Category: European

English v Thomas Sanderson Ltd: CA 19 Dec 2008

The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual orientation’.
Held: The claimant’s appeal succeeded. Sedley LJ said: ‘the single critical assumed fact was that the appellant was repeatedly taunted as gay. In my judgment it did not matter whether he was gay or not. The calculated insult to his dignity, which depended not at all on his actual sexuality, and the consequently intolerable working environment were sufficient to bring his case both within Regulation 5 and within the 1976 Directive. The incessant mockery (‘banter’ trivialises it) created a degrading and hostile working environment, and it did so on grounds of sexual orientation. That is the way I would prefer to put it. Alternatively, however, it can be properly said that the fact that the appellant is not gay, and that his tormentors know it, has just as much to do with sexual orientation – his own, as it happens – as if he were gay. ‘
Laws LJ (dissenting) said: ‘harassment is perpetrated on grounds of sexual orientation only where some person or persons’ actual, perceived, or assumed sexual orientation gives rise to it, that is, is a substantial cause of it. Mr Reynold’s case confuses the reason for the conduct complained of with the nature of that conduct. On the facts the reason for the harassment was nothing to do with anyone’s actual, perceived, or assumed sexual orientation. It happened to take the form of ‘homophobic banter’ so called, which was thus the vehicle for teasing or tormenting the appellant. In those circumstances sexual orientation was not the grounds of the conduct complained of.’
Lawrence-Collins LJ said: ‘the proper construction of Regulation 5(1) leads to a conclusion that there was ‘ harassment . . on grounds of sexual orientation’ because the conditions of Regulation 5(1) were satisfied, namely that (a) on grounds of sexual orientation (b) the tormentors engaged in unwanted conduct (c) which had the purpose or effect of violating the claimant’s dignity or creating a degrading, humiliating or offensive environment for the claimant, and (d) which should reasonably be considered as having that effect. ‘
Laws LJ, Sedley LJ, Lawrence Collins LJ
[2008] EWCA Civ 1421, Times 05-Jan-2009, [2009] IRLR 206, [2009] ICR 543, [2009] 2 All ER 468, [2009] 2 CMLR 18
Bailii
Employment Equality (Sexual Orientation) Regulations 2003 5, Directive 2000/78/EC
England and Wales
Citing:
Cited – Showboat Entertainment Centre v Owens EAT 28-Oct-1983
The employer had dismissed an employee who had refused to comply with a discriminatory instruction by the employer to exclude blacks from the employer’s amusement centre. The tribunal at first instance had found that that was a dismissal ‘on racial . .
Appeal from – English v Thomas Sanderson Blinds Ltd EAT 20-Feb-2008
EAT Sexual Orientation Discrimination/Transexualism
Harrassment
Reach of Regulation 5 (harassment) of the Sexual Orientation Regulations 2003. Whether it covers homophobic banter directed towards a man . .
Cited – Equal Opportunities Commission v Secretary of State for Trade and Industry Admn 12-Mar-2007
The EOC contended amongst other things that section 4A(1)(a) of the Sex Discrimination Act 1975 did not fulfil its intended purpose, which was to transpose into English law provisions contained in the Equal Treatment Directive 2002/73/EC.
Cited – Serco Ltd v Redfearn CA 25-May-2006
The employee claimed that he had been discriminated against. He had stood as a candidate in local elections for the British National Party (BNP) party. His employers had dismissed him saying that his propagation of racially discriminatory polices . .
Cited – Weathersfield Ltd (T/a Van and Truck Rentals) v Sargent CA 10-Dec-1998
The employer, a vehicle hire operator, explained to the Claimant employee following her appointment as a receptionist their policy that if she received an enquiry from any coloured or Asians, judging by their voices, she was to tell them that there . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
Cited – S Coleman v Attridge Law, Steve Law ECJ 31-Jan-2008
ECJ (Opinion) The claimant accepted voluntary redundancy, but then alleged disability discrimination and constructive dismissal. She claimed to have been subjected to unfair treatment because she had a disabled . .
Cited – Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
Cited – 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 – Revenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .

Cited by:
Cited – E, Regina (On the Application of) v The Governing Body of JFS and Another CA 25-Jun-2009
E challenged the admissions policy of a school which admitted by preference children acknowledged to be Jewish by the Office of their Rabbi. His mother being Jewish by conversion in a progressive synagogue, E was excluded. The claimant suggested . .
See Also – Thomas Sanderson Blinds Ltd v English EAT 21-Feb-2011
EAT SEXUAL ORIENTATION DISCRIMINATION/TRANSEXUALISM
PRACTICE AND PROCEDURE – Review
Harassment on grounds of sexual orientation. The Tribunal directed itself correctly in looking at the Claimant’s own . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
(Northern Ireland) The bakers held strong traditional Christian beliefs as to the nature of marriage. A staff member accepted an order for a cake emblazoned with a pro gay statement. The owners rejected the order and returned the fee. They now . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 September 2021; Ref: scu.278977

D, Regina (on the Application of) v Secretary of State for Work and Pensions: CA 11 Oct 2004

Challenge was to Regulations which affect the position of nationals of certain States which had acceded to membership of the European Union
Maurice Kay LJ
[2004] EWCA Civ 1468
Bailii
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.276325

Optident Ltd and Another v Secretary of State for Trade and Industry and Another: HL 2 Jul 2001

The claimants manufactured a dental bleaching product. It contained hydrogen peroxide at levels in excess of the limit. It sought to distribute it under licence as a medical product on prescription. The defendant sought to control its distribution under the cosmetics directive. It was held that the two regimes were distinct, and the medicines directive was specifically disapplied to cosmetics. The central purpose of the product was to improve the appearance of teeth, and that fell squarely within the cosmetics directive, and the product had been properly regulated.
Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Hutton
Times 02-Jul-2001, [2001] UKHL 32, (2001) 61 BMLR 10, [2001] 3 CMLR 1
Bailii, House of Lords
Council Directive 93/42/EEC the Medical Devices Directive
England and Wales

Updated: 03 September 2021; Ref: scu.84471

Roquette Freres SA v Direction des services fiscaux du Pas-de-Calais: ECJ 28 Nov 2000

Europa In the absence of Community rules on reimbursement of national charges levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to determine the procedural conditions governing legal proceedings for safeguarding rights which individuals derive from the direct effect of Community law, it being understood that such rules cannot be less favourable than those governing similar actions of a domestic nature (principle of equivalence), and may not make it impossible or excessively difficult in practice to exercise rights which national courts have a duty to protect (principle of effectiveness).
First, as regards the principle of effectiveness, the establishment of reasonable limitation periods for bringing proceedings satisfies that requirement in principle inasmuch as it constitutes an application of the fundamental principle of legal certainty. Such limitation periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought. In that respect, a national limitation period of up to a minimum of 4 years and a maximum of 5 years preceding the year of the judicial decision finding the rule of national law establishing the tax to be incompatible with a superior rule of law must be considered reasonable.
Secondly, observance of the principle of equivalence implies that the national procedure applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues That principle cannot, however, be interpreted as obliging a Member State to extend its most favourable rules of limitation to all actions for repayment of charges or dues levied in breach of Community law. Thus, Community law does not in principle preclude the legislation of a Member State from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies.
It follows that Community law does not preclude legislation of a Member State laying down that, in tax matters, an action for recovery of a sum paid but not due based on a finding by a national or Community court that a national rule is not compatible with a superior rule of national law or with a Community rule of law may only relate to the period following 1 January of the fourth year preceding that of the judgment establishing such incompatibility.
C-88/99, [2000] ECR I-10465, [2000] EUECJ C-88/99
Bailii
European
Cited by:
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.162623

Commission v Trenker (Order): ECJ 11 Apr 2001

Europa Appeal – Order of the President of the Court of First Instance in proceedings for interim relief – Withdrawal of marketing authorisations for medicinal products for human use containing ‘phentermine’ – Second Directive 75/319/EEC – Urgency – Balancing of interests.
C-459/00
European

Updated: 03 September 2021; Ref: scu.162806

Travel VAC SL v Sanchis: ECJ 22 Apr 1999

A contract for a time-share sold away from the registered office of the vendor was subject to the doorstep selling directive, and a right of cancellation applies. This may be so even if it had been signed at the time-share complex, if that was not the registered office of the company. The consumer can renounce the contract without proof of any duress and may not suffer any penalty for this.
Gazette 11-Aug-1999, C-423/97, [1999] EUECJ C-423/97
Bailii
Council Directive 85/577/EEC Doorstep Selling; ands 94/47 Time-Shares
European

Updated: 01 September 2021; Ref: scu.162288

Freemans Plc v Commissioners of Customs and Excise: ECJ 29 May 2001

Agents of a mail order company were allowed to claim sums in credit for their own sales, against their own purchases. The credit was in effect applied through a separate account with the company. How was the VAT ‘taxable amount’ to be calculated? Here the deduction was not applied after the purchase, and were not therefore discounts. Many discounts were not in fact applied for. The VAT was to be calculated on the full purchase price less discounts applied at the time when the discount was withdrawn from the account.
Times 18-Jun-2001, Case C-86/99
European

Updated: 01 September 2021; Ref: scu.162745

Christie’s France SNC v Syndicat national des antiquaires: ECJ 26 Feb 2015

Judgment – Reference for a preliminary ruling – Directive 2001/84/EC – Article 1 – Intellectual property – Sale at auction of original works of art – Resale right for the benefit of the author of an original work of art – Person liable for the resale royalty – Buyer or seller – Derogation by agreement
L. Bay Larsen, P
C-41/14, [2015] EUECJ C-41/14, ECLI:EU:C:2015:119
Bailii
Directive 2001/84/EC
European

Updated: 30 August 2021; Ref: scu.543680

TVI Televisao Independente Sa v Fazenda Publica: ECJ 11 Jun 2013

ECJ Taxation – VAT – Sixth Council Directive 77/388/EEC – Article 11(A)(2)(a) and (3)(c) – Council Directive 2006/112/EC – Articles 78(a) and 79(c) – Taxable amount – Inclusion of taxes in the taxable amount – Screening tax – ‘Fiscal substitution’
Cruz Villalon AG
C-618/11, [2013] EUECJ C-618/11, [2013] EUECJ C-618/11
Bailii, Bailii
European

