Krizan and Others v Slovenska Inspekcia Zivotneho Prostredia: ECJ 15 Jan 2013

kirzan_sizpECJ2013

ECJ (Grand Chamber) Article 267 TFEU – Annulment of a judicial decision – Referral back to the court concerned – Obligation to comply with the annulment decision – Reference for a preliminary ruling – Whether possible – Environment – Aarhus Convention – Directive 85/337/EEC – Directive 96/61/EC – Public participation in the decision-making process – Construction of a landfill site – Application for a permit – Trade secrets – Non-communication of a document to the public – Effect on the validity of the decision authorising the landfill site – Rectification – Assessment of the environmental impact of the project – Final opinion prior to accession of the Member State to the European Union – Application in time of Directive 85/337 – Effective legal remedy – Interim measures – Suspension of implementation – Annulment of the contested decision – Right to property – Interference

V Skouris, P
C-416/10, [2013] EUECJ C-416/10
Bailii
Article 267 TFEU, Directive 85/337/EEC, Directive 96/61/EC

European, Environment

Updated: 09 November 2021; Ref: scu.470205

Rutten v Cross Medical: ECJ 9 Jan 1997

rutten_crossECJ1997

ECJ Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Court for the place of performance of the contractual obligation – Contract of employment – Place where the employee habitually carries out his work – Meaning – Work carried out in more than one Contracting State
(Brussels Convention of 27 September 1968, Art. 5(1), as amended by the 1989 Accession Convention)
Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, must be interpreted as meaning that where, in the performance of a contract of employment, an employee carries out his work in several Contracting States, the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organizes his activities for his employer and to which he returns after each business trip abroad.

Times 27-Jan-1997, [1997] ILPr 199, [1997] ECR I-57, C-383/95, [1997] EUECJ C-383/95, [1997] IRLR 249,, [1997] ICR 715, [1997] All ER (EC) 121
Bailii
Brussels Convention 1968 5(1)

European, Employment

Leading Case

Updated: 09 November 2021; Ref: scu.161738

Plant and others v Commission and South Wales Small Mines: ECJ 10 Jan 2002

Europa Appeal – Action for annulment under Article 33 of the ECSC Treaty – Admissibility – Audi alteram partem rule in judicial proceedings.

C-480/99, [2002] EUECJ C-480/99P
Bailii
European

European

Updated: 09 November 2021; Ref: scu.167381

Commission v Thales Developpement And Cooperation: ECFI 12 Jul 2016

ECJ (Judgment) Arbitration clause – Fourth and fifth framework programs for research, technological development and demonstration – Contracts involving projects for the design and development direct methanol fuel cells – contracts void for fraud – Reimbursement financial interests of the Union – Regulation (EC, Euratom) No 2988/95 – Limitation period – Application of French and Belgian rights – rights of the defense – Interest

H. Kanninen, P
ECLI:EU:T:2016:403, [2016] EUECJ T-326/13
Bailii

European, Arbitration

Updated: 09 November 2021; Ref: scu.566855

Commission v Austria: ECJ 4 May 2016

ECJ (Judgment) Failure of a Member State to fulfil obligations – Article 4(3) TEU – Article 288 TFEU – Directive 2000/60/EC – EU water policy – Article 4(1) – Prevention of deterioration of the status of bodies of surface water – Article 4(7) – Derogation from the prohibition of deterioration – Overriding public interest – Authorisation to construct a hydropower plant on the Schwarze Sulm River (Austria) – Deterioration of the water status

C-346/14, [2016] EUECJ C-346/14
Bailii
Directive 2000/60/EC 4(1), TFEU 288

European, Utilities

Updated: 09 November 2021; Ref: scu.563111

Nikolajeva v Multi Protect OU: ECJ 22 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – EU trade mark – Regulation (EC) No 207/2009 – Article 9(3) and Article 102(1) – Obligation on an EU trade mark court to issue an order prohibiting a third party from proceeding with acts of infringement – No application seeking such an order – Concept of ‘special reasons’ for not ordering such a prohibition – Concept of ‘reasonable compensation’ in respect of acts occurring after publication of an application for registration of an EU trade mark and before publication of the registration of the trade mark

ECLI:EU:C:2016:467, [2016] EUECJ C-280/15
Bailii
Regulation (EC) No 207/2009 993) 102(1)

European, Intellectual Property

Updated: 09 November 2021; Ref: scu.565861

Aroa Bodegas v OHMI – Bodegas Muga (Aroa): ECFI 11 Sep 2014

aroabodegasECFI1409

ECFI Judgment – Community trade mark – Opposition proceedings – Application for Community figurative mark aroa – Earlier national figurative mark Aro – Relative ground for refusal – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation (EC) No 207 / 2009 – Partial refusal to register

MM. G. Berardis, P
T-536/12, [2014] EUECJ T-536/12
Bailii
Regulation (EC) No 207/2009

European, Intellectual Property

Updated: 09 November 2021; Ref: scu.536548

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 for overtime which the employees in two appeals before it were required to work, though which their employer was not obliged to offer as a minimum, is part of normal remuneration and to be included as such in the calculation of pay for holiday leave taken under regulation 13 of the Working Time Regulations 1998.
Those Regulations could be interpreted so as to conform to that interpretation.
An appeal by Bear Scotland was thus rejected, as were (on these issues) appeals by Hertel and Amec.
A further appeal by Hertel and Amec against the ET’s findings that the Claimants could claim the consequent arrears of pay as being unlawful deductions from their pay under the ERA 1996 (on the basis that on each occasion holidays were not paid in accordance with the true interpretation of Article 7 and the WTR the deduction was one of a series of deductions) was allowed insofar as in any case a period of more than three months elapsed between such deductions. Their appeal against a conclusion that contractual payments for PILON should include payment for 44 hours per week (including 6 hours overtime) also succeeded, upon a construction of the relevant contractual provisions.
A cross-appeal by the Claimants in Hertel and Amec succeeded against the ET’s decision that taxable remuneration for time spent travelling to work did not fall within ‘normal remuneration’ for the purpose of calculating holiday pay.

Langstaff P J
UKEATS/0047/13/BI, UKEAT/0160/14/SM, UKEAT/0161/14/SM, [2014] UKEAT 0047 – 13 – 0411, [2015] ICR 221, [2015] 1 CMLR 40, [2015] IRLR 15
Judiciary, Bailii
Working Time Regulations 1998, Working Time Directive (2003/88/EC) 7, Employment Rights Act 1996
England and Wales
Citing:
Cited – 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 . .
Cited – 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 . .

Cited by:
Cited – British Gas Trading Ltd v Lock and Another (Working Time Regulations : Holiday Pay) EAT 22-Feb-2016
EAT WORKING TIME REGULATIONS – Holiday pay
Mr Lock was at the material time employed by British Gas as a salesman. His remuneration package included a basic salary plus commission which was based on the . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Leading Case

Updated: 09 November 2021; Ref: scu.538258

Kolassa v Barclays Bank plc: ECJ 3 Sep 2014

kolassaECJ1409

ECJ (Advocate General’s Opinion) Area of ??Freedom, Security and Justice – Jurisdiction in civil and commercial matters – Contracts concluded by consumers – Consumer domiciled in a Member State, who bought on the secondary market, with an intermediary established in another State Member, securities issued by a bank established in a third Member State – Competence for recourse against the bank issuing such securities

Sczpunar AG
C-375/13, [2014] EUECJ C-375/13 – O, [2015] EUECJ C-375/13
Bailii, Bailii

European, Consumer, Banking

Updated: 09 November 2021; Ref: scu.536451

Pendragon Plc and Others v HM Revenue and Customs: CA 23 Jul 2013

The Revenue had imposed a penalty on the appellants saying that their arrangement for the sale and VAT taxation of demonstrator cars was, in European law terms. The taxpayer sought re-instatment of the First Tier Tribunal judgment in its favour.
Held: The appeal succeeded: ‘the First-Tier Tribunal was entitled, on a comprehensive objective evaluation of the arrangements, to come to the conclusion that no element of the arrangement was inserted artificially, and that the arrangements were not abusive or artificial.’
Lloyd LJ summarised the scheme: ‘Step 1. Pendragon plc, having bought new cars from, say, Ford, sold new cars which were destined for use as demonstrator cars, before sale to a consumer, to Captive Cos 1, 2, 3 and 4 (‘the Captive Leasing Companies’ or CLCs). (In fact only three companies were used, but I use the language which has been used elsewhere to describe the Scheme, in order not to generate unnecessary confusion.) Pendragon plc’s sale of the cars to a CLC was a taxable supply of goods for VAT purposes. Therefore, Pendragon plc accounted for output tax on the sale of the cars; and reclaimed input tax, including the tax incurred on the purchase from Ford.
Step 2. On the same day as Step 1, the Captive Leasing Companies leased the cars pursuant to hybrid HP/lease agreements to dealership companies in the Pendragon Group (‘the Dealerships’). Each of the Captive Leasing Companies entered into a ‘Vehicle Demonstrator Hire Agreement’ (referred to as a hybrid lease) in favour of the Dealerships. Paragraph 8(c) of Second Schedule to the hybrid leases (generally referred to as clause 8(c), as I will refer to it hereafter, so as to avoid confusion) conferred on the Dealership an option to purchase the hired vehicles. The option was exercisable seven days after the end of the hire agreement, and not earlier.
The services provided by the Captive Leasing Companies to the Dealerships under the Vehicle Demonstrator Hire Agreement were taxable supplies at the standard rate of VAT. Input tax incurred by the Captive Leasing Companies on the purchase of the vehicles from Pendragon plc at Step 1 was therefore fully recoverable, being attributable to the making of those taxable supplies of leasing to the Dealerships. The Dealerships incurred VAT on the rental payments but recovered that VAT in full, being attributable to their taxable sale activities.
Step 3. On the day following Steps 1 and 2, the Captive Leasing Companies began assigning the hybrid lease agreements and title in the cars to SG Hambros Bank and Trust (Jersey) Ltd, known in the case as Soc Gen Jersey (SGJ), which was resident in Jersey, not in the UK. Each of the Captive Leasing Companies entered into a Deed of Assignment with SGJ. SGJ paid the Captive Leasing Companies the sum of approximately andpound;20m. On the same date, SGJ had entered into a facility agreement with its parent company in the UK, SG London, in relation to the facility of andpound;20m to finance the assignments. SGJ granted SG London an assignment of the assets to be assigned to it, as a form of security.
This step was critical to the success of the Scheme. It depended on the assignment of a lease, granted by a Captive Leasing Company to a Pendragon dealership, to a bank; according to HMRC this had to be an offshore bank, as it in fact was. No VAT was due on this transaction. The assignment by the Captive Leasing Companies to SGJ was not a supply for VAT purposes, by virtue of article 5(4) of the Special Provisions Order, which ‘de-supplied’ it, ie treated it as neither a supply of goods nor a supply of services.
Step 4. On a date envisaged as being some 30 to 45 days later, SGJ transferred as a going concern the lease agreements and title in the cars to Captive Co 5. Captive Co 5 resolved to purchase the relevant ‘hire business’ carried on by SGJ. On the same day, SGJ contracted with Captive Co 5 to sell to it the business of the hire of cars said to have been carried on by SGJ. The consideration was in excess of andpound;18m and was apportioned as to andpound;100,000 for the sale of goodwill and as to the balance (save for andpound;2) for the sale of the motor vehicles. That agreement was completed on the same date, and Captive Co 5 paid the agreed price to SGJ.
The sale by SGJ to Captive Co 5 of its ‘hire business’ was the transfer of a business as a going concern (TOGC). As such the transaction was neither a supply of goods nor a supply of services; therefore no VAT was due on this transaction.
Step 5. On various dates thereafter, the cars were sold to customers by the Dealerships, acting as undisclosed agents for Captive Co 5 in which title to the vehicles was vested. VAT was charged to the purchasers on the seller’s profit margin on the sale, rather than on the total sale price, Captive Co 5 having opted to apply the margin scheme.
When Captive Co 5 sold the vehicles to the retail customer, the Cars Order applied. The tax relief provided for by article 8 of that Order applied only where the taxable person making the sale had come into possession of the car in the circumstances set out in article 8(2), which I will set out below. If those requirements were met, and if the option was exercised that the margin scheme should apply, then VAT was due only on the profit margin on the supply, rather than on the whole value received for the supply. This meant that Captive Co 5 accounted for VAT on the difference between the cost of the car on the purchase from SGJ, and the price at which it sold the car to the consumer. By means of the de-supplied assignment of the leases to SGJ at Step 3, and the TOGC from SGJ at Step 4, the Scheme was designed to meet the taxation requirements of the Cars Order.’

Lloyd, Lewison, Gloster LJJ
[2013] EWCA Civ 868, [2014] STC 844, [2013] STI 2568, [2013] BVC 414
Bailii
First Council Directive on VAT, 67/227/EEC 2, VAT (Cars) (Amendment) Order 1995 SI 1995/1269, VAT (Cars) Amendment) Order 1997 SI 1997/1615
England and Wales
Citing:
Appeal from – HM Revenue and Customs v Pendragon UTTC 15-Mar-2012
UTTC VALUE ADDED TAX – margin scheme for second-hand goods – arrangement by which motor dealer raised finance and became able to sell demonstrator cars within margin scheme – whether abusive – yes – appeal . .
At FTT – Pendragon Plc and Others v Revenue and Customs FTTTx 31-Jul-2009
FTTTx VAT- financing involving sale of business – Abuse? No financing transaction as going concern which gave margin treatment – Appeal allowed . .
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 . .
Cited – Ministero dell’Economia e delle Finanze v Part Service Srl ECJ 21-Feb-2008
ECJ Sixth VAT Directive Articles 11A(1)(a) and 13B(a) and (d) – Leasing – Artificial division of the supply into a number of parts – Effect Reduction of the taxable amount – Exemptions – Abusive practice . .
Cited – HM Revenue and Customs v Weald Leasing (Taxation) ECJ 2-Dec-2010
ECJ Sixth VAT Directive – Concept of ‘abusive practice’ – Leasing transactions effected by a group of undertakings to spread the payment of non-deductible VAT . .
Cited – WHA Ltd and Another v Revenue and Customs SC 1-May-2013
The Court was asked as to the effectiveness of a scheme, known as Project C, designed to minimise the overall liability to VAT of a group of companies involved in motor breakdown insurance.
Held: The court dismissed WHA’s appeal. There had . .
Cited – Helena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
Cited – Mirror Group plc v Commissioners of Customs and Excise, Cantor Fitzgerald International v Same ECJ 9-Oct-2001
A potential lessee who did not have an interest in immovable property agreed to take a lease in return for money paid by the landlord. The transaction was not exempt from value-added tax under article 13(B)(b) as ‘the leasing or letting of immovable . .
Cited – Tesco Plc v Customs and Excise Commissioners CA 14-Oct-2003
The taxpayer had a loyalty scheme under which they issued vouchers to shoppers who had purchased goods to a certain value. They sought to deduct the sums when accounting for VAT.
Held: Upon earning 150 loyalty points in a quarter, vouchers . .

Cited by:
At CA – Revenue and Customs v Pendragon Plc and Others SC 10-Jun-2015
‘This appeal is about an elaborate scheme designed and marketed by KPMG relating to demonstrator cars used by retail distributors for test drives and other internal purposes. In the ordinary course, a car distributor will buy new cars for use as . .

Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 09 November 2021; Ref: scu.513554

Alfastar Benelux v Council: ECFI 20 Oct 2011

ECFI Public service contracts – Tendering procedure – Provision of technical maintenance and help desk and on-site intervention services for the PCs, printers and peripherals of the General Secretariat of the Council – Rejection of a tender – Obligation to state the reasons on which a decision is based

A. Dittrich, President, I. Wiszniewska-Bialecka and M. Prek (Rapporteur)
T-57/09, [2011] EUECJ T-57/09
Bailii

European

Updated: 09 November 2021; Ref: scu.445987

Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland: ECJ 15 Sep 2011

hafenECJ2011

ECJ Opinion – Customs Union – Common commercial policy – ACP/EU Cotonou Partnership Agreement – Preferential arrangements for products originating in ACP countries – Export of textiles originating in China from Jamaica to the European Union – Non-preferential origin of goods – Subsequent verification of movement certificates EUR.1 – Cooperation – European Anti-Fraud Office (OLAF) and Jamaican authorities – Post-clearance recovery of import duties – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Community Customs Code – Burden of proof – Legitimate expectations

Mazak AG
C-409/10, [2011] EUECJ C-409/10
Bailii
Regulation (EEC) No 2913/92 220(2)(b)
Cited by:
Opinion – Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland ECJ 15-Dec-2011
ECJ Common commercial policy – Preferential regime for the importation of products originating in the African, Caribbean and Pacific (ACP) States – Irregularities detected during an investigation carried out by . .

Lists of cited by and citing cases may be incomplete.

European

Updated: 09 November 2021; Ref: scu.444370

Regina v E: CACD 26 Apr 2004

The court was asked as to the permissibility of admitting covert recordings of the accused’s car by investigating officers, which recorded the accused’s words as they spoke into their telephones. The defendants said that this amount to interception of the calls.
Held: If what happened was interception, evidence of the content of any telephone calls is rendered inadmissible by section 17(1)(a). However: ‘the natural meaning of the expression ‘interception’ denotes some inference or abstraction of the signal, whether it is passing along wires or by wireless telegraphy, during the process of transmission. The recording of a person’s voice, independently of the fact that at the time he is using a telephone, does not become interception simply because what he says goes not only go into the recorder, but, by separate process, is transmitted by a telecommunications system.’
RIPA should be construed, if possible, so as to comply with Article 8, European Convention on Human Rights and the relevant Directives.

Rose VP CACD LJ, Hughes, Gloster JJ
Times 27-May-2004, [2004] EWCA Crim 1243, [2004] 1 WLR 3279, [2004] 2 Cr App R 29
Bailii
Criminal Procdures and Investigations Act 1996 35, Criminal Procedure and Investigations Act 1996 29, Regulation of Investigatory Powers Act 2000, Directive 97/66, Police Act 1997 92
Citing:
Cited – Regina v Effik; Regina v Mitchell HL 22-Jul-1994
The material obtained by intercepting signals passing between a base unit and the handset of a cordless telephone was admissible because no communication was being made by means of a public system when the calls were intercepted by the police. A . .

Cited by:
Cited – Edmondson and Others v Regina CACD 28-Jun-2013
Course of Transmission includes Voicemails
The defendants appealed against convictions for conspiracy to intercept telephone voicemail messages whilst employed in various positions in newspapers. The issue boiled down to when the ‘course of transmission’ of a voicemail message ended, that is . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Human Rights, European, Police

Leading Case

Updated: 09 November 2021; Ref: scu.466413

Hervis Sport-Es Divatkereskedelmi Kft v Nemzeti Ado-Es Vamhivatal Kozep-Dunantuli Regionalis Ado Foigazgatosaga: ECJ 5 Sep 2013

hervis_nemzetiECJ092013

ECJ Opinion – Taxation – Freedom of establishment – Article 401 of Directive 2006/112/EC – National tax on store retail trade in certain economic sectors – Progressive rate of tax in the case of a taxable amount based on turnover – Comparison of undertakings related in a group and in a franchise system

Kokott AG
C-385/12, [2013] EUECJ C-385/12, [2014] EUECJ C-385/12
Bailii, Bailii
Directive 2006/112/EC

European, Taxes – Other

Updated: 09 November 2021; Ref: scu.515251

Content Services Ltd v Bundesarbeitskammer: ECJ 6 Mar 2012

Content_serviceECJ0312

ECJ Opinion – Consumer protection – Distance contracts – Directive 97/7/EC – Article 5 – Information that the consumer must ‘receive’ in a ‘durable medium’ – Information available on a website which the consumer can access via a hyperlink

Mengozzi AG
C-49/11, [2012] EUECJ C-49/11
Bailii
Directive 97/7/EC
Cited by:
Opinion – Content Services Ltd v Bundesarbeitskammer ECJ 5-Jul-2012
ECJ Reference for a preliminary ruling – Directive 97/7/EC – Consumer protection – Distance contracts – Consumer information – Information given or received – Durable medium – Meaning – Hyperlink on the website . .

Lists of cited by and citing cases may be incomplete.

European, Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.463186

Barreiro, Alonso, Rodriguez v Air France: ECJ 28 Jun 2011

barreiroECJ11

ECJ Air transport – Assistance, care and compensation for passengers – Meaning of ‘cancellation’ and ‘further compensation’

C-83/10, [2011] EUECJ C-83/10
Bailii
Cited by:
Opinion – Barreiro, Alonso, Rodriguez v Air France SA ECJ 13-Oct-2011
Reference for a preliminary ruling – Air transport – Regulation (EC) No 261/2004 – Article 2(l) – Compensation for passengers in the event of cancellation of a flight – Meaning of ‘cancellation’ – Article 12 – Meaning of ‘further compensation’ – . .

Lists of cited by and citing cases may be incomplete.

