Verwaltungssenat fur Karnten, etc: ECJ 16 Apr 2015

gruberECJ201504

ECJ Judgment – Reference for a preliminary ruling – Environment – Directive 2011/92/EU – Assessment of the effects of certain public and private projects on the environment – Construction of a retail park – Binding effect of an administrative decision not to carry out an environmental impact assessment – No public participation

T. von Danwitz, P
C-570/13, [2015] EUECJ C-570/13, ECLI:EU:C:2015:231
Bailii
Directive 2011/92/EU

European, Environment, Planning

Updated: 11 November 2021; Ref: scu.545444

Edwards and Another, Regina (on The Application of) v Environment Agency and Others: SC 15 Dec 2010

Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only at prohibitive expense. The costs officers asked how the principle should be applied.
Held: Any limitation to be applied to a party’s costs was to be at the direction of the court only. The task and jurisdiction of the costs officers was limited to those set out in the Supreme Court Rules 2009.
Lord Hope said: ‘The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this court. It would however be more consistent with the principle which Lord Browne-Wilkinson described to say that the power is available to correct any injustice, however it may have arisen . . ‘

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Mance, Lord Dyson
[2010] UKSC 57, [2011] 1 WLR 79, [2010] NPC 125, [2011] 1 All ER 785, [2011] 1 EG 64, [2011] Env LR 13
Bailii, Bailii Summary
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998, Supreme Court Rules 2009
England and Wales
Citing:
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Edwards, Regina (on the Application Of) v Environment Agency and others Admn 19-Apr-2005
. .
Cited – Edwards and Another v The Environment Agency Others CA 27-Jun-2006
. .
At HL – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Cited – Edwards and Another, Regina (on The Application of) v The Environment Agency and Others CA 19-Jul-2006
. .
Cited – Edwards and Another, Regina (on The Application of) v The Environment Agency and Others CA 19-Jul-2006
. .

Cited by:
Cited – Austin and Others v Miller Argent (South Wales) Ltd CA 29-Jul-2011
The claimants appealed against refusal of a Group Litigation Order (GLO). Over 500 parties wished to claim in nuisance caused by open cast mining operations conducted by the defendants.
Held: The appeals failed. The making of a GLO is a matter . .
Reference – Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
SC Reference – Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2) SC 11-Dec-2013
The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to . .
At SC (1) – Edwards v Environment Agency (No 2) ECJ 11-Apr-2013
ECJ Environment – Aarhus Convention – Directive 85/337/EEC – Directive 2003/35/EC – Article 10a – Directive 96/61/EC – Article 15a – Access to justice in environmental matters – Meaning of ‘not prohibitively . .
At SC – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 12-Sep-2013
ECJ Opinion – Aarhus Convention – Directive 2003/35/EC – Access to justice – Concept of ‘prohibitively expensive’ judicial procedures – Transposition . .
AT SC (1) – European Commission v United Kingdom of Great Britain And Northern Ireland ECJ 13-Feb-2014
ECJ Failure of a Member State to fulfil obligations – Public participation in decision-making and access to justice in environmental matters – Concept of ‘not prohibitively expensive’ judicial proceedings . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Costs, Environment, European

Leading Case

Updated: 11 November 2021; Ref: scu.427164

Oliver Brustle v Greenpeace eV: ECJ 10 Mar 2011

brustle_greenpeaceECJ11

ECJ Directive 98/44/EC – Legal protection of biotechnological inventions – Obtaining cell precursors from human embryonic stem cells – Patentability – Exclusion of ‘uses of human embryos for industrial or commercial’ – Concepts of human embryo’ and of ‘Use and for industrial or commercial’ – Respect the principle of human dignity. (Opinion of Attorney General)

Ives Bot AG
C-34/10, [2011] EUECJ C-34/10
Bailii
Directive 98/44/EC
Cited by:
Opinion – Oliver Brustle v Greenpeace eV ECJ 18-Oct-2011
ECJ Directive 98/44/EC – Article 6(2)(c) – Legal protection of biotechnological inventions – Extraction of precursor cells from human embryonic stem cells – Patentability – Exclusion of ‘uses of human embryos for . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 11 November 2021; Ref: scu.430702

Eurogate Distribution Gmbh v Hauptzollamt Hamburg-Stadt: ECJ 6 Sep 2012

eurogateECJ2012

ECJ Community Customs Code – Regulation (EEC) No 2913/92 – Article 204(1)(a) – Customs warehousing procedure – Customs debt incurred through non-fulfilment of an obligation – Delayed entry in stock records of information concerning the removal of goods from a customs warehouse)

K Lenaerts P
C-28/11, [2012] EUECJ C-28/11
Bailii
Regulation (EEC) No 2913/92

European, Customs and Excise

Updated: 11 November 2021; Ref: scu.464429

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

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

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

Lists of cited by and citing cases may be incomplete.

Legal Professions, European, Commercial, Legal Aid

Updated: 11 November 2021; Ref: scu.415084

OQ (India) and Another v Secretary of State for the Home Department; SM (India) v Same: CA 25 Nov 2009

The claimants sought a right of entry and of residence as dependants of EU citizens. They had been refused by the entry clearance officer.
Held: The test of the status of a dependent member of a worker’s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support. It was therefore inappropriate to question the applicant on that basis or to refuse entry for that reason.

Lord Justice Ward, Lord Justice Etherton and Lord Justice Sullivan
Times 07-Dec-2009
Parliament and Council Directive 2004/38/EC (OJ April 30, 2004 L158/77)
England and Wales
Citing:
Leave – OQ (India) v Entry Clearance Officer CA 11-Jun-2009
. .

Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 11 November 2021; Ref: scu.392549

Wightman, MSP and Others, Reclaiming Motion By v The Advocate General: SCS 20 Mar 2018

Art 50 withdrawal possibility review to proceed

Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union.

[2018] ScotCS CSIH – 18
Bailii
Scotland
Cited by:
At Outer House – Wightman MSP and Others for Judicial Review v The Secretary of State for Exiting The European Union SCS 8-Jun-2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .
At Outer House – Wightman and Others v Secretary of State for Exiting the European Union ECJ 4-Dec-2018
Opinion – Unilateral withdrawal of Art 50 Notice
Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)
Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from . .
At Outer House – Wightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional, Judicial Review

Updated: 11 November 2021; Ref: scu.609354

Kovalkovas: ECJ 10 Nov 2016

ECJ (Judgment) Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(1) – Concept of ‘judicial decision’ – Article 6(1) – Concept of ‘issuing judicial authority’ – European arrest warrant issued by the Ministry of Justice of the Republic of Lithuania with a view to executing a custodial sentence

ECLI:EU:C:2016:861, [2016] EUECJ C-477/16, [2016] WLR(D) 597
Bailii, WLRD
European

European

Updated: 11 November 2021; Ref: scu.571277

Robertson v Swift: SC 9 Sep 2014

Notice Absence did not Remove Right to Cancel

The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at the defendant’s premises. The Court of Appeal had found the contractor unable to recover the cancellation fee, but also that the consumer appellant was unable to recover the deposit he had paid.
Held: The appeal succeeded. A failure by a trader to give written notice of the right to cancel does not deprive a consumer of the statutory right to cancel under regulation 7(1) of the 2008 Regulations.
A national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement. The requirement to give notice of the right to cancel is not a technical prerequisite to the arousal of the right but a means of ensuring that the consumer is made aware that he is entitled to cancel the contract after a period of reflection. Any implementation of this requirement must reflect its purpose. To hold that the consumer did not have the right to cancel because the trader had not served written notice of the right to cancel would run directly counter to the overall purpose of the Directive in ensuring that a consumer has the opportunity to withdraw from a contract without suffering significant adverse consequences.
‘ it is clear from the decisions . . that the objective of the Directive where a contract is cancelled is that the consumer should not suffer adverse consequences; that, in effect, he should be placed in the position that he would have been in if he had not entered the agreement in the first place. That the achievement of this objective should be dependent on whether the trader has given written notice to the consumer of his right to cancel would be incongruous’

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKSC 50, [2014] WLR(D) 396, [2014] ECC 32, [2015] 1 CMLR 15, [2014] 1 WLR 3438, [2014] BUS LR 1029, [2014] 4 All ER 869, [2014] 2 All ER (Comm) 1083, UKSC 2013/0033
Bailii Summary, Bailii, WLRD, SC, Sc Summary
The Cancellation of Contracts made in a Consumer’s Home, or Place of Work etc Regulations 2008, Council Directive (85/577/EEC)
England and Wales
Citing:
Appeal from – Robertson v Swift CA 15-Jan-2013
The claimant removal company sought payment of its fees after the defendant purported to cancel the arrangement for moving his goods. The defendant now appealed against rejection of his claim that the the contract was cancellable within the 2008 . .
Cited – Eva Martin Martin v EDP Editores, SL ECJ 17-Dec-2009
ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – . .
Cited – Schulte v Deutsche Bausparkasse Badenia AG ECJ 25-Oct-2005
ECJ Environment and Consumers – Consumer protection – Doorstep selling – Purchase of immovable property – Investment financed by a secured loan – Right of cancellation – Effects of cancellation.
‘when . .
Cited – Eva Martin Martin v EDP Editores, SL ECJ 7-May-2009
ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of . .
Cited – Vodafone 2 v HM Revenue and Customs CA 22-May-2009
To avoid a restriction unlawful under European law of a company’s freedom of establishment in the context of the profits of a foreign controlled company and that company’s right of freedom of establishment, the court could properly read into the . .
Cited – Heininger v Bayerische Hypo-und Vereinsbank AG ECJ 13-Dec-2001
ECJ Consumer protection – Doorstep selling – Right of cancellation – Agreement to grant credit secured by charge on immovable property. . .
Cited – E. Friz GmbH v Carsten von der Heyden (Environment And Consumers) ECJ 15-Apr-2010
ECJ Consumer protection – Contracts negotiated away from business premises Scope of Directive 85/577/EEC – Entry into a closed-end real property fund established in the form of a partnership – Cancellation.
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .

Cited by:
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Contract, Consumer, European

Leading Case

Updated: 11 November 2021; Ref: scu.536472

Commission v Germany: ECJ 4 Sep 2014

comm_germanyECJ1409

ECJ (Judgment) Failure to fulfill obligations – Article 63 TFEU – Free movement of capital – Tax on gifts and estates – National legislation providing for a higher deduction if the deceased at his death, the donor or recipient residing in the territory of the Member State – Purpose of infringement proceedings – Restriction – Justification

Ilesic P
C-211/13, [2014] EUECJ C-211/13
Bailii

European, Inheritance Tax

Updated: 11 November 2021; Ref: scu.536447

MG (Prison-Article 28, (A) of Citizens Directive): UTIAC 12 Aug 2014

mg_prisonUTIAC1408

(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.
(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG, ECLI:EU:C:2014:9, in respect of the meaning of the ‘enhanced protection’ provision.
(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

Storey, Allen UTJJ
[2014] UKUT 392 (IAC)
Bailii
Directive 2004/38/EC
England and Wales

Immigration, Prisons, European

Updated: 11 November 2021; Ref: scu.536462

Football Dataco And Others v Yahoo UK Ltd etc: ECJ 15 Dec 2011

ECJ Opinion of Advocate General Mengozzi – Directive 96/9/EC – Legal protection of databases – Football league fixture lists – Copyright
No copyright subsisted in databases set up according to technical considerations, rules or constraints which left no room for creative freedom; but databases which involved free and creative choices resulting in a personal stamp were protected.
Mengozzi AG said: ‘It is common knowledge that, within the European Union, various standards apply as regards the level of originality generally required for copyright protection to be granted. In particular, in some EU countries which have common law traditions, the decisive criterion is traditionally the application of ‘labour, skills or effort’. For that reason, in the United Kingdom for example, databases were generally protected by copyright before the entry into force of the Directive. A database was protected by copyright if its creator had had to expend a certain effort, or employ a certain skill, in order to create it. On the other hand, in countries of the continental tradition, for a work to be protected by copyright it must generally possess a creative element, or in some way express its creator’s personality, even though any assessment as to the quality or the ‘artistic’ nature of the work is always excluded.
Now, on this point there is no doubt that, as regards copyright protection, the Directive espouses a concept of originality which requires more than the mere ‘mechanical’ effort needed to collect the data and enter them in the database. To be protected by the copyright, a database must-as art.3 of the Directive explicitly states-be the ‘intellectual creation’ of the person who has set it up. That expression leaves no room for doubt, and echoes a formula which is typical of the continental copyright tradition.’

Mengozzi AG
[2011] EUECJ C-604/10, C-604/10
Bailii
Directive 96/9/EC
European
Cited by:
Opinion – Football Dataco And Others v Yahoo UK Ltd etc ECJ 1-Mar-2012
ECJ Directive 96/9/EC – Legal protection of databases – Copyright – Football league fixture lists . .
Cited – SAS Institute Inc v World Programming Ltd CA 21-Nov-2013
The court was asked as to the extent to which the developer of a computer program may lawfully replicate the functions of an existing computer program; and the materials that he may lawfully use for that purpose. SAS had produced a computer software . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Leading Case

Updated: 11 November 2021; Ref: scu.451781

Seldon v Clarkson Wright and Jakes (A Partnership): CA 28 Jul 2010

The claimant solicitor said that the compulsory retirement from his partnership on age grounds was discriminatory, and that the UK Regulations had not implemented the Directive fully.
Held: The appeal failed. The purpose of the provision as to allow the progression of younger members of the practice. This aim was recognised by the legislation, and ‘There is a margin of appreciation available to a national government which is not available to an employer or to parties entering into a partnership deed. But where a partnership is acting consistently with the social aim which has justified the legislative provision . . it would be to contradict that aim to render such a provision unlawful if the clause was a proportionate means of achieving the aim.’

Laws, Hughes, LJJ, Sir Mark Waller
[2010] EWCA Civ 899, [2010] IRLR 865, [2011] ICR 60, [2011] 1 All ER 770, [2011] 1 CMLR 5
Bailii
Council Directive 2000/78/EC, Employment Equality (Age) Regulations 2006 (SI 1031 No 2006)
England and Wales
Citing:
Cited – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 16-Oct-2007
ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in . .
Cited – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
Appeal from – Seldon v Clarkson Wright and Jakes EAT 19-Dec-2008
EAT AGE DISCRIMINATION
A partnership had a provision in the Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The cl aimant alleged that this was . .
Cited – Schonheit v Stadt Frankfurt am Main; Becker v Land Hessen ECJ 23-Oct-2003
ECJ Social policy – Equal pay for men and women – Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC . .
Mentioned – Cross, Gibson, Malone, Leckenby, Young v British Airways EAT 23-Mar-2005
EAT Transfer of Undertakings / Sex Discrimination
Claims by BA employees, retired at 55, for unfair dismissal and sex discrimination dismissed by ET and Applicants’ appeals dismissed. Contractual retirement . .
Leave – Seldon v Clarkson Wright and Jakes (A Partnership) CA 13-Jul-2009
Application for leave to appeal against claim of age discrimination by law firm on requiring a partner to retire. Granted . .

Cited by:
Appeal from – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 11 November 2021; Ref: scu.421115

Nadiany Bamba v European Commission: ECJ 15 Nov 2012

bamba_ecECJ2012

ECJ Appeal – Common foreign and security policy – Specific restrictive measures directed against certain persons and entities in view of the situation in Cote d’Ivoire – Freezing of funds – Article 296 TFEU – Obligation to state the reasons on which a decision is based – Rights of the defence – Right to an effective legal remedy – Right to respect for property

R Silva de Lapuerta P
C-417/11, [2012] EUECJ C-417/11
Bailii

European, Natural Justice

Updated: 11 November 2021; Ref: scu.466003

O’Brien v Ministry of Justice: SC 28 Jul 2010

The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office holders paid on a daily fee-paid basis.
Held: The matter required to be referred to the ECJ. ‘Recorders (and all judges at every level) are subject to terms of service of the sort referred to by Sir Robert Carswell LCJ. Indeed judicial office partakes of most of the characteristics of employment. However, because domestic law cannot readily be disentangled from EU law on this issue the Court prefers to express no concluded view, as to whether judges (as a general class) would qualify as ‘workers’ under the Regulations.’ There is no single definition of ‘worker’ which holds good for all the purposes of Community law, and the effect of Clause 2(1) of the Framework Agreement, read together with Recital (16) of the PTWD, is to make domestic law relevant to the interpretation of the expression ‘worker’, but domestic law is not to oust or ‘trump’ the principles underlying the EU legislation in such a way as to frustrate them.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 34, [2010] 4 All ER 62, [2010] IRLR 883, [2010] Pens LR 399
Bailii, Bailii Summary, SC, SC Summary
Council Directive 97/81/EC of 15 December 1997, Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No.1551)
England and Wales
Citing:
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Appeal from – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At EAT – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Approved – Perceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
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 – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Landeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) ECJ 10-Jan-2007
ECJ ETUC-UNICE-CEEP framework agreement Fixed-term work Working conditions Length’of’service allowance Not received due to agreements between staff union and administration Adequate objective grounds.
Cited – Istituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
Cited – Wippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
Cited – Christie v Department for Constitutional Affairs Department for Work and Pensions EAT 23-Jul-2007
EAT Part time chairmen of tribunals are not workers within the legislation allowing them to claim payment of a pension. Regulation 17 was compatible with the Directive. . .

