Category: European

Pirelli Cable Holding Nv and others v Inland Revenue: HL 8 Feb 2006

Under s247 of the 1988 Act, a company paying dividends to a parent company need not withhold ACT. This option was not offered where either subsidiary or parent was not UK resident until the decision in Hoechst which found the restriction contrary to European law. The Revenue now appealed a decision allowing recovery of the overpaid ACT.
Held: The appeal succeeded. The existence of double taxation treaties with other countries in the EC meant that a company electing not to deduct ACT could not at the same time also claim the tax credits which would be associated with such an election. Under the sceme of the double taxation treaties, entitlement to a tax credit walked hand in hand with liability to pay ACT. Advance Corporation Tax was not a withholding tax.

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKHL 4, Times 13-Feb-2006

Links:

Bailii

Statutes:

Finance Act 1972, Income and Corporation Taxes Act 1988

Jurisdiction:

England and Wales

Citing:

Cited – Commission v Belgium ECJ 28-Jan-1992
Europa Legislation of a Member State which makes the deductibility of pension and life assurance contributions conditional on those contributions being paid in that State is contrary to Articles 48 and 59 of the . .
Cited – Bachmann v Belgian State ECJ 28-Jan-1992
Europa Legislation of a Member State which makes the deductibility of sickness and invalidity insurance contributions or pension and life assurance contributions conditional on those contributions being paid in . .
Cited – Staatssecretaris van Financien v Verkooijen ECJ 6-Jun-2000
A resident of the Netherlands owned shares in a company resident in Belgium and received dividends on those shares. If the dividends had been paid by a company resident in the Netherlands their treatment for income tax in his hands would have been . .
Cited – Metallgesellschaft Ltd and Others v Inland Revenue Commissioners and Another Hoechst Ag and Another v Same ECJ 8-Mar-2001
The British law which meant that non-resident parent companies of British based businesses were not able to recover interest on payments of advance corporation tax, was discriminatory against other European based companies. Accordingly the law was . .
Cited – Oce van der Grinten NV v Inland Revenue Commissioners ECJ 25-Sep-2003
Europa Directive 90/435/EEC – Corporation tax – Parent companies and subsidiaries of different Member States – Concept of withholding tax. . .
At first Instance – Pirelli Cable Holding NV and Others v Inland Revenue Commissioners ChD 22-Jan-2003
The Metallgesellschaft case had established that it was contrary to European law to withhold the right to ACT on dividends paid by a UK holding company to a non-Uk subsidiary. The Revenue claimed that that rule did not apply here because the non-Uk . .
Appeal from – Pirelli Cable Holding NV and others v The Commissioners of Inland Revenue CA 16-Dec-2003
. .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, European

Updated: 05 July 2022; Ref: scu.238365

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 duty is limited and runs ‘so far as is possible’; any reading down must ‘go with the grain of the legislation’ as drafted. There is however little difference between the Court’s duty under the Marleasing principle and its duty under section 3 of the Human Rights Act 1998 to interpret domestic legislation as far as possible in a manner which is compatible with Convention rights under the European Convention on Human Rights.

Judges:

Arden, Pill, Latham LJJ

Citations:

[2006] EWCA Civ 29, [2006] STC 1252

Links:

Bailii

Statutes:

Human Rights Act 199 3, European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Appeal from – IDT Card Services Ireland Ltd, Regina (on the Application of) v HM Customs and Excise Admn 21-Dec-2004
. .

Cited by:

Cited – Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Cited – 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 . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 05 July 2022; Ref: scu.238207

Vtech Electronics (UK) Plc v The Commissioners of Customs and Excise: ChD 29 Jan 2003

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 59 (Ch), [2003] EuLR 118

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Sony Computer Entertainment Europe Ltd v Customs and Excise ChD 27-Jul-2005
The appellants had imported Playstation computer games. They appealed refusal of a rebate of 50 million euros paid in VAT before a reclassification of the equipment so as to make it exempt from VAT.
Held: ‘The effect of the annulment of a . .
Cited – HM Revenue and Customs v Epson Telford Ltd ChD 4-May-2007
The parties disputed whether inkjet printer cartridges were to be classsified on import as parts of printers, and free of duty, or as ink and subject to duty.
Held: ‘I can see no reason why the advances in design and technology incorporated . .
Cited – Matalan Retail Ltd v Revenue and Customs ChD 5-Aug-2009
The taxpayer imported swimwear for sale. The respondent had incorrectly indicated that such swimwear had one classification. The claimant sought to prevent the respondent reclassifying the goods, saying that they had made given binding tariff . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, European

Updated: 05 July 2022; Ref: scu.179022

Antonio Munoz Y Cia SA Superior Fruitcola SA v Frumar Limited Redbridge Produce Marketing Limited: CA 16 Jun 1999

The claimant sought to enforce European agricultural quality standards against the defendant, who was selling grapes in breach of the European Directive.
Held: The defendants were in breach, but the Directive did not give the claimants a direct right to enforce it. The issue was referred to the European Court.