Updated: 30 August 2021; Ref: scu.511017

Bioforce v Oberfinanzdirektion Munchen: ECJ 15 May 1997

Europa The Common Customs Tariff is to be interpreted as meaning that Echinacea purpurea extract-based drops should be classified under heading 3004. The curative or prophylactic properties of that product as well as the way in which it is packaged, dispensed and marketed are in themselves such as to cause it to be regarded as a product possessing the characteristic properties of a medicament. In the Member States in which it is marketed the product in question is, moreover, authorized to be put on the market as a medicament or, at the very least, has been the subject of an application for authorization to that end. Furthermore, however great the alcohol content of the product in question it does not alter its nature, since the alcohol acts as an adjuvant, preservative and vehicle for that product.
C-405/95, [1997] EUECJ C-405/95
Bailii
European

Updated: 30 August 2021; Ref: scu.161752

Arge Gewasserschutz v Bundesministerium Fur Land- Und Forstwirtschaft (Judgment): ECJ 7 Dec 2000

The receipt of a state subsidy does not operate to disqualify an organisation from tendering for contracts in the public sector. The requirement was that tendering bodies should receive equal treatment, and detailed criteria were provided to ensure this. None of those criteria would exclude a body from tendering for this reason. Complications might arise however where the body would in effect receive state aid through guarantees which might affect the tender in question.
Europa Public service contracts – Directive 92/50/EEC – Procedure for the award of public procurement contracts – Equal treatment of tenderers – Discrimination on grounds of nationality – Freedom to provide services
Times 09-Jan-2001, C-94/99, [2000] EUECJ C-94/99
Bailii
European

Updated: 28 August 2021; Ref: scu.162625

Amengual Far v Amengual Far: ECJ 3 Feb 2000

Europa Article 13B(b) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes allows Member States to lay down a general rule making lettings of immovable property subject to VAT and exempting from that rule only lettings of immovable property to be used for dwelling purposes. In EU law exceptions to a general principle are generally interpreted restrictively: ‘This criterion has been consistently followed in the case law of this court’.
C-12/98, [2002] STC 382, [2000] EUECJ C-12/98
Bailii
European
Cited by:
Cited – Colaingrove Limited v The Commissioners for Customs and Excise ChD 16-Apr-2003
The Directive exempted from a charge to VAT for letting of imoveable property. The taxpayer challenged the requirement to charge to VAT his business of leasing pitches for caravans.
Held: The directive allowed member states to derogate from . .
Cited – Colaingrove Ltd v the Commissioners of Customs and Excise CA 19-Feb-2004
The taxpayer licensed static caravans on seasonal pitches on its land. They claimed exemption from charging VAT on the basis that they were residential lettings exempt under European legislation.
Held: The appeal failed. The legislation . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.162311

Ampafrance SA v Directeur des Services Fiscaux de Maine-et-Loire: ECJ 19 Sep 2000

Europa 1. Council Decision 89/487, adopted on the basis of Article 27 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes, which provides that a Member State may be authorised to introduce special measures for derogation from the Sixth Directive in order to simplify the procedure for charging the tax or to prevent certain types of tax evasion or avoidance, and authorising the French Republic to apply a measure derogating from the second subparagraph of Article 17(6) of the Sixth Directive, is invalid under the general principle of proportionality, in so far as it authorises that State to deny traders the right to deduct the value added tax on expenditure which they are able to show to be of a strictly business nature.
Since the measure excludes as a matter of principle all expenditure in respect of accommodation, hospitality, food and entertainment from the right to deduct value added tax, which is a fundamental principle of the value added tax system established by the Sixth Directive, although appropriate means less detrimental to that principle than the exclusion of the right of deduction in the case of certain expenditure can be contemplated or already exist in the national legal order, it is not a means proportionate to that objective and has a disproportionate effect on the objectives and principles of the Sixth Directive.
2. The principle of the protection of legitimate expectations, which is the corollary of the principle of legal certainty and which is generally relied upon by individuals (traders) in a situation where they have legitimate expectations created by the public authorities, cannot be relied on by a Member State in order to avoid the consequences of a decision of the Court declaring a Community provision invalid, since it would jeopardise the possibility for individuals to be protected against conduct of the public authorities based on unlawful rules.
C-177/99, [2000] ECR I-7013, [2000] EUECJ C-177/99
Bailii
European
Cited 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 28 August 2021; Ref: scu.162656

EA (EEA: 3 Months Residence) Bulgaria: AIT 6 Mar 2008

AIT The Citizens right to be admitted to the UK for a period of three months under the Citizens Directive and the EEA Regulations does not entitle an EEA national to add three months to the end of a period of lawful presence in the UK. (2) A Bulgarian or Romanian national has to comply strictly with the provisions of the 2006 Regulations in order to obtain the benefits derived from them.
[2008] UKAIT 00017
Bailii
England and Wales

Updated: 25 August 2021; Ref: scu.266671

Commission v France C-481/98: ECJ 3 May 2001

Europa By introducing and maintaining in force legislation on Value Added Tax under which medicinal products reimbursable under the social security system are taxed at the reduced rate of 2.1% whereas other medicinal products are taxed at the reduced rate of 5.5%, a Member State has not failed to fulfil its obligations under Article 12 of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes.
The rate of value added tax of 2.1%, which is below the minimum rate of 5% laid down in Article 12(3)(a) of the Sixth Directive, is justified under Article 28(2)(a) of that directive in so far as that rate existed on 1 January 1991, is in accordance with Community law, in so far as it is consistent with the principle of fiscal neutrality inherent in the common system of value added tax, given that reimbursable and non-reimbursable medicinal products are not similar products in competition with each other, and meets the criteria set out in the final indent of Article 17 of the Second Directive inasmuch as the application of the reduced rate to reimbursable medicinal products clearly constitutes a social reason, as it necessarily reduces the charges borne by the social security system and also benefits final consumers, whose health expenses are thereby reduced.
[2001] EUECJ C-481/98, [2001] ECR I-3369
Bailii
European
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.162738

Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Bauer Verlag: ECJ 26 Jun 1997

Europa The application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. That is not the case where the legislation of a Member State prohibits the sale on its territory of periodicals containing games or competitions for prizes. Even though such legislation is directed against a method of sales promotion, it bears on the actual content of the products, in so far as the competitions in question form an integral part of the magazine in which they appear, and cannot be concerned with a selling arrangement. Moreover, since it requires traders established in other Member States to alter the contents of the periodical, the prohibition at issue impairs access of the product concerned to the market of the Member State of importation and consequently hinders free movement of goods. It therefore constitutes in principle a measure having equivalent effect within the meaning of Article 30 of the Treaty. Where a Member State relies on overriding requirements, such as maintaining press diversity, under Article 30 of the Treaty in order to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular of fundamental rights. Those rights include freedom of expression, as enshrined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. A prohibition on selling publications which offer the chance to take part in prize competitions may, in that context, detract from freedom of expression. Article 10 does, however, permit derogations from that freedom for the purposes of maintaining press diversity, in so far as they are prescribed by law and necessary in a democratic society. Article 30 of the EC Treaty is to be interpreted as not precluding application of legislation of a Member State the effect of which is to prohibit the distribution on its territory by an undertaking established in another Member State of a periodical produced in that latter State containing prize puzzles or competitions which are lawfully organized in that State, provided that that prohibition is proportionate to maintenance of press diversity and that that objective cannot be achieved by less restrictive means. This assumes, inter alia, that the newspapers offering the chance of winning a prize in games, puzzles or competitions are in competition with small newspaper publishers who are deemed to be unable to offer comparable prizes and the prospect of winning is liable to bring about a shift in demand. Furthermore, the national prohibition must not constitute an obstacle to the marketing of newspapers which, albeit containing prize games, puzzles or competitions, do not give readers residing in the Member State concerned the opportunity to win a prize. It is for the national court to determine whether those conditions are satisfied on the basis of a study of the national press market concerned.
C-368/95, [1997] EUECJ C-368/95, [1997] ECR 1-3689
Bailii
European
Cited by:
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.161731

Andre Mazzoleni v Inter Surveillance Assistance SARL, as the party civilly liable; third parties: Eric Guillaume and Others: ECJ 15 Mar 2001

Europa Freedom to provide services – Temporary deployment of workers for performance of a contract – Directive 96/71/EC – Guaranteed minimum.
A French company, ISA provided security services in France and employed a small number of workers as security officers at a shopping mall in Belgium. ISA challenged the obligation to pay minimum wages as required by Belgian law.
Held: Since the thirteen workers enjoyed comparable overall protection in the home Member State and there was thus no obligation to pay the minimum wage: ‘ . . as regards more specifically national provisions relating to minimum wages such as those at issue in the main proceedings, it is clear from the case law of the court that community law does not preclude member states from extending their legislation or collective labour agreements entered into by both sides of industry, relating to minimum wages, to any person who is employed, even temporarily, within their territory, regardless of the country in which the employer is established.’
[2001] EUECJ C-165/98, C-165/98, [2001] ECR I-2159
Bailii
European
Cited by:
Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.162380

Maria Amelia Nunes and Evangelina de Matos: ECJ 8 Jul 1999

Europa Financial assistance granted from the European Social Fund – Improper use of funds – Penalties under Community law and national law.
C-186/98, [1999] EUECJ C-186/98, [1999] ECR I-4883,
Bailii
European
Cited by:
Cited – Commission v Council (Police And Judicial Cooperation In Criminal Matters) ECJ 13-Sep-2005
The Commission sought anullment of Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law. The framework decision laid down a number of environmental offences, in respect of which the Member States are . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.162395

Kleinwort Benson v City of Glasgow District Council: ECJ 28 Mar 1995

ECJ The function of the Court, as envisaged by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, is that of a court whose judgments are binding on the national court. That function would be altered if the replies given by the Court to the courts of the Contracting States were permitted to be purely advisory and without binding effect.
However, that would be the case if the Court were to declare that it had jurisdiction to provide interpretation of the Convention requested of it by a national court before which proceedings are pending and to which not the Convention but national legislation is applicable, where that legislation takes the Convention as a model, by reproducing certain of its provisions but without incorporating them as such into the domestic legal order, and expressly providing for the possibility of adopting modifications in order to produce divergence in relation to Convention provisions as interpreted by the Courts, and where that legislation merely requires national courts in applying the Convention provisions to have regard to the Court’s interpretation of the corresponding provisions of the Convention without giving binding effect to that interpretation.
For that reason the Court does not have jurisdiction to give a preliminary ruling on a question arising in such a context.
Times 17-Apr-1995, C-346/93, [1995] EUECJ C-346/93, [1995] ECR I-615
Bailii
European