Cited by:
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
At SC – O’Brien v Ministry of Justice ECJ 17-Nov-2011
ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this . .
At SC – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

Lists of cited by and citing cases may be incomplete.

European, Employment, Legal Professions

Updated: 11 November 2021; Ref: scu.421096

Bosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communications and others: ECJ 30 Jul 1996

ECJ (Judgment) Article 8 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, which provides that ‘all vessels, freight vehicles, rolling stock and aircraft in which a majority or controlling interest is held by a person or undertaking in or operating from the Federal Republic of Yugoslavia (Serbia and Montenegro) shall be impounded by the competent authorities of the Member States’, applies to an aircraft which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, even though the owner has leased it for four years to another undertaking, neither based in nor operating from that republic and in which no person or undertaking based in that republic has a majority or controlling interest.
It follows both from the wording of that provision and from the context and aims of the regulation, which implements in the Community certain aspects of the sanctions taken against the Federal Republic of Yugoslavia by the Security Council of the United Nations, and also from the text and the aim of the resolutions adopted by the Security Council on the basis of Chapter VII of the Charter of the United Nations, that it applies to an any aircraft which is the property of a person or undertaking based in or operating from the Federal Republic of Yugoslavia, and that it is not necessary for that person or undertaking also to have actual control of the aircraft.
Fundamental rights such as the right to peaceful enjoyment of property and the freedom to pursue a commercial activity are not absolute and their exercise may be subject to restrictions justified by objectives of general interest pursued by the Community.
Those restrictions may be substantial where the aims pursued are themselves of substantial importance.
That is precisely the case as regards Regulation No 990/93, the aim of which is to contribute at Community level to the implementation of the sanctions against the Federal Republic of Yugoslavia adopted by the Security Council of the United Nations, since that regulation pursues an objective of general interest which is fundamental for the international community, namely to put an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina.
The impounding under that regulation of an aircraft which is owned by an undertaking based in the Federal Republic of Yugoslavia, but has been leased for four years to another undertaking neither based in nor operating from that republic and in which no person or undertaking based in or operating from that republic has a majority or controlling interest, cannot therefore be regarded as inappropriate or disproportionate.
The Irish authorities were entitled to detain an aircraft owned by an undertaking based in Yugoslavia, but leased to a wholly innocent Turkish operator for three years, pursuant to the Regulation which imposed economic sanctions on Yugoslavia to compel it to desist from intervening in the conflict in Bosnia-Herzegovina. The court rejected any proposition that interference with the Turkish company’s property must be no more than was necessary to accomplish the objective of the measure taken in the public interest, but said that: ‘If it were demonstrated that such interference was wholly unreasonable in the light of the aims which the competent authorities sought to achieve, then it would be necessary for the this Court to intervene.’ Furthermore, when determining whether a fair balance had been struck, ‘the state enjoys a wide margin of appreciation with regard to the means chosen to be employed and [my emphasis] to the question of whether the consequences are justified in the general interest for the purpose of achieving the objective pursued’

C-84/95, [1996] EUECJ C-84/95, [1996] ECR-I 3953 C
Bailii
Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia 8
Cited by:
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .

Lists of cited by and citing cases may be incomplete.

European

Leading Case

Updated: 11 November 2021; Ref: scu.161546

Afari v BCE (Judgment): ECFI 16 Mar 2004

ECJ Staff of the European Central Bank – Defamation – Racial discrimination – Disciplinary procedure – Rights of the defence – Characterisation in law of the facts – Claim for compensation.

T-11/03, [2004] EUECJ T-11/03
Bailii
European

Discrimination

Updated: 11 November 2021; Ref: scu.195063

Commission v United Kingdom: ECJ 3 Feb 2015

ECJ (Judgment) Failure of a Member State to fulfil obligations – Article 49 TFEU – Article 31 of the EEA Agreement – Corporation tax – Groups of companies – Group relief – Transfer of losses sustained by a non-resident subsidiary – Conditions – Date to be used for determining whether the losses of the non-resident subsidiary are definitive

V. Skouris, P
C-172/13, [2015] EUECJ C-172/13, ECLI:EU:C:2015:50
Bailii
European

European, Corporation Tax

Updated: 11 November 2021; Ref: scu.542232

Clientearth v European Commission: ECJ 13 Sep 2013

clientearth_ec092013

ECJ Access to documents – Regulation (EC) No 1049/2001 – Studies received by the Commission concerning the transposition of directives on the environment – Partial refusal of access – Exception relating to protection of the purpose of inspections, investigations and audits – Specific and individual assessment – Compatibility with the Aarhus Convention – Overriding public interest – Consequences of exceeding the period for the adoption of an express decision – Extent of the obligation actively to disseminate environmental information

H. Kanninen P
T-111/11, [2013] EUECJ T-111/11
Bailii
Regulation (EC) No 1049/2001
Citing:
See Also – ClientEarth v European Commission ECFI 13-Nov-2012
ECFI Actions for annulment – Access to documents – Regulation (EC) No 1049/2001 – Implied refusal of access – Period allowed for commencing proceedings – Delay – Manifest inadmissibility . .

Lists of cited by and citing cases may be incomplete.

European, Information, Environment

Updated: 11 November 2021; Ref: scu.515263

The Commissioners For Her Majesty’s Revenue and Customs v Philips Electronics Uk Ltd: ECJ 6 Sep 2012

hmrc_philipsECJ2012

ECJ Freedom of establishment – Tax legislation – Corporation tax – Tax relief – National legislation excluding the transfer of losses incurred in the national territory by a non-resident branch of a company established in another Member State to a company of the same group established in the national territory

J-C Bonichot R
C-18/11, [2012] EUECJ C-18/11
Bailii

European, Corporation Tax

Updated: 11 November 2021; Ref: scu.464423

Criminal Proceedings Against Stefano Melloni: ECJ 26 Feb 2013

melloniECJ2012

ECJ Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person concerned has not appeared in person – Execution of a sentence pronounced in absentia – Possibility of review of the judgment

V Skouris P
C-399/11, [2012] EUECJ C-399/11
Bailii
Charter of Fundamental Rights of the European Union 53
Citing:
Opinion – Criminal Proceedings Against Stefano Melloni ECJ 2-Oct-2012
ECJ (Opinion) Police and judicial cooperation in criminal matters – European arrest warrant – Surrender procedures between Member States – Decisions rendered at the end of proceedings in which the person . .

Lists of cited by and citing cases may be incomplete.

European, Extradition

Updated: 11 November 2021; Ref: scu.464647

Daniela Muhlleitner v Ahmad Yusufi: ECJ 6 Sep 2012

muhleitnerECJ2012

ECJ Jurisdiction in civil and commercial matters – Jurisdiction over consumer contracts – Regulation (EC) No 44/2001 – Article 15(1)(c) – Possible limitation of that jurisdiction to distance contracts

C-190/11, [2012] EUECJ C-190/11
Bailii

European, Consumer

Updated: 11 November 2021; Ref: scu.464425

Football Association Premier League and Others v QC Leisure and Others etc: ECJ 4 Oct 2011

ECJ Satellite broadcasting – Broadcasting of football matches – Reception of the broadcast by means of satellite decoder cards – Satellite decoder cards lawfully placed on the market in one Member State and used in another Member State – Prohibition on marketing and use in a Member State – Visualisation of broadcasts in disregard of the exclusive rights granted – Copyright – Television broadcasting right – Exclusive licences to broadcast in a single Member State – Freedom to provide services – Article 56 TFEU – Competition – Article 101 TFEU – Restriction of competition by object – Protection of services based on conditional access – Illicit device – Directive 98/84/EC – Directive 2001/29/EC – Reproduction of works within the memory of a satellite decoder and on a television screen – Exception to the reproduction right – Communication of works to the public in public houses – Directive 93/83/EEC

[2011] EUECJ C-429/08, C-429/08
Bailii
Directive 93/83/EEC, Directive 2001/29/EC, Directive 98/84/EC
European
Citing:
Opinion – Football Association Premier League and Others v QC Leisure and Others; Murphy v Media Protection Services Ltd ECJ 3-Feb-2011
ECJ (Advocate General’s Opinion) (Freedom To Provide Services) Satellite transmission of football matches – Marketing of decoder cards which have been lawfully placed on the market in other Member States – . .
Order – Football Association Premier League and Others v QC Leisure ECJ 16-Dec-2009
ECJ (Order) REFERENCES for a preliminary ruling under Article 234 EC from the High Court of Justice of England and Wales, Chancery Division, and the High Court of Justice of England and Wales, Queen’s Bench . .

Cited by:
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .

Lists of cited by and citing cases may be incomplete.

European, Media, Intellectual Property

Updated: 11 November 2021; Ref: scu.444961

Egan And Hackett v Parliament (Access To Documents): ECFI 10 May 2011

Legal aid

Papasavvas P
T-190/10, [2011] EUECJ T-190/10
Bailii
Cited by:
See Also – Egan And Hackett v Parliament (Access To Documents) ECJ 28-Mar-2012
ECFI Access to documents – Regulation (EC) No 1049/2001 – Registers of assistants to former members of the European Parliament – Refusal of access – Exception relating to the protection of privacy and the . .

Lists of cited by and citing cases may be incomplete.

European, Information, Legal Aid

Updated: 11 November 2021; Ref: scu.452622

Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH: ECJ 23 Sep 2008

ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former employee Age discrimination Link with Community law
Advocate-General Sharpston said of the test of proportionality as it applied to national measures falling within the scope of EU law: ‘For that to be the case, the provision of national law at issue must in general fall into one of three categories. It must implement EC law (irrespective of the degree of the discretion the member state enjoys and whether the national measure goes beyond what is strictly necessary for implementation). It must invoke some permitted derogation under EC law. Or it must otherwise fall within the scope of Community law because some specific substantive rule of EC law is applicable to the situation.’
ECJ (Grand Chamber) Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former employee Age discrimination Link with Community law

Skouris P
C-427/06, [2008] EUECJ C-427/06 – O, [2008] ECR I-7245, [2009] All ER (EC) 113, [2009] 1 CMLR 5, [2008] Pens LR 369
Bailii
Directive 2000/78/EC 13
European
Cited by:
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .

Lists of cited by and citing cases may be incomplete.

European, Discrimination

Leading Case

Updated: 11 November 2021; Ref: scu.268811

Mascellani v Ministero della Giustizia: ECJ 22 May 2014

mascellani_ecj_0514

Opinion – Social policy – Directive 97/81/EC – Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Conversion of a part-time employment contract into a full-time employment contract against the worker’s will

Wahl AG
C-221/13, [2014] EUECJ C-221/13 – O, [2014] EUECJ C-221/13
Bailii, Bailii
Directive 97/81/EC

European, Employment

Updated: 11 November 2021; Ref: scu.525838

Webb v EMO Air Cargo (UK) Ltd (No 1): HL 3 Mar 1993

Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant circumstance for the purposes of the comparison required by section 5(3) to be made is expected unavailability at the material time. The precise reason for the unavailability is not a relevant circumstance, and in particular it is not relevant that the reason is a condition which is capable of affecting only women, or for that matter only men’
The Marleasing principle applies whether the domestic legislation came after or preceded the Directive. Lord Keith of Kinkel said that ‘it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation.’

Lord Keith of Kinkel
Gazette 03-Mar-1993, [1993] 1 WLR 49, [1993] ICR 175, [1993] IRLR 27, [1992] UKHL 15
Bailii
Sex Discrimination Act 1975 5(3) 1(1)(a)
England and Wales
Citing:
Appeal from – Webb v EMO Air Cargo (UK) Ltd CA 20-Dec-1991
The applicant had been taken on to stand in for an employee taking maternity leave. She herself became pregnant, and she was dismissed. Her clam for sex discrimination had been rejected by the industrial tribunal and EAT.
Held: Since a man who . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Dekker v Stichting Vormingscentrum Voor Jong Volwassenen ECJ 8-Nov-1990
An employer is in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards . .

Cited by:
Reference from – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Greenalls Management Ltd v Commissioners of Customs and Excise CA 26-Jun-2003
The appellant operated an approved storage facility, holding alcoholic drinks. Drinks were to be exported, and were released on that basis. They were later diverted and sold within the UK market, evading the appropriate duty. The company appealed 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 . .
See Also – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Attridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Cited – O’Neill v Governors of St Thomas More RC School and Another EAT 24-May-1996
The claimant had been dismissed as a teacher by the respondent Roman Catholic school after she became pregnant by a priest. She had been found to have been unfairly dismissed, but the tribunal had rejected her claim of discrimination for pregnancy. . .
Cited – Cass v Amt-Sybex (NI) Ltd NIIT 30-Sep-2009
NIIT The tribunal finds that the claimant did not suffer discrimination on the grounds of sex or her part-time working status and accordingly her claims are dismissed. . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European, Employment

Leading Case

Updated: 11 November 2021; Ref: scu.90352

Land Burgenland v Commission: ECFI 28 Feb 2012

burgenlandECFI2012

ECFI State aid – Aid granted by the Austrian authorities to the Grazer Wechselseitige group (GRAWE) in connection with the privatisation of Bank Burgenland – Decision declaring the aid to be incompatible with the common market and ordering its recovery – Private investor in a market economy test – Application where the State acts as vendor – Determination of the market price

Jaeger P
T-268/08, [2012] EUECJ T-268/08
Bailii

European

Updated: 11 November 2021; Ref: scu.451694

Jan Sneller v Das Nederlandse Rechtsbijstand Verzekeringsmaatschappij Nv: ECJ 7 Nov 2013

ECJ Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Insured persons’ freedom to choose a lawyer – Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees – Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser

C.G. Fernlund, P
C-442/12, [2013] EUECJ C-442/12
Bailii
Directive 87/344/EEC 4(1)
European

Legal Professions, Costs

Updated: 11 November 2021; Ref: scu.517561

Chocoladefabriken Lindt and Sprungli v OHIM: ECJ 24 May 2012

lindt_sprungliECJ2012

ECJ Appeal – Community trade mark – Absolute ground for refusal – No distinctive character – Three-dimensional sign consisting of the shape of a chocolate rabbit with a red ribbon

J-C Bonichot P
C-98/11, [2012] EUECJ C-98/11 – P
Bailii

European, Intellectual Property

Updated: 11 November 2021; Ref: scu.460203

Apostolides v Orams and Others: CA 19 Jan 2010

The claimant had obtained an order in the Nicosia in the Republic of Cyprus and sought to enforce it in the UK court. The High court declined, and it was referred to the ECJ which in turn found that it could be registered. The defendant now challenged that decision saying that the court’s presiding judge had been Greek, and had associated with the President of the Republic of Cyprus which was not recognised, and that therefore the court was biased against him.
Held: The order should be registered for enforcement. There was a need to support the international public policy promoting peace in Cyprus, and no rule of public policy against recognising judgements of its courts. There was no appearance of bias either in the nationality of the judge or in the company he kept, particularly given the circumstances of the meeting.

Lord Justice Pill, Lord Justice Lloyd and Sir Paul Kennedy
[2010] EWCA Civ 9, [2010] 1 All ER (Comm) 992, [2011] QB 519, [2011] 2 WLR 324, [2010] Eu LR 435, [2010] 4 EG 112, [2010] ILPr 20
Bailii, Times
Council Regulation (EC) 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
England and Wales
Citing:
Appeal From – Orams and Another v Apostolides QBD 6-Sep-2006
The court was asked whether an English court can recognise and enforce an order of the court of the Turkish Republic of Northern Cyprus.
Held: Judgements of the courts of the Turkish Republic of Northern Cyprus were not enforceable in England. . .
At ECJ – Apostolides v Orams and Orams (Area Of Freedom, Security and Justice) ECJ 18-Dec-2008
Europa Regulation (EC) No 44/2001 Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Application of the regulation to a judgment concerning land situated in an area of . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, European

Updated: 11 November 2021; Ref: scu.393376

A v West Yorkshire Police: HL 6 May 2004

The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to comply with. She had sought to be employed on the basis that her position would not be made known to her colleagues.
Held: European law recognised such discrimination as a breach of the Treaty, requiring justification. If the trans-sexual partner of an employee must be recognised in the reassigned gender for the purpose of death benefits, the employee herself must in principle be recognised in the reassigned gender for the purpose of carrying out the duties of the post. Section 54(9) of PACE must be interpreted as applying to her in her reassigned gender.
Baroness Hale recorded that the European Court of Human Rights in Goodwin had ‘held that the refusal of domestic law to recognise the reassigned gender ‘no longer falls within the United Kingdom’s margin of appreciation’. But it would be for the United Kingdom to decide how to fulfil its obligation to secure to trans people their right to respect for their private life and their right to marry.’

Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell
[2004] UKHL 21, Times 07-May-2004, Gazette 20-May-2004, [2004] 2 WLR 1209, 17 BHRC 585, [2004] 2 CMLR 37, [2004] UKHRR 694, [2004] 2 FCR 160, [2004] 3 All ER 145, [2004] Eu LR 841, [2004] ICR 806, [2005] 1 AC 51, [2004] HRLR 25, [2004] IRLR 573
Bailii, House of Lords
Police and Criminal Evidence Act 1984 54(9), Sex Discrimination Act 1975, Equal Treatment Directive 76/207/EEC, Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/102)
England and Wales
Citing:
Cited – Sinclair v Chief Constable of West Yorkshire and British Telecommunications Plc CA 12-Dec-2000
The claimant had been prosecuted, but the charge was dismissed as an abuse of process. He now appealed a strike out of his civil claim for damages for malicious prosecution.
Held: The appeal failed. The decision to dismiss the criminal charge . .
Appeal from – A v Chief Constable of the West Yorkshire Police and Another CA 5-Nov-2002
The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal . .
Cited – Corbett v Corbett (otherwise Ashley) FD 1-Feb-1970
There had been a purported marriage in 1963 between a man and a male to female trans-sexual.
Held: Because marriage is essentially a union between a man and a woman, the relationship depended on sex, and not on gender. The law should adopt the . .
Cited – P v S and Cornwall County Council ECJ 30-Apr-1996
An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person . .
Cited – Bautiaa and Societe francaise maritime v Directeurs des services fiscaux des Landes and du Finistere ECJ 13-Feb-1996
Europa Tax provisions – Harmonization of laws – Indirect taxes on the raising of capital – Capital duty levied on capital companies – Application to merger transactions effected by increasing the capital of the . .
Cited – Regina v Tan CA 1983
Tan and others were accused of keeping a disorderly house having advertised: ‘Humiliation enthusiast, my favourite past time is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble . .
Cited – Rees v The United Kingdom ECHR 17-Oct-1986
The applicant had been born and registered as a female, but later came to receive treatment and to live as a male. He complained that the respondent had failed to amend his birth certificate.
Held: The court accepted that, by failing to confer . .
Cited – Cossey v The United Kingdom ECHR 27-Sep-1990
A male to female transsexual who had undergone full gender reassignment surgery wished to marry. The court held that despite the Resolution of the European Parliament on 12th September 1989 and Recommendation 1117 adopted by the Parliamentary . .
Cited – Bellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – Sheffield and Horsham v The United Kingdom ECHR 30-Jul-1998
It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .
Distinguished – KB v National Health Service Pensions Agency and Secretary of State for Health ECJ 7-Jan-2004
The claimant had for a number of years had a relationship with a trans-sexual. They had been unable to marry because English law would not recognise a marriage. She compained that on her death her partner would be unable to claim the pension awarded . .
Cited – Van Oosterwijck v Belgium ECHR 6-Nov-1980
Hudoc Judgment (Preliminary objections) Preliminary objection allowed (non-exhaustion)
The refusal of Belgium to enable the registers of civil status to reflect lawful sex-changes violated the right to . .
Cited – X, Y and Z v The United Kingdom ECHR 22-Apr-1997
The court refused to find that the failure of United Kingdom law to recognise a female to male trans-sexual as the father of a donor insemination child, born to his partner and brought up as their child, was a breach of their rights to respect for . .

Cited by:
Appealed to – A v Chief Constable of the West Yorkshire Police and Another CA 5-Nov-2002
The appellant had undergone a male to female sex change, but was refused employment by the respondent before the Human Rights Act came into effect.
Held: Although the Human Rights Act could not apply, the act was in breach of the Equal . .
Cited – Carpenter v The Secretary of State for Justice Admn 27-Feb-2015
The claimant, a post-operative male-to-female transsexual person, said that section 3(3) of the 2004 Act was incompatible with her Human rights after refusal of a gender recognition certificate.
Held: The application failed. The provision of . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 11 November 2021; Ref: scu.196617

Garden Cottage Foods Ltd v Milk Marketing Board: HL 1984

In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives rise to any cause of action at all, it gives rise to a cause of action for which there is no remedy in damages to compensate for loss already caused by that contravention but only a remedy by way of injunction to prevent future loss being caused.’ and ‘A cause of action to which an unlawful act by the defendant causing pecuniary loss to the plaintiff gives rise, if it possessed those characteristics as respects the remedies available, would be one which, so far as my understanding goes, is unknown in English private law, at any rate since 1875 when the jurisdiction conferred upon the Court of Chancery by Lord Cairns’ Act passed to the High Court. I leave aside as irrelevant for present purposes injunctions granted in matrimonial causes or wardship proceedings which may have no connection with pecuniary loss. I likewise leave out of account injunctions obtainable as remedies in public law, whether upon application for Judicial Review or in an action brought by the Attorney General ex officio or ex relatione some private individual. It is private law, not public law, to which the company has had recourse. In its action it claims damages as well as an injunction. No reasons are to be found in any judgments of the Court of Appeal and none has been advanced at the hearing before your Lordships why in law in logic or in justice if contravention of Article 86 of the Treaty of Rome is capable of giving rise to a cause of action in English private law at all, there is any need to invent a cause of action with characteristics that are wholly novel as respects the remedies that it attracts, in order to deal with breaches of Articles of the Treaty of Rome, which have in the United Kingdom the same effect as statutes.’
Lord Diplock considered the balance of convenience in granting an interlocutory injunction: ‘The status quo is the existing state of affairs; but since states of affairs do not remain static this raises the query: existing when? In my opinion, the relevant status quo to which reference was made in American Cyanamid is the state of affairs existing during the period immediately preceding the issue of the writ claiming the permanent injunction or, if there be unreasonable delay between the issue of the writ and the motion for an interlocutory injunction, the period immediately preceding the motion. The duration of that period since the state of affairs last changed must be more than minimal, having regard to the total length of the relationship between the parties in respect of which the injunction is granted; otherwise the state of affairs before the last change would be the relevant status quo.’

Diplock L
[1984] AC 130
England and Wales
Citing:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Regina v Secretary of State for Transport Ex Parte Factortame Ltd and Others (No 5) Admn 31-Jul-1997
A breach of EU law by the UK government was not sufficient to justify or allow the award of punitive damages. Liability had been established. The court considered whether exemplary damages could and should be awarded. In that context liability was . .
Cited – Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others HL 8-Feb-2001
The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s . .
Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Cited – Brennan v National Westminster Bank Plc QBD 27-Nov-2007
The claimant, a customer of the defendant had been charged sums when he went overdrawn beyond his limit. He claimed that the sums were unlawful penalties under the Regulations. The bank said that it had refunded the charges. The claimant sought . .
Cited – Devenish Nutrition Ltd and others v Sanofi-Aventis SA (France) and others ChD 19-Oct-2007
The claimant sought damages for the losses it had suffered as a result of price fixing by the defendant companies in the vitamin market. The European Commission had already fined the defendant for its involvement.
Held: In an action for breach . .

Lists of cited by and citing cases may be incomplete.

Damages, European

Leading Case

Updated: 11 November 2021; Ref: scu.197723

Peak Holding AB v Axolin-Elinor AB (formerly Handelskompaniet Factory Outlet i Loddekopinge AB): ECJ 30 Nov 2004

ECJ (Approximation Of Laws) Trade marks – Directive 89/104/EEC – Article 7(1) – Exhaustion of the rights conferred by a trade mark – Putting on the market of the goods in the EEA by the proprietor of the trade mark – Concept – Goods offered for sale to consumers and then withdrawn – Sale to an operator established in the EEA with the obligation to put the goods on the market outside the EEA – Resale of the goods to another operator established in the EEA – Marketing in the EEA.

C-16/03, [2004] EUECJ C-16/03, Times 06-Dec-2004, [2004] ECR I-11313
Bailii
Directive 89/104/EEC
Cited by:
Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Leading Case

Updated: 11 November 2021; Ref: scu.220142

British Airways Plc v Williams and Others: SC 17 Oct 2012

The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their services, a supplementary payment which varied according to the time spent flying, and thirdly an allowance in respect of time spent away from base, each element of which was separately and specifically remunerated when not on leave. The Court had previously referred a question to the ECJ, and having receved that decision now again disputed the meaing of the Agreements. The general provisions provided methods of calculating a week’s pay with and without ‘normal working hours’ and otherwise, but those framed for the claimants were silent.
Held: The claims were to be remitted to the Employment Tribunal for further consideration of the appropriate payments to be made to the pilots in respect of the periods of paid annual leave in issue. Similar orders were made with respect to the ‘Time Away from Base allowance’ as claimed by the employees.

Lord Hope, Deputy President, Lord Walker, Lord Mance, Lord Clarke, Lord Sumption
[2012] UKSC 43, [2012] WLR(D) 277, UKSC 2009/0042, [2013] 1 CMLR 31, [2013] 1 All ER 443, [2012] IRLR 1014, [2012] ICR 1375
Bailii, Bailii Summary, SC, SC Summary, WLRD
The Civil Aviation (Working Time) Regulations 2004 4, Directive 93/104/EC, Working Time Regulations 1998 (SI 1998 No. 1833)
England and Wales
Citing:
Cited – Parviainen v Finnair Oyj ECJ 1-Jul-2010
ECJ Social policy – Directive 92/85/EEC – Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding – Articles 5(2) and 11(1) – Worker . .
At ECJ – Williams And Others v British Airways Plc ECJ 16-Jun-2011
ECJ (Opinion) Working conditions – Organisation of working time – Article 7 of Directive 2003/88/EC – Right to paid annual leave – Extent of the obligations provided for by that directive in respect of the nature . .
Reference to ECJ – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
Cited – Dominguez v Prefect of the Central Region (Social Policy) ECJ 24-Jan-2012
ECJ Social policy – Directive 2003/88/EC – Article 7 – Right to paid annual leave – Precondition for entitlement imposed by national rules – Absence of the worker – Length of the leave entitlement based on the . .
Cited – Criminal Proceedings Against Kolpinghuis Nijmegen Bv ECJ 8-Oct-1987
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 . .
Cited – Criminal proceedings against Arcaro ECJ 26-Sep-1996
ECJ 1. Where, under the procedure provided for by Article 177 of the Treaty, questions are formulated imprecisely, the Court may extract from all the information provided by the national court and from the . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .

Cited by:
Cited – Bear Scotland Limited v Fulton, and similar EAT 4-Nov-2014
EAT WORKING TIME REGULATIONS: HOLIDAY PAY – DAMAGES FOR BREACH OF CONTRACT – UNLAWFUL DEDUCTION FROM WAGES
The EAT held that Article 7 of the Working Time Directive is to be interpreted such that payments . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Leading Case

Updated: 11 November 2021; Ref: scu.464931

Morge, Regina (on The Application of) v Hampshire County Council: CA 10 Jun 2010

Over time, an abandoned railway line had become a habitat for local wildlife. The claimant now objected to the grant of planning permission for a light railway.
Held: The claimant’s appeal failed. For an act to fall within 12(1)(b) of the Directive so as to be a Deliberate Disturbance, the act complained of had to be directed at the protected species. As from 2009, the effect only of local distributions of the species need be considered. The disturbance need not be significant. When considering an application which ostensibly affected habitat of a species protected under European law or the species itself, an authority must have regard to the Directive’s requirements.

Ward, Hughes, Patten LJJ
[2010] EWCA Civ 608, [2010] WLR (D) 145, [2010] PTSR 1882, [2010] JPL 1600, [2010] NPC 67
Bailii, WLRD
Conservation (Natural Habitats, &c) Regulations 1994, Council Directive 92/43/EEC (OJ L206, p 7) on the conservation of natural habitats and of wild fauna and flora
England and Wales
Citing:
Cited – Commission v Greece C-103/00 ECJ 30-Jan-2002
ECJ Failure by a Member State to fulfil its obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Protection of species.
Advocate General Leger explained article . .
Cited – Commission v Spain ECJ 18-May-2006
ECJ Failure by a Member State to fulfil obligations – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Protection of species – Hunting using stopped snares in private hunting . .
Cited – Commission v United Kingdom ECJ 20-Oct-2005
ECJ Failure of a Member State to fufil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora.
The respondent had failed properly to transpose the Habitats Directive into . .
Cited – Woolley, Regina (On the Application of) v Cheshire East Borough Council Admn 5-Jun-2009
. .
See Also – Morge v Hampshire County Council CA 28-Jan-2010
. .
At First Instance – Morge v Hampshire County Council Admn 17-Nov-2009
. .

Cited by:
Appeal from – Morge v Hampshire County Council SC 19-Jan-2011
The claimants had challenged the allocation of a former railwy line to become a rapid bus service, saying that the Council had failed properly to take account of the Habitats Directive. The Supreme Court was asked as to the extent of doisturbance to . .

Lists of cited by and citing cases may be incomplete.

Planning, Animals, European

Updated: 11 November 2021; Ref: scu.416600

Apis-Hristovich v Lakorda AD (Approximation Of Laws): ECJ 5 Mar 2009

apishristovichECJ2009

Europa Directive 96/9/EC Legal protection of databases – Sui generis right – Obtaining, verification or presentation of the contents of a database – Extraction – Substantial part of the contents of a database – Database containing official legal data.
APIS had collected a database of legal materials. They alleged unlawful extraction and re-utilisation by the defendant of their product. They said that the defendant had extracted about 82.5% of its database of laws and cases and reproduced them for its own purposes. The defendants, including former employees of the claimant said that they had themselves spent substantial sums collecting the material from other public sources. The national court asked how to interpret ‘permanent transfer’ and ‘temporary transfer’ together.
Held: The documents incude not only the formal public material, but editors notes and references, histories and links. ‘The decisive criterion . . is to be found in the existence of an act of ‘transfer’ of all or part of the contents of the database concerned to another medium, whether of the same nature as the medium of that database or of a different nature. Such a transfer implies that all or part of the contents of a database are to be found in a medium other than that of the original database.’ and ‘ the distinction between permanent transfer and temporary transfer lies in the duration of storage on another medium of materials extracted from the original database. There is permanent transfer when those materials are stored in a permanent manner on a medium other than the original medium, whereas the transfer is temporary if the materials are stored for a limited period on another medium, such as the operating memory of a computer.’ The notion of the sui generis database right is ‘unencumbered by considerations relating, in particular, to the substantive content of the body of materials in question.’ and ‘the sui generis right applies independently of whether the database and/or its contents are protected, inter alia, by copyright.’