Judges:

Mummery LJ

Citations:

[1999] EWCA Civ 1591

Jurisdiction:

England and Wales

Citing:

Appeal from – Antonio Munoz Y Cia S A , Superior Fruticola S A v Frumar Limited, Redbridge Produce Marketing Limited PatC 26-Mar-1999
European legislation which controlled the naming and use of patented grape varieties did not provide for actions directly between the owner of the mark and an infringer. The purpose of the legislation was consumer protection achieved in other ways. . .

Cited by:

Appeal to – Antonio Munoz Y Cia S A , Superior Fruticola S A v Frumar Limited, Redbridge Produce Marketing Limited PatC 26-Mar-1999
European legislation which controlled the naming and use of patented grape varieties did not provide for actions directly between the owner of the mark and an infringer. The purpose of the legislation was consumer protection achieved in other ways. . .
Lists of cited by and citing cases may be incomplete.

European, Agriculture

Updated: 05 July 2022; Ref: scu.146506

Munday (EEA Decision: Grounds of Appeal): UTIAC 4 Feb 2019

1. In an appeal against an EEA decision under the Immigration (EEA) Regulations 2016, the sole ground of appeal is that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to and residence in the UK (sched 2, para 1).
2. Consequently, in such an appeal an appellant may not rely on human rights grounds in the absence of a s.120 notice and statement of additional grounds in which reliance is placed upon human rights or there has been an additional decision to refuse a human rights claim.

Citations:

[2019] UKUT 91 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, European

Updated: 05 July 2022; Ref: scu.637756

Commission v Sweden: ECJ 21 Apr 2015

ECJ Judgment – Failure of a Member State to fulfil obligations – Value added tax – Sixth Directive 77/388/EEC – Directive 2006/112/EC – Articles 132(1)(a) and 135(1)(h) – Exemptions – Public postal services – Postage stamps – Directive 97/67/CE

Citations:

C-114/14, [2015] EUECJ C-114/14, ECLI:EU:C:2015:249

Links:

Bailii

Jurisdiction:

European

VAT

Updated: 04 July 2022; Ref: scu.545876

Commission v Sweden: ECJ 4 Dec 2014

ECJ (Judgment) Failure to fulfill obligations – Environment – Directive 2008/1 / EC – Integrated Pollution Prevention and Control – Existing Installation – Authorisation procedure – -Stop Pending proceedings of the Court establishing the existence of a failure – Non-compliance – Article 260, paragraph 2 TFEU – Financial penalties – Lump sum – Penalty payment

Judges:

T. von Danwitz, P

Citations:

C-243/13, [2014] EUECJ C-243/13

Links:

Bailii

Statutes:

Directive 2008/1/EC

Jurisdiction:

European

Environment

Updated: 04 July 2022; Ref: scu.539594

Commission v Sweden: ECJ 25 Apr 2013

ECJ Failure of a Member State to fulfil obligations – Taxation – Directive 2006/112/EC – Article 11 – National legislation restricting the possibility of forming a group of persons which can be regarded as a single taxable person for VAT purposes to undertakings in the financial and insurance sector

Judges:

L Bay Larsen P

Citations:

[2013] EUECJ C-480/10, C-480/10

Links:

Bailii

Statutes:

Directive 2006/112/EC 11

Jurisdiction:

European

Citing:

Opinion – Commission v Sweden ECJ 27-Nov-2012
ECJ Opinion – VAT – Article 11 of Directive 2006/112/EC – National legislation restricting VAT group registration to providers of financial and insurance services – Compatibility with European Union VAT law . .
Lists of cited by and citing cases may be incomplete.

VAT

Updated: 04 July 2022; Ref: scu.503504

Commission v Sweden: ECJ 29 Mar 2012

ECJ Failure to fulfill obligations – Environment – Directive 2008/1/EC – Integrated Pollution Prevention and Abatement – Terms of permits for existing installations – Obligation to ensure the operation of such facilities in accordance with the requirements of the Directive

Citations:

C-607/10, [2012] EUECJ C-607/10

Links:

Bailii

Statutes:

Directive 2008/1/EC

Jurisdiction:

European

Environment

Updated: 04 July 2022; Ref: scu.452620

Commission v Sweden: ECJ 27 Nov 2012

ECJ Opinion – VAT – Article 11 of Directive 2006/112/EC – National legislation restricting VAT group registration to providers of financial and insurance services – Compatibility with European Union VAT law

Judges:

Jaaskinen AG

Citations:

C-480/10, [2012] EUECJ C-480/10

Links:

Bailii

Jurisdiction:

European

Cited by:

Opinion – Commission v Sweden ECJ 25-Apr-2013
ECJ Failure of a Member State to fulfil obligations – Taxation – Directive 2006/112/EC – Article 11 – National legislation restricting the possibility of forming a group of persons which can be regarded as a . .
Lists of cited by and citing cases may be incomplete.

VAT

Updated: 04 July 2022; Ref: scu.467077

Bloomsbury International Ltd and Others v Sea Fish Industry Authority and Another: QBD 24 Jul 2009

Parties challenged the legality of a levy imposed by the defendant for the purposes of supporting the sea food industry. They said that a levy imposed on fish products imported to the UK was beyond the powers given by the 1981 Act, and was contrary to EU law.
Held: The challenge was dismissed as to both arguments.