Updated: 24 August 2021; Ref: scu.161171

Georg Badeck and Others, interveners: Hessische Ministerprasident and Landesanwalt beim Staatsgerichtshof des Landes Hessen: ECJ 28 Mar 2000

Steps taken which amounted to positive discrimination by a national body need not always amount to unlawful discrimination. The steps should be taken to correct a present imbalance, and should not give automatic and unconditional priority where the applicants had equal qualifications, and where all the personal characteristics of the applicants were recognised and allowed for.
Europa Social policy – Men and women – Access to employment and working conditions – Equal treatment – Derogations – Measures to promote equality of opportunity between men and women – National provisions laying down measures for the promotion of women in sectors of the public service – Permissible – Criterion – Article 2(1) and (4) of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions does not preclude a national rule which – in sectors of the public service where women are under-represented, gives priority, where male and female candidates have equal qualifications, to female candidates where that proves necessary for ensuring compliance with the objectives of the women’s advancement plan, if no reasons of greater legal weight are opposed, provided that that rule guarantees that candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates, – prescribes that the binding targets of the women’s advancement plan for temporary posts in the academic service and for academic assistants must provide for a minimum percentage of women which is at least equal to the percentage of women among graduates, holders of higher degrees and students in each discipline, – in so far as its objective is to eliminate under-representation of women, in trained occupations in which women are under-represented and for which the State does not have a monopoly of training, allocates at least half the training places to women, unless despite appropriate measures for drawing the attention of women to the training places available there are not enough applications from women, – where male and female candidates have equal qualifications, guarantees that qualified women who satisfy all the conditions required or laid down are called to interview, in sectors in which they are under-represented, – relating to the composition of employees’ representative bodies and administrative and supervisory bodies, recommends that the legislative provisions adopted for its implementation take into account the objective that at least half the members of those bodies must be women.
Times 31-Mar-2000, C-158/97, [2000] EUECJ C-158/97
Bailii
Council Directive 76/207/EEC
European

Updated: 24 August 2021; Ref: scu.162106

Canon Kabushiki Kaisha v Metro-Goldwyn-Mayer: ECJ 29 Sep 1998

In a complaint of trade mark infringement, and when comparing the mark and sign, a lesser degree of similarity between the marks may be offset by a greater degree of similarity between the goods/services and vice versa.
Europa On a proper construction of Article 4(1)(b) of First Council Directive 89/104 to approximate the laws of the Member States relating to trade marks, the distinctive character of the earlier trade mark, and in particular its reputation, must be taken into account when determining whether the similarity between the goods or services covered by the two trade marks is sufficient to give rise to the likelihood of confusion.
The likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global assessment implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods and services covered by those marks. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa. However, since the more distinctive the earlier mark, the greater the risk of confusion, trade marks with a highly distinctive character, either per se or because of the reputation they possess on the market, enjoy broader protection than marks with less distinctive character.
Accordingly, for the purposes of Article 4(1)(b), registration of a trade mark may have to be refused, despite a lesser degree of similarity between the goods or services covered, where the marks are very similar and the earlier mark, in particular its reputation, is highly distinctive. Even if such an interpretation may make the registration procedure much lengthier, it is, in any event, for reasons of legal certainty and proper administration, necessary to ensure that trade marks whose use could successfully be challenged before the courts are not registered.
For the purposes of applying Article 4(1)(b) of First Directive 89/104 to approximate the laws of the Member States relating to trade marks, even where one trade mark is identical to another with a highly distinctive character, it is still necessary to adduce evidence of similarity between the goods or services covered. In contrast to Article 4(4)(a), which expressly refers to the situation in which the goods or services are not similar, Article 4(1)(b) provides that the likelihood of confusion presupposes that the goods or services covered are identical or similar. In assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services themselves should be taken into account. Those factors include, inter alia, their nature, their end users and their method of use and whether they are in competition with each other or are complementary.
There is a likelihood of confusion within the meaning of Article 4(1)(b) of First Directive 89/104 to approximate the laws of the Member States relating to trade marks where the public can be mistaken as to the origin of the goods or services in question. Article 2 of the directive provides that a trade mark must be capable of distinguishing the goods or services of one undertaking from those of other undertakings, while the tenth recital in the preamble to the directive states that the function of the protection conferred by the mark is primarily to guarantee the indication of origin. The essential function of the trade mark is to guarantee the identity of the origin of the marked product to the consumer or end user by enabling him, without any possibility of confusion, to distinguish the product or service from others which have another origin. Furthermore, for the trade mark to be able to fulfil its essential role in the system of undistorted competition which the Treaty seeks to establish, it must offer a guarantee that all the goods or services bearing it have originated under the control of a single undertaking which is responsible for their quality.
Accordingly, there may be a likelihood of confusion within the meaning of Article 4(1)(b) even where the public perception is that the goods or services have different places of production. By contrast, there can be no such likelihood where it does not appear that the public could believe that the goods or services come from the same undertaking or, as the case may be, from economically-linked undertakings.
C-39/97, [1999] RPC 117, [1998] ECR I-5507, [1998] EUECJ C-39/97
Bailii
Council Directive 89/104
European
Cited by:
Cited – Associated Newspapers Limited, Daily Mail and General Trust Plc v Express Newspapers (an Unlimited Company, Incorrectly Sued As Express Newspapers Limited) ChD 11-Jun-2003
The claimants sought to prevent the respondents from starting an evening newspaper entitled ‘THE MAIL’ as an infringement of their registered mark, and as passing off. In turn the defendant challenged the validity of the mark.
Held: The word . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.162037

Geffroy v Casino France SNC: ECJ 12 Sep 2000

Europa Free movement of goods – National legislation on the marketing of a product – Description and labelling – National legislation requiring use of the official language of the Member State – Directive 79/112/EEC.
C-366/98, [2000] EUECJ C-366/98
Bailii
European
Cited by:
Cited – 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.
Updated: 24 August 2021; Ref: scu.162506

Tanja Kreil v Bundesrepublik Deutschland: ECJ 11 Jan 2000

A provision in national legislation restricting the activities of women in the armed services to medical and military-music service, and restricting them from being involved in any arms bearing capacity, was in breach of the Equal Treatment directive. The Directive allowed exception for specified activities in which by their nature or context the sex of the worker was a determinative factor. That was not the case here. A member had a general discretion as to how it organised its armed forces, but that was still within European Community law. The Directive did not allow exclusion over all the activities in an organisation.
Times 22-Feb-2000, C-285/98, [2000] EUECJ C-285/98
Bailii
Council Directive 76/207 2(2) 2(3)
European

Updated: 24 August 2021; Ref: scu.162458

Phonogram Ltd v Lane: CA 1982

A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one month. The collateral contract was signed ‘for and on behalf of’ the company by Mr. Lane. Both parties knew, at the time of the collateral contract, that the company had not yet been incorporated.
Held: Lane’s appeal failed. The Court expressly rejected the argument that section 9(2) should be construed solely by reference to the Directive.
Lord Denning MR said:
‘Section 9(2) is in accordance with the spirit and intent of the directive. We should go by our own statute and not by the directive . .’ #and ‘This is the first time the section has come before us. It will have much impact on the common law. I am afraid that before 1972 the common law had adopted some fine distinctions. As I understand Kelner v. Baxter (1866) L.R. 2 C.P. 174 it decided that, if a person contracted on behalf of a company which was nonexistent, he himself would be liable on the contract. Just as, if a man signs a contract for and on behalf ‘of his horses,’ he is personally liable. But, since that case was decided, a number of distinctions have been introduced by Hollman v. Pullin (1884) Cab. and Ell. 254; Newborne v. Sensolid (Great Britain) Ltd. [1954] 1 Q.B. 45 and Black v. Smallwood (1965) 117 C.L.R. 52 in the High Court of Australia. Those three cases seem to suggest that there is a distinction to be drawn according to the way in which an agent signs a contract. If he signs it as ‘agent for ‘X’ company’ – or ‘for and on behalf of ‘X’ company’ – and there is no such body as ‘X’ company, then he himself can be sued upon it. On the other hand, if he signs it as ‘X’ company per pro himself the managing director, then the position may be different: because he is not contracting personally as an agent. It is the company which is contracting.
That distinction was disliked by Windeyer J. in Black v. Smallwood. It has been criticised by Professor Treitel in The Law of Contract, 5th ed. (1979), p.559. In my opinion, the distinction has been obliterated by section 9(2) of the European Communities Act 1972. We now have the clear words, ‘Where a contract purports to be made by a company, or by a person as agent for a company, at a time when the company has not been formed…’ That applies whatever formula is adopted. The person who purports to contract for the company is personally liable.’
Oliver LJ said:
‘any such subtle distinctions which might have been raised are rendered now irrelevant by section 9(2) of the European Communities Act 1972 in a case where a contract is either with a company or with the agent of a company. It has been suggested that an agreement to the contrary may still be inferred by the fact that the contract was signed by a person acting as agent so as to exclude the section. That I am bound to say seems to me to be wholly unarguable when the section itself in terms provides ‘Where a contract purports to be made … by a person as agent for a company,’ and to interpret it in the way suggested would defeat the whole purpose of the section.’
Oliver LJ, Lord Denning MR, Shaw LJ
[1982] 1 QB 938, [1982] QB 938
European Communities Act 1972 9(2)
England and Wales
Citing:
Cited – Newborne v Sensolid (Great Britain) Ltd 1954
A written contract purported to sell goods by a company described as Leopold Newborne (London) Ltd. The document was subscribed by the name of the company with Mr Leopold Newborne’s signature under it. At that time it had not yet been incorporated. . .