C-545/07, [2009] EUECJ C-545/07
Bailii
Directive 96/9/EC on the legal protection of databases
Citing:
Cited – Union Royale Belge des societes de Football Association and others v Bosman and others ECJ 15-Dec-1995
bosmanECJ1995
A request for the Court to order a measure of inquiry under Article 60 of the Rules of Procedure, made by a party after the close of the oral procedure, can be admitted only if it relates to facts which may have a decisive influence and which the . .
Cited – Centro Europa 7 SrL v Ministero delle Comunicazioni e Autorit- per le garanzie nelle comunicazioni, Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni (Industrial Policy) ECJ 12-Sep-2007
Europa Reference for a preliminary ruling from the Consiglio di Stato (Italy). Freedom to provide services Electronic communications Television broadcasting activities New common regulatory framework Allocation . .
Cited – Idryma Koinonikon Asfaliseon (IKA) v Vasilios Ioannidis ECJ 25-Feb-2003
Europa Social security – Hospital treatment of a pensioner during a stay in a Member State other than the State in which he resides – Conditions for funding – Articles 31 and 96 of Regulation (EEC) No 1408/71 – . .
Cited – PreussenElektra v Schleswag AG, in the presence of Windpark Reussenkoge III GmbH and Land Schleswig-Holstein ECJ 13-Mar-2001
Europa Electricity – Renewable sources of energy – National legislation requiring electricity supply undertakings to purchase electricity at minimum prices and apportioning the resulting costs between those . .
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 – Motosykletistiki Omospondia Ellados NPID (Motoe) (Competition) ECJ 6-Mar-2008
Europa Competition Sport Articles 82 EC and 86 EC Definition of undertaking Economic activities Abuse of a dominant position Grant of special or exclusive rights Non-profit-making organisation which participates . .
Cited – Fixtures Marketing v Organismos prognostikon agonon podosfairou AE (OPAP) ECJ 9-Nov-2004
ECJ The term database as defined in Article 1(2) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases refers to any collection of works, data or . .
Cited – Directmedia Publishing v Albert-Ludwigs-Universitat Freiburg (Approximation of Laws) ECJ 10-Jul-2008
Europa Legal protection of databases Directive 96/9/EC – Notion of ‘extraction’ in Article 7(2)(a) of Directive 96/9/EC. . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Leading Case

Updated: 11 November 2021; Ref: scu.317887

Walzenmuehle Magstadt Karl-Heinz Kienle v Einfuhr Und Vorratsstelle Fuer Getreide Und Futtermittel: ECJ 13 Dec 1972

R-52/72, [1972] EUECJ R-52/72
Bailii
European

European

Updated: 11 November 2021; Ref: scu.214187

Wittmann: ECJ 21 May 2015

ECJ (Judgment) Reference for a preliminary ruling – Directive 2006/126/EC – Mutual recognition of driving licences – Period of prohibition – Issue of the driving licence by a Member State before the entry into force of a period of prohibition in the Member State of normal residence – Grounds for refusing to recognise in the Member State of normal residence the validity of a driving licence issued by another Member State

C. Vajda, P
C-339/14, [2015] EUECJ C-339/14
Bailii
Directive 2006/126/EC
European

European, Road Traffic

Updated: 10 November 2021; Ref: scu.547053

Belgian Electronic Sorting Technology Nv v Bert Peelaers: ECJ 11 Jul 2013

best_bpECJ072013

ECJ Directives 84/450/EEC and 2006/114/EC – Misleading and comparative advertising – Definition of ‘advertising’ – Registration and use of a domain name – Use of metatags in a website’s metadata

Ilesic P
C-657/11, [2013] EUECJ C-657/11, [2013] WLR(D) 275
Bailii, WLRD
Directive 2006/114/EC, Directive 84/450/EEC

European, Media

Updated: 10 November 2021; Ref: scu.512334

British American Tobacco Denmark A/S v Kazemier Bv: SC 28 Oct 2015

One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express instructions near Copenhagen en route between Hungary and Vallensbaek, Denmark. The consignors claimed against English main contractors who undertook responsibility for the carriage and against sub-contractors in whose hands the cigarettes were when the alleged losses occurred.
Held: Though the original carrier was subject to this jurisdiction under the Act, that did not apply to allow extension of jurisdiction over subsequent carriers.

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed
[2015] UKSC 65, [2016] AC 262, [2016] RTR 1, [2015] 3 WLR 1173, [2015] WLR(D) 430, UKSC 2013/0258, UKSC 2013/0259
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC, SC Summary
Convention on the Contract for the International Carriage of Goods by Road 1956, Carriage of Goods by Road Act 1965, Brussels Regulation 2012 25
England and Wales
Citing:
At first instance – British American Tobacco Switzerland Sa and Others v Exel Europe Ltd and Others ComC 23-Mar-2012
Defendants (companies registered in Holland) denied that the UK court had jurisdiction to try the claim against them.
Held: The consignors could not succeed, and the court set aside the proceedings against the sub-contractors. The ‘defendant’ . .
Cited – James Buchanan and Co Ltd v Babco Forwarding and Shipping (UK) Ltd HL 1978
A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth 7,000 pounds, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of . .
Cited – British American Tobacco Switzerland SA and Others v Exel Europe Ltd CA 30-Oct-2013
Large quantities of tobacco had been stolen from containers whilst in transit across Euurope. The consignors, now the appellants sought recovery from the sub-contractors who had custody of them at the time.
Held: The consignors appeal . .
Cited – Ulster-Swift v Taunton Meat Haulage 1975
The carrier who contracts with the sender is the first carrier, even if he does not undertake any stage of the carriage himself. . .
Cited – Ulster-Swift v Taunton Meat Haulage CA 1977
A carrier who contracts with the sender is the first carrier, even if he does not undertake any stage of the carriage himself.
The court noted the sometimes great difficulty in finding consistent interpretations of European Law . .
Cited – Frans Maas Logistics (UK) Ltd v CDR Trucking BV ComC 23-Mar-1999
CMR Convention: Articles 31(2) and 36 – relating on jurisdiction. Brussels Convention: Article 57. Applicability in cases covered by the CMR convention.
Article 31.2 of CMR to be limited to proceedings brought by same claimant against the same . .
Appeal from – British American Tobacco Switzerland SA and Others v Exel Europe Ltd CA 30-Oct-2013
Large quantities of tobacco had been stolen from containers whilst in transit across Euurope. The consignors, now the appellants sought recovery from the sub-contractors who had custody of them at the time.
Held: The consignors appeal . .
Cited – Andrea Merzario Ltd v Internationale Spedition Leitner Gesellschaft Gmbh CA 23-Jan-2001
. .
Cited – TNT Express Nederland v AXA Versicherung AG ECJ 4-May-2010
ECJ Opinion – Judicial cooperation in civil and commercial matters Jurisdiction and recognition and enforcement of judgments Regulation (EC) No 44/2001 Article 71 Conventions concluded by the Member States in . .
Cited – Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV ECJ 19-Dec-2013
ECJ Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Articles 27, 33 and 71 – Lis pendens – Recognition and enforcement of judgments – Convention on the Contract for the . .
Cited – Cummins Engine Co Ltd v Davis Freight Forwarding (Hull) Ltd CA 1981
Cummins as consignor had contracted with Davis, another English company, for the carriage of engines from England to Amsterdam. Davis instructed Charterway to undertake the leg from Rotterdam to Amsterdam, and Charterway in turn asked Graaf, who . .
Cited – ITT Schaub-Lorenz Vertriebsgesellschaft mbH v Birkart Johann lnternationale Spedition GmbH and Co KG CA 1988
Bingham LJ considered dicta in Cummins Engine, and said: ‘although it could not be regarded as ‘having more than persuasive authority . . I think (with respect) that it is plainly right’. . .
Cited – Hatzl and Another v XL Insurance Company Ltd CA 19-Mar-2009
The claimant had taken an assignment of a cause of action from an english lorry driver whose load had been stolen in Italy. The insurer now appealed against a finding that the English court had jurisdiction.
Held: The insurers appeal . .
Cited – Attorney General v Burgoa ECJ 14-Oct-1980
. .
Cited – The owners of the cargo lately laden on board the ship ‘Tatry’ v The owners of the ship ‘Maciej Rataj’ ECJ 6-Dec-1994
ECJ On a proper construction, Article 57 of the Brussels Convention on jurisdiction and the enforcement of judgments as amended means that, where a Contracting State is also a contracting party to another . .
Cited – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
Cited – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
Cited – Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV ECJ 19-Dec-2013
ECJ Judicial cooperation in civil and commercial matters – Regulation (EC) No 44/2001 – Articles 27, 33 and 71 – Lis pendens – Recognition and enforcement of judgments – Convention on the Contract for the . .

Lists of cited by and citing cases may be incomplete.

Transport, European

Updated: 10 November 2021; Ref: scu.553896

European Commission v French Republic: ECJ 19 Dec 2012

ECJ (Opinion) Action for failure to fulfil obligations – Directive 92/12/EEC – Articles 8 and 9 – Products subject to excise duty – Tobacco products acquired in one Member State and transported to another – Criteria for determining the limits applicable to the transport of products subject to excise duty – Free movement of goods – Article 34 TFEU – Relationship between the fundamental freedoms and secondary legislation – Consecutive reliance on secondary legislation and a fundamental freedom

Cruz Villalon AG
C-216/11, [2012] EUECJ C-216/11
Bailii
Directive 92/12/EEC
European

Customs and Excise

Updated: 10 November 2021; Ref: scu.468766

Ziolkowski and Others v Land Berlin: ECJ 14 Sep 2011

ECJ Opinion – The right of citizens of the Union to move and reside freely within the territory of the Member States – Conditions for the acquisition of a right of permanent residence – Concept of ‘legal residence’ – Determination of length of stay required

Bot AG
C-424/10, [2011] EUECJ C-424/10, [2011] EUECJ C-425/10
Bailii, Bailii
European
Citing:
Order – Ziolkowski and Others v Land Berlin ECJ 6-Oct-2010
ECJ Order – REFERENCE for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Germany), made by decision of 13 July 2010, received at the Court on 31 August 2010, in the proceedings. . .

Cited by:
Opinion – Ziolkowski and Others v Land Berlin ECJ 21-Dec-2011
Grand Chamber – Freedom of movement for persons – Directive 2004/38/EC – Right of permanent residence – Article 16 – Legal residence – Residence based on national law – Period of residence completed before the accession to the European Union of the . .

Lists of cited by and citing cases may be incomplete.

European

Updated: 10 November 2021; Ref: scu.444257

Susisalo And Others: ECJ 21 Jun 2012

ECJ Article 49 TFEU – Freedom of establishment – Public health – Pharmacies – National licensing scheme for the operation of pharmacies – Establishment of branch pharmacies – Conditions which differ according to whether the pharmacy is a private pharmacy or a University of Helsinki pharmacy – University of Helsinki Pharmacy having specific tasks in connection with pharmacy teaching and pharmaceutical services

Lenearts P
C-84/11, [2012] EUECJ C-84/11
Bailii
European

European, Health Professions

Updated: 10 November 2021; Ref: scu.460898

Joao Pedro Lopes Da Silva Jorge: ECJ 5 Sep 2012

ECJ Police and judicial cooperation in criminal matters – Framework Decision 2002/584/JHA – European arrest warrant and surrender procedures between Member States – Article 4(6) – Ground for optional non-execution of the European arrest warrant – Implementation in national law – Arrested person is a national of the issuing Member State – European arrest warrant issued for the purposes of enforcing a custodial sentence – Legislation of a Member State restricting the power not to execute the European arrest warrant to cases where the requested persons are nationals of that State

Skouris, P
C-42/11, [2012] EUECJ C-42/11, [2012] WLR(D) 263
Bailii
European

Extradition

Updated: 10 November 2021; Ref: scu.463847

Blackburn v Attorney-General: CA 10 May 1971

The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful act.
Held: The power to enter into Treaties was itself a power of the Crown acting on advice from ministers. It was not open to challenge that power in the courts. No Parliament was able finally to bind its successors, and the Treaty of Rome, though once signed was irrevocable, could in fact be reversed by a later Parliament. As it stood the question was hypothetical.
Lord Denning MR (dissenting) said that the 1931 Act took away the power of Parliament to legislate for the Dominions: ‘Can anyone imagine that Parliament could or would reverse that statute? Take the Acts which have granted independence to the dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away.’

Lord Denning MR
[1971] 2 All ER 1380, [1971] 1 WLR 1037, [1971] EWCA Civ 7, [1971] CMLR 784
Bailii
Statute of Westminster 1931
England and Wales
Cited by:
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.222916

Partner Apelski Dariusz: ECJ 7 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Public procurement – Directive 2004/18/EC – Technical and/or professional abilities of economic operators – Article 48(3) – Possibility to rely on the capacities of other entities – Conditions and procedures – Nature of the links between the tenderer and the other entities – Amendment of the tender – Annulment and repetition of an electronic auction – Directive 2014/24/EU

C-324/14, [2016] EUECJ C-324/14, [2016] WLRD 171
Bailii, WLRD
Directive 2014/24/EU, Directive 2004/18/EC

European

Updated: 10 November 2021; Ref: scu.561989

Bollore v Commission: ECFI 27 Jun 2012

bolloreecfi2012

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

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

European, Commercial

Updated: 10 November 2021; Ref: scu.461734

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 another Member State by a non-resident subsidiary – Not included.
Article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The restriction was justified by three grounds when taken together: preserving the balanced allocation of the power to impose taxes between Member States; preventing losses being taken into account twice in different Member States; and preventing the risk of tax avoidance if the taxpayer were to be free to choose the Member State in which to claim relief.
As to the proportionality of the restriction, however, the ECJ went on to say this:
‘In that regard, the Court considers that the restrictive measure at issue in the main proceedings goes beyond what is necessary to attain the essential part of the objectives pursued where:
– the non-resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods, if necessary by transferring those losses to a third party or by offsetting the losses against the profits made by the subsidiary in previous periods, and
– there is no possibility for the foreign subsidiary’s losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party.
Where, in one Member State, the resident parent company demonstrates to the tax authorities that those conditions are fulfilled, it is contrary to article 43 EC and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non-resident subsidiary.’

V Skouris, P
C-446/03, [2005] EUECJ C-446/03, Times 15-Dec-2005, [2006] CEC 299, [2006] BTC 318, 8 ITL Rep 358, [2006] Ch 184, [2005] ECR I-10837, [2006] 1 CMLR 18, [2006] STI 41, [2006] All ER (EC) 255, [2006] 2 WLR 250, [2006] STC 237
Bailii
Income and Corporation Taxes Act 1988 402, Article 43 EC
European
Citing:
Reference from – 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 . .
See Also – Marks and Spencer Plc v Halsey (HM Inspector of Taxes) ChD 2-May-2003
Order requiring reference to ECJ. . .

Cited by:
At ECJ – 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 . .
At ECJ – 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 . .
At ECJ – 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 . .
At ECJ – 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 ECJ – Marks and Spencer Plc v Halsey (HM Inspector of Taxes) ChD 10-Apr-2006
Preliminary judgment. . .
At ECJ – 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

Leading Case

Updated: 10 November 2021; Ref: scu.235939

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

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

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

Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 10 November 2021; Ref: scu.199631

Uber Bv v Aslam and Others (Jurisdictional Points – Worker, Employee or Neither : Working Time Regulations): EAT 10 Nov 2017

Uber drivers are workers

JURISDICTIONAL POINTS – Worker, employee or neither
WORKING TIME REGULATIONS – Worker
‘Worker status’ – section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) National Minimum Wage Act 1998 (‘NMWA’).
‘Working time’ – regulation 2(1) WTR
The Claimants were current or former Uber drivers in the London area who, along with others, had brought various claims in the Employment Tribunal (‘the ET’), which required them to be ‘workers’ for the purposes of section 230(3)(b) Employment Rights Act 1996 (‘ERA’), regulation 36(1) Working Time Regulations 1998 (‘WTR’) and section 54(3) National Minimum Wage Act 1998 (‘NMWA’). The ET concluded that any Uber driver who had the Uber app switched on, was within the territory in which they were authorised to work (here, London) and was able and willing to accept assignments was working for Uber London Ltd (‘ULL’) under a ‘worker’ contract and was, further, then engaged on working time for the purposes of regulation 2(1) WTR.
The Appellants (‘Uber’) appealed, contending (relevantly) as follows:
(1) That the ET had erred in law in disregarding the written contractual documentation. There was no contract between the Claimants and ULL but there were written agreements between the drivers and Uber BV and riders, which were inconsistent with the existence of any worker relationship. Those agreements made clear, Uber drivers provided transportation services to riders; ULL (as was common within the mini-cab or private hire industry) provided its services to the drivers as their agent. In finding otherwise, the ET had disregarded the basic principles of agency law.
(2) The ET had further erred in relying on regulatory requirements as evidence of worker status.
(3) It had also made a number of internally inconsistent and perverse findings of fact in concluding that the Claimants were required to work for Uber.
(4) It had further failed to take into account relevant matters relied on by Uber as inconsistent with worker status and as, on the contrary, strongly indicating that the Claimants were carrying on a business undertaking on their own account.
Held: dismissing the appeal

The ET had been entitled to reject the characterisation of the relationship between Uber drivers and Uber, specifically ULL, in the written contractual documentation. It had found (applying Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E)) that the reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with the passenger each time they accepted a trip. Having thus determined the true nature of the parties’ bargain, the ET had permissibly rejected the label of agency used in the written contractual documentation. The ET had not thereby disregarded the principles of agency law but had been entitled to consider the true agreement between the parties was not one in which ULL acted as the drivers’ agent.

In carrying out its assessment in this regard, the ET was not obliged to disregard factors simply because they might be seen as arising from the relevant regulatory regime; that was part of the overall factual matrix the ET had to consider. In any event, in this case, the ET’s findings on control were not limited to matters arising merely as a result of regulation.