Judges:

Hamblen J

Citations:

[2009] EWHC 1721 (QB), [2010] 1 CMLR 12

Links:

Bailii

Statutes:

Fisheries Act 1981, Sea Fish Industry Authority (Levy) Regulations 1995

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Appeal from – Bloomsbury International Ltd and Others v The Sea Fish Industry Authority and Another CA 18-Mar-2010
The company, importers of fish, challenged the lawfulness of Regulations which imposed a levy requiring them to contribute to the training of UK fishermen.
Held: The company’s appeal succeeded. . .
At first instance – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Administrative, European

Updated: 04 July 2022; Ref: scu.361473

AIT v Commission (External Relations): ECJ 19 Jan 2006

ECJ Appeal – Asia-Invest Programme – Public call for proposals – Contract – Article 111 of the Rules of Procedure of the Court of First Instance – Manifest inadmissibility – No legal interest in bringing proceedings – Article 64 of the Rules of Procedure of the Court of First Instance – Measures of organisation of procedure – Request for production of documents – Parties requested to make written submissions on certain aspects of the proceedings.

Citations:

C-547/03, [2006] EUECJ C-547/03

Links:

Bailii

Jurisdiction:

European

European

Updated: 04 July 2022; Ref: scu.237848

Colegio De Ingenieros De Caminos, Canales Y Puertos v Administracion del Estado: ECJ 19 Jan 2006

ECJ Freedom of movement for workers – Recognition of diplomas – Directive 89/48/EEC – Profession of engineer – Partial, restricted recognition of professional qualifications – Articles 39 EC and 43 EC.

Judges:

P Jann P

Citations:

C-330/03, [2006] EUECJ C-330/03, [2006] 2 CMLR 26, [2006] ECR I-801

Links:

Bailii

Statutes:

Directive 89/48/EEC

European

Updated: 04 July 2022; Ref: scu.237850

Walker-Fox v Secretary of State for Work and Pensions: CA 29 Nov 2005

The claimant pensioner had moved to France. He sought to claim a retrospective winter fuel allowance claim. The government had eventually agreed to make payments to UK residents abroad.
Held: The claimant was deemed to have had knowledge of the change in regulations and could not make a retrospective claim: ‘the orthodox position is that in order to comply with the principle of equivalence, the national time limit must apply equally to national claims as to Community-based claims. It must comply with the principle of effectiveness, that is to say, it must not make reliance on Community law virtually impossible or excessively difficult and a reasonable time limit will not fall foul of that principle. The imposition of time-limits is an application of the principle of legal certainty which protects both the individual and the administration. If that orthodoxy applies to this case, Mr Walker-Fox loses. ‘

Judges:

Ward, Scott Baker LJJ, Sir Peter Gibson

Citations:

[2005] EWCA Civ 1441, Times 08-Dec-2005

Links:

Bailii

Statutes:

Social Fund Winter Fuel Payment Regulations 1998, Social Fund Winter Fuel Payment Regulations 2000 2(1) 3(1), Council Regulation No 1408/71

Jurisdiction:

England and Wales

Citing:

Cited – Amministrazione Delle Finanze Dello Stato v Spa San Giorgio ECJ 9-Nov-1983
ECJ Questions submitted for a preliminary ruling – reference to the court – right of every national court – stage of the proceedings before the national court – nature of the decision to be given by the national . .
Cited – Emmott v Minister for Social Welfare and Attorney General ECJ 25-Jul-1991
Europa So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after . .
Cited – Regina v Secretary of State for Social Security Ex Parte Taylor ECJ 16-Dec-1999
The government made additional payments to pensioners in respect of the additional fuel costs incurred in winter. The complainant asserted that as a man aged 62, he would not receive this benefit where a woman of the same age would have done, and . .
Cited – Fantask and others v Industriministeriet ECJ 2-Dec-1997
ECJ Directive 69/335/EEC – Registration charges on companies – Procedural time-limits under national law. . .
Cited – Mcdermott and Cotter v Minister For Social Welfare and Attorney-General ECJ 24-Mar-1987
Europa Where council directive 79/7 has not been implemented, article 4(1) of the directive, which prohibits all discrimination on grounds of sex in matters of social security, could be relied on as from 23 . .
Cited – Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen ECJ 27-Oct-1993
Europa Community law does not preclude the application of a national rule of law according to which benefits for incapacity for work are payable no more than one year before the date of claim, in the case where . .
Cited – Elsie Rita Johnson v Chief Adjudication Officer ECJ 6-Dec-1994
Europa Social policy – Equal treatment for men and women in matters of social security – Directive 79/7 – Article 4(1) – Direct effect – National legislation limiting the period prior to the bringing of a claim . .
Lists of cited by and citing cases may be incomplete.