Cited by:
Cited – Braymist Limited and Others v Wise Finance Company Limited CA 20-Feb-2002
The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the . .
Cited – Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi ChD 2-Jul-2015
A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.619035

Louloudakis v Elliniko Dimosio: ECJ 12 Jul 2001

As penalties were not harmonised within Community law, it remains open to member states to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality. The administrative measure or penalties must not go beyond what is strictly necessary for the objectives pursued and a penalty must not be so disproportionate to the gravity of the infringement that it becomes an obstacle to the freedoms enshrined in the treaty.
[2001] ECR I-5547, C-262/99, [2001] EUECJ C-262/99
Bailii
European
Cited by:
Cited – Commissioners of Customs and Excise v Newbury Admn 3-Mar-2003
The commissioner appealed a finding that a car and other goods they had forfeited should be returned. The owner said that matters had been imported for personal use under the directive.
Held: The directive had direct effect and precedence over . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.162762

Hidalgo and Others v Asociacion de Servicios Aser and Sociedad Cooperativa Minerva; Horst Ziemann v Ziemann Sicherheit GmbH and Horst Bohn Sicherheitsdienst: ECJ 10 Dec 1998

Europa Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses is to be interpreted as meaning that the Directive applies to a situation in which a public body which has contracted out its home-help service for persons in need or awarded a contract for maintaining surveillance of some of its premises to a first undertaking decides, upon expiry of or after termination of that contract, to contract out the service or award the contract to a second undertaking, provided that the operation is accompanied by the transfer of an economic entity between the two undertakings. The term `economic entity’ refers to an organised grouping of persons and assets enabling an economic activity which pursues a specific objective to be exercised. The mere fact that the service successively provided by the old and the new undertaking to which the service is contracted out or the contract is awarded is similar does not justify the conclusion that a transfer of such an entity has occurred.
C-173/96, C-247/96, [1999] IRLR 136, [1998] EUECJ C-173/96, [1998] EUECJ C-247/96
Bailii, Bailii
European
Cited by:
Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 August 2021; Ref: scu.161870

Hepple and Others v Adjudication Officer: ECJ 23 May 2000

The payment of differing amounts by way of an earnings allowance to men and women was not discriminatory, where the reason for the difference lay in the differing statutory retirement ages for men and women. The regime for equal treatment for statutory benefits must allow for arrangements to come into effect after the legislation came into effect to reflect historically different treatments.
Times 30-May-2000, C-196/98, [2000] EUECJ C-196/98
Bailii
Social Security Contributions and Benefits Act 1992
European

Updated: 23 August 2021; Ref: scu.162402

First Corporate Shipping (Judgment): ECJ 7 Nov 2000

When deciding the extent of natural sites to be proposed for designation as special areas of conservation under the Directive, a member state should take account only of environmental factors, and was not entitled to take heed of economic, social or cultural ones. The article which did include such criteria could only be for the Commission to consider in the light of the entire list of such possible area within the community.
Times 16-Nov-2000, C-371/98, [2000] EUECJ C-371/98
Bailii
Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna
European

Updated: 23 August 2021; Ref: scu.162508

Commission v Hanseler (Order): ECJ 11 Apr 2001

Europa Appeal – Order of the President of the Court of First Instance in proceedings for interim relief – Withdrawal of marketing authorisations for medicinal products for human use containing the substance ‘norpseudoephedrine’ – Second Directive 75/319/EEC – Urgency – Balancing of interests.
Case C-475/00 P (R).
C-475/00
Second Directive 75/319/EEC
European

Updated: 22 August 2021; Ref: scu.162809

Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others (Judgment): ECJ 17 Nov 1998

Applications under the Brussels Convention for Interim Measures were capable of being heard by courts notwithstanding a clause referring disputes under the contract in issue exclusively to arbitration. Even in the case of Article 24 of the Brussels Convention it has been made clear that the granting of provisional or protective measures on the basis of Article 24 is conditional on, inter alia, the existence of a real connecting link between the subject matter of the measures sought and the territorial jurisdiction of the contracting state of the court before which those measures are sought. Jurisdiction existed because, despite the existence of an arbitration, the subject matter of provisional measures was not arbitration: ‘ . . it must be noted . . that provisional measures are not in principle ancillary to arbitration proceedings but are ordered in parallel to such proceedings and are intended as measures of support. They concern not arbitration as such but the protection of a wide variety of rights. Their place in the scope of the Convention is thus determined not by their own nature but by the nature of the rights which they serve to protect . . ‘
Times 01-Dec-1998, [1999] 2 WLR 1181, C-391/95, [1998] ECR I-7091, [1998] EUECJ C-391/95
Bailii
European
Cited by:
Cited – Motorola Credit Corporation v Uzan and others (No 2) CA 12-Jun-2003
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
Cited – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.161744

Oscar Bronner v Mediaprint (Judgment): ECJ 26 Nov 1998

A major newspaper proprietor had refused to allow a small competitor access to its efficient distribution service.
Held: That amounted to an abuse of a dominant position: ‘First, it is apparent that the right to choose one’s trading partners and freely to dispose of one’s property are generally recognised principles in the laws of the Member States, in some cases with constitutional status. Incursions on those rights require careful justification. Secondly, the justification in terms of competition policy for interfering with a dominant undertaking’s freedom to contract often requires a careful balancing of conflicting considerations. Thirdly, in assessing this issue it is important not to lose sight of the fact that the primary purpose of Article 86 is to prevent distortion of competition – and in particular to safeguard the interests of consumers – rather than to protect the position of particular competitors. In assessing such conflicting interests particular care is required where the goods or services or facilities to which access is demanded represent the fruit of substantial investment. That may be true in particular in relation to refusal to license intellectual property rights. Where such exclusive rights are granted for a limited period, that in itself involves a balancing of the interest in free competition with that of providing an incentive for research and development and for creativity. It is therefore with good reason that the Court has held that the refusal to license does not of itself, in the absence of other factors, constitute an abuse. To accept Bronner’s contention would be to lead the Community and national authorities and courts into detailed regulation of the Community markets, entailing the fixing of prices and conditions for supply in large sectors of the economy. Intervention on that scale would not only be unworkable but would also be anti-competitive in the longer term and indeed would scarcely be compatible with a free market economy.’
Jacobs AG: ‘ . . it is important not to lose sight of the fact that the principal purpose of Article [82] is to prevent distortion of competition -and in particular to safeguard the interests of consumers – rather than to protect the position of particular competitors. It may therefore, for example, be unsatisfactory, in a case in which a competitor demands access to a raw material in order to be able to compete with the dominant undertaking on a downstream market in a final product, to focus solely on the latter’s upstream market power and conclude its conduct in reserving to itself the downstream market is automatically an abuse. Such conduct will not have an adverse impact on customers unless the dominant undertaking’s final product is sufficiently insulated from competition to give it market power.’
Jacobs AG
C-7/97, [1998] ECR 1-7791, [1998] EUECJ C-7/97
Bailii
European
Cited by:
Cited – Jobserve Limited v Network Multimedia Television Limited CA 21-Dec-2001
The claimants sought to re-instate an injunction, claiming Jobserve were acting to abuse their dominant market position. The claimants asserted that European case law had decided the point in their favour. Both parties operated web-sites advertising . .
Cited – BHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
Cited – Attheraces Ltd and Another v The British Horseracing Board Ltd and Another CA 2-Feb-2007
The defendant appealed a finding that it had abused its dominant market position in refusing to supply to the claimant a copyright licence for its information on horse racing at a proper or acceptable price. The defendant was said to have a monopoly . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.162027

General Motors Corporation v Yplon SA: ECJ 14 Sep 1999

Europa Article 5(2) of First Council Directive 89/104 concerning trade marks – which extends the protection of a registered trade mark to products or services which are neither identical nor similar to those for which the mark is registered, where the latter has a reputation in the Member State and there is clear evidence that the mark is being unfairly harmed – is to be interpreted as meaning that, in order to satisfy the requirement relating to reputation, a registered trade mark must be known by a significant part of the public concerned by the products or services which it covers. In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it. Territorially, the condition is fulfilled when the trade mark has a reputation in a substantial part of the territory of a Member State since, failing closer definition of requirements under Community law on this point, a trade mark cannot be required to have a reputation `throughout’ the territory of the Member State. Accordingly, in the Benelux territory, it is sufficient for the mark to be known by a significant part of the public concerned in a substantial part of that territory, which may consist of a part of one of the Benelux countries.
To have a reputation a trade mark must satisfy a ‘knowledge threshold’: ‘The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark.
In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it.’
C-375/97, [1999] EUECJ C-375/97, [1999] ECR I-5421
Bailii
European
Cited by:
Considered – Daimler Chysler AG v Javid Alavi (t/a Merc) ChD 18-Dec-2000
Where a trader was involved in an activity quite outside any activity which might be undertaken by the holder of the registered trade mark, and there was no real likelihood of confusion, the owner of the mark could not claim that the value of his . .
Cited – Mastercard International Incorporated v Hitachi Credit (Uk) Plc ChD 8-Jul-2004
The claimants challenged award of a trade mark saying they were owners of many marks incorporating the word ‘Master’ associated with credit, and the applicants mark was too similar to its own.
Held: Applying Davidoff, the words can also be . .
Cited – Intel Corporation v Sihra ChD 2003
The court considered the observations of Pumfrey J in the Chrysler case as requiring proof of real future unfair advantage or detriment and not merely risk, and emphasised both the need for a causal connection between similarity on the one hand and . .
Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.162261

Banks and Others v Theate Royal De La Monnaie: ECJ 30 Mar 2000

A self employed certificate in Form E101 issued by one member state for a worker who worked temporarily in another member state was to be treated as valid and respected in the absence of circumstances suggesting some invalidity. It made the worker subject to the social security rules of his home state. Such a certificate when issued could have retrospective effect.
Times 05-Apr-2000, C-178/97, [2000] EUECJ C-178/97
Bailii
European

Updated: 21 August 2021; Ref: scu.162118

Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Federation royale belge des societes de basket-ball ASBL (FRBSB): ECJ 13 Apr 2000