European, Transport, Consumer

Updated: 09 November 2021; Ref: scu.441288

HP Bulmer Ltd and Another v J Bollinger Sa and others: CA 22 May 1974

Necessity for Reference to ECJ

Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. But if decided the other way, it would mean that the trial would have to go its full length. It would not in those circumstances be ‘necessary’ for a preliminary ruling to be sought. When the facts are investigated, it might turn out to have been quite unnecessary. For this reason, Lord Denning concluded that as a rule it is only after the facts are ascertained that a determination can be made that a reference is necessary.
Denning described the effect of the EC Treaty: ‘The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the Common Market besides ourselves. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’
. . And: ‘ In the task of interpreting the Treaty, the English Judges are no longer the final authority. They no longer carry the law in their breasts. They are no longer in a position to give rulings which are of binding force. The supreme tribunal for interpreting the Treaty is the European Court of Justice, at Luxembourg. Our Parliament has so decreed.’
Stephenson LJ discussed article 177 saying: ‘(i) The rulings which the European Court has jurisdiction to give under Article 177(1) are not strictly ‘preliminary’. They do not have to be given ‘in limine’ before the Court of the Member State crosses the threshold and begins to hear a dispute, but they can be given at any time before the Court finishes hearing the dispute by giving judgment. The ruling is in that sense ‘prejudicial’, not necessarily preliminary, though it may be.
(ii) Article 177(2) confers a power, whereas Article 177(3) imposes an obligation. A lower Court of a Member State ‘may’ request a ruling, a final Court ‘shall’. The contrast in the language is as clear as in the section of the English statute which this Court construed in Re Baker (1890) 44 Ch. Div. 262, and has the same effect: the lower Court is trusted with a discretion, the final Court is not. All attempts to blur the distinction between the power of the one and the duty of the other when a question is raised under Article 177(1) break down on the different wording of Article 177(2) and (3). Section 2(1) of the European Communities Act 1972 distinguishes powers from obligations, and so by this wording does Article 177, by whatever canon of construction it is interpreted. The European Court has always recognised that distinction; e.g. in Da Costa en Schaake N.V. and Others v. Nederlande Belasting -administratie (1963) 2 C.M.L.R. 224, 237; and has recently emphasised it and described the power given to the national Courts by Article 177(2) as conferring on them ‘the widest discretion’, which no domestic Court of Appeal can fetter: Firma Rheinmuhlen Dusseldorf v. Enfuhr und Vorratsstelle fur Getreide und Futtermittal, case 166/73 shortly reported in The Times Newspaper of 16th February 1974; to which my Lord has already referred,
(iii) The only questions which the Courts of a Member State can, or in some cases must, refer to the European Court are questions of law within Article 177(1) on which decisions are necessary to enable them to give judgment. If they consider that they can give judgment in the dispute in which the question is raised without deciding the question, they need not and indeed must not trouble the European Court by requesting a ruling or bringing the matter before it. Section 3(1) of the 1972 Act recognises that questions within Article 177(1) are questions of law and may be for determination by our Courts without referring them to the European Court. That is how the Courts of Member States have rightly proceeded, including English Judges, Mr. Justice Whitford among them: Lerose Ltd. v. Hawick Jersey International Ltd. (1972) 12 C.M.L.R. 83.’

Lord Denning MR, Stamp, Stephenson LJJ
[1974] EWCA Civ 14, [1974] 2 All ER 1226, [1974] 3 WLR 202, [1974] Ch 401
Bailii
Regulation 816/76 30, Regulation 817/70 12, European Community Act 1972 2(1) 83, Treaty of Rome 177
England and Wales
Citing:
Cited – Vine Products Ltd v Mackenzie and Co Ltd (the Sherry Case) ChD 1969
Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to . .
Cited – Bollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .
Cited – John Walker and Sons Ltd v Henry Ost and Co Ltd ChD 1970
The plaintiff whisky distiller claimed in passing-off against the defendant who supplied bottles and labels to a distiller in Ecuador.
Held: An injunction was granted. Having cited from Singer v Loog, the court added: ‘I would be slow to . .
Cited – Da Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration ECJ 27-Mar-1963
ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the . .
Cited – Van Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
Cited – Hessische Knappschaft v Maison Singer And Sons ECJ 9-Dec-1965
Procedure – 1. Since the right to determine the questions to be brought before the court devolves upon the court or tribunal of the member state alone, the parties may not change their tenor or have them declared to be without purpose.
2. The . .
Cited – Fratelli Grassi Fu Davide v Italian Finance Administration. (Questions Referred To The Court For A Preliminary Ruling) ECJ 15-Jun-1972
ECJ According to article 177 of the Treaty it is for the national court and not the parties to the main action to bring a matter before the court of justice.
Since the power to formulate the questions to be . .

Cited by:
Cited – Commissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .
Cited – Fisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding . .
Applied – Coast Telecom Ltd v Revenue and Customs FTTTx 11-Apr-2012
Procedure – application for stay pending determination of references to CJEU – whether First-tier Tribunal bound by Mobilx – yes – whether determination of references would materially assist determination of appeal – no – whether expedient to order . .
Cited – The Number (UK) Ltd and Another v Office of Communications CAT 24-Nov-2008
. .
Cited – Vehicle and Operator Services Agency v Jones (Nell) Admn 5-Oct-2005
The Agency appealed against dismissal of its allegation that the defendant had wrongfully withdrawn his tachograph record. He had lifted the top of the tachograph which had the effect if disengaging the marker without actually removing the record . .
Cited – Fage UK Ltd and Another v Chobani UK Ltd and Another CA 28-Jan-2014
Lewison LJ said: ‘Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.262729

Puligienica Facility Esco SpA v Airgest SpA: ECJ 5 Apr 2016

ECJ (Judgment) (Grand Chamber) Reference for a preliminary ruling – Public service contracts – Directive 89/665/EEC – Article 1(1) and (3) – Review procedures – Application for annulment of the decision awarding a public contract by a tenderer whose bid was not successful – Counterclaim brought by the successful tenderer – Rule derived from national case-law under which the counterclaim must be examined first and, if the counterclaim is well founded, the main action must be dismissed as inadmissible without any examination of the merits – Whether compatible with EU law – Article 267 TFEU – Principle of the primacy of EU law – Principle of law stated by decision of the plenary session of the supreme administrative court of a Member State – National legislation which provides that that decision is binding on the chambers of that court – Obligation on the part of the chamber required to adjudicate on a question of EU law to refer that question to the plenary session if it disagrees with the decision of the plenary session – Whether the chamber has a discretion or is under an obligation to request a preliminary ruling from the Court of Justice

C-689/13, [2016] EUECJ C-689/13, ECLI:EU:C:2016:199, [2016] WLR(D) 172
Bailii, WLRD
Directive 89/665/EEC

European

Updated: 09 November 2021; Ref: scu.561990

Commission v United Kingdom C-308/14: ECJ 14 Jun 2016

ECJ (Judgment) Failure of a Member State to fulfil obligations – Coordination of social security systems – Regulation (EC) No 883/2004 – Article 4 – Equal treatment as regards access to social security benefits – Right of residence – Directive 2004/38/EC – National legislation under which child benefit and child tax credit are not granted to nationals of other Member States who do not have a right of lawful residence

[2016] WLR(D) 305, ECLI:EU:C:2016:436, [2016] EUECJ C-308/14
WLRD, Bailii
Regulation (EC) 883/2004, Directive 2004/38/EC
European

Benefits

Updated: 09 November 2021; Ref: scu.565602

DK Recycling und Roheisen v Commission: ECJ 22 Jun 2016

(Judgment) Appeal – Environment – Directive 2003/87/EC – Article 10a – Scheme for greenhouse gas emission allowance trading – Transitional rules for harmonised free allocation of emission allowances from 2013 – Decision 2011/278/EU – National implementation measures submitted by the Federal Republic of Germany – Rejection of the inscription of certain installations on the lists of installations receiving free allocations of emission allowances – Provision relating to cases of ‘undue hardship’ – Implementing powers of the Commission

ECLI:EU:C:2016:469, [2016] EUECJ C-540/14
Bailii
Directive 2003/87/EC

European, Environment

Updated: 09 November 2021; Ref: scu.565857

Content Services Ltd v Bundesarbeitskammer: ECJ 5 Jul 2012

ECJ Reference for a preliminary ruling – Directive 97/7/EC – Consumer protection – Distance contracts – Consumer information – Information given or received – Durable medium – Meaning – Hyperlink on the website of the supplier – Right of withdrawal
‘a durable medium, within the meaning of Article 5(1) of Directive 97/7, must ensure that the consumer, in a similar way to paper form, is in possession of the information referred to in that provision to enable him to exercise his rights where necessary.
Where a medium allows the consumer to store the information which has been addressed to him personally, ensures that its content is not altered and that the information is accessible for an adequate period, and gives consumers the possibility to reproduce it unchanged, that medium must be regarded as ‘durable’ within the meaning of that provision.’
. . And: ‘a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1). ‘

K Lenaerts, P
[2012] EUECJ C-49/11, C-49/11, [2012] WLR(D) 195
Bailii, WLRD
Directive 97/7/EC
European
Citing:
Opinion – Content Services Ltd v Bundesarbeitskammer ECJ 6-Mar-2012
Content_serviceECJ0312
ECJ Opinion – Consumer protection – Distance contracts – Directive 97/7/EC – Article 5 – Information that the consumer must ‘receive’ in a ‘durable medium’ – Information available on a website which the consumer . .

Lists of cited by and citing cases may be incomplete.

Consumer

Leading Case

Updated: 09 November 2021; Ref: scu.515275

Staatssecretaris van Financien v TNT Freight Management: ECJ 12 Jul 2012

ECJ Common Customs Tariff – Combined Nomenclature – Tariff headings 3002 and 3502 – Blood albumin prepared for therapeutic or prophylactic uses – Processing of the product

Lenaerts P
C-291/11, [2012] EUECJ C-291/11
Bailii
European

Customs and Excise

Updated: 09 November 2021; Ref: scu.463249

Sc Gran Via Moinesti Srl v Agentia Nationala De Administrare Fiscala (Anaf): ECJ 29 Nov 2012

ECJ Directive 2006/112/EC – Value added tax – Articles 167, 168 and 185 – Right of deduction – Adjustment of deductions – Acquisition of land and buildings constructed on that land, with a view to demolishing the buildings and carrying out a construction project on the land.

C-257/11, [2012] EUECJ C-257/11
Bailii
Directive 2006/112/EC 167 168 185
European

European, VAT

Updated: 09 November 2021; Ref: scu.466427

In Re I (A Child): SC 1 Dec 2009

The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. Contact was re-established, but the child was now habitually resident in Pakistan. It was now asked whether the court had any remaining jurisdiction to make orders about the child under the 1986 Act, incorporating Brussels II revised, and was it possible for the parties by agreement to give the court that jurisdiction. Pakistan had neither signed nor ratified the Convention.
Held: The mother’s appeal was allowed. The court had jurisdiction to make orders in respect of the child.
Nothing in the Regulations limited jurisdiction to children habitually resident in the EU. The time of seisin is fixed when the document initiating the proceedings is lodged with the court or, if it has to be served before lodging, is received by the authority responsible for service, although in each case the court may not actually be seised if the applicant does not take the steps required to inform either the respondent or the court.
The parties had each displayed unequivocal acceptance of the jurisdiction, and should not be allowed to withdraw it. Furthermore it had been decided that it was in the best interests of the child that the UK court should continue to deal with the issue.
Lord Clarke said: ‘As I see it, as stated above, the way article 16 works is that there is seisin on the date identified subject to a condition defeasant. That is not a case of apparent seisin maturing into actual seisin but there being actual seisin, which would take priority over any subsequent seisin, unless there was no service or lodgement.’
Orse: Re I (A Child) (Contact Application: Jurisdiction)

Lord Hope, Deputy President, Lady Hale, Lord Collins, Lord Kerr, Lord Clarke
[2009] UKSC 10, UKSC 2009/0075, [2010] 1 All ER 445, [2009] 3 WLR 1299, [2010] 1 FCR 200, [2010] 1 AC 319, [2010] Fam Law 237, [2010] 1 FLR 361
Bailii, SC, SC Summ
Council Regulation (EC) No 2201/2003, Children Act 1989, Family Law Act 1986 2, Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
England and Wales
Citing:
Cited – Bush v Bush CA 24-Jul-2008
The court accepted jurisdiction over a child habitually resident abroad with the written consent of both parties. . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .

Cited by:
Cited – Thum v Thum FC 21-Oct-2016
No abuse of process in service error
The husband claimed that the W was guilty of abuse of process by issuing the divorce petion, but then not serving it for many months in an attempt to gain a tactical jurisdictional advantage under Brussels II.
Held: H’s application was . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – In Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .

Lists of cited by and citing cases may be incomplete.

Children, European

Updated: 09 November 2021; Ref: scu.381642

Owusu v Jackson: ECJ 1 Mar 2005

ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in a non – Contracting State – Forum non conveniens – Incompatibility with the Brussels Convention.
Article 2 of the Brussels Convention ‘should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts . . he may be sued.’ The Court also mentioned the requirement of ‘predictability of the rules of jurisdiction’ in the Convention, and to ‘the principle of legal certainty, which is the basis of the Convention.’
The English court could not decline jurisdiction: ‘application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. . . the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state’.

C-281/02, [2005] EUECJ C-281/02, Times 09-Mar-2005, [2005] ILPr 25, [2005] ECR I-553, [2005] 2 All ER (Comm) 577, [2005] QB 801, [2005] 1 CMLR 43, [2005] 1 Lloyds Rep 452, [2005] 1 CLC 246, [2005] 2 WLR 942, [2005] ECR I-1383
Bailii
Council Regulation (EC) 44/2001
European
Citing:
Reference from – Owusu v Jackson, Mammee Bay Resorts Limited etc CA 19-Jun-2002
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .

Cited by:
Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – 889457 Alberta Inc v Katanga Mining Ltd and others ComC 5-Nov-2008
The parties had set out on a joint venture with deeds providing for control of the shareholdings in each other. The claimant asserted a breach of the deed and sought a remedy. The first defendant company, incorporated in Bermuda argued that the . .
Cited – Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd and Others ChD 24-Jul-2009
The parties disputed ownership of shares in the football club Dynamo Kiev. Claims were to be made under Ukrainian company law and in equity. The claimant (a company registered in Mauritius) sought to proceed here. The defendants (largely companies . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – High Tech International Ag and others v Deripaska QBD 20-Dec-2006
The clamants brought actions for damages for torts said to have been committed by the defendants in Russia. They said that the defendant was domiciled within the jurisdiction under the EU Regulation.
Held: Domicile for the issue of . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Distinguished – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .

Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Leading Case

Updated: 09 November 2021; Ref: scu.223250

IFG Intercontinentale Fleischhandelsgesellschaft Mbh and Co. Kg v Freistaat Bayern: ECJ 31 Jan 1984

Health controls on importation of meat from non-member countries.

R-1/83, [1984] EUECJ R-1/83
Bailii
European

European

Updated: 09 November 2021; Ref: scu.215199

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 documents concerning the main proceedings the points of Community law needing to be interpreted, having regard to the subject-matter of the dispute.
2. Article 3 of Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community is to be interpreted as making any discharge of cadmium, irrespective of the date on which the plant from which it comes commenced operation, subject to the issue of a prior authorization.
In the absence of full transposition by a Member State, within the time allowed, of the directive in question and therefore of Article 3 thereof, and of Directive 83/513 on limit values and quality objectives for cadmium discharges, a public authority of that State may not rely on Article 3 of Directive 76/464 against an individual, since that possibility exists only for individuals and only in relation to ‘each Member State to which it is addressed’.
3. Although there is no method of procedure in Community law allowing the national court to eliminate national provisions contrary to a provision of a directive which has not been transposed where that provision may not be relied upon before the national court, the Member States’ obligation under such a directive to achieve the result envisaged by the directive and their duty, under Article 5 of the Treaty, to take all appropriate measures, whether general or particular, to ensure fulfilment of that obligation, are binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, the national court called upon to interpret a directive is required to do so, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result pursued by the directive and thereby comply with the third paragraph of Article 189 of the Treaty.
However, that obligation of the national court to refer to the content of the directive when interpreting the relevant rules of its national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’ s provisions.

Kakouris R P
[1997] All ER (EC) 82, C-168/95, [1996] EUECJ C-168/95
Bailii
Directive 76/464 3
Cited by:
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

European

Leading Case

Updated: 09 November 2021; Ref: scu.161597

Howe v Motor Insurers’ Bureau: QBD 22 Mar 2016

The claimant sought damages after a road traffic accident in France caused by a wheel spinning from a still unidentified lorry.
Held: Rejected

Stewart J
[2016] EWHC 640 (QB), [2016] WLR(D) 171, [2016] 1 WLR 2707, [2016] Lloyd’s Rep IR 359
Bailii, WLRD
Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, Parliament and Council Directive 2000/26/EC 7
England and Wales
Citing:
Cited – Swansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Personal Injury, European, Limitation

Updated: 09 November 2021; Ref: scu.562171

Siba v Devenas: ECJ 15 Jan 2015

Judgment – Reference for a preliminary ruling – Directive 93/13/EEC – Scope – Consumer contracts – Contract for the provision of legal services concluded between a lawyer and a consumer

J Malenovsky P
C-537/13, [2015] EUECJ C-537/13, ECLI:EU:C:2015:14
Bailii
Directive 93/13/EEC
European

Legal Professions, Consumer

Updated: 09 November 2021; Ref: scu.541501

Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA: ECJ 17 Jul 2014

ECJ Judgment – Preliminary ruling – Directive 93/13/EEC – Article 7 – Charter of Fundamental Rights of the European Union – Article 47 – Contracts with consumers – mortgage contract – Unfair – foreclosure procedure – Right of Appeal

A Tizzano, P
ECLI:EU:C:2014:2099, [2014] EUECJ C-169/14
Bailii
Directive 93/13/EEC, Charter of Fundamental Rights of the European Union
European
Citing:
Order – Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA ECJ 5-Jun-2014
(Order Of The Court) . .
Position – Sanchez Morcillo And Abril Garcia v Banco Bilbao Vizcaya Argentaria SA ECJ 3-Jul-2014
ECJ Position – Directive 93/13/EEC – Unfair terms in contracts concluded with consumers – adequate and effective means for the continued use of unfair terms – Limiting the possibility of appeal against a ruling . .

Lists of cited by and citing cases may be incomplete.

Consumer, Human Rights

Updated: 09 November 2021; Ref: scu.535388

Healthcare at Home Ltd v The Common Services Agency: SC 30 Jul 2014

The court asked how to apply the concept in European law of ‘The reasonably well-informed and diligent tenderer’. The pursuer had had a contract for the delivery of healthcare services, but had lost it when it was retendered.
Held: When an unsuccessful tenderer for a public contract challenges that award, the issue as to whether the criteria for the award of the contract had been sufficiently clearly set out was to be decided by the court by applying an objective legal standard with reference to a reasonably well informed and diligent tenderer. It did not depend on the evidence of witnesses as to how they had understood the document.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hughes
[2014] UKSC 49, [2014] WLR(D) 351, UKSC 2013/0108, [2014] PTSR 1081, 2014 GWD 25-505, 2014 SLT 769
Bailii, WLRD, Bailii Summary, SC Summary, SC
Scotland
Citing:
Outer House – Healthcare At Home Ltd v The Common Services Agency SCS 1-Feb-2011
Outer House – The pursuer sought an order in terms of the Regulation, setting aside the decision of the defender to award the ‘NP 341/10 Trastuzumab Homecare and Near Patient Treatment Services’ Framework Agreement to BUPA Home Healthcare Ltd. . .
Outer House (2) – Healthcare At Home Ltd v The Common Services Agency SCS 1-May-2012
Outer House – Healthcare challenged the award of a framework agreement contract to a competitor contractor. . .
Inner House – Healthcare At Home Ltd v The Common Services Agency SCS 21-Mar-2013
Inner House – Healthcare challenged the loss of a contract for provision of cancer treatments for their patients to a competitor. . .
Cited – Davis Contractors Ltd v Fareham Urban District Council HL 19-Apr-1956
Effect of Contract Frustration
The defendant appellants contended that their construction contract was frustrated because adequate supplies of labour were not available to it because of the war.
Held: The court considered how the frustration of the performance of a contract . .
Cited – SIAC Construction v County Council of the County of Mayo ECJ 18-Oct-2001
ECJ Public works contracts – Award to the most economically advantageous tender – Award criteria.
There was a disagreement between the parties as to the interpretation of tender documents.
Held: The . .
Cited – Commission v Netherlands ECJ 10-May-2012
ECJ Failure of a Member State to fulfil obligations – Directive 2004/18/EC – Procedures for the award of public works contracts, public supply contracts and public service contracts – Contract for the supply, . .
Cited – Evropaiki Dynamiki v EMSA ECFI 2-Mar-2010
ECJ Law Relating To Undertakings – Public service contracts EMSA tendering procedures – Provision of information technology services – Rejection of the tender – Action for annulment – Jurisdiction of the Court – . .
Cited – Lammerzahl GmbH v Freie Hansestadt Bremen ECJ 7-Jun-2007
Judgment – Law Relating To Undertakings – Public contracts Directive 89/665/EEC Review procedures concerning the award of public contracts Limitation period Principle of effectiveness
Article 1 of the Directive required member states to take . .
Cited – EVN AG et Wienstrom GmbH v Republik Osterreich ECJ 4-Dec-2003
ECJ Directive 93/36/EEC – Public supply contracts – Concept of the most economically advantageous tender – Award criterion giving preference to electricity produced from renewable energy sources – Directive . .
Cited – Universale-Bau and others v Entsorgungsbetriebe Simmering GmbH ECJ 12-Dec-2002
ECJ Judgment – Directive 93/37/EEC – Public works contracts – Definition of ‘contracting authority’ – Body governed by public law – Restricted procedure – Rules for weighting of criteria for selecting candidates . .

Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

European, Health Professions, Commercial

Updated: 09 November 2021; Ref: scu.535438

Louca v A German Judicial Authority: SC 19 Nov 2009

The defendant resisted extradition saying that the European Arrest Warrant was defective in not revealing the existence of two earlier such warrants. He said that absence of such information would hinder a court which was concerned as to possible abuse.
Held: The appeal failed. The information was optional, and the information missing from the request was information known in any event to the defendant. The words ‘any other warrant’ in section 2(4) do refer to any domestic arrest warrant that may exist.
In an accusation case, the requirement in section 2(4)(b) of the 2003 Act for information consisting of ‘particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence’ refers to ‘any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant’
The language of article 8.1 draws a distinction between a ‘European arrest warrant’ and in sub-paragraph (c) ‘an arrest warrant’, which indicates that the latter words refer to any domestic warrant.

Lord Hope, Deputy President, Lord Rodger, Lord Mance, Lord Collins, Lord Kerr
Times 24-Nov-2009, [2009] UKSC 4, [2010] 1 All ER 402, [2009] 1 WLR 2550, UKSC 2009/0047
Bailii, Bailii Summary, SC, SC Summary
Extradition Act 2003 2(2)(a) 4(b), Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states of the European Union (2002/584/JHA; OJ 2002 L190, pl)
England and Wales
Citing:
Cited – Regina v Liverpool Stipendiary Magistrates ex parte Ellison QBD 1990
Bingham LJ said: ‘If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is . .
Cited – Criminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
Appeal from – Louca v Public Prosecutor In Bielefel, Germany Admn 27-Nov-2008
The defendant objected to the extradition order, saying that the European arrest warrant relied on did not disclose other warrants issued for the same offences.
Held: The Act required the warrant to be validated by the issuing national court. . .
Cited – Zakowski v Regional Court In Szczecin, Poland Admn 16-May-2008
Maurice Kay LJ said that section 2(6)(c) of the 2003 Act ‘should be construed as referring only to other EAWs issued in respect of the offence.’ . .
Cited – Dabas v High Court of Justice, Madrid HL 28-Feb-2007
The defendant sought to appeal his extradition to Spain to face terrorism charges. He complained that the certificate required under the 2003 Act could not be the European arrest warrant itself, that the offence did not satisfy the double . .
Cited – Jaso and others v Central Criminal Court No.2 Madrid Admn 14-Dec-2007
The Madrid Court had issued European Arrest Warrants against the three appellants on charges of membership of a criminal organisation and terrorism. The appellants had unsuccessfully challenged extradition before the District Judge on a large number . .