Benefits, European

Updated: 04 July 2022; Ref: scu.237499

Bic v OHMI(Forme D’Un Briquet Electronique): ECFI 15 Dec 2005

ECJ Community trade mark – Three-dimensional trade mark in the form of-a lighter – Absolute ground for refusal – Distinctive character – Article 7, paragraph 1 b) of Regulation (EC) No 40 / 94 – distinctive character acquired by-use – Article 7, paragraph 3 of Regulation (EC) No 40/94 ‘

Citations:

T-263/04, [2005] EUECJ T-263/04

Links:

Bailii

European, Intellectual Property

Updated: 04 July 2022; Ref: scu.236387

Laboratoire Du Bain v Council and Commission: ECFI 14 Dec 2005

ECFI External Relations – Non-contractual liability of the Community – Incompatibility of the Community banana import regime with the rules of the World Trade Organization, (WTO) – Imposition by the United States of America-retaliation under the form of a customs-duty levied on imports from the Community by virtue of an authorization of WTO – Decision of settlement body of the WTO – Dispute – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damage

Citations:

T-151/00, [2005] EUECJ T-151/00

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.236410

Centralan Property v Commissioners of Customs and Excise (Taxation): ECJ 15 Dec 2005

ECJ Sixth VAT Directive – Article 20(3) – Capital goods – Deduction of input tax – Adjustments of deductions – Immovable property – Disposal by means of two connected transactions, one exempt, the other taxable – Apportionment.

Citations:

C-63/04, [2005] EUECJ C-63/04

Links:

Bailii

European, VAT

Updated: 04 July 2022; Ref: scu.236389

Honeywell v Commission: ECFI 14 Dec 2005

ECFI Action for annulment – Competition – Commission decision declaring a concentration to be incompatible with the common market – Regulation (EEC) No 4064/89 – Ineffectiveness of a partial challenge to the decision – Aeronautical markets – Action that cannot lead to annulment of the decision.

Citations:

T-209/01, [2005] EUECJ T-209/01

Links:

Bailii

Statutes:

Regulation (EEC) No 4064/89

European

Updated: 04 July 2022; Ref: scu.236407

Fiamm and Fiamm Technologies v Council and Commission (External Relations): ECFI 14 Dec 2005

ECJ Non-contractual liability of the Community – Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) – Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation – Decision of the WTO Dispute Settlement Body – Legal effects – Community liability in the absence of unlawful conduct of its institutions -? Causal link – Unusual and special damage.

Citations:

T-69/00, [2005] EUECJ T-69/00

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.236402

Groupe Fremaux and Palais Royal v Council and Commission: ECFI 14 Dec 2005

ECFI External Relations – Non-contractual liability of the Community – Incompatibility of the Community banana import regime with the rules of the World Trade Organization, (WTO) – Imposition by the United States of America – retaliation in the form of a customs-duty levied on imports from the Community by virtue of an authorization-of-WTO – Decision of-settlement body of the WTO-Dispute – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damage

Judges:

MM. B. Vesterdorf, P

Citations:

T-301/00, [2005] EUECJ T-301/00

Links:

Bailii

European, Customs and Excise

Updated: 04 July 2022; Ref: scu.236406

Cwik v Commission (Staff Regulations) T-155/03: ECFI 13 Dec 2005

ECJ Officials – Staff report – scoring exercises 1995/1997, 1997/1999 and 1999/2001 – Action for annulment – Establishment of simultaneous successive staff reports – Procedural irregularities – Lateness – Personal file – Manifest error of assessment – Misuse of power – Inconsistency in reasoning – Compensation for damage suffered – Material damage – Non-pecuniary damage ‘

Citations:

T-155/03, [2005] EUECJ T-155/03

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.235936

Cwik v Commission (Staff Regulations) T-157/03: ECFI 13 Dec 2005

ECJ Officials – Staff report – scoring exercises 1995/1997, 1997/1999 and 1999/2001 – Action for annulment – Establishment of simultaneous successive staff reports – Procedural irregularities – Lateness – Personal file – Manifest error of assessment – Misuse of power – Inconsistency in reasoning – Compensation for damage suffered – Material damage – Non-pecuniary damage

Citations:

T-157/03, [2005] EUECJ T-157/03

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.235937

Cwik v Commission (Staff Regulations): ECFI 13 Dec 2005

ECJ Officials – Staff report – Exercises scoring 1995/1997, 1997/1999 and 1999/2001 – Action for annulment – Simultaneous Reporting successive rating – Procedural irregularities – Lateness – Personal file – manifest error-assessment – Misuse of powers – Inconsistency in reasoning – Redress – Pecuniary – Moral prejudice

Citations:

T-331/03, [2005] EUECJ T-331/03

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.235938

Ewald Burtscher v Josef Stauderer: ECJ 1 Dec 2005

ECJ (Free Movement Of Capital) Free movement of capital – Article 56 EC – Declaration procedure in respect of the acquisition of built-on land – Retroactive invalidity of the transaction if declaration by the purchaser is submitted after the due date.

Citations:

C-213/04, [2005] EUECJ C-213/04

Links:

Bailii

Jurisdiction:

European

European

Updated: 04 July 2022; Ref: scu.235844

Commission v Sweden: ECJ 20 Oct 2005

ECJ Failure of a Member State to fulfil obligations – Free movement of agricultural products – Directive 89/662/EEC – Article 5 – Veterinary checks in the Member State of destination of the goods – National system of prior notification imposed on importers of certain products of animal origin from other Member States.