Europa The need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex. The information provided in decisions making references must not only enable the Court to reply usefully but also give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the Statute of the Court of Justice. It is the Court’s duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the decisions making references are notified to the interested parties. Having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty (now, after amendment, Article 2 EC). That is the case with the activities of professional basketball players, where they work as paid employees or provide services for remuneration and those activities are effective and genuine activities and not such as to be regarded as purely marginal and ancillary. The Treaty provisions concerning freedom of movement for persons do not preclude rules or practices in the field of sport excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, as in the case of matches between national teams from different countries. That restriction on the scope of those provisions must, however, remain limited to its proper objective, and may not be relied on to exclude all sporting activity from the scope of the Treaty. The Community provisions on freedom of movement for persons and freedom to provide services not only apply to the action of public authorities but extend also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner. The abolition as between Member States of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. A professional basketball player who is a national of a Member State must be regarded as a worker within the meaning of Article 48 of the Treaty (now, after amendment, Article 39 EC) where, having entered into a contract of employment with a club in another Member State with a view to exercising gainful employment in that State, he thereby accepts an offer of employment actually made, within the meaning of Article 48(3)(a) of the Treaty. Article 48 of the EC Treaty (now, after amendment, Article 39 EC) precludes the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non-member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment.
C-176/96, [2000] ECR I-2681, [2000] EUECJ C-176/96
Bailii
European
Cited by:
Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 August 2021; Ref: scu.161873

Dimensione Direct Sales and Labianca v Knoll International SpA: ECJ 13 May 2015

ECJ Judgment – Reference for a preliminary ruling – Copyright – Directive 2001/29/EC – Article 4(1) – Distribution right – Concept of ‘distribution to the public’ – Offer for sale and advertising by a trader of a Member State on its website, by direct mail and in the press in another Member State – Reproductions of protected furniture for sale without the consent of the holder of the exclusive distribution right – Offer or advertising not leading to the purchase of the original or copies of a protected work
C-516/13, [2015] EUECJ C-516/13, ECLI:EU:C:2015:315
Bailii
Directive 2001/29/EC 4(1)
European

Updated: 18 August 2021; Ref: scu.546597

Commission v France C-374/98: ECJ 7 Dec 2000

Europa (Judgment) The inventory of areas which are of great importance for the conservation of wild birds, more commonly known under the acronym IBA (Inventory of Important Bird Areas in the European Community), although not legally binding on the Member States concerned, contains scientific evidence making it possible to assess whether a Member State has complied with its obligation to classify as special protection areas the most suitable territories in number and size for conservation of the protected species. It follows from the general scheme of Article 4 of Directive 79/409 on the conservation of wild birds that, where a given area fulfils the criteria for classification as a special protection area, it must be made the subject of special conservation measures capable of ensuring, in particular, the survival and reproduction of the bird species mentioned in Annex I to that directive. The text of Article 7 of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora expressly states that Article 6(2) to (4) of that directive apply, in substitution for the first sentence of Article 4(4) of Directive 79/409 on the conservation of wild birds, to the areas classified under Article 4(1) or (2) of the latter directive. It follows that, on a literal interpretation of that passage of Article 7 of Directive 92/43, only areas classified as special protection areas fall under the influence of Article 6(2) to (4) of that directive. The fact that the protection regime under the first sentence of Article 4(4) of Directive 79/409 applies to areas that have not been classified as special protection areas but should have been so classified does not in itself imply that the protection regime referred to in Article 6(2) to (4) of Directive 92/43 replaces the first regime referred to in relation to those areas.
C-374/98, [2000] ECR I-10799, [2000] EUECJ C-374/98
Bailii
European
Cited by:
Cited – Bown v Secretary of State for Transport CA 31-Jul-2003
The appeal concerned the environmental effect of the erection of a bridge being part of a bypass. It was claimed that the area should have been designated as a Special Protection Area for Birds (SPA), and that if so it should be treated as such for . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2021; Ref: scu.162510

Commission v Council C-170/96: ECJ 12 May 1998

Europa 1. Article M of the Treaty on European Union makes it clear that a provision such as Article K.3(2), which provides for the adoption of joint action by the Council in the areas referred to in Article K.1 does not affect the provisions of the EC Treaty. In accordance with Article L of the Treaty on European Union, the provisions of the EC Treaty concerning the powers of the Court of Justice and the exercise of those powers apply to Article M. It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of Article K.3(2) do not encroach upon the powers conferred by the EC Treaty on the Community. It follows that where an action is brought before the Court seeking a declaration that, in light of its objective, an act adopted by the Council on the basis of Article K.3(2)(b) of the Treaty on European Union falls within the scope of Article 100c of the EC Treaty, so that it should have been based on that provision, the Court has jurisdiction to review the content of the act in the light of Article 100c of the EC Treaty in order to ascertain whether the Act affects the powers of the Community under that provision. 2. Construed in the light of Article 3(d) of the EC Treaty, which includes among the activities of the Community for the purposes set out in Article 2, ‘measures concerning the entry and movement of persons in the internal market as provided for in Article 100c’, the phrase `crossing the external borders of the Member States’ in Article 100c1) refers, in the case of an airport, to the crossing of those borders at a border control point, permitting the holder of the visa to enter and to move within the internal market. The airport transit visa, introduced by the joint action adopted by the Council on the basis of Article K.3(2) of the Treaty on European Union on airport transit visas, does not authorise its holder to cross the external borders of Member States in the sense contemplated by Article 100c of the EC Treaty. Consequently, the act does not fall within the ambit of that provision.
[1998] EUECJ C-170/96
Bailii
European
Cited by:
Cited – Commission v Council (Police And Judicial Cooperation In Criminal Matters) ECJ 13-Sep-2005
The Commission sought anullment of Council Framework Decision 2003/80/JHA on the protection of the environment through criminal law. The framework decision laid down a number of environmental offences, in respect of which the Member States are . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 August 2021; Ref: scu.161867

Hendrikman and Feyen v Magenta Druck and Verlag: ECJ 10 Oct 1996

Judgment – Where proceedings are initiated against a person without his knowledge and a lawyer appears before the court first seised on his behalf but without his authority, such a person is quite powerless to defend himself and must be regarded as a defendant in default of appearance, within the meaning of Article 27(2) of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, even if the proceedings before the court first seised became, in point of form, proceedings inter partes. That conclusion is not affected by the fact that the defendant may apply to have the judgment in question annulled on the ground of lack of representation, since the proper time for a defendant to have an opportunity to defend himself is the time at which proceedings are commenced.
Article 27(2) of the Convention therefore applies to judgments given against a defendant who was not duly served with, or notified of, the document instituting proceedings in sufficient time and who was not validly represented during those proceedings, albeit the judgments given were not given in default of appearance because someone purporting to represent the defendant appeared before the court first seised.
C-78/95, [1996] ECR I-4943, [1996] EUECJ C-78/95
Bailii
European
Cited by:
Cited – Tavoulareas v Tsavliris and Others (No 2) CA 5-Jan-2007
The claimant sought to enforce here a judgment obtained by default in a Greek court.
Held: The proceedings in Greece had not required service of the proceedings on the defendant, and judgment had been entered by default. An English court was . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 August 2021; Ref: scu.161543

Dietrich v Westdeutscher Rundfunk: ECJ 6 Jul 2000

ECJ (Judgment) Directive 90/270/EEC on the minimum safety and health requirements for work with display screen equipment – Scope – Meaning of ‘display screen equipment for the purposes of Article 2 – Meaning of ‘drivers’ cabs or control cabs for vehicles or machinery for the purposes of Article 1.
C-11/99, [2000] EUECJ C-11/99
Bailii
European

Updated: 15 August 2021; Ref: scu.162586

Kranemann (Judgment): ECJ 17 Mar 2005

Europa Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Freedom of movement for workers – Civil servant undergoing preparatory practical training – Practical training completed in another Member State – Reimbursement of travel expenses limited to the domestic stretch of the journey.
C-109/04
European

Updated: 14 August 2021; Ref: scu.224045

Leyman v Institut national d’assurance maladie-invalidite (INAMI) (Social Security For Migrant Workers): ECJ 19 Feb 2009

Europa As the EC Treaty makes provision only for national social security legislation to be co-ordinated rather than for its full harmonisation, disparities may remain between them. Thus, the use made by the worker of his or her right to freedom of movement can sometimes be to his or her disadvantage, without involving any infringement of the Treaty. But, on the other hand, the aims of the Treaty would not be achieved if the exercise of the right to freedom of movement were to lead to the loss of social security advantages guaranteed to workers by the legislation of a Member State.
C-3/08, [2009] EUECJ C-3/08 – O, [2009] EUECJ C-3/08
Bailii, Bailii
European

Updated: 14 August 2021; Ref: scu.312002

Commission v Cyprus (Failure Of A Member State To Fulfil Obligations): ECJ 15 Mar 2012

ECJ Failure of a Member State to fulfil obligations – Directive 92/43/EEC – Articles 4(1) and 12(1) – Failure to include Paralimni Lake as a site of Community importance within the time-limit laid down – System of protection for the species Natrix natrix cypriaca (Cypriot grass snake)
C-340/10, [2012] EUECJ C-340/10
Bailii
Directive 92/43/EEC
European

Updated: 12 August 2021; Ref: scu.452237

Commission v Cyprus (Jurisdiction And The Enforcement Of Judgments In Civil And Commercial Matters): ECJ 15 Mar 2012

ECJ Jurisdiction and the enforcement of judgments in civil and commercial matters – Public notification of legal documents – Lack of known domicile or place of abode of the defendant in the territory of a Member State – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Infringement of the right to protection of personality liable to have been committed by the publication of photographs on the internet – Place where the harmful event occurred or may occur
C-292/10, [2012] EUECJ C-292/10
Bailii
European

Updated: 12 August 2021; Ref: scu.452238

Commission v Germany (French Text): ECJ 15 Mar 2012

ECJ Failure to fulfill obligations – Directive 2004/18/EC – Public service contracts – Architectural and Engineering Services – Services to study, design and supervision on the renovation of a public building – Realization project in phases, for budgetary reasons – value of the contract
C-574/10, [2012] EUECJ C-574/10
Bailii
Directive 2004/18/EC
European