Cited by:
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – Bucnys v Ministry of Justice SC 20-Nov-2013
The Court considered requests made by European Arrest Warrants for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The . .
Cited – Goluchowski and SAS v District Court and Circuit Court In Poland SC 29-Jun-2016
The appellants challenged the effectiveness of European Arrest Warrants, saying that the requests were deficient in not providing adequate details of warrants issued in support of the decisions. They had been convicted and sentenced to terms of . .

Lists of cited by and citing cases may be incomplete.

Extradition, European

Updated: 09 November 2021; Ref: scu.380325

OB v Aventis Pasteur SA: HL 11 Jun 2008

The claimant had been vaccinated with a HIB vaccine. He was severely injured and it was said that the vaccine was the cause, and a claim made under the 1987 Act. Originally the claim was made against a UK company, but it should have been against that company’s parent company. When the correct company was to be substituted, it said the claim was out of time. The House was asked where proceedings are commenced aganst someone wrongly identified as the producer ‘is it consistent with article 11 for the court to be able to say that the proceedings shall count as having been instituted against the real producer and amended accordingly? ‘
Held: There must be a further reference to the ECJ. It was not completely clear whether the ECJ had decided that provided a national court had due and proper regard to the Directive, it was permissible for that national court to treat proceedings against one company as if they were proceedings against another.

Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
[2008] UKHL 34
Bailii, HL
Council Directive 85/374/EEC 11, Consumer Protection Act 1987 35
England and Wales
Citing:
See Also – Horne-Roberts (a Child) v Smithkline Beecham plc and Another CA 18-Dec-2001
The court has a power to order substitution of a party though the limitation period, and even the ‘long stop’ limitation period had expired. The claimant child sought damages after a vaccination. The batch had been attributed to the wrong . .
At ECJ – Declan O’Byrne v Sanofi Pasteur MSD Ltd, formerly Aventis Pasteur MSD Ltd, Sanofi Pasteur SA ECJ 9-Feb-2006
ECJ Directive 85/374/EEC – Liability for defective products – Definition of -putting into circulation- of the product – Supply by the producer to a wholly owned subsidiary. . .
At QBD – O’Byrne v Aventis Pasteur MSD Ltd QBD 20-Oct-2006
The claimant sought damages under the 1967 Act asserting injury from a drug sold by the defendant. Proceedings had been mistakenly commenced against Aventis Pasteur MSD Ltd within the limitation period, but outside the limitation period, it was . .
Cited – Skov AEG v Bilka Lavprisvarehus A/S ECJ 10-Jan-2006
ECJ Directive 85/374/EEC – Liability for defective products – Liability of the supplier of a defective product.
The class of persons liable against whom an injured person is entitled to bring an action under . .
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 – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
At CA – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
Appeal from – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .

Cited by:
See Also – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
The claimant had made a mistake in naming the defendant company, but had intended the company which it now requested the court to substitute as defendant. The limitation period had expired.
Held: The substitution was necessary to decide the . .
See Also – O’Byrne v Aventis Pasteur Sa CA 9-Oct-2007
Whether two applications for leave to appeal between the same parties should be heard together. . .
At HL – Aventis Pasteur v O’Byrne (Environment And Consumers) ECJ 2-Dec-2009
Europa Directive 85/374/EEC – Liability for defective products Articles 3 and 11 Mistake in the classification of ‘producer’ Judicial proceedings – Application for substitution of the producer for the original . .
At HL – O’Byrne v Aventis Pasteur Sa SC 26-May-2010
The claimant wished to claim damages after suffering serious injury as a child having been vaccinated with a drug manufactured by a defendant (APMSD). The defendant had relied on a defence saying that the limitation period under the Directive was 10 . .

Lists of cited by and citing cases may be incomplete.

European, Limitation, Personal Injury

Updated: 09 November 2021; Ref: scu.268809

Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited: HL 2 Apr 1998

Chief Constable has a Wide Discretion on Resources

Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under community law.
Held: Police do not have an absolute duty to prevent breaches of the peace. A Chief Constable must have a wide discretion as to how his resources are applied. He had no duty to apply all the resources required to prevent a breach of peace. The actions of the police did not amount to a restraint on exports.
LMA Where the Authorities had taken some action, providing policing of demonstrations by animal rights protestors against the export of live animals on three days a week, but this was not enough to eliminate the effects of demonstrations on the export of live animals by the applicant. The HL found for the authorities but would the UK be seen to be in breach of its obligations had the question been referred to the ECJ. The majority of the HL suggested that, were the case to turn on the question of whether the Chief Constable’s decision as to the appropriate level of policy constituted a measure having an equivalent effect or not, that questions would have been referred.

Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Cooke of Thorndon, Lord Hope of Craighead
Gazette 10-Dec-1998, Times 16-Nov-1998, [1998] UKHL 40, [1999] 1 CMLR 1320, [1998] 3 WLR 1260, [1999] 2 AC 418, [1999] 1 All ER 129
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Regina v Chief Constable of Sussex Ex Parte International Trader’s Ferry Ltd CA 28-Jan-1997
A restriction placed by a chief constable on the police support he would make available to support a lawful trade was reasonable, even though it might amount to trade interference. The allocation of resources available to the Chief Constable was for . .
Cited – Regina v Coventry Airport Ex Parte Phoenix Aviation; Regina v Dover Harbour Board Ex Parte Gilder Admn 12-Apr-1995
A local authority operator of an airport suspended flights on aircraft transporting livestock; a harbour authority refused to allow cross-Channel services for the export of live animals; and a local authority challenged the decision of a statutory . .
Cited – Chief Constable of the North Wales Police v Evans HL 1982
The Court found the probationer police constable to have been unlawfully induced to resign, but the court could not order his reinstatement. A power must be exercised by the precise person or body stated in the statute. Though courts may review the . .
Cited – Harris v Sheffield United Football Club Ltd CA 1987
The court was asked whether services provided by the police at Sheffield United Football Club for the club’s home fixtures were ‘special police services’ so that, if they were provided at the club’s request, the police could charge for them. Up . .
Cited – Beatty v Gillbanks QBD 13-Jun-1882
The appellants assembled with others for a lawful purpose, and with no intention of carrying it out unlawfully, but with the knowledge that their assembly would be opposed, and with good reason to suppose that a breach of the peace would be . .
Cited – Regina v Pierre Bouchereau ECJ 27-Oct-1977
ECJ The different language versions of a community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference . .
Cited – Henri Cullet and Chambre syndicale des reparateurs automobiles et detaillants de produits petroliers v Centre Leclerc a Toulouse and Centre Leclerc a Saint-Orens-de-Gameville ECJ 29-Jan-1985
Europa ‘I would add that the acceptance of civil disturbances as justification for encroachments upon the free movement of goods would, as is apparent from experiences of the last year (and before, during the . .
At First Instance – Regina v Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd QBD 28-Jul-1995
A Chief Constable may not limit his duty to his immediate community if this interfered with lawful exports within the community. It was for the Chief Constable to decide on the disposition of his forces and the use of his resources. He was fully . .
Cited – Commission v France ECJ 9-Dec-1997
ECJ (Judgment) The Commission said France had failed to fulfil its obligations under the common organisation of the markets in agricultural, products and under Article 30, in conjunction with Article 5, of the EC . .
Cited – Van Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
Cited – Regina v Commissioner of Police of the Metropolis, Ex parte Blackburn CA 1968
Answerability of Chief Constables
The constitutional status of the Commissioner had never been defined, either by statute or by the courts. By common law police officers owe to the general public a duty to enforce the criminal law. The court considered the extent to which a court . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
Cited – Hurd v Jones (Judgment) ECJ 15-Jan-1986
‘ . . . [A] provision produces direct effect in relations between the Member States and their subjects only if it is clear and unconditional and not contingent on any discretionary implementing measure.’ and ‘According to a consistent line of . .
Cited – Commission v Belgium (Judgment) ECJ 14-Jan-1988
A Member State ‘may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law’. . .
Cited – Commission v Italy (Judgment) ECJ 12-Jul-1990
The Italian Government was held to have infringed Article 30 by closing all inland frontier posts at which imported grape fruit could be inspected and allowing importation only through certain seaports. . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .

Cited by:
Cited – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – North Yorkshire Police Authority, Regina (on The Application of) v The Independent Police Complaints Commission Admn 8-Jul-2010
No Review of IPCC’s Decision to Investigate
A complainant wanted the police force to investigate his mother’s treatment in a care home. When a decision was made that no criminal activity had been revealed, he asked the Police Authority to investigate, but they declined saying that the issue . .

Lists of cited by and citing cases may be incomplete.

Police, European

Leading Case

Updated: 09 November 2021; Ref: scu.135180

Soledad Duarte Hueros v Autociba Sa: ECJ 3 Oct 2013

ECJ Directive 1999/44/EC – Rights of the consumer in the event of lack of conformity in a product – Minor nature of that lack of conformity – Rescission of the contract not possible – Powers of the national courts

A Tizzano, P
C-32/12, [2013] EUECJ C-32/12
Bailii
European

Consumer

Updated: 09 November 2021; Ref: scu.516353

Google Spain Sl v Agencia Espanola De Proteccion De Datos (AEPD), Gonzalez: ECJ 13 May 2014

Internet Search Engine – Name Removal

ECJ Grand Chamber – Personal data – Protection of individuals with regard to the processing of such data – Directive 95/46/EC – Articles 2, 4, 12 and 14 – Material and territorial scope – Internet search engines – Processing of data contained on websites – Searching for, indexing and storage of such data – Responsibility of the operator of the search engine – Establishment on the territory of a Member State – Extent of that operator’s obligations and of the data subject’s rights – Charter of Fundamental Rights of the European Union – Articles 7 and 8
‘Article 2 (b) and (d) of Directive 95/46 are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as ‘processing of personal data’ within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the ‘controller’, in respect of that processing, within the meaning of Article 2(d)’.

V Skouris, P
[2014] EUECJ C-131/12, C-131/12, 36 BHRC 589, [2014] EMLR 27, ECLI:EU:C:2014:317, [2014] All ER (EC) 717, [2014] 3 WLR 659, [2014] ECDR 16, [2014] 2 All ER (Comm) 301, [2014] WLR(D) 202, [2014] 1 QB 1022, ECLI:EU:C:2014:317, [2014] 3 CMLR 50
Bailii, WLRD
Directive 95/46/EC, Charter of Fundamental Rights of the European Union 7 8
European
Citing:
Opinion – Google Spain Sl v Agencia Espanola De Proteccion De Datos (AEPD) Gonzalez ECJ 25-Jun-2013
Right to be forgotten by Search Engine
ECJ Opinion – World Wide Web – Personal data – Internet search engine – Data Protection Directive 95/46 – Interpretation of Articles 2(b) and 2(d), 4(1)(a) and 4(1)(c), 12(b) and 14(a) – Territorial scope of . .
Cited – Osterreichischer Rundfunk and Others ECJ 20-May-2003
ECJ Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the . .
Cited – Criminal proceedings against Lindqvist ECJ 6-Nov-2003
Mrs Lindqvist had set up an internet site for her local parish containing information about some of her colleagues in the parish. She gave names, jobs, hobbies and in one case some of the person’s employment and medical details. The Court decided . .
Cited – Tietosuojavaltuutettu v Satakunnan Markkinaporssi and Satamedia (Approximation Of Laws) ECJ 16-Dec-2008
ECJ Directive 95/46/EC Scope – Processing and flow of tax data of a personal nature – Protection of natural persons – Freedom of expression . .
Cited – College van burgemeester en wethouders van Rotterdam v MEE Rijkeboer ECJ 22-Dec-2008
ECJ Opinion – Data Protection Directive 95/46/EC Fundamental Rights – Right of access to personal data to any third party Suppression Communications – Exercise Period of the access principle of proportionality . .
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Asociacion Nacional De Establecimientos Financieros De Credito v Administracion Del Estado ECJ 24-Nov-2011
ECJ (Approximation Of Laws – Processing Personal Data) Processing of personal data – Directive 95/46/EC – Article 7(f) – Direct effect . .
Cited – Institut Professionnel Des Agents Immobiliers v Geoffrey Englebert ECJ 7-Nov-2013
ECJ Processing of personal data – Directive 95/46/EC – Articles 10 and 11 – Obligation to inform – Article 13(1)(d) and (g) – Exceptions – Scope of exceptions – Private detectives acting for the supervisory body . .

Cited by:
Cited – Mosley v Google Inc and Another QBD 15-Jan-2015
The claimant had successfully pursued action against a newpaper’s publication of a film of him engaging in sex with prostitutes, but others had retained copies of the film on-line. He now pursued an action against the search engine to oblige them to . .
Cited – NT1 v Google Llc QBD 18-Jan-2018
An application was made at this pre-trial review, by the claimants in two actions, where they had already obtained orders to preserve their anonymity, for orders protecting that anonymity under the defendant’s search engine. . .
Cited – NT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .

Lists of cited by and citing cases may be incomplete.

European, Information, Human Rights, Media

Leading Case

Updated: 09 November 2021; Ref: scu.526114

Royal County Of Berkshire Polo Club v OHMI – Lifestyle Equities (Royal County Of Berkshire Polo Club): ECFI 26 Mar 2015

ECJ Judgment – Community trade mark – Opposition proceedings – Application for the Community figurative mark Royal County of Berkshire POLO CLUB – Earlier Community figurative trade marks BEVERLY HILLS POLO CLUB – Relative ground for refusal – Likelihood of confusion – Duty to state reasons – Article 75 of Regulation (EC) No 207/2009 – Article 8(1)(b) of Regulation No 207/2009

G. Berardis (Rapporteur), P
T-581/13, [2015] EUECJ T-581/13, ECLI:EU:T:2015:192
Bailii
Regulation No 207/2009 8(1)(b), Regulation (EC) No 207/2009 75
European

Intellectual Property

Updated: 09 November 2021; Ref: scu.545370

International Jet Management GmbH: ECJ 18 Mar 2014

jet_managementECJ0314

ECJ Grand Chamber – Reference for a preliminary ruling – Article 18 TFEU – Prohibition of any discrimination on the ground of nationality – Commercial flights from a third State to a Member State – Legislation of a Member State providing that European Union air carriers not having an operating licence issued by that State must obtain an authorisation for each flight from a third State

V. Skouris, P
C-628/11, [2014] EUECJ C-628/11
Bailii

European, Transport

Updated: 09 November 2021; Ref: scu.522602

Dulger v Wetteraukreis: ECJ 19 Jul 2012

dulgerECJ2012

ECJ EEC-Turkey Association Agreement – Association Council Decision No 1/80 – Article 7, first paragraph – Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State – Thai national who was married to a Turkish worker and lived with him for more than three years

Cunha Rodrigues, P
[2012] EUECJ C-451/11, C-451/11, [2012] WLR(D) 249
Bailii
Citing:
See Also – Dulger v Wetteraukreis ECJ 7-Jun-2012
Opinion – EEC-Turkey Association Agreement – Interpretation of Association Council Decision No 1/80 – Right of residence of members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State – Thai national . .

Lists of cited by and citing cases may be incomplete.

European, Immigration

Updated: 09 November 2021; Ref: scu.464648

Slovakia v Commission: ECFI 29 Mar 2012

ECFI Agriculture – Common organization of markets – Measures to be adopted on account of the accession of new Member States – Act of Accession of 2003 – Determination of surplus stocks of agricultural products other than sugar and financial consequences of their elimination – Objective pursued by a provision of primary law – Decision 2007/361/CE

Truchot P
T-247/07, [2012] EUECJ T-247/07
Bailii
European

Agriculture

Updated: 09 November 2021; Ref: scu.452639

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 Resolutions adopted under Chapter VII of the Charter of the United Nations Implementation in the Community Common Position 2002/402/CFSP Regulation (EC) No 881/2002 ‘ – Measures against persons and entities included in a list drawn up by a body of the United Nations Freezing of funds and economic resources – Committee of the Security Council created by paragraph 6 of Resolution 1267 (1999) of the Security Council (Sanctions Committee) Inclusion of those persons and entities in Annex I to Regulation (EC) No 881/2002 Actions for annulment Competence of the Community Joint legal basis of Articles 60 EC, 301 EC and 308 EC – Fundamental rights Right to respect for property, right to be heard and right to effective judicial review.
The Court considered the relationship between a European sanctions measure and the obligations imposed on member states under the United Nations Charter and general international law to give effect to UN Security Council asset freezing orders under Chapter VII of the UN Charter.
Held: ‘What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.
Admittedly, the court has previously recognised that article 234 of the EC Treaty (now, after amendment, article 307EC) could, if the conditions for application have been satisfied, allow derogations even from primary law, for example from article 113 of the EC Treaty on the common commercial policy: see, to that effect, the Centro-Com case [1997] QB 683, paras 56-61).
It is true also that article 297EC implicitly permits obstacles to the operation of the common market when they are caused by measures taken by a member state to carry out the international obligations it has accepted for the purpose of maintaining international peace and security.
Those provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in article 6(1) EU as a foundation of the Union.
Article 307EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights.’

C-402/05, [2008] EUECJ C-402/05, [2009] Lloyds Rep FC 9, [2008] ECR I-6351, [2008] 3 CMLR 41, [2009] AC 1225, [2009] 3 WLR 872
Bailii
Council Regulation 881/2002
European
Citing:
See Also – Kadi v Council and Commission ECFI 21-Sep-2005
ECJ (Common Foreign and Security Policy) Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – . .

Cited by:
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
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 – 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 . .
See Also – Kadi v Council and Commission ECJ 3-Sep-2008
(Common foreign and security policy) Grand Chamber – 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 . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional, Human Rights, International

Leading Case

Updated: 09 November 2021; Ref: scu.263962

M, Regina (on the Application of) v Her Majestys Treasury: HL 30 Apr 2008

The House referred to the ECJ a question about the implementation of UN resolutions imposing sanctions on Al-Qa’ida.

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
[2008] UKHL 26, [2008] 2 All ER 1097, [2008] 2 CMLR 51
Bailii, HL
Council Regulation (EC) No 881/2002
England and Wales
Citing:
At First Instance – M and others v HM Treasury Admn 22-Sep-2006
The claimants sought payment of benefits. They would otherwise have been entitled, and were not suspected themselves, but were family members of persons listed as suspected terrorists under the Resolution, and had been denied benefits acordingly. . .
Appeal from – M and Others, Regina (on the Application Of) v Revenue and Customs and others CA 6-Mar-2007
The applicants complained that though none of them was suspected of terrorist activity, their finances had been restricted because of their family connections with Osama Bin Laden. . .

Lists of cited by and citing cases may be incomplete.

European, International, Criminal Practice

Updated: 09 November 2021; Ref: scu.267373

Commission v Greece C-584/14: ECJ 7 Sep 2016

Waste Management Compliance Failures

ECJ (Judgment) Failure of a Member State to fulfil obligations – Environment – Directive 2006/12/EC – Directive 91/689/EEC – Directive 1999/31/EC – Waste management – Judgment of the Court establishing a failure to fulfil obligations – Non-implementation – Article 260(2) TFEU – Pecuniary penalties – Periodic penalty payment – Lump sum

[2016] EUECJ C-584/14, ECLI:EU:C:2016:636
Bailii
Directive 2006/12/EC, Directive 91/689/EEC, Directive 1999/31/EC, TFEU 260(2)
European

European, Environment

Updated: 09 November 2021; Ref: scu.569042

Cox v Ergo Versicherung Ag: SC 2 Apr 2014

The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court was asked whether German or UK law applied to the assessment of the damages.
Held: Broadly, German law was similar to the English common law before the Fatal Acidents Acts. It was unnecessary to classify the sections 1A, 3 and 4 of the Fatal Accidents Act as procedural or substantive, because they were irrelevant. If substantive, they were irrelevant because the substantive law in this case is German law. They do not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the Act itself. Our general law of damages approximated to the German Law.

Lord Neuberger, President, Lord Mance, Lord Sumption, Lord Toulson, Lord Hodge
[2014] WLR(D) 150, [2014] UKSC 22, UKSC 2012/0225, [2014] 1 AC 1379, [2014] 2 WLR 948, [2014] 1 CLC 430, [2014] 2 All ER 926, [2014] RTR 20
WLRD, Bailii, Bailii Summary, SC, SC Summary
Regulation EC 44/2001, Fatal Accidents Act 1976 1(1) 1(2), Fatal Accidents Act 1846
England and Wales
Citing:
Cited – Baker v Bolton and others KBD 8-Dec-1808
The plaintiff and his wife had been thrown from the roof of a coach. The plaintiff sought damages for the loss of his wife’s ‘comfort, fellowship, and assistance’.
Held: The claim failed in part: ‘the jury could only take into consideration . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Appeal from – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
At first instance – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Seward v The Vera Cruz HL 1884
The House was asked to rule upon the nature of a fatal accident claim as established by the 1846 Act, Lord Campbell’s Act – was it such as to be within the jurisdiction of the Admiralty Division?
Held: Earl of Selbourne LC said: ‘Lord . .
Cited – Phrantzes v Argenti CA 1960
The court was asked to enforce payment of a dowry which was owed under Greek law.
Held: English law does not guarantee a remedy for every foreign cause of action. Lord Parker CJ said that to be available in support of a foreign cause of . .
Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL 16-Dec-1982
HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
Cited – Coupland v Arabian Gulf Oil Co QBD 1983
The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here . .
Cited – Davidsson v Hill CA 1901
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British . .
Cited – Boys v Chaplin HL 1969
The plaintiff sued in England for a traffic accident which had happened in Malta. The law of Malta would have denied certain elements of damages which would be available in this jurisdiction.
Held: Liability in respect of the road accident in . .
Cited – The Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
Cited – M’Elroy v M’Allister SCS 4-Nov-1948
The court rejected the renvoi doctrine in tort. An act done in a foreign country was actionable in Scotland only if it was, if done in Scotland, a tort, and was also actionable according to the law of the place in which it was done. . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
Cited – Ravat v Halliburton Manufacturing and Services Ltd SC 8-Feb-2012
The respondent was employed by the appellant. He was resident in GB, and was based here, but much work was overseas. At the time of his dismissal he was working in Libya. The company denied that UK law applied. He alleged unfair dismissal.
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .

Cited by:
Cited – Moreno v The Motor Insurers’ Bureau SC 3-Aug-2016
The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .

Lists of cited by and citing cases may be incomplete.

European, Damages, Personal Injury

Leading Case

Updated: 09 November 2021; Ref: scu.523422

Brown-Quinn and Another v Equity Syndicate Management Ltd and Another: CA 12 Dec 2012

The court was asked as to the requirement for a client to be given free choice of a lawyer in the context of legal expenses insurance. The various claimants insured by the defendants had sought to instruct solicitors not on the respondent’s approved panel, but had then been refused indemnity.
Held: The court declared that the defendant insurers were obliged to pay the appropriate non-panel rates to their insureds but no more.
Longmore LJ said: ‘The facts of this case have revealed that the insurers exhibit an insouciance to their obligations under the Directive and the Regulations which leaves one quite breathless.’ However: ‘if one has regard solely to the terms of the policy of insurance, the insureds are entitled to recover the non-panel rate set out in the standard terms and conditions and no more; they are, however, entitled to recover at least those rates. If that means that they have to pay more to their chosen solicitors and arrange some other way to make such payment, that will then be their decision.’ and ‘insurers can seek to limit the costs for which they are liable to the insured provided that the freedom of choice guaranteed by the Directive: ‘is not rendered meaningless . . A court determining whether the remuneration offered by the insurance policy is so insufficient as to render the insured’s freedom of choice meaningless would have to have evidence of such insufficiency before it could avoid or strike down any provision in an insurance contract relating to the level of costs and expenses payable in respect of a solicitor’s services. In this case the evidence is meagre in the extreme.’

Longmore, Lloyd, McFarlane LJJ
[2013] 1 Costs LR 1, [2013] 2 CMLR 20, [2013] CP Rep 13, [2012] WLR(D) 377, [2013] 1 WLR 1740, [2012] EWCA Civ 1633
Bailii
Council Directive 87/344 EEC 4, Insurance Directive 2009/108/EC 198, Insurance Companies (Legal Expenses Insurance) Regulations 1990
England and Wales
Citing:
Cited – Pittalis v Grant CA 1989
A point was raised for the first time on appeal.
Held: Though an appellate court could exclude a pure question of law which had not been raised at first instance from being raised on appeal, the usual practice was to allow it to be taken where . .
Cited – Gebhard Stark v DAS Osterreichische Allgemeine Rechtsschutzversicherung AG ECJ 26-May-2011
ECJ Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Freedom of the insured person to choose his lawyer – Limitation of the reimbursement allowed in respect of the costs relating to representation . .
Cited – Eschig v UNIQA Sachversicherung AG ECJ 14-May-2009
ECJ Legal expenses insurance Directive 87/344/EEC Article 4(1) Right of insured persons to choose their own lawyer Contractual limitation Multiple insured persons suffering loss as a result of the same event . .
Appeal from – Brown-Quinn and Another v Equity Syndicate Management Ltd and Another ComC 21-Oct-2011
The court heard sample claims as to the effectiveness of BTE legal expenses insurance policies. . .

Lists of cited by and citing cases may be incomplete.

European, Legal Professions, Costs

Leading Case

Updated: 09 November 2021; Ref: scu.467058

Save Britain’s Heritage, Regina (on The Application of) v Secretary of State for Communities and Local Government and Others: Admn 14 May 2010

The claimant challenged the order allowing the demolition of a disused listed building saying that the Direction was contrary to European law in not requiring an Environmental Impact Assessment (EIA). The Secretary of State said an EIA was not required for a demolition.
Held: The challenge was rejected. Whether an EIA was required for a demolition was presently before the European Court of Justice. Planning permission is not required for demolition of any listed building; any building in a conservation area, any scheduled monument, or any building that is neither a dwelling nor adjoining a dwelling. This has no application to the partial demolition of any of those types of building and those types of building falling within (a) to (c) are subject to separate regulatory regimes.
Whilst planning permission is not required for demolition within the scope of the Demolition Direction, such demolition is subject to the regulatory regime set out in s.80-83 of the Building Act 1984. Demolition without reconstruction is not ‘development’ (because such is on its natural meaning the construction of a new building or new buildings or the alteration or refurbishment of an existing building or buildings)’
In any event the size of the proposed scheme also took it outside the EIA Regulations.

Pellings J QC
[2010] EWHC 979 (Admin), [2010] NPC 57, [2010] JPL 1429, [2011] Env LR 6
Bailii
Town and Country Planning (Demolition – Description of Buildings) Direction 1995, Environmental Impact Assessment Directive (85/337/EEC), Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, Building Act 1988 80, Town and Country Planning Act 1990 55, General Permitted Development Order 1995
England and Wales
Citing:
Cited – Aannemersbedriijf P K Kraaijeveld v Gedeputeerde Staten Van Zuid-Holland ‘the Dutch-Dykes case) ECJ 24-Oct-1996
ECJ The fact that in this case the Member States have a discretion under Articles 2(1) and 4(2) of the directive does not preclude judicial review of the question whether the national authorities exceeded their . .
Cited – Ecologistas En Accion-Coda v Ayuntamiento de Madrid ECJ 25-Jul-2008
EU Environment And Consumers – Directives 85/337/EEC and 97/11/EC – Assessment of the effects of projects on the environment – Refurbishment and improvement works on urban roads – Whether subject to assessment. . .
Cited – Cambridge City Council v Secretary of State for the Environment and Milton Park Investments Ltd 1992
D. wanting to develop an office block, bought neighbouring semi-detached houses hoping to provide additional car parking, enhancing the visual aspects and improving highway safety. When temporary planning consent for use of these properties as site . .
Cited – Shimizu (UK) Ltd v Westminster City Council HL 11-Feb-1997
The removal of a listed building’s chimney stacks was an alteration allowing a claim for compensation. The phrases ‘alteration’ and ‘demolition’ are mutually exclusive. Although part of a building may be a listed building, a part of a listed . .
Cited – Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, etc ECJ 7-Sep-2004
ECJ Directive 92/43/EEC – Conservation of natural habitats and of wild flora and fauna – Concept of ‘plan’ or ‘project’ – Assessment of the implications of certain plans or projects for the protected site.
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 – Mortell, Regina (on the Application of) v Oldham Metropolitan Borough Admn 30-Mar-2007
The claimant sought orders quashing planning permissions granted for the re-development of land around Derker Station. . .

Lists of cited by and citing cases may be incomplete.

Planning, Environment, European

Updated: 09 November 2021; Ref: scu.414966

Evropaiki Dynamiki v Commission of the European Communities T-59/05: ECJ 10 Sep 2008

ECJ Public service contracts – Community tendering procedure – Provision of development, maintenance and support services for the financial information systems of the Directorate-General for Agriculture – Selection and award criteria – Rejection of a submitted tender – Obligation to state the reasons on which the decision is based – No manifest error of assessment – Principles of diligence and good administration

M. Jaeger, P
[2008] EUECJ T-59/05
Bailii
European

European

Updated: 09 November 2021; Ref: scu.535557

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 period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals.
Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest period – On-call service (Bereitschaftsdienst) provided by doctors in hospitals
Where a doctor was required to be on hospital premises whilst he was ‘on-call’, the full on call duty was to be counted for the purposes of the working time Directive. This applied equally to periods in which he would be entitled to rest. Such periods of inactivity were part and parcel of on-call duties. There was a need for doctors to be available for emergencies and such rest could not be planned. ”working time’ shall mean any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”.

GC Rodriguez Iglesias, President, M Wathelet, R Schintgen (Rapporteur) and CWA Timmermans, Presidents of Chambers, C Gulmann, DAO Edward, P Jann, V Skouris, F Macken, N Colneric, S von Bahr, JN Cunha Rodrigues and A Rosas
C-151/02, Times 26-Sep-2003, [2003] EUECJ C-151/02, [2004] ICR 1528, (2004) 75 BMLR 201, [2003] 3 CMLR 16, [2003] ECR I-8389, [2004] All ER (EC) 604, [2003] IRLR 804
Bailii
Council Directive 93/104/EC concerning certain aspects of the organisation of working time.
European
Citing:
Cited – Sindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana ECJ 3-Oct-2000
Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health . .

Cited by:
Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
The company appealed against an adverse finding on its holiday pay payments to its pilots, saying that the pay was subject to the 2004 Regulations alone. The Directive suggested that holiday pay should be at normal average rates of pay, but the . .
Cited – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Cited – Hughes v Jones and Another EAT 3-Oct-2008
EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
Approved – 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 – 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 – Gallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
Cited – Hughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Employment, Health Professions, Health and Safety

Leading Case

Updated: 02 November 2021; Ref: scu.186330

Commission v United Kingdom C-304/15: ECJ 21 Sep 2016

Control of Polluting Power Station

ECJ (Judgment) Failure of a Member State to fulfil obligations – Directive 2001/80/EC – Article 4(3) – Annex VI, Part A – Limitation of emissions of certain pollutants into the air from large combustion plants – Application – Aberthaw Power Station

C. Toader (Rapporteur), P
C-304/15, [2016] EUECJ C-304/15, ECLI:EU:C:2016:706
Bailii
European

European, Environment

Updated: 02 November 2021; Ref: scu.569501

Sia Kurcums Metal v Valsts Ienemumu Dienests: ECJ 15 Nov 2012

ECJ Common Customs Tariff – Tariff classification – Combined Nomenclature – ‘Taifun’ composite cables manufactured in Russia, made of polypropylene and steel thread – Corrugated clips with rounded tips connected by means of a pin – Anti-dumping duties on imports of certain iron or steel ropes and cables originating in the Czech Republic, Russia, Thailand and Turkey

L Bay Larsen
C-558/11, [2012] EUECJ C-558/11
Bailii
European

Customs and Excise

Updated: 02 November 2021; Ref: scu.466010

Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel: ECJ 16 Jan 2014

ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Action to set a transaction aside by virtue of the debtor’s insolvency – Defendant resident in a third country – Jurisdiction of the court of the Member State where the debtor has the centre of his main interests

A. Tizzano, P
[2014] EUECJ C-328/12, [2014] 1 WLR 633, [2014] BPIR 504, [2014] WLR(D) 5, [2014] CEC 846, ECLI:EU:C:2014:6, [2014] 1 WLR 633, [2014] ILPr 11
Bailii, WLRD
Regulation (EC) No 1346/2000
European
Citing:
Opinion – Ralph Schmid (Acting As Liquidator of The Assets of Aletta Zimmermann) v Lilly Hertel ECJ 10-Sep-2013
ECJ Opinion – Judicial co-operation in civil matters – Insolvency proceedings – Regulation (EC) No 1346/2000 – Jurisdiction of the court of the Member State in which the centre of the debtor’s main interests is . .

Cited by:
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Leading Case

Updated: 02 November 2021; Ref: scu.520760

Pphu’Adax’/Ryszard Adamiak v Christianapol Sp. ZOO: ECJ 22 Nov 2012

ECJ Judicial cooperation in civil matters – Regulation (EC) No 1346/2000 – Insolvency proceedings – Concept of ‘closure of insolvency proceedings’ – Possibility for a court before which secondary insolvency proceedings have been brought to examine the debtor’s insolvency – Possibility of opening winding-up proceedings as secondary insolvency proceedings where the main proceedings are sauvegarde proceedings)

C-116/11, [2012] EUECJ C-116/11
Bailii
European

Insolvency

Updated: 02 November 2021; Ref: scu.466007

Tahir v Ministero dell’Interno, Questura di Verona: ECJ 17 Jul 2014

ECJ Judgment – Request for a preliminary ruling – Area of freedom, security and justice – Directive 2003/109/EC – Articles 2, 4(1), 7(1) and 13 – ‘Long-term resident’s EU residence permit’ – Terms for conferring long-term resident status – Legal and continuous residence in the host Member State for five years prior to the submission of the permit application – Person with family connections to the long-term resident – More favourable national provisions – Effects

M Ilesic, P
ECLI:EU:C:2014:2094, [2014] WLR(D) 322, C-469/13, [2014] EUECJ C-469/13
Bailii, WLRD
Directive 2003/109/EC 2 4(1) 7(1) 13
European

Immigration

Updated: 02 November 2021; Ref: scu.534455

Manea v Institutia Prefectului Judetul Brasov: ECJ 14 Apr 2015

maneaECJ201504

ECJ Grand Chamber – Reference for a preliminary ruling – Internal taxation – Article 110 TFEU – Tax levied by a Member State on motor vehicles at the time of their first registration or of the first transfer of the right of ownership – Neutrality as between second-hand motor vehicles imported from other Member States and similar motor vehicles available on the domestic market

V. Skouris, P
C-76/14, [2015] EUECJ C-76/14, ECLI:EU:C:2015:216
Bailii

European, Taxes – Other

Updated: 02 November 2021; Ref: scu.545374

Mahageben v Nemzeti: ECJ 21 Jun 2012

MahagebenECJ2012

ECJ Taxation – VAT – Sixth Directive – Directive 2006/112/EC – Right to deduct – Conditions governing the exercise of that right – Article 273 – National measures to combat fraud – Practice of the national tax authorities – Refusal of the right to deduct in the event of improper conduct on the part of the issuer of the invoice relating to the goods or services in respect of which the exercise of that right is sought – Burden of proof – Obligation of the taxable person to satisfy himself as to the propriety of the conduct of the issuer of that invoice and to provide proof thereof

Lenaerts P
C-80/11, [2012] EUECJ C-80/11, [2011] EUECJ C-80/11
Bailii, Bailii
Directive 2006/112/EC

European, VAT

Updated: 02 November 2021; Ref: scu.460894

Duncombe and Others v Secretary of State for Children, Schools and Families: CA 14 Dec 2009

The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 Regulations operated to change the contracts into permanent ones. The decision was ‘whether the employment contracts between the teachers and the Department fall within the scope of the Directive and the Fixed-Term Regulations; and if they do, whether the Nine Year Rule is justified on objective grounds; and, if it is not justified, whether the Schools Convention and the Staff Regulations regime override or displace the Directive and the Fixed-Term Regulations.’
Held: The contracts were covered by the 2002 regulations, and therefore the questions was as to whether there was any objective justification for the use of fixed terms. The defendant impermissibly sought to resurrect points it had lost and not pursued.

Mummery LJ, Maurice Kay LJ, Jacob LJ
[2009] EWCA Civ 1355, Times 07-Jan-2010, [2010] IRLR 331, [2010] ICR 815, [2010] 2 CMLR 14
Bailii
Employment Rights Act 1996, The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Fixed-Term EC Directive 1999/70/EC of 28 June 1999, Employment Rights Act 2002 45
England and Wales
Citing:
Appeal from – Duncombe and others v Department for Education and Skills EAT 24-Apr-2008
Duncombe_desEAT2008
EAT Jurisdictional Points – Working outside the jurisdiction
Fixed Term Regulations
Extra-territorial jurisdiction. Teachers working abroad. Breach of contract claim within ET jurisdiction. Whether . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Bleuse v MBT Transport Ltd and Another EAT 21-Dec-2007
EAT Working Time Regulations
Unfair Dismissal – Exclusions including worker/jurisdiction
The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a . .
Cited – Adeneler and Others v Ellinikos Organismos Galaktos ECJ 4-Jul-2006
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .

Cited by:
Appeal from – Duncombe and Others v Secretary of State for Children, Schools and Families SC 29-Mar-2011
The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: . .
Appeal From – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 02 November 2021; Ref: scu.384061

Nilas And Others: ECJ 22 Mar 2012

nilasECJ2012

ECJ Directive 2004/39/EC – Markets in financial instruments – Article 4(1)(14) – Concept of ‘regulated market’ – Authorisation – Functional requirements – Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market – Article 47 – Not included on the list of regulated markets – Directive 2003/6/EC – Scope – Market manipulation

Cunha Rodrigues P
C-248/11, [2012] EUECJ C-248/11
Bailii
Directive 2004/39/EC
Citing:
See Also – Nilas And Others ECJ 1-Jul-2011
Fast Track – Order . .

Lists of cited by and citing cases may be incomplete.

European, Financial Services

Updated: 02 November 2021; Ref: scu.452629

Staatssecretaris van Financien v Kieback: ECJ 18 Jun 2015

Judgment – Reference for a preliminary ruling – Freedom of movement for workers – Tax legislation – Income tax – Income received in a Member State – Non-resident worker – Tax in the State of employment – Conditions

R. Silva de Lapuerta, P
C-9/14, [2015] EUECJ C-9/14, ECLI:EU:C:2015:406
Bailii

European, Income Tax

Updated: 02 November 2021; Ref: scu.549236

Ruijssenaars and Jansen v Staatssecretaris van Infrastructuur en Milieu: ECJ 17 Mar 2016

ECJ Judgment Air transport – Regulation (EC) No 261/2004 – Article 7 – Compensation payable to passengers in the event that their flight is cancelled or delayed by more than three hours – Article 16 – National bodies responsible for the enforcement of the regulation – Powers – Adoption of enforcement measures against the air carrier for payment of the compensation due to the passenger

D Svaby (Rapporteur), P
C-145/15, [2016] EUECJ C-145/15, ECLI:EU:C:2016:187
Bailii
Regulation (EC) No 261/2004
European

European, Transport, Consumer

Updated: 02 November 2021; Ref: scu.561963

Fisher and Others v Revenue and Customs: FTTTx 14 Aug 2014

FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding betting duty found but not corporation tax or other income tax
Relevance and compatibility of EU freedom of establishment and free movement of capital rights considered – freedoms did not apply as between UK and Gibraltar – freedoms did apply however in respect of first appellant who was national of another Member State (Ireland) – legislation incompatible – interpretation conforming to EU right given – appeals of first appellant allowed
Whether certain assessments defective because conditions for discovery assessment (s29(5) TMA 1970) and time limits (s36 TMA 1970) not met – yes
Appeals of second and third appellants allowed for defective assessments – their appeals for the remaining valid assessments dismissed in principle

Swami Rhaghavan
[2014] UKFTT 804 (TC)
Bailii
Income and Corporation Taxes Act 1988 739
England and Wales
Citing:
See also – Fisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Procedure – application to be added as party under Rule 9(3) of Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 by Her Majesty’s Government of Gibraltar on grounds it was uniquely placed . .
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .
Cited – Commissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .

Lists of cited by and citing cases may be incomplete.

Income Tax, European

Updated: 02 November 2021; Ref: scu.535962

Kusionova v SMART Capital as: ECJ 10 Sep 2014

kusionavaECJ1409

ECJ Judgment – Preliminary ruling – Directive 93/13 / EEC – Unfair terms – Contract for consumer credit – Article 1, paragraph 2 – Clause reflects a peremptory legislation – Scope of the Directive – Article 3, paragraph 1, 4, 6, paragraph 1, and 7, paragraph 1 – Guarantee of the claim by a security interest in property – Ability to achieve that security through an auction – Judicial review

Ilesic P
C-34/13, [2014] EUECJ C-34/13, ECLI:EU:C:2014:2189
Bailii
Directive 93/13 / EEC

European, Consumer

Updated: 02 November 2021; Ref: scu.536521

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, the operators of the hotels, and the holiday-makers or their travel agents (which is an English law issue), and the impact of certain provisions of the relevant EU Directive on that relationship once it has been characterised (which is an EU law issue).
Held: The appeal of the taxpayer was successful. The correct legal analysis of the tripartite relationship between Med, hoteliers and customers was that Med marketed and sold hotel accommodation to customers as the agent of the hoteliers and was in these circumstances acting solely as an intermediary for VAT purposes.
Article 306 created two categories of travel agent, namely (a) those ‘who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities’ and (b) those who ‘act solely as intermediaries’ (referred to for convenience as, respectively, ‘ article 306.1(a) ‘ and ‘ article 306.1(b)’), and provides for a special VAT scheme for transactions carried out by travel agents who fall within article 306.1(a). Med had been acting as an intermediary and not in its own name, and therefore fell within the provisions of article 306.1(b).
When assessing the VAT consequences of a particular contractual arrangement, the court should, at least normally, characterise the relationships by reference to the contracts and then consider whether that characterisation is vitiated by any relevant facts.
Lord Neuberger PSC said: ‘When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as a whole, to the surrounding circumstances insofar as they are known to both parties, and to commercial common sense.’

Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Hughes, Lord Hodge
[2014] UKSC 16, [2014] BVC 9, [2014] 2 All ER 685, [2014] STI 864, [2014] STC 937, UKSC 2013/0036
Bailii, Bailii Summary, SC, SC Summary
Directive 2006/112/EC 2.1(c)
England and Wales
Citing:
At CA – Secret Hotels2 Ltd v Revenue and Customs CA 3-Dec-2012
The Revenue appealed from a finding at the UTTC that the taxpayer company had acted not as a principal but rather as an agent.
Held: Morgan J was wrong to criticise the FTT for looking at ‘the whole facts of the case’ as opposed to . .
At FTTTx – Secret Hotels2 Ltd (Formerly Med Hotels Ltd) v Revenue and Customs FTTTx 15-Mar-2010
FTTTx Value Added Tax – Whether supplies of hotel and other holiday accommodation made by Appellant as agent for accommodation suppliers or as principal.
Value Added Tax – If Appellant is principal whether . .
At UTTC – Secrets Hotels2 Limited UTTC 29-Jul-2011
Value Added Tax – written agreements to provide hotel accommodation to holidaymakers – identity of supplier – was it hotel operator or company operating a bookings website – principles as to construction of written agreements – no difference because . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Van Ginkel Waddinxveen v Inspecteur der Omzetbelasting ECJ 12-Nov-1992
(Judgment) Article 26 of Directive 77/388: Sixth Directive, which concerns the special scheme applicable to travel agents in the matter of imposition of value added tax, must be interpreted as meaning that the fact that the transport of the . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Mercantile International Group Plc v Chuan Soon Huat Industrial Group Ltd CA 8-Mar-2002
The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Held: It is common for agents acting in the sale of financial products, eg many types of insurance policies, to fix its own . .
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 . .
Cited – A1 Lofts Ltd v Revenue and Customs ChD 30-Oct-2009
Lewison J said: ‘The court is often called upon to decide whether a written contract falls within a particular legal description. In so doing the court will identify the rights and obligations of the parties as a matter of construction of the . .
Cited – Commissioners for Her Majesty’s Revenue and Customs v RBS Deutschland Holdings ECJ 22-Dec-2010
ECJ Sixth VAT Directive – Right to deduction – Purchase of vehicles and use for leasing transactions – Differences between the tax regimes of two Member States – Prohibition of abusive practices
‘taxable . .
Cited – Henfling, Davin, Tanghe ECJ 14-Jul-2011
ECJ Taxation – Sixth VAT Directive – Article 6(4) – Exemption – Article 13(B)(f) – Gambling – Services provided by a commission agent ‘buraliste’ acting in his own name but on behalf of a principal operating a . .
Cited – Revenue and Customs v Aimia Coalition Loyalty UK Ltd SC 13-Mar-2013
The company managed a card loyalty scheme for retailers. The Revenue appealed against a decision that the company could reclaim VAT input tax on the goods purchased on the customers redeeming their points. The ECJ had decided that the service . .
Cited – Revenue And Customs v Newey ECJ 20-Jun-2013
ECJ Reference for a preliminary ruling – Sixth VAT Directive – Article 2(1) and Article 6(1) – Meaning of ‘supply of services’ – Supply of advertising and loan broking services – Exemptions – Economic and . .
At FTTTx – Secret Hotels2 Ltd (Formerly Med Hotels Ltd) v Revenue and Customs FTTTx 15-Mar-2010
FTTTx Value Added Tax – Whether supplies of hotel and other holiday accommodation made by Appellant as agent for accommodation suppliers or as principal.
Value Added Tax – If Appellant is principal whether . .