Citations:

C-111/03, [2005] EUECJ C-111/03

Links:

Bailii

Jurisdiction:

European

Agriculture

Updated: 04 July 2022; Ref: scu.231249

Vroege v NCIV Instituut voor Volkshuisvesting B V: ECJ 28 Sep 1994

Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the public authorities did was, at the request of such employers’ and trade union organizations as were considered to be representative, to declare the scheme compulsory for the whole of the industry concerned, is covered by the concept of pay within the meaning of Article 119 of the Treaty with the result that it is subject to the prohibition of discrimination on grounds of sex laid down by that article. It follows that an occupational pension scheme which by excluding married women from membership operates discrimination directly based on sex contravenes Article 119 of the Treaty. Where the exclusion concerns part-time workers, that provision is contravened only if the exclusion affects a greater number of women than men unless the employer shows that it may be explained by objectively justified factors unrelated to any discrimination on grounds of sex.
The limitation of the effects in time of the judgment of 17 May 1990 in Case C-262/88 Barber concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions. This does not cover discrimination in relation to membership of occupational pension schemes held to be unlawful under Article 119 of the Treaty in the judgment of 13 May 1986 in Case 170/84 Bilka which itself contained no temporal limitation of its effects. In the absence of such a limitation, whose later introduction is in any event excluded, the direct effect of Article 119 of the Treaty can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne in which the Court held for the first time that Article 119 has direct effect.
The Protocol on Article 119 of the Treaty, annexed to the Treaty on European Union, concerns all benefits paid by an occupational social security scheme but not the right to join such a scheme. The question of membership is thus governed by the judgment of 13 May 1986 in Case 170/84 Bilka according to which an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accords different treatment to men and women by excluding a category of employees from a company pension scheme infringes Article 119 of the Treaty.

Citations:

C-57/93, [1994] ECR I-4541

Jurisdiction:

European

Cited by:

Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, Benefits

Updated: 04 July 2022; Ref: scu.161081

Fisscher v Voorhuis Hengelo and Stichting Bedrijfspensioenfonds voor de Detailhandel: ECJ 28 Sep 1994

Europa The right to join an occupational pension scheme, the rules of which were not laid down directly by law but were the result of negotiation between both sides of the industry concerned and all that the public authorities did was, at the request of such employers’ and trade union organizations as were considered to be representative, to declare the scheme compulsory for the whole of the industry concerned, is covered by the concept of pay within the meaning of Article 119 of the Treaty with the result that it is subject to the prohibition of discrimination on grounds of sex laid down by that article. It follows that an occupational pension scheme which, by excluding married women from membership, operates discrimination directly based on sex, contravenes Article 119 of the Treaty.
The limitation of the effects in time of the judgment of 17 May 1990 in Case C-262/88 Barber concerns only those kinds of discrimination which employers and pension schemes could reasonably have considered to be permissible owing to the transitional derogations for which Community law provided and which were capable of being applied to occupational pensions. This does not cover discrimination in relation to membership of occupational pension schemes held to be unlawful under Article 119 of the Treaty in the judgment of 13 May 1986 in Case 170/84 Bilka which itself contained no temporal limitation of its effects. In the absence of such a limitation, the direct effect of Article 119 of the Treaty can be relied upon in order retroactively to claim equal treatment in relation to the right to join an occupational pension scheme and this may be done as from 8 April 1976, the date of the judgment in Case 43/75 Defrenne in which the Court held for the first time that Article 119 has direct effect. However, the fact that a worker can claim retroactively to join an occupational pension scheme does not allow the worker to avoid paying the contributions relating to the period of membership concerned. The national rules relating to time-limits for bringing actions under national law may be relied on against workers who assert their right to join an occupational pension scheme, provided that they are not less favourable for that type of action than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice.
Europa
Although not party to the employment relationship, the administrators of an occupational pension scheme are called upon to pay out benefits which constitute pay within the meaning of Article 119 and, like any employer, must therefore comply with that provision by doing all within their powers to ensure that the principle of equal treatment is observed in this respect and scheme members must be able to rely upon it as against them. The effectiveness of Article 119 would be considerably diminished and the legal protection required to achieve real equality would be impaired if an employee could rely on that provision only as against the employer and not against the administrators of the scheme who are expressly charged with performing the employer’ s obligations.
The Protocol on Article 119 of the Treaty, annexed to the Treaty on European Union, concerns all benefits paid by an occupational social security scheme but not the right to join such a scheme. The question of membership is thus governed by the judgment of 13 May 1986 in Case 170/84 Bilka, according to which an undertaking which, without objective justification unrelated to any discrimination on grounds of sex, accords different treatment to men and women by excluding a category of employees from a company pension scheme infringes Article 119 of the Treaty.