Updated: 12 August 2021; Ref: scu.452239

HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another: SC 22 Jan 2014

The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant European Directive, and, secondly, whether the hybrid bill procedure, as proposed, would comply with the procedural requirements of European law. The Court of Appeal decided both issues against the appellants, the first by a majority (Sullivan LJ dissenting).
Held: The appeal failed, and a reference to the ECJ was refused.
The strategy document was not itself a plan requiring setting the framework for future development consent: ‘It is a very elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament.’
Lord Reed set out the nature of a hybrid bill: ‘A hybrid bill shares certain characteristics of a public bill and a private bill. The Speaker has defined a hybrid bill as ‘a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class’ (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Carnwath
[2014] UKSC 3, [2014] 2 All ER 109, [2014] PTSR 182, [2014] WLR(D) 28, [2014] 1 WLR 324, UKSC 2013/0172
Bailii, WLRD, Bailii Summary, SC, SC Summary
Strategic Environmental Assessment Directive (Parliament and Council Directive 2001/42/EC, Town and Country Planning (Environmental Impact Assessment) Regulations 2011, Bill of Rights 1689 9, Directive 85/337/EEC, OJ 1985, L 175/40
England and Wales
Citing:
At First Instance – Buckinghamshire County Council and Others, Regina (on The Application of) v Secretary of State for Transport Admn 15-Mar-2013
The claimants challenged the strategy published by the government for the development of the propose HS2 railway line, saying that it required first a strategic environmentalimpact assessment under European law.
Held: The claim failed. The . .
Appeal from – HS2 Action Alliance Ltd and Others v Secretary of State for Transport CA 24-Jul-2013
The claimants challenged the plan for a major railway development, saying that an environmental impact assessment should have been made first.
Held: (Sullivan LJ dissenting) The claimant’s appeal failed. The strategy as proposed was not such . .
Cited – Terre Wallonne v Wallonia ECJ 17-Jun-2010
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Directive 91/676/EEC – Protection of waters against pollution caused by nitrates from agricultural sources . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Nomarchiaki Aftodioikisi Aitoloakarnanias And Others ECJ 13-Oct-2011
ECJ Opinion – Environmental protection – Directive 200/60/CE – Policy of the Union in the field of water – Deviation of the course of a river – Concept of time limit for establishing management plans for river . .
Cited – Inter-Environnement Bruxelles v Gouvernement de la Region de Bruxelles-Capitale ECJ 22-Mar-2012
ECJ Directive 2001/42/EC – Assessment of the effects of certain plans and programmes on the environment – Concept of plans and programmes ‘which are required by legislative, regulatory or administrative . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Wiener SI GmbH v Hauptzollamt Emmerich ECJ 20-Nov-1997
ECJ Subheading 60.04 B IV b 2 bb of the Common Customs Tariff, in the version resulting from Regulation No 3400/84 amending Regulation No 950/68 on the Common Customs Tariff, must be construed as covering under . .
Cited – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – Lee v Bude and Torrington Junction Railway Co 1871
It was alleged that Parliament had been induced to pass an Act by fraudulent recitals.
Held: Willes J said: ‘Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Cited – Nomarchiaki Aftodioikisi Aitoloakarnanias And Others ECJ 13-Oct-2011
ECJ Opinion – Environmental protection – Directive 200/60/CE – Policy of the Union in the field of water – Deviation of the course of a river – Concept of time limit for establishing management plans for river . .
Cited – Boxus And Roua (Environment And Consumers) ECJ 18-Oct-2011
ECJ Grand Chamber – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Scope – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in . .
Cited – Boxus And Roua (Environment And Consumers) ECJ 18-Oct-2011
ECJ Grand Chamber – Assessment of the effects of projects on the environment – Directive 85/337/EEC – Scope – Concept of ‘specific act of national legislation’ – Aarhus Convention – Access to justice in . .
Cited – Marie-Noelle Solvay and Others v Region wallonn ECJ 16-Feb-2012
ECJ Assessment of the effects of projects on the environment – Concept of legislative act – Force and effect of the guidance in the Aarhus Convention Implementation Guide – Consent for a project given without an . .
Cited – WWF and Others v Autonome Provinz Bozen and Others C-435/97 ECJ 16-Sep-1999
ECJ Environment – Directive 85/337/EEC – Assessment of the effects of certain public and private projects . .
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Franklin v Minister of Town and Country Planning HL 2-Jul-1947
A government minister had decided to confirm a draft new town order following a public local inquiry. One of the grounds on which the decision was challenged was that the minister could not consider the report and the objections without a . .
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 – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – Grand Duchy of Luxembourg v Linster and Others ECJ 19-Sep-2000
Where a road or other development project would have a substantial impact on the environment, a law passed by a member state authorising the construction to proceed but which was in the absence of an impact assessment, was not in compliance with the . .
Cited – International Association of Independent Tanker Owners and others v Secretary of State for Transport ECJ 3-Jun-2008
Maritime transport Ship-source pollution Directive 2005/35/EC – Validity United Nations Convention on the Law of the Sea Marpol 73/78 Convention – Legal effects of the Conventions – Ability to rely on them Serious negligence – Principle of legal . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Commission v Ireland C-50/09 ECJ 3-Mar-2011
ECJ (Environment And Consumers) Failure of a Member State to fulfil obligations – Directive 85/337/EEC – Obligation of the competent environmental authority to carry out an assessment of the effects of certain . .

Cited by:
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.520061

Commission v France C-225/98: ECJ 26 Sep 2000

Europa (Judgment) Failure of a Member State to fulfil its obligations – Public works contracts – Directives 71/305/EEC, as amended by Directive 89/440/EEC, and 93/37/EEC – Construction and maintenance of school buildings by the Nord-Pas-de-Calais Region and the Departement du Nord.
[2000] EUECJ C-225/98
Bailii
European
Cited by:
Cited – Azam and Co v Legal Services Commission ChD 5-May-2010
The claimant solicitors had failed to submit their tender for a new contract in time. The respondent refused to accept the late submission. The claimant said that the respondent had not directly notified it of the deadline and so failed to meet its . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.162424

Commission v Netherlands C-144/99: ECJ 10 May 2001

ECJ Failure by a Member State to fulfil its obligations – Directive 93/13/EEC – Unfair terms in consumer contracts – Incomplete transposition of the directive into national law. As to the applicable principles in transposing Directives as fully effective in national law: ‘The Court has explained that . . the Member States must define a specific legal framework in the sector concerned which ensures that the national legal system complies with the provisions of the directive in question. The framework must be designed in such a way as to remove all doubt or ambiguity, not only as regards the content of the relevant national legislation and its compliance with the directive, but also as regards the authority of that legislation and its suitability as a basis for regulation of the sector . . Consequently, given that the Member State concerned is required to ensure the full and exact application of the provisions of any directive, it falls short of its obligations so long as it has not completely complied with [the directive], even if that [domestic] law has to a large extent already secured the objectives of the directive. Any rights conferred by [the] directive must be guaranteed full protection . . Regard must be had to the Court’s consistent concern to ensure that the existing national legislation leaves no doubt as to the effects of the directive upon the legal position of individuals. In the words of the Court, ‘it is particularly important, in order to satisfy the requirement for legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts.”
C-144/99, [2001] EUECJ C-144/99, [2001] ECR I-3541
Bailii
Directive 93/13/EEC
European
Cited by:
Cited – Alabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
Cited – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008
The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.162749

Regina v Her Majesty’s Treasury, Ex parte Smedley: CA 19 Dec 1984

The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before both Houses of Parliament would, if approved and then made, be ultra vires.
Held: The court, exercising restraint, did have power to intervene where it would be too late if it waited until the action was complete. Nevertheless: ‘I am quite unable to hold that an Order in Council in the terms of the draft would be ultra vires the order-making power. On the contrary, I think that it would quite plainly be intra vires. I would dismiss the appeal.’
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before both Houses of Parliament would, if approved and then made, be ultra vires.
Held: The court, exercising restraint, did have power to intervene where it would be too late if it waited until the action was complete. Nevertheless: ‘I am quite unable to hold that an Order in Council in the terms of the draft would be ultra vires the order-making power. On the contrary, I think that it would quite plainly be intra vires. I would dismiss the appeal.’ and
. . ‘Furthermore, whilst Parliament is entirely independent of the courts in its freedom to enact whatever legislation it sees fit, legislation by Order in Council, statutory instrument or other subordinate means is in a quite different category, not being Parliamentary legislation. This subordinate legislation is subject to some degree of judicial control in the sense that it is within the province and authority of the courts to hold that particular examples are not authorised by statute, or, as the case may be by the common law, and so are without legal force or effect.’
Sir John Donaldson MR, Slade LJ, Lloyd LJ
[1985] 1 QB 657, [1984] EWCA Civ 7
Bailii
European Communities Act 1972 1(2)
England and Wales
Citing:
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Bulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .

Cited by:
Cited – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.187512

Diputacion Foral De Vizcaya v Commission (State Aid) C-476/09: ECJ 28 Jul 2011

ECJ Appeal – State aid – Action for annulment – Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Alava and Guipuzcoa – Reductions the tax base for certain newly established firms – legitimate expectations – Principle of legal certainty and good administration – Compliance with a reasonable time – No notification.
C-476/09, [2011] EUECJ C-476/09
Bailii
European

Updated: 11 August 2021; Ref: scu.442282

Diputacion Foral De Vizcaya v Commission (State Aid) C-474/09: ECJ 28 Jul 2011

ECJ Appeal – State aid – Action for annulment – Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Alava and Guipuzcoa – Reductions the tax base for certain newly established firms – legitimate expectations – Principle of legal certainty and good administration – Compliance with a reasonable time – No notification.
C-474/09, [2011] EUECJ C-474/09, [2014] EUECJ C-474/09 – CO
Bailii, Bailii
European

Updated: 11 August 2021; Ref: scu.442280

Transportes Urbanos Y Servicios Generales (Principles Of Community Law): ECJ 26 Jan 2010

(Grand chamber) Procedural autonomy of the Member States – Principle of equivalence – Action for damages against the State – Breach of European Union law – Breach of the Constitution
[2010] EUECJ C-118/08, [2011] All ER (EC) 467, [2010] 2 CMLR 39, [2010] CEC 1163
Bailii
European
Citing:
Opinion – Transportes Urbanos Y Servicios Generales (Principles Of Community Law) ECJ 9-Jul-2009
Opinion – Liability of a Member State Violation of Community law Principles of equivalence and effectiveness . .