In considering the ET’s findings, it was necessary to have regard to its Judgment as a whole. Doing so, it was apparent that they were neither inconsistent nor perverse. In particular, the ET had permissibly concluded there were obligations upon Uber drivers that they should accept trips offered by ULL and that they should not cancel trips once accepted (there being potential penalties for doing so). It was, further, no objection that the ET’s approach required the drivers not only to be in the relevant territory, with the app switched on, but also to be ‘able and willing to accept assignments’; that was consistent with Uber’s own description of a driver’s obligation when ‘on-duty’. These findings had informed the ET’s conclusions not just on worker status but also on working time and as to the approach to be taken to their rights to minimum wage. Inevitably the assessment it had carried out was fact- and context-specific. To the extent that drivers, in between accepting trips for ULL, might hold themselves out as available to other PHV operators, the same analysis might not apply; hence the ET’s observation that it would be a matter of evidence in each case whether and for how long a driver remained ready and willing to accept trips for ULL.

Eady QC HHJ
[2017] UKEAT 0056 – 17 – 1011, [2017] WLR(D) 809, [2018] IRLR 97, [2018] ICR 453, [2018] RTR 14
Bailii, WLRD
Employment Rights Act 1996 230(3)(b), Working Time Regulations 1998 36(1), National Minimum Wage Act 1998 54(3)
England and Wales
Citing:
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Revenue and Customs v Secret Hotels2 Ltd SC 5-Mar-2014
The Court was asked as to: ‘the liability for Value Added Tax of a company which markets and arranges holiday accommodation through an on-line website. The outcome turns on the appropriate characterisation of the relationship between the company, . .

Cited by:
Appeal from – Uber Bv and Others v Aslam and Others CA 19-Dec-2018
Uber drivers are workers
The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers.
Held: The appeal failed (Underhill LJ dissenting) The . .
At EAT – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 10 November 2021; Ref: scu.601923

Z, Re (Recognition of Foreign Order): FD 8 Apr 2016

The court considered the exercise of the court’s powers under the inherent jurisdiction to recognise and enforce orders concerning the medical treatment of children made by courts of another member state of the European Union.
Held: The orders made by the Irish court were to stand as orders of the High Court of England and Wales

Baker J
[2016] EWHC 784 (Fam), [2016] WLR(D) 178, [2016] 3 WLR 791, [2016] Fam 375, [2016] Fam Law 684, [2017] 1 FLR 1236
Bailii, WLRD
England and Wales

Children, European, Health

Updated: 10 November 2021; Ref: scu.562141

EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department: SC 19 Feb 2014

SSHD must examine safety of country for return

The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment . .’
Held: The appeals were allowed. A presumption that members of an alliance of states such as those which comprised the European Union would comply with their international obligations in regard to refugee protection did not extinguish the need to examine whether in fact those obligations would be fulfilled when evidence was presented that it was unlikely that they would be. The removal of a person from a member state of the European Union was forbidden if it were shown that there was a real risk that the person removed would suffer inhuman or degrading treatment in violation of article 3 of the Convention. It did not need to be shown that the source of that risk was a systemic deficiency in the asylum and reception procedures of the state to which the person was being removed.
‘Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. ‘

Lord Neuberger, President, Lord Kerr, Lord Carnwath, Lord Toulson, Lord Hodge
[2014] UKSC 12, [2014] HRLR 8, [2014] 2 WLR 409, [2014] WLR(D) 89, [2014] Imm AR 640, [2014] 2 All ER 192
Bailii, WLRD, Bailii Summary
European Convention on Human Rights 3, Council Regulation 343/2003, Asylum and Immigration (Treatment of Claimants etc) Act 2004
England and Wales
Citing:
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – NS v Secretary of State for the Home Department etc ECJ 21-Dec-2011
Prohibition of inhuman or degrading treatment
ECJ (Grand Chamber) European Union law – Principles – Fundamental rights – Implementation of European Union law – Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No . .
Appeal from – EM (Eritrea) and Others v Secretary of State for The Home Department CA 17-Oct-2012
In each case asylum applicants, after losing their applications, resisted return to Italy, the country of first entry to the EU, saying that they faced inhuman or degrading treatment if returned. Each asserted that they would face destitution owing . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department CA 24-Jan-2003
The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department CA 24-Jan-2008
ZT applied for asylum. It was refused. On her appeal, the respondent certified that the claim was manifestly unfounded. She sought judicial review.
Held: The procedure laid down by rule 353 should have been applied to the further submissions . .
Cited – ZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Regina v Secretary of State for Department (ex parte Adan) and Regina v Secretary of State for Home Department (ex parte Subaskaran) etc CA 23-Jul-1999
Where a country was a signatory to the Convention, but chose to interpret it so as not to give the same protection against oppression by non-state agents which would be given here, the Home Secretary was wrong to certify such countries, in this case . .
Cited – Kadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
Cited – KRS v The United Kingdom ECHR 2-Dec-2008
Admissibility – The applicant’s claim for asylum had failed, and he challeged the decision to return him to Greece, the point of entry to the EU, saying that he would be at risk if so returned.
Held: The United Kingdom would not breach its . .
Cited – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – MSS v Belgium And Greece ECHR 21-Jan-2011
Grand Chamber – The applicant alleged that his expulsion by the Belgian authorities had violated Articles 2 and 3 of the Convention and that he had been subjected in Greece to treatment prohibited by Article 3; he also complained of the lack of a . .
Cited – Elayathamby, Regina (on The Application of) v Secretary of State for The Home Department Admn 11-Aug-2011
The claimant applied for judicial review of the decision to certify his asylum claim pursuant to the 2004 Act, on grounds that he might safely be removed to a third country, Cyprus, and to quash removal directions given to remove the Claimant to . .
Cited – EM, Regina (on The Application of) v Secretary of State for The Home Department Admn 18-Nov-2011
The court considered whether it was safe to return the applicant to Italy, and said: ‘a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – IA (Iran) v The Secretary of State for The Home Department (Scotland) SC 29-Jan-2014
The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Leading Case

Updated: 10 November 2021; Ref: scu.521990

A And Centrale Adriatica v Autorita Garante della Concorrenza e del Mercato: ECJ 19 Dec 2013

ECJ Request for a preliminary ruling – Consumer protection – Unfair business-to-consumer commercial practices – Directive 2005/29/EC – Article 6(1) – Concept of ‘misleading action’ – Cumulative nature of the conditions set out in the provision in question

C-281/12, [2013] EUECJ C-281/12
Bailii
Directive 2005/29/EC
European

European, Consumer

Updated: 10 November 2021; Ref: scu.519493

Volkswagen v OHIM (Extra): ECFI 28 Apr 2015

ECJ (Judgment) Community trade mark – Application for Community word mark EXTRA – Mark consisting of an advertising slogan – Absolute ground for refusal – Lack of distinctive character – Article 7, paragraph 1 b) of Regulation (EC) No 207/2009

T-216/14, [2015] EUECJ T-216/14
Bailii
European

Intellectual Property

Updated: 10 November 2021; Ref: scu.546114

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

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

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

Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Commercial

Updated: 10 November 2021; Ref: scu.460912

Jivraj v Hashwani: SC 27 Jul 2011

The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 Regulations. The High Court found the appointment to be outwith the provisions, but this was reversed on appeal. J appealed again.
Held: The appeal succeeded (Lord Mance dissenting in part). The Regulations were not applicable to the selection, engagement or appointment of arbitrators. An arbitrator was not a person employed under ‘a contract personally to do any work’ for the purpose of legislation prohibiting discrimination on the grounds of religion or belief.
Lord Clarke said: ‘the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.’
He went on to accept a submission that, within the Framework Directive: ‘the expression ‘access . . to self-employment or to occupation’ means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them ‘access . . to self-employment or to occupation’.’

Lord Phillips, President, Lord Walker, Lord Mance, Lord Clarke, Lord Dyson
[2011] UKSC 40, UKSC 2010/0170, UKSC 2010/0158, [2011] IRLR 827, [2011] 32 EG 54, [2011] ArbLR 28, [2011] Bus LR 1182, [2011] ICR 1004, [2011] CILL 3076, [2011] 1 WLR 1872
Bailii, Bailii Summary, SC Summary, SC
Employment Equality (Religion or Belief) Regulations 2003, Council Framework Directive 2000/78/EC of 27 November 2000, Equality Act 2006 83, Arbitration Act 1996 33
England and Wales
Citing:
At first instance – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Appeal from – Jivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
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 – von Hoffmann v Finanzamt Trier ECJ 16-Sep-1997
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent . .
Cited – Kelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
Cited – Deborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
Cited – Allonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
Cited – Kurz (ne Yuce) v Land Baden-Wurttemberg ECJ 19-Nov-2002
ECJ EEC-Turkey Association Agreement – Freedom of movement for workers – Article 6(1) of Decision No 1/80 of the Association Council – Scope – Registration as duly belonging to the labour force of a Member State . .
Cited – Quinnen v Hovells 1984
Waite J said: ‘The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such.’ The . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Legal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
Cited – Perceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
Cited – Mirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
Cited – Hugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
Cited – Tanna v Post Office EAT 1981
The applicant sought appointment as a post-master, and claimed race discrimination when the respondent failed to interview or appoint him. He was required only to provide premises and to ensure that services were provided without being obliged . .
Cited – K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd CA 1992
A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the . .
Cited – Byrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
Cited – Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 10-Jul-2008
The company declared that it would not employ immigrants to work on certain customers’ houses, saying that the customers would be reluctant to allow access. The Centrum, an anti racist organisation said this was in breach of the Directive, and . .
Cited – Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 12-Mar-2008
(Social Policy) (Opinion) The defendant company had advertised for workers, but said it was unwilling to employ Morrocans.
Advocate General Maduro expressed the opinion that the Directive must be understood in the framework of a wider policy to . .
Cited – Mingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
Cited – Stadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna ECJ 11-Jan-2005
ECJ Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC

Cited by:
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Cited – Halawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .
Cited – Uber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Discrimination, European, Legal Professions

Updated: 10 November 2021; Ref: scu.442225

Air France Sa v Heinz-Gerke Folkerts: ECJ 26 Feb 2013

airfrance_folkertsECJ2013

ECJ (Grand Chamber) Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Articles 6 and 7 – Connecting flight(s) – Delay in arrival at the final destination – Delay equal to or in excess of three hours – A passenger’s right to compensation

V Skouris, P
C-11/11, [2013] EUECJ C-11/11
Bailii
Regulation (EC) No 261/2004 6 7

European, Transport, Consumer

Leading Case

Updated: 10 November 2021; Ref: scu.471208

Citroen Commerce GmbH v Zentralvereinigung des Kraftfahrzeuggewerbes zur Aufrechterhaltung lauteren Wettbewerbs eV: ECJ 7 Jul 2016

ECJ (Judgment) Reference for a preliminary ruling – Directives 98/6/EC and 2005/29/EC – Consumer protection – Advertisement containing an indication of price – Concepts of ‘offer’ and ‘price inclusive of taxes’ – Obligation to include in the price of a motor vehicle the additional costs necessarily incurred in connection with the transfer of the vehicle)

L. Bay Larsen, P
ECLI:EU:C:2016:527, [2016] EUECJ C-476/14
Bailii

European, Consumer, Media

Updated: 10 November 2021; Ref: scu.566723

Pubblico Ministero v Ratti: ECJ 5 Apr 1979

pubblico_rattiECJ1979

LMA Mr Ratti, a solvent manufacturer, sought to rely on two EC Directives on labelling of dangerous products as a defence to criminal proceedings arguing that his practices were not illegal. (Euro defence).
Held: Since the time limit for implementation of one of the Directives had not expired it was not directly effective. However he could rely on the other Directive for which the implementation date had passed (directive was vertically directly effective once the time limit for implementation was passed). Directives are vertically directly effective but not horizontally directly effective.

1979 1 CMLR 96, C-148/78

European

Leading Case

Updated: 10 November 2021; Ref: scu.132731

Wurker v Familienkasse Nurnberg: ECJ 27 Feb 2014

ECJ Social security – Regulation (EEC) No 1408/71 – Family allowances – Articles 77 and 78 – Benefits for dependent children of pensioners and for orphans – Regulation (EC) No 883/2004 – Family benefits – Article 67 – Family members residing in another Member State – Concept of ‘pension’ – Recipient of a pension granted, pursuant to German legislation, for bringing up children following the death of the person from whom that recipient was divorced (‘Erziehungsrente’)

C-32/13, [2014] EUECJ C-32/13
Bailii
European

Benefits

Updated: 10 November 2021; Ref: scu.521843

Worten – Equipamentos Para O Lar Sa v Autoridade Para As Condicoes De Trabalho: ECJ 30 May 2013

ECJ Processing of personal data – Directive 95/46/EC – Article 2 – Concept of ‘personal data’ – Articles 6 and 7 – Principles relating to data quality and criteria for making data processing legitimate – Article 17 – Security of processing – Working time – Record of working time – Access by the national authority responsible for monitoring working conditions – Employer’s obligation to make available the record of working time so as to allow its immediate consultation

Ilesic P
C-342/12, [2013] EUECJ C-342/12
Bailii
Directive 95/46/EC
European

Information

Updated: 10 November 2021; Ref: scu.510323

Innolux v Commission: ECFI 27 Feb 2014

innolux_commECFI0214

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

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

European, Commercial

Updated: 10 November 2021; Ref: scu.521828

Amia SpA, in liquidation v Provincia Regionale di Palermo: ECJ 24 May 2012

amia_ECJ2012

ECJ Environment – Landfill of waste – Directive 1999/31/EC – Special levy on the disposal of solid waste in landfills – Landfill operator subject to that levy – Operating costs of a landfill – Directive 2000/35/EC – Default interest – Obligations of the national court

J-C Bonichot P
C-97/11, [2012] EUECJ C-97/11
Bailii
Directive 2000/35/EC

European, Environment

Updated: 10 November 2021; Ref: scu.460202

Kaczmarek v Secretary of State for Work and Pensions: CA 27 Nov 2008

The claimant entered the UK as a student coming from Poland. She then worked as a kitchen maid, but having left that job on becoming a mother was refused income support. She later returned to work. She said that the rules which denied her benefit were inconsistent with articles 12 (discrimination on the grounds of nationality) and 18 (free movement of workers) of the Treaty, relying on Trajani.
Held: The appeal failed. Abdirahman could not be said to be per incuriam so as to allow the applicant to rely on article 12. Nor could article 18 be read to include a class or workers who had been explicitly excluded.
Maurice Kay LJ said that if a citizen of one Member State who is lawfully present in another Member State can, without difficulty and whilst economically inactive, access the social security benefits of the host State, the implications for the more prosperous Member States with more generous social security provisions are obvious. The rules that regulation 2 of the 2002 Regulations lays down are intended to meet this problem. There are various ways in which the pre-condition for entitlement can be achieved under its provisions. They are not exclusively dependent on the nationality of the persons concerned.

Sir Anthony Clarke MR, Maurice Kay LJ, Stanley Burnton LJ
[2008] EWCA Civ 1310, Times 04-Dec-2008, [2009] Eu LR 402, [2009] 2 CMLR 85, [2009] PTSR 897, [2009] 2 CMLR 3
Bailii
Income Support (General) Regulations 1987, Immigration (European Economic Area) Regulations 2000, EU Treaty 12 18
England and Wales
Citing:
Cited – Abdirahman v Secretary of State for Work and Pensions CA 5-Jul-2007
The appellants were economically inactive EEA nationals who were lawfully present in the UK and who appealed against refusal of their claims for social security benefits under Articles 12 18.
Held: The appeal failed. For Art 12, the benefits . .
Cited – Baumbast and Another v Secretary of State for the Home Department ECJ 17-Sep-2002
The first applicant, his wife and her children had been granted leave to stay in the UK. At the time the leave was withdrawn the children were settled in schools, and were granted indefinite leave. The second applicant was the mother of children who . .
Cited – Martinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
Cited – Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve ECJ 20-Sep-2001
ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – . .
Cited – Trojani v Centre public d’aide sociale de Bruxelles (CPAS) ECJ 7-Sep-2004
EAT Freedom of movement of persons – Citizenship of the European Union – Right of residence – Directive 90/364/EEC – Limitations and conditions – Person working in a hostel in return for benefits in kind – . .