Citations:

C-128/93, [1994] ECR I-4583, [1994] EUECJ C-128/93, [1995] ICR 635

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 04 July 2022; Ref: scu.161099

Regina v Secretary of State for Transport ex parte Factortame and others (5): CA 12 Dec 1997

The wrongful passing of a UK Act of Parliament in breach of European Law left the UK liable in damages to individuals who had suffered where the losses could be shown to be serious enough.

Citations:

Times 28-Apr-1998, [1997] EWCA Civ 2982

Jurisdiction:

England and Wales

European, Constitutional

Updated: 04 July 2022; Ref: scu.143381

Biofarma v OHMI – Bausch and Lomb Pharmaceuticals (Alrex): ECFI 17 Nov 2005

ECJ Community trade mark – Opposition proceedings – Earlier national word mark ARTEX – Application for Community word mark ALREX – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94.

Citations:

T-154/03, [2005] EUECJ T-154/03

Links:

Bailii

Statutes:

Regulation (EC) No 40/94

European, Intellectual Property

Updated: 04 July 2022; Ref: scu.235246

Grongaard and Bang (Approximation Of Laws): ECJ 22 Nov 2005

ECJ Grand Chamber – Directive 89/592/EEC – Insider dealing – Disclosure of inside information to third parties – Prohibition.

Judges:

V. Skouris, P

Citations:

C-384/02, [2005] EUECJ C-384/02, [2005] ECR I-9939, [2006] CEC 241, [2006] 1 CMLR 30, [2006] IRLR 214

Links:

Bailii

Statutes:

Directive 89/592/EEC

European, Financial Services

Updated: 04 July 2022; Ref: scu.235247

Soffass v OHMI-Sodipan (Nicky): ECFI 23 Nov 2005

ECFI Community trade mark – Opposition proceedings – Application for Community figurative mark containing the verbal element -‘NICKY’ – Earlier national figurative marks containing the verbal element – ‘NOKY’ – Rejection of opposition for absence of likelihood of confusion – Annulled by the Board of Appeal – Remittal to the Opposition Division to examine whether the goods are similar and the proof of use – Article 8(1)(b) of Regulation (EC) No 40/94.
‘if the signs are completely different it is possible in principle, without examining the goods in question, to take the view that there is no likelihood of confusion’ and ‘if there is even a slight similarity between the two signs the likelihood of confusion must be assessed globally, taking account of all the relevant factors’.

Citations:

T-396/04, [2005] EUECJ T-396/04, [2006] ETMR 542

Links:

Bailii

Statutes:

Regulation (EC) No 40/94 8(1)(b)

Cited by:

Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 04 July 2022; Ref: scu.235249

United Kingdom v Commission (Environment and Consumers): ECFI 23 Nov 2005

ECFI Environment – Directive 2003/87/EC – Scheme for greenhouse gas emission allowance trading – Proposed amendment to national allocation plan – Refusal by the Commission – Action for annulment.

Citations:

T-178/05, [2005] EUECJ T-178/05

Links:

Bailii

Statutes:

Directive 2003/87/EC

European, Consumer, Environment

Updated: 04 July 2022; Ref: scu.235250

Stichting Zuid-Hollandse Milieufederatie v College voor de toelating van bestrijdingsmiddelen: ECJ 10 Nov 2005

ECJ Authorisation for the placing of plant protection and biocidal products on the market – Directive 91/414/EEC – Article 8 – Directive 98/8/EC – Article 16 – Power of Member States during the transitional periodv

Citations:

[2005] EUECJ C-316/04, ECLI:EU:C:2005:678

Links:

Bailii

Statutes:

Directive 91/414/EEC 8, Directive 98/8/EC 16

Jurisdiction:

European

Agriculture

Updated: 04 July 2022; Ref: scu.234707

Levob Verzekeringen and Ov Bank v Staatssecretaris van Financien: ECJ 27 Oct 2005

ECJ Sixth VAT Directive – Articles 2, 5, 6 and 9 – Transfer of software recorded on a carrier – Subsequent customisation of the software to the purchaser-?s specific requirements – Single taxable supply – Supply of services – Place of supply.

Judges:

Jann P

Citations:

C-41/04, [2005] EUECJ C-41/04, [2006] 2 CMLR 8, [2006] STC 766, [2006] CEC 424, [2005] ECR I-9433, [2007] BTC 5186, [2005] STI 1777, [2007] BVC 155

Links:

Bailii

Cited by:

Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 04 July 2022; Ref: scu.234673

Commission v United Kingdom: ECJ 20 Oct 2005

ECJ Failure of a Member State to fufil obligations – Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora.
The respondent had failed properly to transpose the Habitats Directive into National Law. The regulations were too general and did not impose sufficiently precise obligations: ‘As the Commission has rightly pointed out, section 54A of the Town and Country Planning Act 1990, which requires applications for planning permission to be determined in the light of the relevant land use plans, necessarily means that those plans may have considerable influence on development decisions and, as a result, on the sites concerned.
It thus follows from the foregoing that, as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) and (4) of the Habitats Directive has not been transposed sufficiently clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard.’