Cited by:
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.666512

Ebony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others: ECJ 27 Feb 1997

Europa 1 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Measures to detain and confiscate vessels suspected of having breached the prohibition of commercial traffic entering Yugoslav territorial waters – Scope – Vessel flying the flag of a non-member country, belonging to a non-Community company and sailing in international waters at the time of its boarding – Included
(Council Regulation No 990/93, Arts 1(1)(c), 9, 10 and 11)
2 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Prohibition of commercial traffic entering Yugoslav territorial waters and prohibition of activities designed to promote such entry – Scope
(Council Regulation No 990/93, Art. 1(1)(c) and (d))
3 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Prohibitions – Breach – Penalties – National provision providing for confiscation of the cargo transported by one of the means of transport referred to in the second paragraph of Article 10 of the Regulation – Whether permissible – Conditions – Assessment by the national courts
(EC Treaty, Art. 5; Council Regulation No 990/93, Arts 1 and 10)
4 It follows from the wording of Articles 9 and 10 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia that the detention and confiscation measures for which they provide apply to all vessels suspected of having breached the prohibition of entry for commercial purposes into the territorial sea of the Federal Republic of Yugoslavia, with no distinction being drawn on the basis of the vessel’s flag or owner. Further, the application of those measures is not subject to the condition that the breach of the prohibitions set out in the Regulation should take place within Community territory.
The competent authorities of the Member State concerned must therefore, under Article 9 of the Regulation, detain all vessels suspected of having breached the sanctions imposed against the Federal Republic of Yugoslavia, even if they are flying the flag of a non-member country, belong to non-Community nationals or companies, or if the alleged breach of sanctions occurred outside Community territory. Likewise, national authorities may, under the second paragraph of Article 10 of the Regulation, confiscate those vessels and their cargoes once the infringement has been established.
Furthermore, Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, to which Articles 9 and 10 of the Regulation give effect within the Community, expressly requires all States to detain vessels suspected of violation that are found in their territory and provides that such vessels may, where appropriate, be forfeited to those States.
Since, under Article 11, Regulation No 990/93 applies within the whole territory of the Community, Articles 9 and 10 thereof are applicable once those vessels are within the territory of a Member State and thus under the territorial jurisdiction of that State, even if the alleged infringement occurred outside its territory.
5 Article 1(1)(c) and (d) of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia prohibits not only the actual entry of commercial traffic into the territorial sea of the Federal Republic of Yugoslavia but also conduct occurring in international waters which gives good reason to believe that the vessel concerned is on course for that territorial sea for the purposes of commercial traffic.
6 A domestic provision which, in the event of an ascertained breach of any of the prohibitions laid down in Article 1 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, prescribes confiscation of the cargo carried by one of the means of transport indicated in the second paragraph of Article 10 of Regulation No 990/93 is compatible with that Regulation, in particular with Article 10 thereof.
With the exception of the Italian and Finnish versions, all the language versions of the second paragraph of Article 10 of the Regulation, which correspond in this regard to the wording of Paragraph 25 of Resolution 820 (1993) of the United Nations Security Council, provide that, when the breach of the Regulation has been established, cargoes may be forfeited to the Member State concerned. The second paragraph of Article 10 of the Regulation cannot on any view be understood as limiting the Member States’ general power under the first paragraph of Article 10 to determine the penalties to be imposed where the provisions of the Regulation are infringed.
Moreover, even if it were to be assumed that the national provision in question introduces a system of strict criminal liability or fails to take into account the degree of involvement of the various traders concerned, it is for the national court to determine whether that penalty is dissuasive, effective and proportionate. In making that determination, the national court must take account, in particular, of the fact that the objective pursued by the Regulation, which is to bring to an end the state of war in the region concerned and the massive violations of human rights and humanitarian international law in the Republic of Bosnia-Herzegovina, is one of fundamental general interest for the international community.
Where a Community regulation does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the EC Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. In this regard, a system of strict criminal liability penalizing breach of a regulation is not in itself incompatible with Community law.
C-177/95, [1997] EUECJ C-177/95, [1997] ECR I-1111
Bailii
European
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.161603

Transportes Urbanos Y Servicios Generales (Principles Of Community Law): ECJ 9 Jul 2009

Opinion – Liability of a Member State Violation of Community law Principles of equivalence and effectiveness
C-118/08, [2009] EUECJ C-118/08 – O
Bailii
European
Cited by:
Opinion – Transportes Urbanos Y Servicios Generales (Principles Of Community Law) ECJ 26-Jan-2010
(Grand chamber) Procedural autonomy of the Member States – Principle of equivalence – Action for damages against the State – Breach of European Union law – Breach of the Constitution . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.347540

Diputacion Foral De Vizcaya v Commission (State Aid) C-475/09: ECJ 28 Jul 2011

ECJ Appeal – State aid – Action for annulment – Commission Decisions on State aid schemes implemented by Spain for firms in the provinces of Vizcaya, Alava and Guipuzcoa – Reductions the tax base for certain newly established firms – legitimate expectations – Principle of legal certainty and good administration – Compliance with a reasonable time – No notification.
C-475/09, [2011] EUECJ C-475/09
Bailii
European

Updated: 11 August 2021; Ref: scu.442281

Compass Contract Services (Taxation – Value Added Tax Taxation : Judgment): ECJ 14 Jun 2017

The case involved a comparison between different limitation periods applicable to claims to recover overpaid VAT, and claims to deduct input tax from VAT otherwise due, for the purposes of the equal treatment principle. The Fourth Chamber of the CJEU concluded that, even within the confines of the VAT regime, the two claims were not truly comparable.
C-38/16, [2017] EUECJ C-38/16, [2017] STC 1358, ECLI:EU:C:2017:454, [2017] 4 WLR 168, [2017] BVC 30, [2017] STI 1393, [2017] WLR(D) 396
Bailii, WLRD
European
Cited by:
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.588260

Virginie Pontin v T-Comalux SA (Social Policy): ECJ 31 Mar 2009

ECJ Social policy – Protection of pregnant workers and workers who have recently given birth or are breastfeeding Directive 92/85/EEC Articles 10 and 12 Prohibition of dismissal from the beginning of pregnancy until the end of maternity leave – Judicial protection of rights enjoyed by individuals under Community law Equal treatment for men and women ‘ – Directive 76/207/EEC ‘ Article 2(7), third subparagraph Less favourable treatment of a woman related to pregnancy or maternity leave Restriction of remedies available to women dismissed during pregnancy)
C-63/08, [2009] EUECJ C-63/08 – O, ECLI:EU:C:2009:666, [2009] ECR I-10467
Bailii
Directive 76/207/EEC 2(7), Directive 92/85/EEC 10 812
European
Cited by:
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.328038

Levez etc v T H Jennings (Harlow Pools) Ltd (No 2): EAT 1 Oct 1999

The restriction on the awards of compensation for sex discrimination to payments in respect of a period of two years prior to the claim was unlawful. Claims of other natures were not so limited, and this could not be supported, since it was in breach of EC law. The period of only two years in section 2(5) offended against the principle of equivalence under EU law. Compensation could not be so limited. Treaty law is to prevail over national law where there was a conflict.
The Honourable Mr Justice Morison (P)
Times 10-Nov-1999, EAT/311/99, EAT/812/94, [2000] ICR 58
EATn
EC Treaty Art 141, Equal Pay Act 1970 2(5)
England and Wales
Citing:
At ECJ – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
See Also – Levez v T H Jennings (Harlow Pools) Ltd EAT 11-Oct-1996
A party sought to be joined to the case order to appeal it to the Curt of Appeal, and in turn to the European Court of Justice to challenge implementation of a European directive.
Held: Leave to join refused, but leave allowed to appeal . .
See Also – Levez v T H Jennings (Harlow Pools) Ltd EAT 6-Nov-1996
. .

Cited by:
Cited – Abdulla and Others v Birmingham City Council QBD 17-Dec-2010
The defendant applied for an order declaring that the claim would better be brought in an employment tribunal and that accordingly the County court should decline jurisdiction.
Held: The application was dismissed: ‘ I reject the submission by . .
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.
Updated: 10 August 2021; Ref: scu.171399

Stringer and Others v Her Majesty’s Revenue and Customs: ECJ 24 Jan 2008

Europa Directive 2003/88/EC Organisation of working time Article 7 – Right to a minimum period of paid annual leave Entitlement to an allowance in lieu Fundamental social rights in Community law Grant of annual leave during sick leave.
The court was asked whether workers continued to accrue an entitlement to paid annual leave whilst absent on long term sickness and were entitled to take it during periods of absence on sick leave: ‘It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill.’
[2009] All ER (EC) 906, [2009] IRLR 214, [2009] 2 CMLR 27, [2009] ICR 932, C-520/06, [2008] EUECJ C-520/06 – O
Bailii
European
Cited by:
Cited – British Airways Plc v Williams and Others CA 3-Apr-2009
ba-williamsCA2009
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 . .
Opinion – Stringer and Others v Her Majesty’s Revenue and Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund ECJ 20-Jan-2009
(Grand Chamber) Several employees claimed that having been absent from work sick, they were entitled to carry forward their unused holiday entitlements, or if a former worker, to pay in lieu under the Working Time directive.
Held: The workers . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.264005

Revenue and Customs v Stringer, Ainsworth and Others: HL 10 Jun 2009

In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed against a reversal of that decision followed by a decision in their favour by the ECJ.
Held: The employees were entitled to pursue their claims under the unlawful deductions provisions. The definition is section 27 of the 1996 Act should not be given the restricted interpretation decsribed by the Court of Appeal. As such claims were governed by the 1996 Act and not by the 1998 regulations there was not the absolute bar in bringing the claims more than three months after the deduction.
Lord Neuberger said that the question whether any proposed domestic claim is a true comparator with an EU law claim is context-specific: ‘It seems to me that the question of similarity, in the context of the principle of equivalence, has to be considered by reference to the context in which the principle is being invoked.’
Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 31, [2009] IRLR 677, [2009] ICR 985, Times 15-Jun-2009
Bailii
Working Time Regulations (SI 1998 No 1833), Wages Act 1986, Employment Rights Act 1996 13(1) 823, Council Directive 93/104/EC, Council Directive 2003/88/EC of 4 November 2003, concerning certain aspects of the organisation of working time
England and Wales
Citing:
At EAT – Commissioners of Inland Revenue v Ainsworth, Kilic, Stringer, Thwaites EAT 4-Feb-2004
EAT Working Time Regulations – Holiday pay . .
At Court of Appeal – Inland Revenue v Ainsworth and others CA 22-Apr-2005
The court considered the calculation of hours under the Regulations when the employee was on extended sickness leave of absence.
Held: Once an employee had exhausted their sick pay entitlement, it was not open to them in addition then to claim . .
Cited – Schultz-Hoff v Deutsche Rentenversicherung Bund (Social Policy) ECJ 24-Jan-2008
ECJ Directive 2003/88/EC working time arrangements Article 7 Right to paid annual leave minimal right of the compensatory leave not taken Fundamental social rights in Community law Loss of entitlement to the . .
At ECJ – Stringer and Others v Her Majesty’s Revenue and Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund ECJ 20-Jan-2009
(Grand Chamber) Several employees claimed that having been absent from work sick, they were entitled to carry forward their unused holiday entitlements, or if a former worker, to pay in lieu under the Working Time directive.
Held: The workers . .
Cited – Bristow v City Petroleum HL 1987
Lord Ackner set out the history of the legialation restricting deductions by employers from wages. . .
Cited – Delaney v Staples CA 1991
Any failure by an employer to pay any amount of wages properly payable to an employee amounts to a deduction from his wages for the purposes of section 7. The basic object of the 1986 Act is ‘to see that workers receive their wages in full at the . .
Cited – Delaney v Staples HL 15-Apr-1992
The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages and that therefore the Industrial Tribunal had jurisdiction.
Held: The . .
Cited – United Kingdom v Council of the European Union ECJ 12-Nov-1996
A directive limiting the maximum work hours for all employees was validly made under art 118a as a Health and Safety measure.
LMA