Cited by:
Cited – Airtours Holidays Transport Ltd v Revenue and Customs SC 11-May-2016
The court was asked whether the appellant, Airtours Holidays Transport Ltd (formerly MyTravel Group plc), was entitled to recover, by way of input tax VAT charged by PricewaterhouseCoopers LLP in respect of services provided by PwC and paid for by . .
Cited – 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 . .
Cited – 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) . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
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 . .

Lists of cited by and citing cases may be incomplete.

VAT, European, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.521994

RVS Levensverzekeringen Nv v Belgischer Staat: ECJ 6 Sep 2012

rvs_begium ECJ2012

ECJ Tax legislation – National tax on insurance – Article 50 of Directive 2002/83/EC concerning life assurance – Freedom to provide services – Place of taxation – Insurance payments by a Netherlands insurance undertaking to policy-holders resident in Belgium who were still resident in the Netherlands when the contract was concluded

Kokott AG
C-243/11, [2012] EUECJ C-243/11, [2013] EUECJ C-243/11
Bailii, Bailii
Directive 2002/83/EC concerning life assurance

European, Financial Services

Updated: 02 November 2021; Ref: scu.464456

British Telecommunications Plc and Another, Regina (on The Application of) v The Secretary of State for Business, Innovation and Skills: Admn 20 Apr 2011

The claimant sought judicial review of legislative provisions requiring Internet Service Providers to become involved in regulation of copyright infringements by its subscribers. They asserted that the Act and proposed Order were contrary to European law.
Held: The request was refused. No obligation had yet fallen on the claimant, and the exact form and rules had not been settled. The anticipated obligations did properly relate to copyright infringement, and so did not go beyond obligations under European law.
Following the decision of the CJEU in Case C-275/05 Promusicae, held that the grounds for derogation under Article 15(1) of the e-Privacy Directive include all the legitimate aims listed in Article 13(1) of the Data Protection Directive.
Kenneth Parker J said: ‘It is not disputed that technical means of avoiding detection are available, for those knowledgeable and skilful enough to employ them. However, the central difficulty of this argument is that it rests upon assumptions about human behaviour. Experts can seek to establish a profile of those who engage in P2P file sharing, and their various reasons for doing so, and may then attempt to predict how these users may be likely to respond if confronted with the kind of regime that the DEA enacts. In theory, some may cease or substantially curtail their unlawful activities, substituting or not, for example, lawful downloading of music; others may simply seek other means to continue their unlawful activities, using whatever technical means are open. The final outcome is uncertain because it is notoriously difficult accurately to predict human behaviour’

Kenneth Parker J
[2011] EWHC 1021 (Admin)
Bailii
Copyright (Initial Obligations) (Sharing of Costs) Order 2011, Digital Economy Act 2010, Technical Standards Directive (Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998, Electronic Commerce Directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L No 178), Privacy and Electronic Communications Directive, Communications Act 2003, Data Protection Act 1998, Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417)
England and Wales
Citing:
Cited – Google France and Google v Louis Vuitton Malletier (Intellectual Property) ECJ 23-Mar-2010
ECJ Trade marks Internet Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites . .
Cited – Commission v Germany (Rec 1994,p I-2039) (Judgment) ECJ 1-Jun-1994
ECJ 1. In proceedings under Article 169 of the Treaty, it is for the Commission to judge at what time it will bring an action for failure to fulfil obligations; the considerations which determine its choice of . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Liga Portuguesa De Futebol Profissional and Another (Freedom To Provide Services) ECJ 14-Oct-2008
ECJ (Opinion of Advocate General Bot) Legislation of a Member State granting a single entity an exclusive right to organise and operate betting on the internet ‘Technical regulation’ within the meaning of . .
Cited – CIA Security International v Signalson and Securitel ECJ 30-Apr-1996
1. Under the procedure provided for by Article 177 of the Treaty, it is for the national court to assess the scope of national provisions and the manner in which they are to be applied. Since the national court is best placed to assess, in view of . .
Cited – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 29-Jan-2008
ECJ Information society Obligations of providers of services Retention and disclosure of certain traffic data Obligation of disclosure Limits Protection of the confidentiality of electronic communications . .
Cited – Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU ECJ 18-Jul-2007
The provisions of article 13, as referred to in article 15(1) of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector ([2002] OJ L201/37) must be interpreted as . .
Cited – Telecom Italia v Ministero dell’Economia e delle Finanze, Ministero delle Comunicazioni (Freedom To Provide Services) ECJ 21-Feb-2008
ECJ Telecommunications services Directive 97/13/EC Articles 6, 11, 22 and 25 Fees and charges for general authorisations and individual licences Obligation on former holders of exclusive rights Temporary . .
Cited – Wilson v First County Trust Ltd (1) CA 3-Nov-2000
The administrative charges for entering into a loan were not to be included in the loan, but rather as an item entering into the total charge for credit. To hold otherwise went against accounting practice, would disguise the cost of the loan, and . .

Cited by:
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Secretary of State for The Home Department v Davis MP and Others CA 20-Nov-2015
The Secretary of State appealed against a ruling that section 1 of the 2014 Act was inconsistent wih European law.
Held: The following questions were referred to the CJEU:
(1) Did the CJEU in Digital Rights Ireland intend to lay down . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Information

Updated: 02 November 2021; Ref: scu.434869

Direktor Na Direktsia v Orfey Balgaria Eood: ECJ 19 Dec 2012

dndirektsia_obeECJ2012

ECJ VAT – Directive 2006/112/EC – Articles 63, 65, 73 and 80 – Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons – Barter contract – VAT on construction services – Chargeable event – When chargeable – Payment on account of the entire consideration – Payment on account – Basis of assessment for a transaction in the event of consideration in the form of goods or services – Direct effect

C Toader, acting P
C-549/11, [2012] EUECJ C-549/11
Bailii
Directive 2006/112/EC

European, VAT, Construction

Leading Case

Updated: 02 November 2021; Ref: scu.468764

European Commission v Grand Duchy Of Luxembourg: ECJ 13 Dec 2012

ECJ Opinion – Action for failure to fulfil obligations – Directive 91/440/EEC – Development of the Community’s railways – Directive 2001/14/EC – Allocation of railway infrastructure capacity – Article 6(3) of and Annex II to Directive 91/440 – Article 14(2) of Directive 2001/14 – Infrastructure manager – Independence in organisation and decision-making functions – Independance in essential functions

Jaaskinen AG
C-412/11, [2012] EUECJ C-412/11
Bailii
Directive 91/440/EEC, Directive 2001/14/EC
European

Transport

Updated: 02 November 2021; Ref: scu.470194

L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited: ECJ 12 Jul 2011

ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – Removal of the packaging of the goods – Directive 89/104/EEC – Regulation (EC) No 40/94 – Liability of the online-marketplace operator – Directive 2000/31/EC (‘Directive on electronic commerce’) – Injunctions against that operator – Directive 2004/48/EC (‘Directive on the enforcement of intellectual property rights.’)
‘it follows from article 15(1) of Directive 2000/31, in conjunction with article 2(3) of Directive 2004/48, that the measures required of the online service provider concerned cannot consist in an active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights via that provider’s website.’
. . And ‘In view of the foregoing, the answer to the tenth question is that the third sentence of article 11 of Directive 2004/48, must be interpreted as requiring the member states to ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by user of that marketplace, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, dissuasive and must not create barriers to legitimate trade.’

V Skouris, P
[2011] EUECJ C-324/09, [2012] Bus LR 1369, [2011] RPC 27, [2011] ETMR 52, [2012] All ER (EC) 501, ECLI:EU:C:2011:474, [2012] EMLR 6
Bailii
Directive 2000/31/EC, Directive 89/104/EEC, Regulation (EC) No 40/94, Directive 2004/48/EC
European
Citing:
Opinion – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 9-Dec-2010
ECJ Opinion – Information society – Search engine – Keyword advertising – Operator of electronic marketplace – Keywords corresponding to trade marks – Directive 89/104/EEC (‘Trade Mark directive’) – Articles 5 . .

Cited by:
Cited – Tamiz v Google Inc Google UK Ltd QBD 2-Mar-2012
The claimant sought damages in defamation against the defendant company offering internet search facilities. The words complained of had been published in a blog, and in comments published on the blog.
Held: Jurisdiction should be declined. . .
Cited – Google Spain Sl v Agencia Espanola De Proteccion De Datos (AEPD), Gonzalez ECJ 13-May-2014
Internet Search Engine – Name Removal
ECJ Grand Chamber – Personal data – Protection of individuals with regard to the processing of such data – Directive 95/46/EC – Articles 2, 4, 12 and 14 – Material and territorial scope – Internet search engines . .
Cited – Mosley v Google Inc and Another QBD 15-Jan-2015
The claimant had successfully pursued action against a newpaper’s publication of a film of him engaging in sex with prostitutes, but others had retained copies of the film on-line. He now pursued an action against the search engine to oblige them to . .
Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
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.

Intellectual Property, European

Leading Case

Updated: 02 November 2021; Ref: scu.443188

Cadila Healthcare v OHMI – Novartis (Zydus): ECFI 15 Mar 2012

ECFI Community trade mark – Opposition proceedings – Application for the Community word mark ZYDUS – Earlier Community word mark ZIMBUS – Relative ground for refusal – Likelihood of confusion – Similarity of the goods – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)

T-288/08, [2012] EUECJ T-288/08
Bailii
European

Intellectual Property

Updated: 02 November 2021; Ref: scu.452236

Pontini and Others: ECJ 24 Jun 2010

Europa Agriculture – Common organisation of the markets – Beef and veal – Regulation (EC) No 1254/1999 – Community financial aid concerning special premiums for male bovine animals and payments for extensification – Conditions for granting – Calculation of the stocking density on the holding – Meaning of ‘available forage area’ – Regulation (EEC) No 3887/92 and Regulation (EC) No 2419/2001 – Integrated administration and control system for certain Community aid schemes – National legislation making the grant of Community financial aid conditional upon production of a valid legal document attesting to the right to use the areas under forage.

C-375/08, [2010] EUECJ C-375/08
Bailii
European

Agriculture

Updated: 02 November 2021; Ref: scu.420197

Argos Distributors v Commissioners of Customs and Excise: ECJ 24 Oct 1996

VAT was payable on the value of a discount voucher only, and not on the full price of the goods. ‘According to the court’s settled case law, the taxable amount for the supply of goods or services is represented by the consideration actually received for them.’ VAT had been charged on vouchers on a basis inconsistent with Community law. The reference raised no question about whether the same could be said about teacakes: ‘There is only one difference between the early vouchers claim and the [late vouchers and teacakes] claims; as regards the early vouchers claim, the national legislation itself contravened the Directive, whereas with respect to the other two claims that legislation was unimpeachable in itself but was misapplied. Yet the end result in the two instances was precisely the same: the Directive was breached . . ‘ and ‘It is manifestly clear from the documents before the court that, in regard to both teacakes and gift vouchers after August 1992, the commissioners applied national tax legislation in a manner inconsistent with the directive.’

Advocate General Geelhoed
Times 18-Nov-1996, C-288/94, [1996] STC 1359, [1996] ECR I-5311, [1996] EUECJ C-288/94, [1997] QB 499
Bailii
Cited by:
Cited – Nell Gwynn House Maintenance Fund v Commissioners of Customs and Excise HL 15-Dec-1998
Trustees who managed a group of apartments argued that they did not themselves provide staff services to the tenants, but rather arranged for the staff to provide services to them.
Held: The contract providing cleaning and other services, by a . .
Cited – Lex Services plc v Her Majestys Commissioners of Customs and Excise HL 4-Dec-2003
When taking a car in part exchange, the company would initially offer the correct market value. If the customer wanted, the company would agree a higher price. When cars were returned, the company at first reclaimed the VAT on the re-purchase price, . .
Cited – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
Cited – Marks and Spencer Plc v Customs and Excise HL 4-Feb-2009
The taxpayer requested refund of VAT overpaid on chocolate covered cakes. The CandE resisted saying that the money had been substantially already paid by its customers. The case had been referred twice to the ECJ, who answered that the maintenance . .

Lists of cited by and citing cases may be incomplete.

European, VAT

Leading Case

Updated: 02 November 2021; Ref: scu.161452

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 transferred to the transferee.
Held: It is the duty of a UK court to construe a statute, so far as possible, in conformity with European law. The House considered the need to interpret the TUPE regulations purposively: ‘it has always to be borne in mind that the purpose of the Directive and of the Regulations was and is to ‘safeguard’ the rights of employees on a transfer and that there is a mandatory obligation to provide remedies which are effective and not merely symbolic to which the Regulations were intended to give effect’ and where an employee is dismissed before and by reason of the transfer the employment is statutorily continued with the transferee by virtue of the Regulations.’
Lord Keith said: ‘it is the duty of the court to give to regulation 5 a construction which accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect . . this is to be done by implying the words necessary to achieve that result. So there must be implied in regulation 5(3) words indicating that where a person has been unfairly dismissed in the circumstances described in regulation 8(1) he is to be deemed to have been employed in the undertaking immediately before the transfer.’
Lord Oliver said: ‘Where before the actual transfer takes place the employment of a employee is terminated for a reason unconnected with the transfer, I agree that the question of whether he was employed ‘immediately’ before the transfer cannot sensibly be made to depend upon the degree of temporal proximity between the two events, except possibly in a case where they are so closely connected in point of time that it is for practical purposes impossible realistically to say that they were not precisely contemporaneous. Either the contract of employment is subsisting at the moment of the transfer or it is not and if it is not, then, on the pure textural construction of Regulation 5 neither paragraph (1) nor paragraph (2) (which is clearly subsidiary to and complementary with paragraph (1)) can have any operation.’

Lord Oliver, Lord Keith
[1989] 2 WLR 634, [1989] 1 All ER 1134, [1989] ICR 341, [1990] 1 AC 546, [1988] UKHL 10, 1989 SC (HL) 96, [1982] IRLR 161
Bailii
Transfer of Undertakings (Protection of Employment) Regulations 1981
England and Wales
Citing:
Applied – 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 . .
Appeal from – Litster and Others v Forth Dry Dock and Engineering Co Ltd SCS 1988
(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and . .

Cited by:
Cited – M Dowling v M E Ilic Haulage, Berkeley Logistics Ltd EAT 19-Feb-2004
EAT Procedural Issues – Employment Tribunal
EAT Trade Union Rights – Action short of dismissal
It had been found that the claimant had been dismissed for an . .
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 – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Warner v Adnet Limited CA 26-Feb-1998
A dismissal of employees by administrative receivers just before the sale of a company as going concern was a redundancy outside the protection given by the TUPE provisions. ‘in view of the facts found by the tribunal about the appointment of the . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – C R Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise HL 20-Feb-2003
The taxpayer sold double glazing, supported by an insured guarantee, for which a charge was made. The additional charge was exempt, but it was contended that the contract should have stated the amount pursuant to Note 5.
Held: The contract . .
Cited – Lonsdale v Howard and Hallam Ltd CA 8-Feb-2006
The claimant sought damages after his agency with the defendants was terminated. The central issue was whether compensation was to be calculated at two years commission as derived from French practice or otherwise.
Held: ‘there is no clear . .
Cited – Robb v Salamis (M and I) Ltd HL 13-Dec-2006
The claimant was injured working for the defendants on a semi-submersible platform. He fell from a ladder which was not secured properly. He alleged a breach of the Regulations. The defendant denied any breach and asserted that the claimant had . .
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 – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Cited – Shanning International Ltd (in liquidation) v Lloyds Bank plc Lloyds Bank plc v Rasheed Bank HL 2-Jul-2001
Under a series of cross guarantees, equipment was supplied to Iraq. Final payment was due on delivery of the final equipment. Before it could be delivered, the prohibitions came into effect against satisfying or making any claims in connection with . .
Cited – Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd HL 29-Oct-1998
The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under . .
Cited – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and 23 Others CA 29-Jan-2010
The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national . .
Cited – Kimberley Group Housing Ltd v Hambley and others (UK) Ltd EAT 25-Apr-2008
EAT TRANSFER OF UNDERTAKINGS
The principles and approach which a Tribunal should take where there has been a transfer of one service provider’s activities to two or more transferees, and there is . .
Cited – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
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 – 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 . .
Cited – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Cited – Birmingham City Council v Abdulla and Others SC 24-Oct-2012
Former employees wished to argue that they had been discriminated against whilst employed by the Council. Being out of time for Employment Tribunal Proceedings, they sought to bring their cases in the ordinary courts. The Council now appealed . .

Lists of cited by and citing cases may be incomplete.

Employment, Scotland, European

Leading Case

Updated: 02 November 2021; Ref: scu.195719

Novomatic v EUIPO – Granini France (Hot Joker): ECFI 19 Apr 2016

ECJ Judgment – EU trade mark – Opposition proceedings – Application for the EU figurative mark HOT JOKER – Earlier national figurative mark Joker – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Obligation to state reasons – Article 75 of Regulation No 207/2009 – Article 76(1) of Regulation No 207/2009

T-326/14, [2016] EUECJ T-326/14
Bailii
Regulation No 207/2009 75

European, Intellectual Property

Updated: 02 November 2021; Ref: scu.562822

Hauck GmbH and Co. KG v Stokke A / S: ECJ 14 May 2014

hauckECJ0514

ECJ Opinion – Brands – Grounds for refusal or invalidity of registration – Three-dimensional mark consisting of the shape of goods – Directive 89/104/EEC – Article 3, paragraph 1, e), first indent – sign consisting exclusively of the shape which by the nature of the product – Article 3, paragraph 1, e), third indent – Sign which consists exclusively of the shape which gives substantial value to the product – Tripp Trapp Highchair

Szpunar AG
C-205/13, [2014] EUECJ C-205/13, [2014] EUECJ C-205/13
Bailii, Bailii

European, Intellectual Property

Updated: 02 November 2021; Ref: scu.525522

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 were indirectly discriminatory. There was not an exact correspondence between the advantaged and disadvantaged groups and the protected characteristic, as some of those distinguished by their nationality were not disadvantaged, although others were.
A non-member state is not within the protection of articles 18 and 21(2) in any circumstances. Lady Hale said: ‘This is not a general prohibition of discrimination on grounds of nationality. Only the nationals of member states are protected. Discrimination against third country nationals is not prohibited. Indeed it is positively expected. The underlying purpose is to promote the objects of the Union and in particular the free movement of workers between the member states and the free establishment of businesses within them.’
However, Lord Walker dissenting, said that the discrimination was a proportionate response to the legitimate aim of protecting the UK public purse. This justification was independent of the claimant’s nationality, and the discrimination was justified.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown
[2011] UKSC 11, UKSC 2009/0177, [2011] AACR 34, [2011] 3 All ER 1, [2011] PTSR 680, [2011] 1 WLR 783
Bailii, Bailii Summary, SC Summary, SC
State Pension Credit Regulations 2002 (SI 2002/1792) 2, Council Regulation (EC) No 1408/71 3(1)
England and Wales
Citing:
At CA – Patmalniece v Secretary of State for Work and Pensions CA 25-Jun-2009
The appellant challenged the refusal of the grant to her of state pension credit.
Held: Her appeal failed. . .
Cited – Schnorbus v Land Hessen ECJ 7-Dec-2000
ECJ Equal treatment for men and women – Rules on access to practical legal training in Land Hesse – Priority for applicants who have completed military or civilian service
Jacobs AG said: ‘The discrimination . .
Cited – Bressol and Others, Chaverot and Others v Gouvernement de la Communaute francaise ECJ 25-Jun-2009
ECJ Opinion – Free Movement of Persons – Higher education Public health Numerus clausus Residence requirement Equal treatment Principle of non’discrimination Justifications
Sharpston AG said: ‘I take there . .
Cited – Zalewska v Department for Social Development HL 12-Nov-2008
(Northern Ireland) The claimant challenged the rules restricting payment of benefits to nationals from the 8 latest European Accession states to those with an unbroken 12 month working record. The applicant came from Poland and worked at two . .
Cited – Vera Hoeckx v Openbaar Centrum Voor Maatschappelijk Welzijn, Kalmthout ECJ 27-Mar-1985
Minimum means of subsistence – Concept of social advantage or benefit. General social benefits of a kind not listed in article 4(1) were held not to constitute a social security benefit within the meaning of Regulation 1408/71 . .
Cited – James v Eastleigh Borough Council HL 14-Jun-1990
Result Decides Dscrimination not Motive
The Council had allowed free entry to its swimming pools to those of pensionable age (ie women of 60 and men of 65). A 61 year old man successfully complained of sexual discrimination.
Held: The 1975 Act directly discriminated between men and . .
Cited – Borawitz v Landesversicherungsanstalt Westfalen ECJ 21-Sep-2000
(Free movement of persons) (Judgment) Social security for migrant workers – Equal treatment – National legislation fixing, in connection with the transfer abroad of retroactive pension payments, a higher minimum amount than that paid within the . .
Cited – Khalil, Chabaan, Osseili v Bundesantalt fir Arbeit ECJ 11-Oct-2001
(Social security for migrant workers) Social security – Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and now, after amendment, Article 42 EC) – Article 2(1) of Regulation (EEC) No 1408/71 – Stateless persons – Refugees . .
Cited – Collins v Secretary of State for Work and Pensions ECJ 23-Mar-2004
ECJ Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship . .
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 – Regina (Bidar) v Ealing London Borough Council and Another ECJ 15-Mar-2005
Europa (Grand Chamber of the Court of Justice of the European Union) Citizenship of the Union – Articles 12 EC and 18 EC – Assistance for students in the form of subsidised loans – Provision limiting the grant of . .
Cited – Hartmann v Freistaat Bayern ECJ 18-Jul-2007
Europa (Grand Chamber) (Free Movement Of Persons) Frontier worker Regulation (EEC) No 1612/68 Transfer of residence to another Member State Non-working spouse Child-raising allowance Not granted to spouse Social . .
Cited – Wood (Principles Of Community Law) ECJ 5-Jun-2008
ECJ Article 12 EC Discrimination on grounds of nationality Compensation awarded by the Fonds de garantie des victimes des actes de terrorisme et d’autres infractions Not included. . .
Cited – Rita Frilli v Belgian State ECJ 22-Jun-1972
Preliminary Questions – Guaranteed income for old people. . .
Cited – Roque v The Lieutenant Governor of Jersey ECJ 16-Jul-1998
(Judgment) Free movement of persons – Act of Accession 1972 – Protocol No 3 concerning the Channel Islands and the Isle of Man – Jersey . .
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 – 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 . .