Cited by:
Cited – Patmalniece v Secretary of State for Work and Pensions SC 16-Mar-2011
The claimant challenged as incompatible with EU law, the Regulations which restricted the entitlement to state pension credit to those entitled to reside in the UK.
Held: The appeal failed (Majority). The conditions imposed by the Regulations . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 10 November 2021; Ref: scu.278300

Secretary of State for the Home Department v Nasseri: HL 6 May 2009

The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be infringed.
Held: The appeal failed. The judge had erred. When considering a request for a judicial review of a decision affecting the claimant’s human rights, the test is not the normal one of administrative law, but rather as to whether the claimant’s human rights had been violated: ‘when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong.’
There had been international concern that the procedures in Greece might lead to the removal of asylum seekers without any examination of their claims on the merits and contrary to the principle of non-refoulement. New procedures were passed, but not yet implemented. However, ‘the practice for dealing with asylum applications may leave something to be desired and very few applicants are accorded refugee status. If, as is usually the case, their applications are rejected, they are given a document directing them to leave the country and their continued presence there is uncomfortable. But there is no evidence, either in the documents before the Court of Appeal or the new evidence tendered to the House, that any Dublin returnee is in practice removed to another country in breach of his article 3 rights.’
Lord Hoffmann said: ‘McCombe J said, in para 36, that the legislation is ‘either compatible with Convention rights or it is not’. It cannot, he said, be incompatible if there is in fact a risk that Greece will return asylum seekers in breach of article 3 rights but compatible if there is no such risk. I do not agree. Section 4 of the 1998 Act provides that a declaration of incompatibility may be made if a provision is ‘incompatible with a Convention right’. That will normally mean a real Convention right in issue in the proceedings, not a hypothetical Convention right which the claimant or someone else might have if the facts were different. . . The structure of the 1998 Act suggests that a declaration of incompatibility should be the last resort in a process of inquiry which begins with the question raised by section 6(1), namely whether a public authority is acting in a way which is incompatible with a Convention right. If the answer is no, that should ordinarily be the end of the case. There will be no need to answer the hypothetical question of whether a statutory provision would have been incompatible with a Convention right if the public authority had been infringing it.’

Lord Hope of Craighead, Lord Hoffmann, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 23, Times 07-May-2009, [2009] 2 WLR 1190, [2009] HRLR 24, [2009] 3 All ER 774, [2010] 1 AC 1
Bailii
Council Regulation (EC) No 343/2003, Asylum and Immigration (Treatment of Claimants, etc) Act 2004, European Convention on Human Rights 9
England and Wales
Citing:
Appeal from – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – TI v United Kingdom ECHR 7-Mar-2000
The Dublin II Regulation did not absolve the United Kingdom from responsibility to ensure that a decision to expel an asylum seeker to another Member State did not expose him, at one remove, to treatment contrary to article 3 of the Convention. ‘In . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
At First Instance – Nasseri v Secretary of State for the Home Department Admn 2-Jul-2007
The applicant had sought and been refused asylum. He was found to have come via Greece, and steps were put in place to return him there. He now complained that the provision which allowed no discretion to the respondent to look at his case when the . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
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 – Jabari v Turkey ECHR 11-Jul-2000
A ‘rigorous scrutiny’ was to be conducted of a claim that an individual’s deportation to a third country would expose him to treatment prohibited by Article 3, before it could be rejected.
Held: ‘If the State is to avoid breach of Article 3 by . .
Cited – KRS v The United Kingdom ECHR 2-Dec-2008
Admissibility – The applicant’s claim for asylum had failed, and he challeged the decision to return him to Greece, the point of entry to the EU, saying that he would be at risk if so returned.
Held: The United Kingdom would not breach its . .

Cited by:
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
At House of Lords – Nasseri v The United Kingdom ECHR 23-Sep-2013
Questions set for the parties . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Immigration, European, Judicial Review

Updated: 10 November 2021; Ref: scu.341818

Axel Kittel v Belgian State; Belgian State v Recolta Recycling SPRL: ECJ 6 Jul 2006

ECJ Sixth VAT Directive – Deduction of input tax – ‘Carousel’ fraud – Contract of sale incurably void under domestic law.
The right of a taxpayer to deduct Input Tax may be refused if: ‘it is ascertained, having regard to objective factors, that the taxable person knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT.’
Where it is ascertained, having regard to objective factors, that a recipient of a supply of goods is a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT, it is for the national court to refuse that taxable person entitlement to the right to deduct VAT he has paid: ‘an analysis of the terms ‘supply of goods effected by a taxable person acting as such’ and ‘economic activities’ shows that those terms, which define taxable transactions for the purposes of the Sixth Directive, are objective in nature and apply without regard to the purpose or results of the transactions concerned (see, to that effect, Joined Cases C-354/03, C-355/03 and C-484/03 Optigen [2006] Ch 218, paras. 43 and 44).
traders who take every precaution which could reasonably be required of them to ensure that their transactions are not connected with fraud . . must be able to rely on the legality of those transactions without the risk of losing their right to deduct the input VAT (see, to that effect, Case C-384/04 Federation of Technological Industries [2006] STC 1483, para. 33).
By contrast, the objective criteria which form the basis of the concepts of ‘supply of goods effected by a taxable person acting as such’ and ‘economic activity’ are not met where tax is evaded by the taxable person himself (see Case C-255/02 Halifax and Others [2006] Ch 387, paras. 59).
Where the tax authorities find that the right to deduct has been exercised fraudulently, they are permitted to claim repayment of the deducted sums retroactively (see, inter alia, Case 268/83 Rompelman [1985] 2 CMLR 202, para. 24; Case C-110/94 INZO [1996] STC 569, para. 24; and Joined Cases C-110/98 to C-147/98 Gabalfrisa [2002] STC 535, para. 46) . .
a taxable person who knew or should have known that, by his purchase, he was taking part in a transaction connected with fraudulent evasion of VAT must, for the purposes of the Sixth Directive, be regarded as a participant in that fraud, irrespective of whether or not he profited by the resale of the goods.
That is because in such a situation the taxable person aids the perpetrators of the fraud and becomes their accomplice.
In addition, such an interpretation, by making it more difficult to carry out fraudulent transactions, is apt to prevent them.
Therefore, it is for the referring court to refuse entitlement to the right to deduct where it is ascertained, having regard to objective factors, that the taxable person knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of VAT, and to do so even where the transaction in question meets the objective criteria which form the basis of the concepts of ‘supply of goods effected by a taxable person acting as such’ and ‘economic activity”

C-439/04, [2006] EUECJ C-439/04
Bailii
European
Citing:
See Also – Axel Kittel v Belgian State; Belgian State v Recolta Recycling SPRL C-440/04 ECJ 6-Jul-2006
ECJ Sixth VAT Directive – Deduction of input tax – ‘Carousel’ fraud – Contract of sale incurably void under domestic law. . .

Cited by:
Cited – Mobilx Ltd and Others v HM Revenue and Customs; Blue Sphere Global Ltd v Same and similar CA 12-May-2010
Each company sought repayment of input VAT. HMRC refused, saying that the transactions were the end-product of a fraud on it, and that even if the taxpayer did not know that a fraud was involved, it should have been aware that one was and acted . .
Cited – Revenue and Customs v SED Essex Ltd ChD 14-Jun-2013
Liquidator confirmed despite VAT challege
The Revenue sought the winding up of the company for non-payment of substantial arrears of VAT. The revenue had declined to allow VAT input claims. The company said that the petition was wrong since the debt was genuinely disputed.
Held: The . .
Cited – Else Refining and Recycling Ltd v Revenue and Customs FTTTx 23-Jul-2012
VALUE ADDED TAX – MTIC – HMRC’s refusal to repay VAT on supplies connected with fraudulent VAT evasion – connection conceded by the appellant – only issues were whether the appellant knew or should have known of the connection – Axel Kittel v . .
Cited – Microring Ltd v Revenue and Customs (Value Added Tax – Kittel Denial of Input Tax) FTTTx 12-Jul-2019
VALUE ADDED TAX — Kittel denial of input tax – strike out applications – whether issue estoppel applies – no – whether HMRC should be barred from part of the proceedings – no – – whether Appellant’s appeal should be struck out in part – no – . .

Lists of cited by and citing cases may be incomplete.

VAT

Leading Case

Updated: 10 November 2021; Ref: scu.243021

Garland v British Rail Engineering Ltd: HL 19 Jan 1981

There was a dispute between an employee of the company, a subsidiary of the British Railways Board, a body created by the Transport Act 1962 to manage the railways in the united kingdom, and her employer concerning discrimination alleged to be suffered by female employees who on retirement no longer continue to enjoy travel facilities for their spouses and dependent children although male employees continue to do so.
Held: The House referred to the ECJ for a preliminary ruling under article 177 of the EEC Treaty two questions as to the interpretation of article 119 of the Treaty, article 1 of Council Directive 75/117/EEC on the approximation of the laws of the member states relating to the application of the principle of equal pay for men and women and of Article 1 of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

Lord Diplock
[1983] 2 AC 751, [1982] 2 WLR 918, [1982] ICR 420, [1982] 2 All ER 402
Transport Act 1962, Council Directive 75/117/EEC
England and Wales
Cited by:
Reference from – Garland v British Rail Engineering Ltd ECJ 9-Feb-1982
garland_breECJ1982
The fact that an employer (although not bound to do so by contract) provides special travel facilities for former male employees to enjoy after their retirement constitutes discrimination within the meaning of article 119 against former female . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
See Also – Garland v British Rail Engineering Ltd (No 2) HL 22-Apr-1982
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 10 November 2021; Ref: scu.200622

Lee and Others v Cofely Workplace Ltd: EAT 19 Jun 2015

EAT Certification Officer – The Information and Consultation of Employees Regulations 2004 implement Council Directive 2002/14/EC which established a general framework for informing and consulting employees in the European Community in domestic law. The Directive requires Member States to provide that requests made by a sufficient proportion of employees that their employer should negotiate an agreement with them about consulting them and providing information must be honoured. It provided Member states with a choice, which provided for different numbers of employees to make a valid request, dependent upon whether they were employed in an ‘establishment’ or an ‘undertaking’. The UK opted for the latter. The appellant employees (who were assigned to work a contract for services at sites in the University of London which had been agreed by their employer, Cofely) challenged a decision by the Central Arbitration Committee that ‘undertaking’ in this context meant a legal entity, and as such the employer of the employees concerned, and argued that they were a sufficient grouping to come within the definition in the Directive and hence the Regulations, and that the CAC panel had erred in its approach in requiring an undertaking to be such.

Langstaff P J
[2015] UKEAT 0058 – 15 – 1906
Bailii
Council Directive 2002/14/EC, The Information and Consultation of Employees Regulations 2004
England and Wales

Employment, European, Information

Updated: 10 November 2021; Ref: scu.549244

Hamas v Council: ECFI 17 Dec 2014

ECJ Judgment – Common Foreign and Security Policy – Restrictive measures against certain persons and entities in the context of the fight against terrorism – Freezing of funds – Evidence base of freezing funds – Reference to acts of terrorism – need for a competent authority decision within the meaning of Common Position 2001/931 – Obligation to state reasons – Modulation in time the effects of a cancellation

NJ Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges
T-400/10, [2014] EUECJ T-400/10, ECLI: EU: T: 2014: 1095
Bailii
Common Position 2001/931
European

Banking

Updated: 10 November 2021; Ref: scu.540232

Halawi v WDFG UK Ltd (T/A World Duty Free): CA 28 Oct 2014

The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her claim that she was a worker by both the Employment Tribunal and by the Employment Appeal tribunal.
Held: Her appeal failed. European law was settled. The issue was not settled by the existence of a formal contract, but by the application of criteria established in European law.

Arden, Christopher Clarke LJJ, Barling J
[2014] EWCA Civ 1387
Bailii, Gazette
Framework Directive 2000/78, Equality Act 2010 83
England and Wales
Citing:
Appeal from – Halawi v WDFG UK Ltd (T/A World Duty Free) and Another EAT 4-Oct-2013
EAT Contract of Employment : Whether Established – The Claimant worked in a World Duty Free outlet at an airport, selling Shiseido cosmetic products airside. Her security clearance to do so was withdrawn by R1, . .
Cited – Lee Ting Sang v Chung Chi-Keung PC 8-Mar-1990
Deciding Whether person was an employee
(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal . .
Cited – Danosa v LKB Lizing SIA ECJ 11-Nov-2010
ECJ Social policy – Directive 92/85/EEC – Measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding – Articles 2(a) and . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Clyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
Cited – The Hospital Medical Group Ltd v Westwood CA 24-Jul-2012
The Hospital Medical Group argued that Dr Westwood was in business on his own account as a doctor, in which he had three customers, the NHS for his services as a general practitioner, the Albany Clinic for whom he did transgender work, and the . .

Cited by:
Cited – Pimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European, Employment

Updated: 10 November 2021; Ref: scu.538037

Walton v The Scottish Ministers: SC 17 Oct 2012

The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation required by the Strategic Environmental Assessment Directive (‘the SEA Directive’), and that that the scope of the public inquiry should have included the question whether the Fastlink was required, under common law principles of procedural fairness. His claim had also been rejected on the basis that he had not had a sufficient personal interest.
Held: The appeal was rejected. The SEA and EIA Directives require environmental assessments to be carried out in different but mutually complementary circumstances. The SEA Directive is concerned with the environmental effects of ‘plans and programmes’ which set the framework for future development consent of ‘projects’. The EIA Directive is concerned with the environmental impact of specific ‘projects’.
The Fastlink was not a modification triggering the consultation requirements of the SEA Directive. The WPR was a specific ‘project’ undertaken following the MTS, and the Fastlink was a modification of that project, rendering it subject to the EIA Directive’s requirements instead.

Lord Hope, Deputy President, Lord Kerr, Lord Dyson, Lord Reed, Lord Carnwath
[2012] UKSC 44, UKSC 2012/0098, [2013] 1 CMLR 28, [2013] PTSR 51, [2013] JPL 323, 2012 SLT 1211, [2013] Env LR 16, 2012 GWD 34-689
Bailii, Bailii Summary, SC Summary, SC
Roads (Scotland) Act 1984, Directive 2001/42/EC, Directive 85/337/EEC Environmental Assessment Directive, The Environmental Impact Assessment (Scotland) Regulations 1999
Scotland
Citing:
Cited – Earth Walloon ASBL v Walloon Region; Inter-Environnement Wallonie ASBL v Walloon Region ECJ 4-Mar-2010
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programs on the environment – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources – . .
Appeal from – Walton v The Scottish Ministers SCS 29-Feb-2012
The reclaimer challenged the making of several orders redesignating roads around the Aberdeen Western Peripheral Route. . .
Cited – Inter-Environnement Bruxelles v Gouvernement de la Region de Bruxelles-Capitale ECJ 17-Nov-2011
ECJ Opinion – French Text – Directive 2001/42/EC – Assessment of the effects of certain plans and programs on the environment – Applicability of the Directive in a proceeding to repeal all or part of a plan of . .
At Outer House – Walton and Others v The Scottish Ministers SCS 11-Aug-2011
Outer House – Opinion . .
Cited – Valciukiene And Others v Pakruojo ECJ 22-Sep-2011
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Plans which determine the use of small areas at local level – Article 3(3) – Documents relating to land . .
Cited – Ealing Corporation v Jones CA 1959
An enforcement notice served by the local planning authority was quashed by an inferior court. The authority sought to appeal pursuant to provisions which allowed a right of appeal to ‘any person aggrieved’.
Held: Assuming the words ‘any . .
Cited – Bushell v Secretary of State for the Environment HL 7-Feb-1980
Practical Realities of Planning Decisions
The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the . .
Cited – Ex parte Sidebotham; In re Sidebotham CA 1880
James LJ said: ‘but the words ‘person aggrieved’ do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A ‘person aggrieved’ must be a person who has suffered a legal grievance, a . .
Cited – The Attorney-General of The Gambia v N’Jie PC 3-May-1961
(West Africa) Lord Denning said: ‘The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but . .
Cited – Arsenal Football Club Ltd v Ende, Smith HL 1978
It was said that the Arsenal football stadium was under-valued in local rating list. The House was asked who might be a ‘person aggrieved’ and entitled to complain about the under-valuation of a hereditament in the same area.
Held: A person . .
Cited – Cook v Southend-on-Sea Borough Council 1989
The council had public duties to perform in the maintenance of a suitable taxi service and a policy that it was seeking to implement.
Held: It could feel aggrieved by a decision adverse to the stand it was attempting to enforce in respect of . .
Cited – North East Fife District Council v Secretary of State for Scotland 1992
The court was asked as to the standing of the applicants to make their application. Lord President Hope said: ‘But in my opinion the fact that all three appellants were present at, and made representations at the public inquiry is sufficient for . .
Cited – Lardner v Renfrew District Council 1997
Rodger LP said that when construing the phrase ‘a person aggrieved’ it was necessary to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved. . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Fairmount Investments Ltd v Secretary of State for the Environment HL 1976
A local authority had made a compulsory purchase order which was challenged and an inquiry was held. The inspector, after the conclusion of the hearing, conducted his own inspection of the premises as a result of which he concluded that the . .
Cited – George v Secretary of State for the Environment CA 1979
The claimant challenged a decision made under the 1946 Act.
Held: It will only be upon rare occasions that the interests of justice will require that leave be given for cross-examination of deponents on their affidavits in applications for . .
Cited – Wells v Secretary of State for Transport, Local Government and the Regions ECJ 7-Jan-2004
ECJ Directive 85/337/EEC – Assessment of the effects of certain projects on the environment – National measure granting consent for mining operations without an environmental impact assessment being carried out – . .
Cited – Berkeley v Secretary of State For The Environment and Others HL 11-May-2000
The claimant challenged the grant of planning permission for a new football ground for Fulham Football club, saying that an Environmental Impact Assessment had not been obtained, but was required.
Held: Where a planning application if . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Cited – Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Bown v Secretary of State for Transport CA 31-Jul-2003
The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .
Cited – Edwards, Regina (on the application of) v Environment Agency HL 16-Apr-2008
The applicants sought to challenge the grant of a permit by the defendant to a company to operate a cement works, saying that the environmental impact assessment was inadequate.
Held: The Agency had been justified in allowing the application . .
Cited – Whitworth v Secretary of State for Environment, Food and Rural Affairs CA 20-Dec-2010
The claimants challenged the making of an order confirming a public right of way over their farmland.
Held: Where an order is subject to confirmation by the Secretary of State, the quashing of the ‘order’ relates to the original order as made . .