  1. Measures appear initially to have derived from policies of job . .
    See Also – Robinson-Steele v RD Retail Services Ltd; Clarke v Frank Staddon Ltd and similar ECJ 16-Mar-2006
    The employers used a system of ‘rolled up’ holiday pay, so that staff received a sum equivalent to holiday pay throughout the year.
    Held: Such a system was not in accordance with the Working Time Directive. The directive required that there . .

    Cited by:
    Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
    The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
    Held: The appeal failed. There had not been shown any true . .

    Lists of cited by and citing cases may be incomplete.
    Updated: 10 August 2021; Ref: scu.346820

Totel Ltd v Revenue and Customs: SC 26 Jul 2018

The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true comparator among domestic claims sufficient to engage the principle of equivalence in relation to the imposition of a pay-first requirement upon traders seeking to appeal assessments to VAT.
Lady Hale, President, Lord Sumption, Lord Carnwath, Lord Hodge, Lord Briggs
[2018] UKSC 44, [2018] STI 1496, [2018] WLR(D) 531, [2018] STC 1642, [2018] 1 WLR 4053, [2018] BVC 38, UKSC 2017/0023
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 Apr 25 am Video, SC 2018 Apr 25 pm Video, SC 2018 Apr 26 am Video
England and Wales
Citing:
At CA – Totel Ltd v Revenue and Customs CA 20-Dec-2016
Claim that the UK’s VAT prepayments rule infringes European law. . .
Cited – Edilizia Industriale Siderurgica v Ministero delle Finanze ECJ 15-Sep-1998
ECJ (Judgment) Recovery of sums paid but not due – Procedural time-limits under national law
Orse EDIS v Ministero delle Finanze . .
Cited – Levez v T H Jennings (Harlow Pools) Ltd ECJ 1-Dec-1998
Regulations debarred a claim after a certain time even where the delay had been because of a deliberate concealment of information by an employer.
Held: Availability of other means of redress was not sufficient to displace this rule.
Cited – Revenue and Customs v Stringer, Ainsworth and Others HL 10-Jun-2009
In each case, the employee had retired after long term sickness. The Employment tribunal had upheld their ability to claim arrears of sickness pay arising under the 1998 Regulations, as an unlawful deduction from their wages. They now appealed . .
Cited – Marks and Spencer Plc v Commissioners of Customs and Excise Admn 21-Dec-1998
The limitation period for the recovery of overpaid VAT was alleged to offend the principle of equivalence.
Held: Moses J said: ‘In my judgment no comparison can be made with other types of tax such as income tax payable in respect of an . .
Cited – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
Cited – Compass Contract Services (Taxation – Value Added Tax Taxation : Judgment) ECJ 14-Jun-2017
The case involved a comparison between different limitation periods applicable to claims to recover overpaid VAT, and claims to deduct input tax from VAT otherwise due, for the purposes of the equal treatment principle. The Fourth Chamber of the . .
Cited – Littlewoods Retail Ltd and Others v Her Majesty’s Commissioners of Revenue and Customs ECJ 19-Jul-2012
(Grand Chamber) Second and Sixth VAT Directives – Input tax – Refund of excess – Payment of interest – Procedures
The court considered whether on repayment to a taxpayer of wrongly imposed VAT, the interest returned with the repayment should be . .
Cited – Reemtsma Cigarettenfabriken v Ministero delle Finanze ECJ 8-Jun-2006
It was alleged that a provision limiting the identity of those who could claim a VAT repayment offended against the principle of equivalence because there was no comparable restriction in relation to the recovery of overpaid direct tax.
Held: . .
Cited – Transportes Urbanos Y Servicios Generales (Principles Of Community Law) ECJ 26-Jan-2010
(Grand chamber) Procedural autonomy of the Member States – Principle of equivalence – Action for damages against the State – Breach of European Union law – Breach of the Constitution . .
Cited – Virginie Pontin v T-Comalux SA (Social Policy) ECJ 31-Mar-2009
ECJ Social policy – Protection of pregnant workers and workers who have recently given birth or are breastfeeding Directive 92/85/EEC Articles 10 and 12 Prohibition of dismissal from the beginning of pregnancy . .
Cited – HM Revenue and Customs v Changtel Solutions UK Ltd CA 28-Jan-2015
The Court was asked whether, when there is both (i) an appeal against a VAT assessment pending in the tax tribunal, and (ii) a winding-up petition pending in the Companies court, the tax tribunal or the Companies court is the appropriate forum to . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.620140

Edilizia Industriale Siderurgica v Ministero delle Finanze: ECJ 15 Sep 1998

ECJ (Judgment) Recovery of sums paid but not due – Procedural time-limits under national law
Orse EDIS v Ministero delle Finanze
[1998] ECR I-4951
Bailii
European
Cited by:
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.161906

Marks and Spencer Plc v Commissioners of Customs and Excise: Admn 21 Dec 1998

The limitation period for the recovery of overpaid VAT was alleged to offend the principle of equivalence.
Held: Moses J said: ‘In my judgment no comparison can be made with other types of tax such as income tax payable in respect of an individual’s profits or the tax on a document imposed by stamp duty. Other forms of indirect taxation, such as excise duty, are wholly different types of tax.
It seems to me that the jurisprudence of the European Court of Justice, exemplified in EDILIZIA, requires a comparison between the approach of a member state to the recovery of tax charged in breach of Community rules and the recovery of the same tax in breach of domestic rules. Any wider enquiry would invite unnecessary argument as to whether there is a true comparison.’
Moses J
[1998] EWHC 1143 (Admin), [1999] STC 205, [1999] Eu LR 450, [1999] 1 CMLR 1152, [1999] BTC 5073, [1999] BVC 107
Bailii
England and Wales
Cited by:
Appeal from – Marks and Spencer Plc v Customs and Excise CA 14-Dec-1999
The taxpayer discovered that it had over several years made overpayments of VAT on chocolate covered biscuits because of a mistake as to the tax mutual with the defendants.
Held: MandS’s challenge to section 80(4) (as infringing EU law) . .
First instance – 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 . .
Cited – Totel Ltd v Revenue and Customs SC 26-Jul-2018
The taxpayer challenged the ‘pay first’ rule under VAT which required them, before challenging a VAT assessment, first to deposit the VAT said to be due under the assessment.
Held: The appeal failed. There had not been shown any true . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.280499

El Majdoub v CarsOnTheWeb.Deutschland GmbH: ECJ 21 May 2015

ECJ Judgment – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Article 23 – Agreement conferring jurisdiction – Formal requirements – Communication by electronic means which provides a durable record of the agreement – Definition – General terms and conditions of sale which can be consulted and printed from a link which enables them to be displayed in a new window – Click-wrapping
M Ilesic P
C-322/14, [2015] EUECJ C-322/14, ECLI:EU:C:2015:334, [2015] ILPr 32, [2015] 1 WLR 3986, [2015] WLR(D) 222
Bailii
European

Updated: 10 August 2021; Ref: scu.547037

Wine In Black v OHMI – Quinta Do Noval-Vinhos (Wine In Black): ECFI 21 May 2015

ECJ Judgment – Community trade mark – Opposition proceedings – Application for Community word mark Wine in Black – Earlier Community word mark NOVAL BLACK – Relative ground for refusal – No likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009
T-420/14, [2015] EUECJ T-420/14
Bailii
Regulation (EC) No 207/2009 8(1)(b)
European

Updated: 10 August 2021; Ref: scu.547684

Nutrexpa v OHMI – Kraft Foods Italia (Cuetara Maria Oro): ECFI 21 May 2015

ECJ Judgment – Community trade mark – Opposition proceedings – Application for Community figurative mark Cuetara ORO MARIA – Earlier Community and national figurative marks ORO – Partial refusal to register – Relative ground for refusal – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation (EC) No 207/2009
M. van der Woude (Rapporteur), P
T-271/13, [2015] EUECJ T-271/13
Bailii
European

Updated: 10 August 2021; Ref: scu.547682

Lancome Parfums Et Beaute and Cie v Office For Harmonisation In The Internal Market (Trade Marks And Designs) (Ohim), Focus Magazin Verlag Gmbh: ECJ 24 Oct 2013

ECXJ Appeal – Community trade mark – Word mark Color Focus – Application for a declaration of invalidity made by the proprietor of the Community word mark Focus – Declaration of invalidity – Surrender – Article 149 of the Rules of Procedure – Appeal which has become devoid of purpose – No need to adjudicate
C-593/12, [2013] EUECJ C-593/12
Bailii
European

Updated: 10 August 2021; Ref: scu.517555

Alois Lageder Spa v Amministrazione Delle Finanze Dello Stato: ECJ 1 Apr 1993

ECJ On the interpretation of Article 1 of Regulation (EEC) No 1311/73 of the Commission of 16 May 1973 relating to a provisional list of quality wines produced in specified regions as well as the identification of these wines in the accompanying document (OJ 1973 L 132, p. 20),
C-44/91, [1993] EUECJ C-44/91
Bailii
European

Updated: 10 August 2021; Ref: scu.515366