Citations:

Times 27-Oct-2005, C-6/04, [2005] EUECJ C-6/04

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 54A, Directive 92/43/EEC

Cited by:

Cited – Boggis and Another v Natural England CA 20-Oct-2009
Natural England appealed against the quashing of an SSSI.
Held: The notification of an SSSI was not the making of a plan as respects the land affected, but the flagging up of it. The real purpose of the proceedings was to allow the land owners . .
Cited – Morge, Regina (on The Application of) v Hampshire County Council CA 10-Jun-2010
Over time, an abandoned railway line had become a habitat for local wildlife. The claimant now objected to the grant of planning permission for a light railway.
Held: The claimant’s appeal failed. For an act to fall within 12(1)(b) of the . .
Lists of cited by and citing cases may be incomplete.

European, Environment, Planning

Updated: 04 July 2022; Ref: scu.234610

Commission v Portugal C-432/03: ECJ 10 Nov 2005

Free Movement of Goods – Failure of a Member State to fulfil obligations – Articles 28 EC and 30 EC – Directive 89/106/EEC – Decision 3052/95/EC – National approval procedure – Failure to take account of approval certificates drawn up in other Member States – Construction products

Citations:

[2005] EUECJ C-432/03, [2006] 1 CMLR 25, [2005] ECR I-9665

Links:

Bailii

Jurisdiction:

European

European

Updated: 04 July 2022; Ref: scu.234704

Cwik v Commission: ECFI 25 Oct 2005

ECJ (Staff Regulations) Officials – Evaluation exercise 2001/2002 – career development report – Action for annulment – illegality – Manifest errors of assessment – Errors of fact – Psychological harassment – Compensation for damage – Damage moral

Citations:

T-96/04, [2005] EUECJ T-96/04

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.234670

Staatssecretaris van Financien v Verkooijen: ECJ 6 Jun 2000

A resident of the Netherlands owned shares in a company resident in Belgium and received dividends on those shares. If the dividends had been paid by a company resident in the Netherlands their treatment for income tax in his hands would have been more beneficial, because a limited exemption from income tax applied to dividends paid by Dutch companies. The first question for the court was whether the availability of this exemption only in relation to dividends paid by Dutch companies was inconsistent with Article 1 of the 1988 Directive. The Court held that the acquisition of shares in an undertaking was a capital movement within the scope of the Directive, that the receipt of dividends on such shares presupposed participation in the undertaking, and that therefore the receipt by a resident of one Member State of dividends on shares in a company resident in another Member State was within the Directive. It then held that the refusal of the first Member State to extend to such dividends an exemption from tax which applied in relation to dividends on shares in companies resident in the first Member State had the effect of dissuading nationals of the first Member State from investing their capital in companies established in other Member States and, conversely, presented an obstacle to such companies from raising capital from residents of the first Member State. Accordingly, such a provision constituted a restriction on the movement of capital prohibited by Article 1 of the Directive.

Citations:

C-35/98, [2002] ECR I-4071, [2002] STC 654, [2000] EUECJ C-35/98

Links:

Bailii

Cited by:

Cited – Pirelli Cable Holding Nv and others v Inland Revenue HL 8-Feb-2006
Under s247 of the 1988 Act, a company paying dividends to a parent company need not withhold ACT. This option was not offered where either subsidiary or parent was not UK resident until the decision in Hoechst which found the restriction contrary to . .
Lists of cited by and citing cases may be incomplete.

European, Corporation Tax

Updated: 04 July 2022; Ref: scu.231697

Fixtures Marketing v Organismos prognostikon agonon podosfairou AE (OPAP): ECJ 9 Nov 2004

ECJ The term database as defined in Article 1(2) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials.
A fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of Article 1(2) of Directive 96/9.
The expression ‘investment in . . the obtaining . . of the contents’ of a database in Article 7(1) of Directive 96/9 must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organising football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

Citations:

[2005] 1 CMLR 16, [2004] EUECJ C-444/02, C-444/02, [2004] ECR I-10549

Links:

Bailii

Cited by:

Cited – Apis-Hristovich v Lakorda AD (Approximation Of Laws) ECJ 5-Mar-2009
apishristovichECJ2009
Europa Directive 96/9/EC Legal protection of databases – Sui generis right – Obtaining, verification or presentation of the contents of a database – Extraction – Substantial part of the contents of a database – . .
Cited – Football Dataco Ltd and Others v Yahoo! UK Ltd and Others CA 9-Dec-2010
The claimants asserted ownership of copyright in football fixture lists as a database right. The defendant denied that they attracted any such right. The judge had found that significant skill and labour went into the preparation of the list.
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual property

Updated: 04 July 2022; Ref: scu.233160

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 which a dispute between a Finnish company and a Finnish Trade Union and an international Trade Union concerned with a ferry running between Finland and Estonia should be litigated.’ The questions of European Law would require clarification by the European Court, and a referral was made. The claimant feared delay at the European and pressed for interim relief. The court said that where as here damages ‘are not likely to be an adequate remedy for either party, and where the nature of the case is as I have described, it seems to me that in assessing the balance of convenience and the holding of the ring the merits and strengths of Viking’s case has considerable relevance.’ To continue the injunction however would be to give the claimants the only remedy they needed, and to anticipate the finding of the European Court. The injunction was discharged.