Cited by:
Cited – Cherkley Campaign Ltd, Regina (on The Application of) v Longshot Cherkley Court Ltd Admn 22-Aug-2013
The campaign company sought judicial review of a decision by the respondent granting permission to develop nearby land as a golf course.
Held: The application succeeded. The Secretary of State in preserving the effect of certain policies had . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Cited – Champion, Regina (on The Application of) v North Norfolk District Council and Another SC 22-Jul-2015
‘The appeal concerns a proposed development by Crisp Maltings Group Ltd (‘CMGL’) at their Great Ryburgh plant in Norfolk, in the area of the North Norfolk District Council (‘the council’). It was opposed by the appellant, Mr Matthew Champion, a . .
Cited – Dover District Council v CPRE Kent SC 6-Dec-2017
‘When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a . .

Lists of cited by and citing cases may be incomplete.

Environment, European

Leading Case

Updated: 10 November 2021; Ref: scu.464932

Age UK, Regina (On the Application of) v Attorney General: Admn 25 Sep 2009

Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social aim of labour market confidence. The use of a designated retirement age is to be contrasted with a mandatory retirement age. ‘A DRA does not require the employer to dismiss on grounds of age or retirement, but merely enables it to do so when that age is reached without risk of violating the law and being vulnerable to damages claims. The idea of a DRA is not inherently arbitrary and illegitimately discriminatory but is the making of a social choice in the light of a number of social and economic factors which point either way as to the desirability of such a measure or its actual effect upon future employment prospects.’
‘I accept the submission . . that the use of a specific age as the basis for social policy decisions reflected in the Regulations is somewhat different from use of other criteria such as race, sex, religion or sexual orientation which have either been, or have become now regarded as particularly suspect grounds . . This is not to assign age to some diminished worth in a supposed hierarchy of rights. Unlike the immutable characteristics of racial and gender identity all of us grow older each year and all of us face decisions about retirement. The different nature of discrimination on the grounds of age compared with other grounds is reflected directly in the Directive by the fact that Article 6 permits justification of direct discrimination on the grounds of age.’
Blake J considered the authorities and said: ‘In my judgment, . . the constitutional principles identified in . . Prebble . . , Hamilton, Bradley and Office of Government Commerce cases . . are as follows:
(i) The court must be astute to ensure that it does not directly or indirectly impugn or question any proceedings in Parliament in the course of judicial proceedings.
(ii) ‘Impugn or question’ extends beyond civil or criminal sanction for any statement in Parliament but includes a judicial determination as to whether a statement in Parliament is right or wrong. The Judge cannot receive evidence of what is said in Parliament for the purpose of agreeing or disagreeing with it…’

Blake J
Times 08-Oct-2009, [2009] EWHC 2336 (Admin), [2009] IRLR 1017, [2009] Pens LR 333, [2010] 1 CMLR 21, [2010] ICR 260
Bailii
Employment Equality (Age) Regulations 2006 SI 1031/2006, Council Directive 2000/78/EC
England and Wales
Citing:
See Also – The Incorporated Trustees of the National Council on Aging (Age Concern England), Regina (on the Application of) v Secretary of State for Business, Enterprise and Regulatory Reform Admn 24-Jul-2007
Age Concern challenged the implimentation of the European Directive as regards the prohibition of age discrimination. . .
ECJ Opinion – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 23-Sep-2008
Europa Council Directive 2000/78/EC Article 6(1) Age discrimination – Compulsory retirement National legislation permitting employers to dismiss employees aged 65 and over if the reason of dismissal is retirement . .
ECJ Judgment – Incorporated Trustees of The National Council For Ageing v Secretary of State for Business, Enterprise and Regulatory Reform ECJ 5-Mar-2009
(Third Chamber) The trustees complained that the respondent had failed to implement the Directive, in that there remained, for example, rules allowing employers to have fixed retirement ages.
Held: The complaint failed. The Directive allowed . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Hutter v Technische Universitat Graz ECJ 18-Jun-2009
ECJ Directive 2000/78/EC – Equal treatment in employment and occupation Age discrimination Determining the pay of contractual employees of the State Exclusion of professional experience acquired before the age of . .
Cited – Kucukdevici v Swedex GmbH ECJ 7-Jul-2007
ECJ Directive 2000/78/EC in principle non’discrimination age – National legislation on dismissal not taking into account the period of service completed before the employee reaches the age of 25 to calculate the . .
Cited – Regina v Secretary of State Employment, ex parte Equal Opportunities Commission and Another HL 4-Mar-1994
The Equal Opportunities Commission sought judicial review to test whether English employment law was in breach of EC law where threshold conditionsions for part time workers to make unfair dismissal and redundancy law claims were discriminatory.
Cited – Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .
Cited – Inge Nolte v Landesversicherungsanstalt Hannover ECJ 14-Dec-1995
Europa Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as meaning that persons in employment which is . .
Cited – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 15-Feb-2007
Europa Council Directive 2000/78/EC Article 6 – General principle of Community law – Age discrimination – Compulsory retirement – Direct effect – Obligation to set aside conflicting national law. . .
Cited – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Lindorfer v Council (Staff Regulations) ECJ 30-Nov-2006
EU Appeal – Community official – Transfer of pension rights – Calculation of additional pensionable service – Equality of treatment. . .
Cited – Mangold v Helm ECJ 22-Nov-2005
ECJ Grand Chamber – Directive 1999/70/EC – Clauses 2, 5 and 8 of the Framework Agreement on fixed-term work – Directive 2000/78/EC – Article 6 – Equal treatment as regards employment and occupation – Age . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH ECJ 23-Sep-2008
ECJ Equal treatment in employment and occupation Article 13 EC Directive 2000/78/EC Occupational pension scheme excluding the right to a pension of a spouse more than 15 years younger than the deceased former . .

Cited by:
Cited – Homer v Chief Constable of West Yorkshire Police CA 27-Apr-2010
The claimant alleged indirect age discrimination, in not having received a promotion to a post of legal adviser to the defendant. He did not have a law degree and did not want to undertake the study required which would have him acquiring the degree . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

European, Discrimination, Employment, Human Rights

Updated: 10 November 2021; Ref: scu.375181

Grant v South West Trains Ltd: ECJ 17 Feb 1998

A company’s ban on the provision of travel perks to same sex partners of employees did not constitute breach of European sex discrimination law. An employer’s policy was not necessarily to be incorporated into the contract of employment. The court said that since the rule applied equally to male and female employees it was not discriminatory on grounds of ‘sex’ narrowly understood. The Court then considered whether ‘persons who have a stable relationship with a partner of the same sex are in the same situation as those who are married or have a stable relationship outside marriage with a partner of the opposite sex’. The European Parliament, although deploring all forms of discrimination based on sexual orientation, had not yet introduced measures to support that view; and that the laws of the member states only gave limited protection to such a relationship. So far as the European Commission on Human Rights was concerned, national provisions which, for the purpose of protecting the family, accord more favourable treatment to married persons and persons of the opposite sex living together as man and wife than to persons of the same sex in a stable relationship are not contrary to article 14 of the Convention which prohibits, inter alia, discrimination on the ground of sex. Stable relationships between two persons of the same sex are not regarded as equivalent to marriages and stable relationships outside marriage between persons of opposite sex. Consequently, an employer is not required by Community law to treat the situation of a person who has a stable relationship with a partner of the same sex as equivalent to that of a person who is married to or has a stable relationship outside marriage with a partner of the opposite sex.

Times 23-Feb-1998, Gazette 24-Jun-1998, [1998] IRLR 188, C-249/96, [1998] ICR 449, [1998] 3 BHRC 578, [1998] EUECJ C-249/96
Bailii
Council Directive 75/117/EEC, EC Treaty 119
Citing:
Cited – S v United Kingdom ECHR 1986
The applicant was not entitled in domestic law to succeed to a tenancy on the death of her partner. The aim of the legislation is question was to protect the family, a goal similar to the protection of the right to respect for family life guaranteed . .

Cited by:
Cited – MacDonald v Advocate General for Scotland (Scotland); Pearce v Governing Body of Mayfield School HL 19-Jun-2003
Three appeals raised issues about the way in which sex discrimination laws were to be applied for cases involving sexual orientation.
Held: The court should start by asking what gave rise to the act complained of. In this case it was the . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Pearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 10 November 2021; Ref: scu.161917

Webb v EMO Air Cargo (UK) Ltd (No 2): HL 20 Oct 1995

The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact that pregnancy was the reason for her temporary unavailability at a time when to her knowledge her services would be particularly required was a circumstance relevant to her case that could not be present in the case of the hypothetical male comparator. The dismissal of a woman because she was pregnant was discriminatory. The contract in this case was not a fixed term contract.

Lord Keith of Kinkel , Lord Griffiths, Lord Browne-Wilkinson, Lord Mustill, Lord Slynn of Hadley
Independent 26-Oct-1995, Times 20-Oct-1995, [1995] ICR 1021, [1995] UKHL 13, [1995] 1 WLR 1454, [1996] 2 CMLR 990, [1995] IRLR 645, [1995] 4 All ER 577
Bailii
Sex Discrimination Act 1975 1(1)(a) 5(1)
England and Wales
Citing:
Remitted from – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
See Also – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
See Also – Webb v EMO Air Cargo (UK) Ltd CA 20-Dec-1991
The applicant had been taken on to stand in for an employee taking maternity leave. She herself became pregnant, and she was dismissed. Her clam for sex discrimination had been rejected by the industrial tribunal and EAT.
Held: Since a man who . .

Cited by:
Remitted to – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
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 – Attridge Law (A Firm of Solicitors) v Coleman and Law EAT 20-Dec-2006
The claimant asserted associative disability discrimination. She was the carer for her disabled son.
Held: To succeed the claimant would have to show that associative discrimination was prohibited by the directive and that the 1995 Act could . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Cited – AC v Berkshire West Primary Care Trust, Equality and Human Rights Commissions intervening Admn 25-May-2010
The claimant, a male to female transsexual, challenged a decision by the respondent to refuse breast augmentation treatment. The Trust had a policy ‘GRS is a Low Priority treatment due to the limited evidence of clinical effectiveness and is not . .
Cited – Gbokoyi v Bennett’s Eco-Inverter (Environmental Services) Ltd EAT 18-Jan-2002
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim.
Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European, Employment

Leading Case

Updated: 10 November 2021; Ref: scu.90354

NIIT Insurance Technologies v OHIM (Subscribe): ECFI 14 Jul 2014

NIIT_subscribe_ECFI1407

ECFI Judgment – Community trade mark – Application for Community word mark SUBSCRIBE – Absolute ground for refusal – Lack of distinctive character – Article 7, paragraph 1 b) of Regulation (EC) No 207/2009 – Equal treatment – Article 56 TFEU

MD Gratsias (Rapporteur), P
T-404/13, [2014] EUECJ T-404/13, ECLI: EU: T: 2014 645 EU: T: 2014:645
Bailii

European, Intellectual Property

Updated: 10 November 2021; Ref: scu.534343

NS v Secretary of State for the Home Department etc: ECJ 21 Dec 2011

Prohibition of inhuman or degrading treatment

ECJ (Grand Chamber) European Union law – Principles – Fundamental rights – Implementation of European Union law – Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No 343/2003 – Concept of ‘safe countries’ – Transfer of an asylum seeker to the Member State responsible – Obligation – Rebuttable presumption of compliance, by that Member State, with fundamental rights
The court made systemic deficiency in the system of refugee protection a requirement of intervention. Without it, proof of individual risk to the individual concerned, however real and grave, and whether or not arising from operational problems in the state’s system, could not prevent return under the regulation (Dublin II).
Article 21 of the Charter cannot be relied on to extend the rights otherwise provided under European law: ‘… the Charter reaffirms the rights, freedoms, and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles.’

V Skouris, P
[2012] 2 CMLR 9, [2012] All ER (EC) 1011, [2011] EUECJ C-411/10, [2013] QB 102, ECLI:EU:C:2011:865, [2012] 3 WLR 1374
Bailii
Regulation (EC) No 343/2003
European
Citing:
Opinion – NS v Secretary of State For The Home Department ECJ 22-Sep-2011
ECJ Opinion – (Principles Of Community Law) Regulation (EC) No 343/2003 – Transfer of asylum seekers to the Member State responsible for examining the asylum application – Obligation on the transferring Member . .

Cited by:
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .
Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .

Lists of cited by and citing cases may be incomplete.

European, Human Rights, Immigration, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.536794

Leonesio v Ministero Della Agricoltura E Foreste: ECJ 17 May 1972

leonisioECJ197205

ECJ Measures Adopted By An Institution – 1. A community regulation has direct effect and is, as such, capable of creating individual rights which national courts must protect.
Pecuniary rights against the state, conferred by such a regulation, arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself.
2. So as to apply with equal force with regard to nationals of all the member states, community regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.
Budgetary provisions of a member state cannot therefore hinder the direct applicability of the community provision and consequently of the exercise of individual rights created by such a provision.
3. Once all the conditions laid down in regulations nos 1975/69 and 2195/69 were fulfilled, those regulations conferred on farmers a right, which national courts must protect, to payment of the slaughtering subsidy by the member state to which they belonged; such rights could be exercised in each case at the end of the period of two months following the establishment of the proof of slaughter as provided in article 10 of regulation no 2195/69. As from that time, the abovementioned regulations give the farmer the right to require payment of the subsidy without that member state’ s being able to rely on arguments based on any legislative provisions or administrative practices to withhold such payment.