Cited by:
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
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.
Cited – Taiwo and Another v Olaigbe and Others SC 22-Jun-2016
The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked . .

Lists of cited by and citing cases may be incomplete.

European, Benefits

Updated: 02 November 2021; Ref: scu.430602

Moroni v Collo: ECJ 14 Dec 1993

ECJ (Judgment) 1. Retirement pensions paid by an occupational scheme based on an agreement between the employer and the representatives of its employees, supplementary to the statutory social security scheme and not receiving any public funding, constitute pay for the purposes of Article 119 of the Treaty with the result that they are subject to the prohibition of discrimination based on sex laid down by that provision. It does not matter in this regard that the scheme was established in accordance with national legislation and this requires the pension for which the scheme provides to be paid at the same time as the employee begins to draw the statutory pension.
Consequently, it is contrary to Article 119 of the Treaty if under a supplementary occupational pension scheme a male employee is entitled to claim a company pension only at a higher age than a female employee in the same situation owing to the setting of different retirement ages for men and women.
2. Article 119 applies directly to all forms of discrimination which may be identified solely with the aid of the criteria of equal work and equal pay referred to by that article, without national or Community measures being required to define them with greater precision in order to permit their application.
Since with the aid of the constitutive elements of the pay in question and of the criteria laid down in Article 119 discrimination may be directly identified as arising from the setting of different retirement ages for men and women in the matter of company pensions, the worker discriminated against may, notwithstanding the provisions of Directive 86/378, assert his rights to payment of the company pension at the same age as his female counterpart and any reduction in the event of early departure from the service of the undertaking must be calculated on the basis of that age.
However, by virtue of the judgment of 17 May 1990 in Case C-262/88 Barber, the direct effect of Article 119 of the Treaty may be relied on in order to claim equal treatment in the matter of occupational pensions only in relation to benefits payable in respect of periods of service subsequent to the date of that judgment, subject to the exception in favour of workers or those claiming under them who have, before that date, initiated legal proceedings or raised an equivalent claim under the applicable national law.

C-110/91, [1993] EUECJ C-110/91, [1994] PLR 211, [1993] ECR 6591, [1994] IRLR 130, [1993] ECR I-6591, [1995] ICR 137
Bailii

European, Discrimination

Leading Case

Updated: 02 November 2021; Ref: scu.160691

Shindler and Another v Chancellor of The Duchy of Lancaster and Another: Admn 28 Apr 2016

The claimants challenged the franchise for the forthcoming European Referendum which excluded them rom voting on the basis that they were not resident within the UK and had neot been registered to vote here for more than five years.
Held: ‘1) In principle, section 2 of the 2015 Act is capable of engaging EU law
(2) Section 2 of the 2015 Act is not a restriction on the rights of free movement enjoyed by the claimants as EU citizens.
(3) In any event, if it were such a restriction, section 2 of the 2015 Act would be objectively justified.
For these reasons we grant the claimants leave to apply for judicial review but refuse the application.’

Lloyd Jones LJ, Blake J
[2016] EWHC 957 (Admin), [2016] HRLR 12
Bailii
European Union Referendum Act 2015 2
England and Wales
Cited by:
Appeal from – Shindler and Another v Chancellor of The Duchy of Lancaster and Another CA 20-May-2016
UK free to disenfranchise citizens resident abroad
The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of . .

Lists of cited by and citing cases may be incomplete.

Elections, Constitutional, European

Updated: 02 November 2021; Ref: scu.563225

Brent London Borough Council and Others v Risk Management Partners Ltd: SC 9 Feb 2011

The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. The authority argued that the arrangement was exempt under the judgment in Teckal which allowed the use of services without external tenders.
Held: The Authority’s appeal succeeded. The exemption did apply within the UK, and did apply to insurance contracts. The mutual company established by the local authorities working together satisfied the control requirement of Teckal. The Regulations had been intended to import the Directive, and the different wording used was not sufficient to an intention to impose a different regime. It was necessary only that an authority, or several authorities together, and without any private element of control, should exercise control.
Individual control is not necessary. No injury will be caused to the policy objective of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks. Asemfo shows that the decisive influence that a contracting public authority must exercise over the contractor may be present even if it is exercisable only in conjunction with the other public authorities.

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Dyson
[2011] UKSC 7, UKSC 2009/0166, [2011] 2 WLR 166, [2011] PTSR 481, [2011] 2 AC 34
Bailii, SC Summ, SC, Bailii Summary
Public Contracts Regulations 2006, Council Directive 2004/18/EC on the co-ordination of procedures for the award of public work contracts, public supply
contracts and public service contracts
England and Wales
Citing:
At First Instance – Risk Management Partners Ltd, Regina (on the Application of) v The Council of London Borough of Brent Admn 22-Apr-2008
Several local authorities had come together to establish a mutual insurance company. The defendants issued a tender for insurance, and the claimants complained that though their tender had been most advantageous, the defendant had abandoned the . .
At First Instance – Risk Management Partners Ltd v The London Borough of Brent Admn 16-May-2008
Claim for damages – alleged breach of regulations by local council.
Held: Brent had acted in breach of the 2006 Regulations when it abandoned the tender process and awarded the insurance contracts to LAML. Issues of causation and damages were . .
Appeal from – Brent London Borough Council v Risk Management Partners Ltd CA 9-Jun-2009
Brent appealed from a finding that it had failed when redirecting a contract for insurance and had no power to become a member or participating member of London Authorities Mutual Limited or to make payments or to enter into commitments to make . .
Cited – Teckal Srl v Comune di Viano, Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia ECJ 18-Nov-1999
AGAC was a corporate entity set up by a consortium of Italian local authorities to provide energy and environmental services to those participating. Prior to 1997 Teckal had supplied fuel to Viano and had serviced its heating systems. In May 1997 . .
Cited – Asociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
Cited – Asociaciacion Nacional De Empresas Forestales ECJ 19-Apr-2007
ECJ (Freedom of Establishment) Reference for a preliminary ruling – Admissibility Article 86(1) EC – No independent effect – Factors permitting material which enables the Court to give a useful answer to the . .
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 – Parking Brixen v Gemeinde Brixen ECJ 13-Oct-2005
The award, by a public authority to a service provider, of the management of a public pay car park, in consideration for which that provider is remunerated by sums paid by third parties for the use of that car park, is a public service concession to . .
Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Cited – Carbotermo SpA, Consorzio Alisei v Comune di Busto Arsizio,AGESP SpA ECJ 11-May-2006
ECJ Opinion – Directive 93/36/EEC – Public supply contracts – Award of contract without a call for tenders – Award of the contract to an undertaking in which the contracting authority has a shareholding. . .
Cited – SEA Srl v Comune di Ponte Nossa,third party: Servizi Tecnologici Comuni SeT Co SpA (Law Relating To Undertakings) ECJ 10-Sep-2009
ECJ Public procurement – Award procedures – Contract relating to a service for the collection, transport and disposal of urban waste – Awarded without any call for tenders – Awarded to a company limited by shares . .
Cited – Commission v Germany – C-480/06 ECJ 9-Jun-2009
Failure by a Member State to fulfil its obligations – Admissibility – Legal interest in bringing proceedings – Directive 92/50/EEC – Procedures for the award of public service contracts – Negotiated procedure without prior publication of a contract . .
Cited – Asociacion Nacional De Empresas Forestales v Transformacion Agraria SA (Tragsa) ECJ 28-Sep-2006
ECJ Freedom Of Establishment – Reference for a preliminary ruling Admissibility Article 86(1) EC No independent effect Factors permitting material which enables the Court to give a useful answer to the questions . .
Cited – Asociacion Profesional De Empresas De Reparto Y Manipulado De Correspondencia v Administracion General del Estado ECJ 18-Dec-2007
ECJ (Freedom To Provide Services) – Public procurement Liberalisation of postal services Directives 92/50/EEC and 97/67/EC’ Articles 43 EC, 49 EC and 86 EC National legislation allowing public authorities to . .
Cited – Coditel Brabant v Commune d’Uccle, Region de Bruxelles-Capitale (Law Relating To Undertakings) ECJ 13-Nov-2008
ECJ Public procurement – Tendering procedures Public service concessions – Concession for the operation of a municipal cable television network – Awarded by a municipality to an inter-municipal cooperative . .

Cited by:
Cited – Tachie and Others v Welwyn Hatfield Borough Council QBD 13-Dec-2013
The three appellants each challenged decisions refusing their homelessness reviews, saying that the decisions had been made by outside contracters and were unlawful.
Held: The company was a subsidiary of the Council, and the Teckal exception . .
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.
Commercial, Local Government, European

Updated: 02 November 2021; Ref: scu.428516

Duncombe and Others v Secretary of State for Children, Schools and Families: SC 29 Mar 2011

The government operated European Schools catering for children of staff of the European Community. The school staff challenged as unlawful, the contracts restricting their terms of employment with the schools to a maximum of nine years.
Held: The Secretary of State’s appeal succeeded. It was objectively justified to employ the teachers on the current fixed term contracts and accordingly that they were not converted into permanent contracts by the operation of regulation 8 of the Fixed-term Regulations. The Directive sought to protect against discrimination, workers on fixed-term contracts and against abuse of successive fixed-term contracts in what was in reality an indefinite employment. That was not this situation, and the defeat of the argument in favour of the nine year rule was not to the point.

Lord Rodger, Lady Hale, Lord Mance, Lord Collins, Lord Clarke
UKSC 2010/0025, [2011] UKSC 14, [2011] ICR 495, [2011] IRLR 498, [2011] 2 All ER 417, [2011] 2 CMLR 51
Bailii Summary, SC, SC Summary, Bailii
Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034), Council Directive 1999/70/EC concerning the framework agreement on fixed-term work
England and Wales
Citing:
At EAT – Duncombe and others v Department for Education and Skills EAT 24-Apr-2008
Duncombe_desEAT2008
EAT Jurisdictional Points – Working outside the jurisdiction
Fixed Term Regulations
Extra-territorial jurisdiction. Teachers working abroad. Breach of contract claim within ET jurisdiction. Whether . .
Appeal from – Duncombe and Others v Secretary of State for Children, Schools and Families CA 14-Dec-2009
The court considered the workings of fixed term employment contracts under which the claimants taught in Europe. The Secretary of State argued that the contracts validly limited the claimants’ employment to nine years. The claimants said the 2002 . .
Cited – Serco Ltd v Lawson; Botham v Ministry of Defence; Crofts and others v Veta Limited HL 26-Jan-2006
Mr Lawson was employed by Serco as a security supervisor at the British RAF base on Ascension Island, which is a dependency of the British Overseas Territory of St Helena. Mr Botham was employed as a youth worker at various Ministry of Defence . .
Cited – Bleuse v MBT Transport Ltd and Another EAT 21-Dec-2007
EAT Working Time Regulations
Unfair Dismissal – Exclusions including worker/jurisdiction
The claimant, a lorry driver, worked mainly in Austria and Germany, but had a contract of employment with a . .
Cited – Aahyan v European Parliament (Staff Regulations) ECJ 30-Apr-2009
ECJ Civil service – Session auxiliaries of the European Parliament – Admissibility – Pre-litigation procedure – Article 283 EC – Article 78 of the Conditions of Employment – Plea of illegality – Equal treatment – . .
Distinguished – Adeneler and Others v Ellinikos Organismos Galaktos ECJ 4-Jul-2006
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .
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 by:
Cited – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .
SC Part 1 – Duncombe and Others v Secretary of State for Children, Schools and Families (No 2) SC 15-Jul-2011
The court considered whether a teacher employed by the Secretary of State to teach in one of its European Schools was entitled to protection against unfair dismissal.
Held: The claimants’ appeals were allowed and the cases remitted to the . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 02 November 2021; Ref: scu.431372

Interseroh Scrap And Metals Trading v Sonderabfall-Management-Gesellschaft Rheinland-Pfalz mbH: ECJ 29 Mar 2012

InterserohECJ2012

ECJ Environment – Regulation (EC) No 1013/2006 – Article 18(1) and (4) – Shipments of certain waste – Article 3(2) – Mandatory information – Identity of waste producers – Information not provided by the intermediary dealer – Protection of business secrets

Bonichot P
C-1/11, [2012] EUECJ C-1/11
Bailii
Regulation (EC) No 1013/2006
Citing:
See Also – Verbraucherzentrale Nordrhein-Westfalen eV v Heinrich Heine GmbH ECJ 8-Dec-2011
ECJ (Opinion) Directive 97/7/CE Consumer protection Distance contracts Right of withdrawal Consumer charged with the cost of delivering the goods . .

Lists of cited by and citing cases may be incomplete.

European, Environment

Updated: 02 November 2021; Ref: scu.452624

Parkwood Leisure Ltd v Alemo-Herron and 23 Others: CA 29 Jan 2010

The employees asserted unauthorised deductions from their wages. The company appealed against an order re-instating their claims. When employed by the council, the claimants had the right to pay increases in accordance with rates set by national negotiations, and claimed the benefit of increases negotiated after they had been transferred to the appellant. The employer argued that Werhof had limited the earlier UK decisions. The employees said that the TUPE regulations went beyond the Directive applied in Werhof.
Held: The company’s appeal was allowed. A second transferee of an undertaking was not bound a collective settlement agreed with the first public authority employer. The situation in Werhof was indistinguishable, and it ‘decided that article 3(1) of the Directive does not bear a dynamic interpretation in relation to the circumstances of cases like Mr Werhof’s, namely those in which there is a contractual term providing for employment terms to be fixed by reference to the terms of collective agreements negotiated from time to time.’
There was nothing in the TUPE Regulations to justify an interpretation that they went beyond the requirements of the Directive.

Rimer LJ, Lord Justice Ward, Lady Justice Smith
[2010] EWCA Civ 24, [2010] WLR (D) 16, [2010] ICR 793, [2010] IRLR 298
Bailii, Times, WLRD
Transfer of Undertakings (Protection of Employment) Regulations 1981, Council Directive 77/187/EEC (the Acquired Rights Directive)
England and Wales
Citing:
Appeal from – Alemo-Herron v Parkwood Leisure Ltd EAT 12-Jan-2009
EAT TRANSFER OF UNDERTAKINGS: Acquired rights directive
TRANSFER OF UNDERTAKINGS: Varying terms of employment
As a matter of construction of TUPE Reg 5(1), a contractual term entitling employees to . .
Cited – Whent and others v T Cartledge Ltd EAT 16-Dec-1996
The appellants had been employed by Brent. Their contracts provided that pay would be in accordance with NJC agreements as amended from time to time. Their employment transferred under TUPE to a private sector employer, who wrote to the employees . .
Cited – Glendale Grounds Management v Bradley EAT 19-Feb-1998
. .
Cited – BET Catering Services Ltd v Ball and others EAT 28-Nov-1996
Mrs Ball was an employee of a London Borough whose contract incorporated the NJC conditions. Following her TUPE transfer to BET, a private sector employer, the NJC promulgated terms that included pay increases. The issue was whether BET was obliged . .
Cited – Robertson v British Gas Corporation CA 1983
Collective agreements ordinarily create no legally enforceable obligations between a union and the employers. Akner LJ did not accept that the statutory statement of terms and conditions equally placed a heavy burden on the employee and employer in . .
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 . .
Cited – Hans Werhof v Freeway Traffic Systems GmbH and Co. KG ECJ 9-Mar-2006
The claimant’s employment was covered by a framework collective agreement and a wage agreement specific to his industry. The business was transferred to the defendant, who was not part of such schemes. An arrangement was proposed to vary his . .
Cited – Graham v Glendale Management Service Ltd CA 16-May-2003
The employee’s employment had been transferred to the respondent subject to his terms and conditions as with the local authority employer. Those terms included a clause applying normally national agreed rates of pay, but subsequent increases had not . .
Cited – Transport and General Workers Union v Swissport (UK) Ltd (in administration) and Another EAT 27-Jun-2007
EAT Transfer of undertakings – Acquired rights directive / Entity
1. The transferor provided ground handling services to the putative transferee. The Employment Tribunal fell into error in finding that there . .

Cited by:
Cited – Worrall and Others v Wilmott Dixon Partnership Ltd and Another EAT 9-Jul-2010
EAT CONTRACT OF EMPLOYMENT – Incorporation into contract
TRANSFER OF UNDERTAKINGS – Pensions and other terms
In this test case, the Claimant started his employment with Birmingham City Council on 29 . .
Appeal From – Parkwood Leisure Ltd v Alemo-Herron and Others SC 15-Jun-2011
The claimants had been employed by a local authority and then transferred to the respondents. They had had the benefit that their terms of employment were subject to collective agreement. The respondent was not part of the negotiation of later . .
At CA – Alemo-Herron and Others v Parkwood Leisure Ltd ECJ 19-Feb-2013
ECJ Opinion – Transfer of undertakings – Safeguarding of employees’ rights – Directive 2001/23/EC – Article 3(3) – Collective agreement applicable to the transferor and to the employee at the time of the transfer . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 02 November 2021; Ref: scu.396408

Faaborg-Gelting Linien v Finanzamt Flensburg: ECJ 2 May 1996

A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the meal); and that since restaurant transactions were characterised by a cluster of features and acts of which the provision of food was only one component and in which services largely predominate, they were to be characterised as supplies of services. This must be so though the quality of the food and the cost (eg of champagne at the meal) is very high indeed. The court distinguished the situation where the transaction relates to ‘take-away’ food: such a transaction is a supply of goods. Where the transaction consists of a composite supply of services and goods (or of different categories of services) which from an economic point of view cannot be severed, the principal supply must be identified and the character of the principal supply determines the character of the component parts of the transaction: ‘In order to determine whether such transactions constitute supplies of goods or supplies of services, regard must be had to all the circumstances in which the transaction in question takes place in order to identify its characteristic features.’ and ‘Consequently, restaurant transactions are characterised by a cluster of features and acts, of which the provision of food is only one component and in which services largely predominate. They must therefore be regarded as supplies of services within the meaning of art 6(1) of the Sixth Directive. The situation is different, however, where the transaction relates to ‘takeaway’ food and is not coupled with services designed to enhance consumption on the spot in an appropriate setting.’

Times 09-May-1996, C-231/94, [1996] STC 774, [1996] ECR I-2395, [1996] EUECJ C-231/94, [1996] All ER (EC) 656, [1996] CEC 587, [1996] 3 CMLR 535
Bailii
Council Directive 77/388/EEC May 17 1977
Cited by:
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
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 – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Lists of cited by and citing cases may be incomplete.

VAT, European

Leading Case

Updated: 02 November 2021; Ref: scu.161411

Elektriciteits Produktiemaatschappij Zuid-Nederland: ECJ 9 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – Atmospheric pollution – Scheme for greenhouse gas emission allowance trading – Directive 2003/87/EC – Concept of ‘installation’ – Inclusion of the fuel storage site – Regulation (EU) No 601/2012 – Concept of ‘fuel exported from the installation’

ECLI:EU:C:2016:422, [2016] EUECJ C-158/15
Bailii
Regulation (EU) No 601/2012, Directive 2003/87/EC

European, Environment

Updated: 02 November 2021; Ref: scu.565604

Apple v Deutsches Patent-und Markenamt: ECJ 10 Jul 2014

apple_dpumECJ1407

ECJ Judgment – Request for a preliminary ruling – Trade marks – Directive 2008/95/EC – Articles 2 and 3 – Signs capable of constituting a trade mark – Distinctive character – Representation, by design, of the layout of a flagship store – Registration as a trade mark for ‘services’ connected with the products on sale in such a store

M Ilesic P
C-421/13, [2014] EUECJ C-421/13, ECLI:EU:C:2014:2070, [2014] WLR(D) 303
Bailii, WLRD
Directive 2008/95/EC 2 3

European, Intellectual Property

Updated: 02 November 2021; Ref: scu.534091

Enderby v Frenchay Health Authority and Another: ECJ 27 Oct 1993

Discrimination – Shifting Burden of Proof

(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female profession, were appreciably less well paid than members of comparable professions in which at an equivalent professional level there were more men than women. In particular she was comparing herself with two men – a clinical psychologist and pharmacist. The employer sought to justify the difference in pay by showing that the pay rates had resulted from different collective bargaining processes, each of which was free from any sex bias.
Held: Once prima facie discrimination shown, the burden of proof shifts to the employer to show good cause. A difference in treatment is to be justified objectively or assumed to be discriminatory. When statistics were used, it is for the national court to assess whether it may take into account those statistics, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.
ECJ 1. Article 177 of the Treaty provides the framework for close cooperation between national courts and the Court of Justice, based on a division of responsibilities between them. Within that framework, it is solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court.
Consequently, where the Court receives a request for interpretation of Community law which is not manifestly unrelated to the reality or the subject-matter of the main proceedings, it must reply to that request and is not required to consider the validity of a hypothesis which it is for the referring court to verify subsequently if that should prove to be necessary.
2. The burden of proving the existence of sex discrimination, which in principle lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer, may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay.
Where therefore statistics which the national court considers significant disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.
3. The fact that the rates of pay for two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, are decided by collective bargaining processes conducted separately for each of the two professional groups concerned, without any discriminatory effect within each group, does not, where the results of those processes show that two groups with the same employer and the same trade union are treated differently, preclude a finding of prima facie discrimination requiring the employer to prove that there is no infringement of Article 119 of the Treaty.
If the employer could rely on the absence of discrimination within each of the collective bargaining processes taken separately as sufficient justification for the difference in pay, he could easily circumvent the principle of equal pay by using separate bargaining processes.
4. It is for the national court, which has sole jurisdiction to make findings of fact, to determine, if necessary by applying the principle of proportionality, whether and to what extent the shortage of candidates for a job and the need to attract them by higher pay constitutes an objectively justified economic ground for the difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men.

Times 12-Nov-1993, Ind Summary 29-Nov-1993, [1993] IRLR 591, C-127/92, [1993] EUECJ C-127/92, [1994] ICR 112, [1994] 1 All ER 495, [1994] 1 CMLR 8, [1993] ECR I-5535
Bailii
European
Citing:
See Also – Enderby v Frenchay Health Authority and Secretary of State for Health etc CA 17-Feb-2000
Once unequal treatment had been established it was necessary to take each clause of the contract of the claimant and the comparator and to remove any lesser treatment. Nevertheless, where pay was to be calculated according to a scale including . .

Cited by:
Cited – Strathclyde Regional Council and others v Wallace and others (Scotland) HL 22-Jan-1998
80% of the men who had been employed since 1 April 1997 had got protection under TUPE whereas only 66.66% of the women had. It was argued that this difference in percentages was sufficient to justify a claim of indirect discrimination.
Held: . .
Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
See Also – Enderby v Frenchay Health Authority and Secretary of State for Health etc CA 17-Feb-2000
Once unequal treatment had been established it was necessary to take each clause of the contract of the claimant and the comparator and to remove any lesser treatment. Nevertheless, where pay was to be calculated according to a scale including . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Cited – Cheshire and Wirral Partnership NHS v Abbott and others CA 4-Apr-2006
The employees alleged sex discrimination. As domestics who were mostly women, they were not paid the bonuses which went to porters. In making the claim, they excluded another group, namely caterers who were also mostly female, but also received the . .
Cited – Gibson and Others v Sheffield City Council CA 10-Feb-2010
The employees appealed against dismissal of their claims of sex discrimination, saying that the employer’s explanation of the pay differential was not adequate.
Held: The appeal succeeded. The tribunal had failed to distinguish between what . .
Cited – Quigley v Foyle Health and Social Services Trust and others NIIT 24-Sep-2004
. .
Cited – Tyne and Wear Passenger Transport Executive (T/A Nexus) v Best and others EAT 21-Dec-2006
EAT Sex Discrimination
Equal Pay – Like work
Female train drivers made a claim under S1 of the Equal Pay Act 1970. The Claimants were in a group known as ‘Metro Operators’ and claimed parity of pay for . .
Cited – North Cumbria Acute Hospitals NHS Trust v Potter and others EAT 18-Dec-2008
EAT EQUAL PAY ACT: Article 141/European law
EPA and Article 141 claims. The appeal and cross appeals give rise to various EPA issues; whether, like Article 141, section 1(6) requires a single source, that is . .
Cited – Hamilton v Department Of Finance and Personnel NIIT 29-Jun-2009
NIIT The unanimous decision of the tribunal was that the respondent had established a genuine material factor defence for the purposes of the Equal Pay Act 1970 (as amended) and the claim for equal pay was . .
Cited – McLaughlin v Northern Ireland Association For Mental Health NIIT 19-Nov-2010
. .
Cited – Mclaughlin v University of Ulster NIIT 1-Feb-2011
. .
Cited – Bhudi and others v IMI Refiners Ltd EAT 24-Nov-1993
. .
Cited – Murphy v Northern Ireland Assembly Commission NIIT 11-Mar-2009
NIIT The unanimous decision of the tribunal is that the claimant’s claims in respect of a breach of the Equal Pay Act (Northern Ireland) 1970 and unlawful sex discrimination be dismissed. . .
Cited – The Audit Commission v Haq and Others EAT 18-Mar-2011
EAT EQUAL PAY ACT – Material Factor Defence and Justification
Two roles (‘IIO’ and ‘SIIO’) amalgamated into a new role (‘SIO’), on the basis that affected employees retain their existing points on the . .
Cited – Evesham v North Hertfordshire Health Authority and Another EAT 2-Sep-1998
. .
Cited – Cheshire and Wirral Partnership NHS Trust v S Abbott EAT 13-Sep-2005
EAT Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke. . .
Cited – A Sharp v Caledonia Group Services Ltd EAT 18-Apr-2005
EAT Sex Discrimination – Direct.
EAT Equal Pay Act – Material factor defence. . .
Cited – ABN AMRO Management Services Ltd and Another v Hogben EAT 1-Nov-2009
EAT AGE DISCRIMINATION
PRACTICE AND PROCEDURE – Striking-out
Appeal against refusal of Employment Judge to strike out three heads of an age discrimination claim; cross-appeal against striking-out of . .
Cited – Faulkner v Hampshire Constabulary EAT 2-Mar-2007
EAT Sex Discrimination – Indirect / Justification
A policy preventing police officers in a partnership from working together in a supervisor/subordinate role had an adverse impact on women since men . .
Cited – Cumbria County Council v Dow and others EAT 24-May-2007
EAT Equal Pay – Material Factor Defence.
The Tribunal considered a whole series of GMF defences and rejected most of them. There were numerous appeals and cross appeals and the Council contended that the . .
Cited – Middlesbrough Borough Council v Surtees and others EAT 17-Jul-2007
EAT EQUAL PAY ACT
Material factor defence
European law
Certain employees of the Council claimed equal pay with respect to their chosen comparators. In some cases the claim related to a period . .
Cited – GMB v Allen and others EAT 31-Jul-2007
EAT SEX DISCRIMINATION
Indirect
Victimisation
The Employment Tribunal found that the failure by the union to support certain female members in their claims for equal pay against their employer, and . .
Cited – Sunderland City Council v Brennan and others EAT 20-Jun-2008
EAT PRACTICE AND PROCEDURE:
Preliminary issues
EQUAL PAY ACT
Material factor defence and justification

This case involves complicated equal pay claims against the council in which different . .
Cited – British Airways Plc v Grundy CA 28-Jul-2008
Employer’s appeal against finding of indirect discrimination under implied equality clause. . .
Cited – Redcar and Cleveland Borough Council v Bainbridge and others (‘Bainbridge 1’) CA 29-Jul-2008
Pay protection provisions are commonly adopted, and provided any differential in pay does not continue for too long, they may justify what would otherwise be unlawful indirect discrimination. . .
Cited – Coventry City Council v Nicholls and others (Unison Union Claimants) EAT 27-Feb-2009
EAT EQUAL PAY ACT: Material factor defence and justification
The claimants brought various equal pay claims naming refuse collectors as comparators. The claimants were in predominantly female jobs and the . .
Cited – Dumfries and Galloway Council v North and Others EAT 24-Apr-2009
EAT 244 Equal Pay claims by classroom assistants, support for learning assistants and nursery nurses employed by local authority. They sought to compare themselves with male manual workers based elsewhere, at . .
Cited – LE UTAA 24-Aug-2009
The decision of the appeal tribunal held on 2 November 2007 is erroneous in point of law. I set aside that decision. I re-make that decision pursuant to s.12(2) of the Tribunals, Courts and Enforcement Act 2007. The claimant is not entitled to . .
Cited – Wilson v Health and Safety Executive CA 20-Oct-2009
The employer appealed against a finding that it had acted in an equal pay claim in allowing for length of service.
Held: The employer’s appeal was dismissed. Decisions based on length of service tended to discriminate against women, because . .
Cited – Home Office v Bailey and Others EAT 29-Jul-2005
EAT Equal Pay Act
Work Rated Equivalent; Material Factor Defence
JES (Job Evaluation Study). Work rated as equivalent. GMF (genuine material factor) – pension arrangements. Value of unsocial hours GMF. . .
Cited – British Airways Plc v Grundy EAT 19-Aug-2005
EAT Appeals by Claimants and Respondent against different Employment Tribunal judgments variously upholding claimants’ claims of discrimination arising out of the lack of access to the Respondent’s seniority . .
Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Cited – Armstrong and others v Newcastle Upon Tyne NHS Hospital Trust CA 21-Dec-2005
The claimants claimed equal pay, asserting use of particular comparators. The Trust said that there was a genuine material factor justifying the difference in pay.
Held: To constitute a single source for the purpose of article 141, it is not . .
Cited – Villalba v Merrill Lynch and Co Inc and others EAT 31-Mar-2006
EAT Victimisation discrimination. Tribunal found victimisation discrimination to a limited extent. Did the Tribunal apply the right test when determining whether such discrimination had arisen? Did it reach . .
Cited – SK (Proof of Indirect Racial Discrimination) India AIT 5-Sep-2006
AIT 1. The Court of Appeal, House of Lords and Luxemburg authorities on race and sex discrimination in employment are to be used as a guide for the establishment of race discrimination in appeals to this . .
Cited – Sharon Marie Grady v Home Office EAT 4-Mar-2004
EAT Practice and Procedure – Striking-out/dismissal. . .
Cited – The Home Office v A Bailey and others EAT 2-Jul-2004
EAT Equal Pay Act – Material factor defence
The EAT allowed an appeal by the Home Office from a decision of an Employment Tribunal which had determined as a preliminary issue that the Home Office was . .
Cited – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Igen Ltd v Wong CA 18-Feb-2005
Proving Discrimination – Two Stage Process
Each appeal raised procedural issues in discrimination cases, asking where, under the new regulations, the burden of proof had shifted.
Held: The new situation required a two stage process before a complaint could be upheld. First the claimant . .
Cited – Robertson and others v Department for Environment Food and Rural Affairs CA 22-Feb-2005
The claimants argued that civil servants in one government department could establish that civil servants in another department could stand as comparators in their equal pay claim.
Held: It was not necessarily the person with whom the workers . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Leading Case

Updated: 02 November 2021; Ref: scu.160919

Drouot assurances v Consolidated metallurgical industries and others: ECJ 19 May 1998

(Judgment) Where proceedings were brought in two member states, the second proceedings should not be automatically stayed where there was a difference in the actions such as an additional cause of action in the second claim. Lis alibi pendens is not appropriate in such a case. Cases which in fact involved different parties (ship owner and insurer) could be treated as the same for purposes of the convention only if the interests of the differing parties were genuinely identical.

Times 10-Jun-1998, Gazette 09-Sep-1998, C-351/96, ECJ/Cfi Bulletin 14/98, 7, [1998] EUECJ C-351/96
Bailii
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968

International, European

Leading Case

Updated: 02 November 2021; Ref: scu.161977

Litaksa UAB v BTA Insurance Company SE: ECJ 26 Mar 2015

Judgment – Reference for a preliminary ruling – Compulsory insurance against civil liability in respect of the use of motor vehicles – Directive 90/232/EEC – Article 2 – Differentiation in the amount of the insurance premium depending on the territory in which the vehicle is used

L. Bay Larsen, P
C-556/13, [2015] EUECJ C-556/13, ECLI:EU:C:2015:202
Bailii
Directive 90/232/EEC 2
European

Road Traffic, Insurance

Updated: 02 November 2021; Ref: scu.545366

Usedsoft Gmbh v Oracle International Corp: ECJ 3 Jul 2012

ECJ (Grand Chamber) Legal protection of computer programs – Marketing of used licences for computer programs downloaded from the internet – Directive 2009/24/EC – Articles 4(2) and 5(1) – Exhaustion of the distribution right – Concept of lawful acquirer
The Court considerd the concept of a ‘sale’ in the Directive rproviding that the first ‘sale’ in the Community of a copy of the program by the rightholder exhausted the distribution rights within the Community of that copy. The first question addressed by the Court was whether the downloading of a program over the internet gave rise to an exhaustion of rights, and in order to consider that the Court embarked on a consideration of whether that was a ‘first sale’ of a copy of the program.
Held: ‘sale’ in the Directive was an autonomous concept and it recorded the submission of Oracle that what it entered into was a licence not a sale. This point was decided against Oracle: ‘As regards the question whether, in a situation such as that at issue in the main proceedings, the commercial transactions concerned involve a transfer of the right of ownership of the copy of the computer program, it must be stated that, according to the order for reference, a customer of Oracle who downloads the copy of the program and concludes with that company a user licence agreement relating to that copy receives, in return for payment of a fee, a right to use that copy for an unlimited period. The making available by Oracle of a copy of its computer program and the conclusion of a user licence agreement for that copy are thus intended to make the copy usable by the customer, permanently, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which it is the proprietor.
In those circumstance, the operations . . examined as a whole, involve the transfer of the right of ownership of the copy of the computer program in question.’
There was no difference between the supply over the internet and supply via a physical medium such as a CD-ROM: ‘It makes no difference, in a situation such as that at issue in the main proceedings, whether the copy of the computer program was made available to the customer by the rightholder concerned by means of a download from the rightholder’s website or by means of a material medium such as a CD-ROM or DVD . . an acquirer who downloads a copy of the programme concerned by means of a material medium such as a CD-ROM or DVD and concludes a licence agreement for that copy receives the right to use the copy for an unlimited period in return for payment of a fee, it must be considered that those two operations likewise involved, in the case of the making available of a copy of the computer programme concerned by means of a material medium, the transfer of the right of ownership of that copy.
Consequently, in a situation such as that at issue in the main proceedings, the transfer by the copyright holder to a customer of a copy of a computer program, accompanied by the conclusion between the same parties of a user license agreement, constitutes a ‘first sale . . of a copy of a program’ within the meaning of art.4(2) of Directive 2009/24.
As the AG observes . . if the term ‘sale’ within the meaning of art.4(2) of Directive 2009/24 were not given a broad interpretation as encompassing all forms of product marketing characterised by the grant of a right to use a copy of a computer program, for an unlimited period, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, the effectiveness of that provision would be undermined, since suppliers would merely have to call the contract a ‘license’ rather than a ‘sale’ in order to circumvent the rule of exhaustion and divest it of all scope.’

Skouris P
[2012] EUECJ C-128/11, C-128/11, [2012] ECDR 19, [2013] BUS LR 911, [2013] RPC 6, [2012] 3 CMLR 44, [2013] CEC 323, [2012] WLR(D) 192, [2012] All ER (EC) 1220
Bailii, WLRD
Directive 2009/24/EC 4(2) 5(1)
European
Citing:
Opinion – Usedsoft Gmbh v Oracle International Corp ECJ 24-Apr-2012
ECJ Opinion – Legal protection of computer programs – Directive 2009/24/EC – Marketing of used software downloaded from the internet – Exhaustion of the distribution right . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 02 November 2021; Ref: scu.463500

Technische Universitat Darmstadt v Eugen Ulmer KG: ECJ 11 Sep 2014

darmstadtECJ1409

ECJ Judgment – Reference for a preliminary ruling – Directive 2001/29/EC – Copyright and related rights – Exceptions and limitations – Article 5(3)(n) – Use for the purpose of research or private study of works and other subject-matter – Book made available to individual members of the public by dedicated terminals in publicly accessible libraries – Meaning of work not subject to ‘purchase or licensing terms’ – Right of the library to digitise a work contained in its collection in order to make it available to users by dedicated terminals – Making the work available by dedicated terminals which permit it to be printed out on paper or to be stored on a USB stick
‘Article 5(3)(n) of Directive 2001/29 must be interpreted to mean that it does not extend to acts such as the printing out of works on paper or their storage on a USB stick, carried out by users from dedicated terminals installed in publicly accessible libraries covered by that provision. However, such acts may, if appropriate, be authorised under national legislation transposing the exceptions or limitations provided for in Article 5(2)(a) or (b) of that directive provided that, in each individual case, the conditions laid down by those provisions are met.’

L. Bay Larsen, P
C-117/13, [2014] EUECJ C-117/13, ECLI:EU:C:2014:2196
Bailii
Directive 2001/29/EC

European, Intellectual Property

Updated: 02 November 2021; Ref: scu.536564

Insula v Commission: ECFI 13 Jun 2012

insulaECFI2012

ECFI Arbitration clause – Contract funding of research and development – Contracts and MEDIS Dias.Net – Absence of evidence and non-compliance with the contractual part of the expenditure declared – Retention of a sum to another contractor – Reimbursement of amounts paid – Partial inadmissibility of the appeal – Counterclaim Commission – No need part on the counterclaim

Czucz P
T-246/09, [2012] EUECJ T-246/09
Bailii

European, Arbitration

Updated: 02 November 2021; Ref: scu.460420

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 found no contractual relationship. She said that under the 2000 Directive (the Framework Directive ‘FD’) she would so count, and that the UK legislation should be read accordingly.
Held: The FD was not universal, and different activities were carefully defined to receive different levels of protection. The Commission had not had volunteering activities in mind as falling within the scope of article 3 of the FD. In the phrase, ‘occupation, employment or self-employment’, the word occupation was an umbrella term, and not a third alternative. There had been a proposal to amend the draft to add voluntary work to the protected occupations, but this had not been accepted.
Nor was there sufficient doubt about the matter to require a reference to the ECJ.

Lord Neuberger, President, Lord Walker, Lady Hale, Lord Mance, Lord Wilson
[2012] UKSC 59, [2013] 1 All ER 1038, [2013] IRLR 146, [2013] 2 CMLR 16, [2013] ICR 249, [2013] Eq LR 154, UKSC 2011/0112
Bailii, Bailii Summary, SC Summary, SC
Equality Act 2010, Directive 2000/78/EEC, Disability Discrimination Act 1995 68(1), Disability Discrimination Act 1995 (Amendment) Regulations 2003
England and Wales
Citing:
At EAT – X v Mid Sussex Citizens Advice Bureau and Another EAT 30-Oct-2009
EAT DISABILITY DISCRIMINATION: Exclusions/jurisdictions
The Employment Judge did not err in finding that the Appellant, a volunteer worker with the CAB, was not entitled by the DDA to claim disability . .
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 – X v Mid Sussex Citizens Advice Bureau and Others CA 26-Jan-2011
The court was asked whether the claimant, a volunteer worker with the respondent had the protection of the 1995 Act in that work as a worker, despite nnot being employed. . .
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 – 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 – 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 – Kucukdeveci v Swedex GmbH and Co KG ECJ 19-Jan-2010
ECJ Principle of non-discrimination on grounds of age – Directive 2000/78/EC – National legislation on dismissal not taking into account the period of employment completed before the employee reaches the age of . .
Cited – Ninni-Orasche v Bundesminister fur Wissenschaft, Verkehr und Kunst ECJ 6-Nov-2003
ECJ Freedom of movement for workers – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of worker – Contract of employment of a short term fixed in advance – Retention of the status of . .
Cited – Sturgeon and Others v Condor Flugdienst GmbH ECJ 19-Nov-2009
The claimants’ flights had been cancelled. In one case the passengers had been booked on an alternative flight which had been treated as a substitute for the original flight and the carriage had been performed under the original tickets. In the . .
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 – Meyers v Adjudication Officer ECJ 19-Jul-1995
EC directive on equal rights requires single parents to set off child care costs.
A social security benefit designed to keep low income workers in employment or to encourage them into employment was within the scope of Directive 76/207/EC, not . .
Cited – Junk v Kuhnel ECJ 27-Jan-2005
ECJ Social Policy – Directive 98/59/EC – Collective redundancies – Consultation with workers’ representatives – Notification to the competent public authority – Concept of ‘redundancy’ – Time at which redundancy . .
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 . .

Lists of cited by and citing cases may be incomplete.

Discrimination, European

Leading Case

Updated: 02 November 2021; Ref: scu.467054

Land Nordrhein-Westfalen v Jansen: ECJ 15 Sep 2011

lnw_jansenECJ2011

ECJ (Social Policy) French Text – (Opinion of Advocate General) Social policy – Directive 1999/70/EC – Framework agreement on fixed-term employment – Clause 5, paragraph 1 – Measures to prevent the misuse of successive fixed-term contracts – ‘objective reasons’ justifying the renewal of such contracts – Taking into account the number or the cumulative duration of successive fixed-term contracts – Justification reserved for the public sector – Justification based on budgetary funds for fixed-term employment – Clause 8, paragraph 3 – reducing the general level worker protection – Consistent interpretation

C-313/10, [2011] EUECJ C-313/10
Bailii
Directive 1999/70/EC

European, Employment

Updated: 02 November 2021; Ref: scu.444381

Houldsworth and Another v Bridge Trustees Ltd and Another: SC 27 Jul 2011

The court was asked as to the dividing line, for regulatory purposes, between defined benefit (normally earnings-related) schemes and defined contribution (or money purchase) schemes. The Secretary of State asserted that some methods used to calculate benefits took the schemes outside the definition of ‘money purchase benefits’ in section 181(1) of the 1993 Act.
Held: The appeal was dismissed (Lord Manse dissenting). The maintenance of an equilibrium of assets and liabilities is not a requirement of the statutory definition of both money purchase schemes, and for money purchase benefits. The deputy judge and the Court of Appeal correctly concluded that the GIF mechanism did not unhitch a member’s eventual benefits from that member’s total contributions. They provided for a yield of guaranteed interest at a modest rate fixed by an objective test, together with the prospect of further bonuses at a modest rate, fixed, again, by an objective test under which the trustees had no discretion.

Lord Walker, Lady Hale, Lord Mance, Lord Collins, Lord Clarke
UKSC 2010/0074, [2011] UKSC 42, [2011] 1 WLR 1912, [2011] Pens LR 313, [2011] ICR 1069
Bailii Summary, SC Summary, SC, Bailii
Pension Schemes Act 1993 181(1), Council Directive 80/987/EEC of 20 October 1980, Directive 2003/41/EC of the European Parliament and the Council of 3 June 2003 relating to the Activities and Supervision of Institutions for Occupational Retirement Provision
England and Wales
Citing:
Appeal from – Houldsworth and Another v Bridge Trustees Ltd and Another CA 4-Mar-2010
. .
Cited – Aon Trust Corporation Ltd v KPMG (A Firm) and others CA 28-Jul-2005
The claimants were trustees of the defendant’s pension scheme. They sought additional payments to make up a shortfall in funds, on the basis that the fund was an earnings related pension scheme, and that the company therefore had obligations to make . .
Cited – Farrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
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 . .
At First Instance – Bridge Trustees Ltd v Yates and others ChD 1-May-2008
. .
Cited – AON Trust Corporation Ltd v KPMG and others ChD 29-Jul-2004
The defendant’s pension scheme had been set up by deed in 1949. The trustees argued that the firm had an obligation to make substantial additional contributions to ensure it was not underfunded. The defendants argued that it was a money purchase . .
Cited – St Aubyn v Attorney General HL 12-Jul-1951
The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .

Lists of cited by and citing cases may be incomplete.

Financial Services, European

Updated: 02 November 2021; Ref: scu.442224

Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs: SC 15 Jun 2011

The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 Act, and also were contrary to EU law.
Held: The appeal succeeded. The power given by the statute did extend to allow the imposition of such a levy on imported fish products. It was not a charge equivalent to a customs duty within EU law. The word ‘landed’ could be given a wider or narrower interpretation. The narrower sense would apply to fish landed direct from the fishing vessel which had caught it, and the wider sense would additionally include products brought here in other ways. The earlier schemes had included such wider methods and there was no reason to think any change had been intended.
Lord Mance JSC, considering the meaning of the word ‘landed’ in s.4(3) of the Fisheries Act 1981: ‘In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. In this area as in the area of contractual construction, ‘the notion of words having a natural meaning’ is not always very helpful (see Charter Reinsurance Co. Ltd v Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme. In the case of a statute which has, like the 1981 Act, been the subject of amendment it is not lightly to be concluded that Parliament, when making the amendment, misunderstood the general scheme of the general legislation, with the effect of creating a palpable anomaly . . ‘
Lord Philips noted that ‘for nearly 30 years everyone concerned proceeded on the basis that the phrase [‘landed in the United Kingdom’] should be given the broad meaning’ for which one of the parties contended.
He continued: ‘In circumstances such as these there must be, at the very least, a powerful presumption that the meaning that has customarily been given to the phrase in issue is the correct one. Carnwath LJ expressed one reason for this in Isle of Anglesey County Council v Welsh Ministers [2010] 10 QB 163, para 43:
‘Where an Act has been interpreted in a particular way without dissent over a long period, those interested should be able to continue to order their affairs on that basis without the risk of being upset by a novel approach.’
This has the air of pragmatism rather than principle, but courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction: see Bennion on Statutory Interpretation, 5th Ed (2008), s.288, p.913, and the authorities there cited.’

Lord Phillips, President, Lord Walker, Lady Hale, Lord Mance, Lord Collins
[2011] UKSC 25, UKSC 2010/0098
Bailii, Bailii Summary, SC, SC Summary
Fisheries Act 1981 4(3), Sea Fish Industry Authority (Levy) Regulations 1995
England and Wales
Citing:
At first instance – Bloomsbury International Ltd and Others v Sea Fish Industry Authority and Another QBD 24-Jul-2009
Parties challenged the legality of a levy imposed by the defendant for the purposes of supporting the sea food industry. They said that a levy imposed on fish products imported to the UK was beyond the powers given by the 1981 Act, and was contrary . .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Appeal from – Bloomsbury International Ltd and Others v The Sea Fish Industry Authority and Another CA 18-Mar-2010
The company, importers of fish, challenged the lawfulness of Regulations which imposed a levy requiring them to contribute to the training of UK fishermen.
Held: The company’s appeal succeeded. . .
Cited – Commission v Italy C-73/79 ECJ 21-May-1980
ECJ (Judgment) A measure carried out by means of discriminatory taxation, which may be considered at the same time as forming part of an aid within the meaning of article 92 of the EEC treaty, is governed both by . .
Mentioned – Carmine Capolongo v Azienda Agricole Maya. (Aids Granted By A Member State ) ECJ 19-Jun-1973
. .
Cited – Steinike and Weinlig v Federal Republic Of Germany ECJ 22-Mar-1977
A customs charge may be regarded as levied solely or exclusively by reason of its crossing a frontier, although it is applied at a later stage, such as marketing or processing of the product: ‘the prohibition [of a CEE] is aimed at any tax demanded . .
Cited – Criminal Proceedings Against JAWMJ Kortmann ECJ 28-Jan-1981
ECJ In the case of imported pharmaceutical products which have already been registered at the request of the manufacturer or the duly appointed importer, article 36 does not prevent national authorities from . .
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 – Proceedings brought by Outokumpu Oy ECJ 2-Apr-1998
An excise duty which is charged on electricity of domestic origin at rates which vary according to its method of production, while being levied on imported electricity at a flat rate which is higher than the lowest rate but lower than the highest . .
Cited – Haahr Petroleum v Abenra Havn and others ECJ 17-Jul-1997
(Judgment) Maritime transport – Goods duty – Import surcharge . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Commission v France (Rec 1981,P 283) (Judgment) ECJ 3-Feb-1981
ECJ 1. The prohibition of charges having an effect equivalent to customs duties covers any charge exacted at the time of or on account of importation which, being borne specifically by an imported product to the . .
Cited – Compagnie commerciale de l’Ouest v Receveur principal des douanes de La Pallice-Port ECJ 11-Mar-1992
A parafiscal charge applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which is used for the benefit of domestic products only, so that the advantages accruing from it wholly offset . .
Cited – Commission v France (Rec 1981,P 283) (Judgment) ECJ 3-Feb-1981
ECJ 1. The prohibition of charges having an effect equivalent to customs duties covers any charge exacted at the time of or on account of importation which, being borne specifically by an imported product to the . .
Cited – The Trustees of Clyde Navigation v Laird and Sons HL 1883
The court was asked whether the Clyde Navigation Consolidation Act 1858 required dues to be paid on logs which were chained together and floated down the River Clyde. The evidence was that these dues had been levied and paid without protest for a . .
Cited – Isle of Anglesey County Council and Another v The Welsh Ministries and others CA 20-Feb-2009
The claimants, the Commissioners and the County Council, sought declarations to establish their right to build a marina on parts of the foreshore currently used for commercial mussel fishing. Section 40 of the 1868 Act authorised ministers to make . .
Cited – Harald Weigel and Ingrid Weigel v Finanzlandesdirektion fur Vorarlberg ECJ 29-Apr-2004
ECJ Free movement of workers – Importing a car – Consumption tax type (‘Normverbrauchsabgabe’) – Customs duties and charges having equivalent effect – Discriminatory Taxation – Sixth VAT Directive – Tax on sales. . .
Cited – Kapniki Mikhailidis AE v Idryma Kinonikon Asphaliseon (Free Movement Of Goods) (Danish) ECJ 21-Sep-2000
Europa Charges having equivalent effect – the export of tobacco – duty in favour of a social fund. Action to obtain a preliminary ruling on the interpretation of Articles 9 and 12 (now Article 23 EC and 25 EC) . .
Cited – SARL Denkavit Loire v Etat Francais, administration des douanes ECJ 31-May-1979
ECJ Any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict . .
Cited – Commission v France (Rec 1981,P 283) (Judgment) ECJ 3-Feb-1981
ECJ 1. The prohibition of charges having an effect equivalent to customs duties covers any charge exacted at the time of or on account of importation which, being borne specifically by an imported product to the . .
Cited – Inco Europe Ltd and Others v First Choice Distribution (A Firm) and Others CA 10-Sep-1998
The Court of Appeal has jurisdiction to hear an appeal against a judge’s grant or refusal of an order staying court proceedings where arbitration was sought by one party under an agreement. . .
Cited – Commission v Belgium ECJ 26-Jun-1991
ECJ Tax provisions – Domestic taxation – System of taxation of beer – Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product – Flat-rate adjustment of excise duty . .
Cited – Sanders Adour and Guyomarc’h Orthez v Directeur des services fiscaux des Pyrenees-Atlantiques ECJ 11-Jun-1992
Community law, and in particular the machinery of the common agricultural policy laid down for the cereals sector in, inter alia, Regulation No 2727/75 on the common organization of the market in cereals, precludes a Member State from levying a . .
Cited – Commission v Luxembourg ECJ 26-Jun-1991
ECJ Tax provisions – Domestic taxation – System of taxation of beer – Levying of excise duty on the hot wort, regardless of wastage incurred in preparing the finished product – Flat-rate adjustment of excise duty . .

Cited by:
Cited – British Pregnancy Advisory Service, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 5-Jun-2019
Abortion Time Limit statement was correct.
The Court considered ‘ the correct interpretation of the words, ‘the pregnancy has not exceeded its twenty-fourth week’ in s.1(1)(a) of the Abortion Act 1967 ‘ The guidance was challenged as the calculations. The date of the beginning of the . .

Lists of cited by and citing cases may be incomplete.

Agriculture, European

Updated: 02 November 2021; Ref: scu.440730

Infopaq International v Danske Dagblades Forening: ECJ 17 Jul 2009

ECJ Copyright Information society – Directive 2001/29/EC Articles 2 and 5 – Literary and artistic works – Concept of ‘reproduction’ Reproduction ‘in part’ Reproduction of short extracts of literary works – Newspaper articles – Temporary and transient reproductions – Technological process consisting in scanning of articles followed by conversion into text file, electronic processing of the reproduction, storage of part of that reproduction and printing out.
The Court said: ‘Article 2(a) of Directive 2001/29 [the Information Society Directive] provides that authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their works. It follows that protection of the author’s right to authorise or prohibit reproduction is intended to cover ‘work’.
It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations.
Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.
In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto.
In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.’

K Lenaerts P
C-5/08, [2009] EUECJ C-5/08, [2012] Bus LR 102, [2009] ECR I-6569, [2010] FSR 20, [2009] ECDR 16
Bailii, Bailii
Directive 2001/29/EC 2, Directive 2006/116 6
European
Citing:
Opinion – Infopaq International v Danske Dagblades Forening ECJ 12-Feb-2009
ECJ (Opinion) Directive 2001/29 – Articles 2 and 5 – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Exceptions and limitations – Temporary acts . .

Cited by:
Cited – Football Dataco Ltd and Others v Brittens Pools Ltd (In Action 3222) and Others ChD 23-Apr-2010
The court considered what rights existed in the annual football fixture lists created by the claimants. The claimants said that the list was created only with a considerable effort applying certain rules. The defendants denied that any copyright . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others CA 27-Jul-2011
The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members . .
Judgment – Infopaq International A/S v Danske Dagblades Forening ECJ 17-Jan-2012
ECJ Copyright – Information society – Directive 2001/29/EC – Article 5(1) and (5) – Literary and artistic works – Reproduction of short extracts of literary works – Newspaper articles – Temporary and transient . .
Cited – Temple Island Collections Ltd v New English Teas Ltd and Another PCC 12-Jan-2012
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .
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 – Kogan v Martin and Others CA 9-Oct-2019
Dispute over the authorship of the screenplay of a film.
Held: ‘the judgment cannot stand. The judge has adopted an erroneous approach to the evidence, failed to make important findings of primary fact, failed to take account of material . .
Cited – Martin and Another v Kogan and Others IPEC 22-Nov-2017
The parties disputed whether joint authorship of the screenplay for a film, ‘Florence Foster Jenkins’. The claimant now sought a declaration of sole authorship of film screenplay, and the defendant cross-claimed for a declaration of joint . .
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.

Intellectual Property, Media

Leading Case

Updated: 02 November 2021; Ref: scu.286161

Vicom/Computer-related invention: EPOBA 1987

The claimant sought a patent claiming a method for the digital processing of images and an associated apparatus (which might be a computer) for implementing the method.
Held: The claims were not to a computer program as such: ‘Generally speaking, an invention which would be patentable in accordance with conventional patentability criteria should not be excluded from protection by the mere fact that, for its implementation, modern technical means in the form of a computer program are used. Decisive is what technical contribution the invention as defined in the claim when considered as a whole makes to the known art’.
‘a method for obtaining and/or reproducing an image of a physical object or even an image of a simulated object (as in computer-aided design/computer-aided manufacturing . . systems) may be used e.g. in investigating properties of the object or designing an industrial article and is therefore susceptible of industrial application. Similarly a method for enhancing or restoring such an image, without adding to its informational content, has to be considered as susceptible of industrial application’ and hence would not be excluded from patentability.
‘. . a claim directed to a technical process which process is carried out under the control of a program ( . . in hardware or in software) cannot be regarded as relating to a computer program as such . . , as it is the application of the program for determining the sequence of steps in the process for which in effect protection is sought’.
‘Generally claims which can be considered as being directed to a computer set up to operate in accordance with a specified program (whether by means of hardware or software) for controlling a technical process cannot be regarded as relating to a computer program as such.’
Finally at [16] the Board described ‘making a distinction between embodiments of the same invention carried out in hardware or in software’ as ‘inappropriate’, as what is ‘decisive’ is the ‘technical contribution which the invention described in the claim when considered as a whole makes to the known art’.

[1987] OJ EPO 14, (1986) T208/84, [1987] 2 EPOR 74
European
Cited by:
Cited – Aerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
Cited – In Re Patent Application No 9204959 by Fujitsu Ltd CA 14-Mar-1997
A computer program modelling a crystal structure is not patentable; it was not a hardware function, and software is not capable of protection under Patents law. Aldous LJ repeated his concern at the so called ‘technical contribution test’ for . .
Cited – Aerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
Cited – Cappellini and Bloomberg, Re PatC 13-Mar-2007
The applicants appealed rejection of their applications for patents. The comptroller-general had said that patents were in respect of computer programs excluded from registration.
Held: The appeals failed. There was no relevant technical . .
Cited – Symbian Ltd v Comptroller General of Patents CA 8-Oct-2008
No Pattern Established to Patent Computer Systems
The Comptroller appealed against the decision in Chancery to grant a patent to the clamant for an invention which the comptroller said should have been excluded from protection under section 1(2) as a computer program. It was argued that the UK was . .
Cited – Lantana Ltd v The Comptroller General of Patents, Design and Trade Marks CA 13-Nov-2014
The inventor company appealed against rejection of its application for a patent for a computer program.
Held: The appeal failed: ‘on the facts found by the Hearing Officer, the invention is no more than the computerisation of a process which . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Leading Case

Updated: 02 November 2021; Ref: scu.245708

WHA Ltd and Another v Revenue and Customs: SC 1 May 2013

The Court was asked as to the effectiveness of a scheme, known as Project C, designed to minimise the overall liability to VAT of a group of companies involved in motor breakdown insurance.
Held: The court dismissed WHA’s appeal. There had been no supply of repairs to WHA. The justifications for the project relied upon there being such a supply, and the scheme therefore failed. The Court of Appeal had been wrong to disagree with the decision of the VAT and Duties Tribunal as to the construction and effect of the arrangements involved. Accordingly it said nothing about the principle of abuse of right. It follows that the observations of the Court of Appeal on abuse of right were not binding as a matter of ratio, but they remain persuasive.
Lord Reed said that ‘ . . The contractual position is not conclusive of the taxable supplies being made as between the various participants in these arrangements, but it is the most useful starting point’

Lord Hope, Deputy President, Lord Walker, Lord Mance, Lord Reed, Lord Carnwath
[2013] UKSC 24, UKSC 2009/0074, [2013] STC 943, [2013] BVC 155, [2013] STI 1769, [2013] 2 All ER 907
Bailii, Bailii Summary, SC Summary, SC
Council Directive 67/227/EEC, Council Directive 77/388/EEC, Value Added Tax Act 1994
England and Wales
Citing:
At ChD – WHA Ltd and Another v Customs and Excise ChD 28-Feb-2003
The taxpayer appealed against a finding that it was unable to recover input VAT in its transactions. A scheme had been devised for the processing of claims and repairs in motor vehicle accidents.
Held: (1) WHA could treat the VAT payable on . .
At CA – WHA Ltd and Another v Customs and Excise CA 14-May-2004
. .
Appeal from – WHA Ltd and Another v Revenue and Customs CA 17-Jul-2007
The court considered the European principle of abuse of right.
Held: Lord Neuberger, delivering the leading judgment rejected the submission that the court was confined to considering the artificiality or purpose of each individual step, since . .
Cited – Commissioners of Customs and Excise v Redrow Group Plc HL 11-Feb-1999
Where house builders had paid the estate agents’ fees for exchanged property on sales, the supply had been, at least in part, to the builder, and the builder could accordingly recover the agents’ VAT as input tax. A supplier could be treated as . .
Cited – Revenue and Customs v Aimia Coalition Loyalty UK Ltd SC 20-Jun-2013
Decisions about the application of the VAT system are highly dependent upon the factual situations involved. The case-law of the Court of Justice indicates that, when determining the relevant supply in which a taxable person engages, regard must be . .

Cited by:
Cited – Pendragon Plc and Others v HM Revenue and Customs CA 23-Jul-2013
The Revenue had imposed a penalty on the appellants saying that their arrangement for the sale and VAT taxation of demonstrator cars was, in European law terms. The taxpayer sought re-instatment of the First Tier Tribunal judgment in its favour.
Cited – Airtours Holidays Transport Ltd v Revenue and Customs SC 11-May-2016
The court was asked whether the appellant, Airtours Holidays Transport Ltd (formerly MyTravel Group plc), was entitled to recover, by way of input tax VAT charged by PricewaterhouseCoopers LLP in respect of services provided by PwC and paid for by . .

Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 02 November 2021; Ref: scu.503503

Lock v British Gas Trading Ltd And Others: ECJ 5 Dec 2013

lock_bgECJ1213

ECJ Opinion – Social policy – Organisation of working time – Consultant receiving a basic salary with monthly commission payments based on sales made and the number of sales contracts entered into – Entitlement to payment of commission during annual leave

Bot AG
C-539/12, [2013] EUECJ C-539/12, [2014] EUECJ C-539/12
Bailii, Bailii

European, Employment

Updated: 02 November 2021; Ref: scu.518893

Siegfried Janos Schneider: ECJ 3 Oct 2013

schneiderECH1013

ECJ Jurisdiction and recognition and enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Scope – Legal capacity of natural persons – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Scope – Non-contentious proceedings concerning the right of a person who has been placed under guardianship and is domiciled in a Member State to dispose of immovable property situated in another Member State

M Ilesic P
C-386/12, [2013] EUECJ C-386/12, [2013] WLR(D) 366
Bailii, WLRD
Regulation (EC) No 44/2001

European, Jurisdiction

Updated: 02 November 2021; Ref: scu.516352

United Kingdom Of Great Britain And Northern Ireland v European Commission: ECJ 29 Nov 2012

ECJ Appeal – Directive 92/43/EEC – Conservation of natural habitats – List of sites of Community importance for the Mediterranean biogeographical region – Inclusion in the list of a site proposed by the Kingdom of Spain – Site allegedly covering an area of British Gibraltar territorial waters and an area of the high seas – Action for annulment – Measure merely confirmatory

R. Silva de Lapuerta
C-416/11, [2012] EUECJ C-416/11
Bailii
Directive 92/43/EEC
European

Environment

Updated: 02 November 2021; Ref: scu.466428

Common Services Agency v Scottish Information Commissioner: HL 9 Jul 2008

An MP had asked the Agency under the 2002 Act for details of all incidents of childhood leukaemia for both sexes by year from 1990 to 2003 for all the DG (Dumfries and Galloway) postal area by census ward. The Agency replied by saying that the release of the information would put at risk the privacy of the people involved because they might be indentifiable, and relied on the 1998 Act. The Commissioner had said that the information should be provided only if individuals could not be identified. Otherwise it would breach the 1998 Act and also be a breach of confidence. The Agency said that an obligation to provide only anonymised data would not be a provision of personal data.
Held: The appeal succeeded. The 1998 Act fulfilled an obligation imposed by European law, but the 2002 Act did not. The House asked whether the anonymised data was personal data, and held that: ‘Sensitive personal data’ is a subset, or a species, of ‘personal data’. Unless it was established that an exemption to control applied, it was necessary first to establish whether the changes to the data would be sufficient to make the data anonymous. What would have been an unlawful disclosure before the 2002 Act would remain unlawful afterwards. Data which was originally personal data could cease to be such if successfully anonymised.
Lord Rodger of Earlsferry pointed out that the safeguards against the disclosure of personal data which applied before the enactment of the FOISA continue to apply: ‘Where the legislature has thus worked out the way that the requirements of data protection and freedom of information are to be reconciled, the role of the court is just to apply the compromise to be found in the legislation . . There is, however, no reason why courts should favour the right to freedom of information over the rights of data subjects. ‘

Lord Hoffmann, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Mance
[2008] UKHL 47, Times 14-Jul-2008, (2008) 103 BMLR 170, 2008 SC (HL) 184, [2008] 4 All ER 851, [2008] 1 WLR 1550, 2008 SCLR 672, 2008 SLT 901, 2008 GWD 30-465
Bailii, HL
Data Protection Act 1998, Freedom of Information Act 2000, Freedom of Information (Scotland) Act 2002, Council Directive 95/46/EC of 25 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Data Protection (Processing of Sensitive Personal Data) Order 2000 (SI 2000/417), National Health Service (Functions of the Common Services Agency) (Scotland) Order 1974
Scotland
Citing:
Appeal from – Common Services Agency v Scottish Information Commissioner IHCS 1-Dec-2006
The Agency rejected a request to provide statistics on certain children, saying that the numbers were so small that individuals might be identified.
Held: Since the whole purpose of 2002 Act is the release of information, it should be . .
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .

Cited by:
Cited – Kennedy v Information Commissioner Admn 19-Jan-2010
The claimant journalist had made a freedom of information request to the Charity Commission as to its investigations of a charity under section 8 of the 1993 Act. The Commission claimed absolute exemption under section 32(2). He now appealed against . .
Cited – Kennedy v The Information Commissioner and Another CA 12-May-2011
The claimant, a journalist, sought further information from the Charity Commission after the release of three investigations into the ‘Mariam Appeal’ and questions about the source and use of its funds. The Commission replied that it was exempt . .
Cited – Department of Health, Regina (on The Application of) v Information Commissioner Admn 20-Apr-2011
The department appealed against an order requiring it to disclose statistical information about late abortions. The department argued that the numbers involved were such that the individual patients involved mighty be identified, and that therefore . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Cited – The Independent Parliamentary Standards Authority v The Information Commissioner and Another CA 28-Apr-2015
A journalist had requested the appellant who published the claims made by Members of Parliament for expenses to its website had requested in addition copies of the receipts produced by the MPs to justify three claims. The Authority provided a . .

Lists of cited by and citing cases may be incomplete.

Information, European

Leading Case

Updated: 02 November 2021; Ref: scu.270655