[1972] ECR 287, R-93/71, [1972] EUECJ R-93/71
Bailii

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.214165

T-Mobile Austria v Telekom-Control-Kommission: ECJ 22 Jan 2015

ECJ (Judgment) Reference for a preliminary ruling – Electronic communications networks and services – Directive 2002/20/EC – Article 5(6) – Rights of use for radio frequencies and numbers – Directive 2002/21/EC – Article 4(1) – Right of appeal against a decision of a national regulatory authority – Meaning of ‘undertaking affected by a decision of a national regulatory authority’ – Article 9b – Transfer of individual rights to use radio frequencies – Reallocation of rights to use radio frequencies following the merger of two undertakings

M Ilesic P
C-282/13, [2015] EUECJ C-282/13
Bailii
Directive 2002/20/EC 5(6), Directive 2002/21/EC 4(1)
European

Utilities

Updated: 10 November 2021; Ref: scu.541743

Michael Timmel v Aviso Zeta Ag: ECJ 26 Nov 2013

ECJ Opinion – Directive 2003/71/EC and Regulation (EC) No 809/2004 – Base prospectus – Supplements to a prospectus – Final terms – Publication of a prospectus in electronic form)

Shsrpston AG
C-359/12, [2013] EUECJ C-359/12, [2014] EUECJ C-359/12
Bailii, Bailii
Directive 2003/71/EC, Regulation (EC) No 809/2004
European

European, Financial Services

Updated: 10 November 2021; Ref: scu.518461

Office of Fair Trading (OFT) v Abbey National Plc and Others: SC 25 Nov 2009

The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could be used neither by the OFT, nor by individual consumers to object to their charges.
Held: The banks’ appeal succeeded. The charging system had to be looked at as a package. An investigation of the charges would relate to the adequacy of the price as against the services supplied, and therefore be incorrect with 6(2)(b). The charges complained of did not relate solely to the immediate tranactions. The two sub-paragraphs of regulation 6(2) must be given their natural meaning, and ‘read in that way they set out tests which are separate but not unconnected. They reflect (but in slightly different ways) the two sides (or quid pro quo) of any consumer contract, that is (a) what it is that the trader is to sell or supply and (b) what it is that the consumer is to pay for what he gets. The definition of the former is not to be reviewed in point of fairness, nor is the ‘adequacy’ (appropriateness) of the latter.’
There was no sufficient point of doubt to require any reference to the European Court.
Lord Walker said: ‘Charges for unauthorised overdrafts are monetary consideration for the package of banking services supplied to personal current account customers. They are an important part of the banks’ charging structure, amounting to over 30 per cent of their revenue stream from all personal current account customers. The facts that the charges are contingent, and that the majority of customers do not incur them, are irrelevant. On the view that I take of the construction of Regulation 6(2), the fairness of the charges would be exempt from review in point of appropriateness under Regulation 6(2)(b) even if fewer customers paid them, and they formed a smaller part of the banks’ revenue stream. ‘
Lord Mance said: ‘Article 4(2) and regulation 6(2) are as exceptions to be construed narrowly. Nevertheless, the concepts of ‘price or remuneration’ must, I think, be capable in principle of covering, under a banking contract, an agreement to make a payment in a particular event. The language of regulation 6(2)(b) is on its face therefore capable of covering a customer’s commitment, under the package contracts put before the House, to pay the Relevant Charges in the specified events. There is no reason why a customer should not be given free services in some circumstances, but, as a quid pro quo, be expected to pay for them in others.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Mance, Lord Neuberger
[2009] UKSC 6, Times 26-Nov-2009, [2009] 3 WLR 1215
Bailii
Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083) 6(2), Council Directive 93/13/EEC on unfair terms in consumer contracts
England and Wales
Citing:
Cited – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
At First Instance – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008
The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .
Appeal from – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009
The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
Cited – Chichester Diocesan Board of Finance v Simpson HL 21-Jun-1944
The court was asked whether a gift in a will to the trustees ‘for such charitable institution or institutions or other charitable or benevolent object or objects in England’ as they should select, was valid.
Held: ‘The fundamental principle is . .
See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009
. .
Cited – Bairstow Eves London Central Ltd v Smith and Another QBD 20-Feb-2004
. .
Cited – The Office Of Fair Trading v Foxtons Ltd ChD 10-Jul-2009
The OFT alleged that certain standard terms in the defendant’s letting agent contracts were unfair. The agent had withdrawn the former terms, but relief was still sought on those terms and their effect, and as to the fairness of the new ones. The . .
Cited – College of Estate Management v Customs and Excise HL 20-Oct-2005
The college supplied educational services by distance learning. The commissioner sought to argue that printe daterials supplied with the course were ancillary and did not have the same exemption form VAT.
Held: The supplies did benefit from . .
Cited – Freiburger Kommunalbauten GmbH Baugesellschaft and Co. KG v Ludger Hofstetter, Ulrike Hofstetter ECJ 1-Apr-2004
ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Contract for the building and supply of a parking space – Reversal of the order of performance of contractual obligations provided for under national . .
Cited – Srl CILFIT v Ministero Della Sanita ECJ 6-Oct-1982
ECJ The obligation to refer to the Court of Justice questions concerning the interpretation of the EEC Treaty and of measures adopted by the community institutions which the third paragraph of article 177 of the . .

Cited by:
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .

Lists of cited by and citing cases may be incomplete.

Banking, Consumer, European

Updated: 10 November 2021; Ref: scu.381455

Digital Satellite Warranty Cover Ltd and Another v Financial Services Authority: SC 13 Feb 2013

The appellants challenged an order for the dissolution of their company under the 2000 Acts. They had provided warranties for assorted consumer electrical goods which amounted to insurance, but said that they were not required to be registered under the Act since only services in kind were ever provided.
Held: The appeal failed. The fact that certain activities were to be regulated under European law did not prevent the regulation of other associated areas, in this case the issuing of insurance by provision of goods and services only. These were contracts of insurance, and the appellants were not registered.
The First Council Directive had not been intended to be comprehensive, and the list of businesses it scheduled did not restrict the capacity to regulate other actiities. This was acknowledged in its recitals.
The common law which restricted contracts of insurance to those where the detriment suffered by the insurer was strictly financial was displaced by the reuirement to construe UK law to conform with EU law.

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption
[2013] 1 WLR 605, [2013] UKSC 7
Bailii
Financial Services and Markets Act 2000, cial Services and Markets Act 2000 (Regulated Activities) Order 2001, First Council Directive 73/239/EEC
England and Wales
Citing:
Cited – Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd ChD 1985
The court was asked to consider preliminary issues concerning facultative obligatory (fac. oblig.) reinsurances of a variety of business. The issues included whether the reinsured was obliged to keep a retention and whether the writing of its . .
At First Instance – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Appeal from – Digital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
Cited – Prudential Insurance Co v Inland Revenue Commissioners 1904
Contract for payment of sum on event
The Insurance company provided endowment insurance polices. They disagreed with the Commissioners as to whether these were policies of insurance and thus as to how they fell to be stamped. Life insurance was defined in the 1891 Act as ‘insurance . .
Cited – Department of Trade and Industry v St Christopher Motorists Association Ltd 1974
The defendant company provided for the hire of a chauffeur if the insured was disqualified from driving.
Held: Contracts of insurance are not confined to contracts for the payment of money, but may include a contract for some benefit . .
Cited – Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd CA 1987
Kerr LJ summarised the aim of the Directives underlying the 1977 Regulations as being to achieve a uniform classification of non-life insurance businesses and of insured risks for the purposes of the supervision of insurers with a view to ensuring . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .

Lists of cited by and citing cases may be incomplete.

Financial Services, European, Insurance

Leading Case

Updated: 10 November 2021; Ref: scu.470946

Wepa Hygieneprodukte and Others v Commission: ECFI 6 Oct 2021

(Judgment) State aid – Aid scheme implemented by Germany for certain large electricity consumers – Exemption from network charges for the period 2012-2013 – Decision declaring the aid scheme incompatible with the market internal and illegal and ordering the recovery of the aid paid – Action for annulment – Time limit for bringing an action – Admissibility – Concept of aid – State resources – Selectivity

T-238/19, [2021] EUECJ T-238/19
Bailii
European

European,

Updated: 10 November 2021; Ref: scu.668574

Williams And Others v British Airways Plc: ECJ 15 Sep 2011

ECJ Working conditions – Directive 2003/88/EC – Organisation of working time – Right to annual leave – Airline pilots
ECJ Article 7 of Directive 2003/88/EC and clause 3 of the European Agreement: ‘must be interpreted as meaning that an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, first, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and, second, to all the elements relating to his personal and professional status as an airline pilot. It is for the national court to assess whether the various components comprising that worker’s total remuneration meet those criteria.’

A. Tizzano, P
[2011] EUECJ C-155/10, C-155/10, [2012] CEC 118, [2012] 1 CMLR 23, [2012] ICR 847, [2011] IRLR 948
Bailii
Directive 2003/88/EC, Directive 93/104/EC
European
Citing:
Opinion – Williams And Others v British Airways Plc ECJ 16-Jun-2011
ECJ (Opinion) Working conditions – Organisation of working time – Article 7 of Directive 2003/88/EC – Right to paid annual leave – Extent of the obligations provided for by that directive in respect of the nature . .
Reference – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .

Lists of cited by and citing cases may be incomplete.

European, Employment

Leading Case

Updated: 09 November 2021; Ref: scu.466926

Pedro Espada Oviedo v Iberia Lineas Aereas De Espana Sa: ECJ 22 Nov 2012

ECJ Air transport – Montreal Convention – Article 22(2) – Liability of carriers in respect of baggage – Limits of liability in the event of the destruction, loss, damage or delay of baggage – Shared baggage belonging to a number of passengers – Baggage checked in by one of those passengers

R Silva de Lapuerta P
C-410/11, [2012] EUECJ C-410/11
Bailii
European

Transport, Consumer

Updated: 09 November 2021; Ref: scu.466398

Banif Plus Bank Zrt v Csipai: ECJ 21 Feb 2013

barif_csipaoECJ2013

ECJ Directive 93/13/EEC – Unfair terms in consumer contracts – Examination by the national court, of its own motion, as to whether a term is unfair – Obligation on the national court, once it has found, of its own motion, that a term is unfair, to invite the parties to submit their observations before drawing conclusions from that finding – Contractual terms to be taken into account in the assessment of that unfairness

A. Tizzano, P
C-472/11, [2013] EUECJ C-472/11
Bailii
Directive 93/13/EEC

European, Contract, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.471210

Rastelli Davide e C. Snc v Jean-Charles Hidoux: ECJ 15 Dec 2011

rastelliECJ2011

ECJ Regulation (EC) No 1346/2000 – Insolvency proceedings – International jurisdiction – Extension of insolvency proceedings opened in respect of a company established in one Member State to a company whose registered office is in another Member State because the property of the two companies has been intermixed.

Tizzano P
C-191/10, [2011] EUECJ C-191/10
Bailii
Regulation (EC) No 1346/2000

European, Insolvency

Updated: 09 November 2021; Ref: scu.450095

Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change and Another: CA 3 Jun 2011

The company had developed a means of generating electricity from their excess sugar supplies, and challenged the support given to it by the respondent and in particular that the 2009 Order allowed the respondent to favour some types of energy generation, and had been based upon mistaken information.
Held: The appeal failed: ‘even if the appellant’s premise is correct, and the court is satisfied that the appellant’s technology would have been banded more favourably had the correct costs information been used, this did not compel the Secretary of State to carry out the review on the limited basis advanced by the appellant . . the usual situation requires a public body to reach decisions in the light of all the information then available.’
Elias LJ said: ‘I recognise that fairness is an important principle of public law but in determining what is fair in any particular context it is necessary to have regard to the wider public interest. I am not persuaded that as a consequence of this review the Appellant is being unfairly treated. They are in fact receiving the appropriate subsidy for someone incurring the costs involved in developing their particular technology. It is true that they were not obtaining the windfall resulting from the increase in electricity prices which they would have received had no error been made. Furthermore, it may be the case that other producers are receiving a windfall as a result of that price increase and will continue to do so until their technologies are reviewed (although as I have said there will be no windfall if costs have outstripped the electricity price). That is not, in my judgment, a sufficient reason to confer this benefit on the Appellant. It may be bad luck that but for the error the Appellant would have been treated more favourably than was necessary properly to subsidise their technology, particularly since some others will have received the more favourable treatment. It does not follow that it was unfair and an abuse of power to carry out a full review.’

Longmore, Aikens, Elias LJJ
[2011] EWCA Civ 664
Bailii
Directive 2001/77/EC on the promotion of electricity from renewable energy sources in the internal electricity market, Renewables Obligation Order in 2002, Renewables Obligations Order 2009
England and Wales
Citing:
Appeal from – Tate and Lyle Industries Ltd and Another, Regina (on The Application of) v Secretary of State for Energy and Climate Change and Another Admn 2-Nov-2010
The claimant sought judicial review of the 2009 Order, complaining of the reduced allocation to it of a renewables obligation certificate.
Held: The claim failed. . .
Cited – Regina v Secretary of State for the Home Department, ex parte Zeqiri HL 24-Jan-2002
The applicant sought to resist an order for his return to Germany, the first country of call after escaping Kosovo. He asserted that Germany was not complying with its international obligations. He said the Gashi case had created a legitimate . .
Cited – Regina (Kelsall and Others) v Secretary of State for Environment Food and Rural Affairs) Admn 13-Mar-2003
The claimants were mink farmers. They challenged the order arranging compensation for the closure of their businesses following the ban on fur farming.
Held: The provisions of the order were arbitrary and unfair, failing to take into account . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Middlebrook Mushrooms Ltd, Regina (on the Application of) v Agricultural Wages Board of England and Wales Admn 18-Jun-2004
The company complained that whereas the generality of employers in agriculture were exempt from control under the minimum wage system, mushroom growers had not been exempted.
Held: The withdrawal of the exemption was irrational and . .

Cited by:
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .

Lists of cited by and citing cases may be incomplete.

European, Environment, Utilities, Administrative

Updated: 09 November 2021; Ref: scu.440316

A (Supported by Union Syndicate) v Commission of European Communities: ECJ 30 Jun 1994

ECJ A refusal to employ a HIV positive applicant, even where there were no present signs or symptoms of AIDS, was not always improper.

Times 30-Jun-1994, [1994] EUECJ T-10/93, T-10/93
Bailii

European, Health

Updated: 09 November 2021; Ref: scu.77568

Levez v T H Jennings (Harlow Pools) Ltd: ECJ 1 Dec 1998

Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Advocate General Leger said: ‘an action brought under the Equal Pay Act and an action brought under Article [141] of the Treaty are not merely similar, as the United Kingdom Government maintains: their scope is identical, that is to say, they amount to one and the same form of action.’
ECJ Social policy – Men and women – Equal pay – Article 119 of the EC Treaty – Directive 75/117/EEC – Remedies for breach of the prohibition on discrimination – Pay arrears – Domestic legislation placing a two-year limit on awards for the period prior to the institution of proceedings – Similar domestic actions.

Advocate General Leger
Times 10-Dec-1998, C-326/96, [1999] All ER (EC) 1, [1998] EUECJ C-326/96, [1999] CEC 3, [1998] ECR I-7835, [1999] 2 CMLR 363, [1999] ICR 521, [1999] IRLR 36
Bailii
European
Citing:
Reference from – Levez v T H Jennings (Harlow Pools) Ltd EAT 6-Nov-1996
. .
See Also – Levez v T H Jennings (Harlow Pools) Ltd EAT 11-Oct-1996
A party sought to be joined to the case order to appeal it to the Curt of Appeal, and in turn to the European Court of Justice to challenge implementation of a European directive.
Held: Leave to join refused, but leave allowed to appeal . .

Cited by:
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
At ECJ – Levez etc v T H Jennings (Harlow Pools) Ltd (No 2) EAT 1-Oct-1999
The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in . .
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 – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.

Discrimination

Leading Case

Updated: 09 November 2021; Ref: scu.161962

Vodafone (Electronic Communications – End Users’ Rights – Judgment): ECJ 2 Sep 2021

Management of Internet User Agreements

Reference for a preliminary ruling – Electronic communications – Regulation (EU) 2015/2120 – Article 3 – Open internet access – Article 3(1) – End users’ rights – Article 3(2) – Prohibition of agreements and commercial practices limiting the exercise of end users’ rights – Article 3(3) – Obligation of equal and non-discriminatory treatment of traffic – Possibility of implementing reasonable traffic management measures – Additional ‘zero tariff’ option – ‘Zero tariff’ excluded in the case of roaming

C-854/19, [2021] EUECJ C-854/19, ECLI:EU:C:2021:675
Bailii
European

European, Utilities

Updated: 09 November 2021; Ref: scu.668128

LCL Le Credit Lyonnais v Fesih Kalhan: ECJ 27 Mar 2014

lcl_kalhanECJ0314

ECJ Consumer protection – Credit agreements for consumers – Directive 2008/48/EC – Articles 8 and 23 – Creditor’s obligation to assess the borrower’s creditworthiness prior to conclusion of the agreement – National provision imposing the obligation to consult a database – Forfeiture of entitlement to contractual interest in the event of failure to comply with that obligation – Effective, proportionate and dissuasive nature of the penalty

L. Bay Larsen, P
C-565/12, [2014] EUECJ C-565/12
Bailii
Directive 2008/48/EC 8 23

European, Banking, Consumer

Updated: 09 November 2021; Ref: scu.523332

USDAW And Wilson v WW Realisation 1 Ltd, in liquidation: ECJ 30 Apr 2015

ECJ (Judgment) Reference for a preliminary ruling – Social policy – Collective redundancies – Directive 98/59/EC – Article 1(1)(a) – Meaning of ‘establishment’ – Method of calculating the number of workers made redundant

T von Danwitz, P
C-80/14, [2015] EUECJ C-80/14, ECLI:EU:C:2015:291
Bailii
Directive 98/59/EC 1(1)(a)
European

Employment, Insolvency

Updated: 09 November 2021; Ref: scu.546229

Parliament v Council C-263/14: ECJ 14 Jun 2016

ECJ (Judgment) Action for annulment – Common foreign and security policy (CFSP) -Decision 2014/198/CFSP – Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the United Republic of Tanzania – Choice of legal basis – Obligation to inform the European Parliament immediately and fully at all stages of the procedure of negotiation and conclusion of international agreements – Maintenance of the effects of the decision in the event of annulment

[2016] WLR(D) 307, ECLI:EU:C:2016:435, [2016] EUECJ C-263/14
WLRD, Bailii
Decision 2014/198/CFSP

European, Crime

Updated: 09 November 2021; Ref: scu.565626