Judges:

Waller, Mummery, Tuckey LJJ

Citations:

[2005] EWCA Civ 1299

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Viking Line Abp v International Transport Workers’ Federation and Another ComC 16-Jun-2005
The claimant sought an injunction against the respondent international union of trades unions to restrain industrial action intended to prevent its transfer of registration of a ferry plying between Finland and Estonia to Estonia. It sought also a . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – 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 – Garden Cottage Foods Ltd v Milk Marketing Board HL 1984
In English law a breach of statutory duty, is actionable as such by a private individual to whom loss or damage is caused by a breach of that duty. Lord Diplock said that it was quite unarguable: ‘that if such a contravention of Article 86 gives . .
Cited – Regina v Secretary of State for Trade and Industry Ex Parte Trades Union Congress CA 17-Oct-2000
Where a court referred an issue to the European Court, it was for that court in its discretion to decide whether interim relief might be granted, and an appellate court should not normally interfere in that exercise. The considerations for such a . .
Cited – Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie ECJ 21-Sep-1999
ECJ Compulsory affiliation to a sectoral pension scheme – Compatibility with competition rules – Classification of a sectoral pension fund as an undertaking. . .
Cited – Pavel Pavlov and Others v Stichting Pensioenfonds Medische Specialisten ECJ 12-Sep-2000
Europa Compulsory membership of an occupational pension scheme – Compatibility with competition rules – Classification of an occupational pension fund as an undertaking. . .
Cited – Commission v France (Judgment) ECJ 4-Apr-1974
Europa The commission, in the exercise of the powers which it has under articles 155 and 169 of the treaty, does not have to show the existence of a legal interest, since, in the general interest of the . .
Cited – Eugen Schmidberger, Internationale Transporte und Planzuge v Republic of Austria ECJ 12-Jun-2003
An environmental group organised a demonstration which blocked a motorway affecting the free movement of goods. The claimant haulage company complained that the respondent government had failed to prevent the blockage for many hours causing it . .
Cited – Hendrik van der Woude v Stichting Beatrixoord ECJ 21-Sep-2000
Competition – Community rules – Matters covered – Collective agreements in pursuit of social policy objectives – Collective agreement concerning sickness insurance and requiring an employer to pay employer contributions only to the insurers selected . .
Cited – B N O Walrave And L J N Koch v Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie Et Federacion Espanola Ciclismo ECJ 12-Dec-1974
ECJ The practice of sport is subject to community law only in so far as it constitutes an economic activity within the meaning of article 2 of the Treaty. The prohibition of discrimination based on nationality in . .
Cited – J C J Wouters, J W Savelbergh and Price Waterhouse Belastingadviseurs BV v Algemene Raad van de Nederlandse Orde van Advocaten, intervener: Raad van de Balies van de Europese Gemeenschap ECJ 19-Feb-2002
ECJ Professional body – National Bar – Regulation by the Bar of the exercise of the profession – Prohibition of multi-disciplinary partnerships between members of the Bar and accountants – Article 85 of the EC . .
Cited – Union Royale Belge des societes de Football Association and others v Bosman and others ECJ 15-Dec-1995
bosmanECJ1995
A request for the Court to order a measure of inquiry under Article 60 of the Rules of Procedure, made by a party after the close of the oral procedure, can be admitted only if it relates to facts which may have a decisive influence and which the . .
Cited – Roman Angonese v Cassa di Risparmio di Bolzano SpA ECJ 6-Jun-2000
Europa Under the preliminary ruling procedure provided for by Article 177 of the Treaty (now, after amendment, Article 234 EC), it is for the national courts alone, which are seised of a case and which must . .
Cited – Societe Anonyme De Droit Francais Seco Et Societe Anonyme De Droit Francais Desquenne and Giral v Etablissement D’Assurance Contre La Vieillesse Et L’Invalidite. ECJ 3-Feb-1982
Europa Article 59 and the third paragraph of article 60 of the eec treaty entail the abolition of all discrimination against a person providing a service on the grounds of his nationality or the fact that he is . .
Cited – Rush Portuguesa Ld v Office National d’immigration ECJ 27-Mar-1990
ECJ Articles 59 and 60 of the EEC Treaty and Articles 215 and 216 of the Act of Accession of Portugal must be interpreted as meaning that an undertaking established in Portugal providing services in the . .
Cited – Jean-Claude Arblade, Arblade and Fils SARL v Bernard Leloup, Serge Leloup, Sofrage SARL ECJ 23-Nov-1999
ECJ Freedom to provide services – Temporary deployment of workers for the purposes of performing a contract – Restrictions. . .
Cited – Unison v United Kingdom ECHR 2002
(Third Chamber) The freedom of association under Article 11 of the ECHR did not include a right for a union to require ‘that an employer enter into or remain in any collective bargaining arrangement’.
‘The Court recalls that, while Article 11 . .
Cited – 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 . .
Cited – Finalarte Sociedade de Construcao Civil Ld, Portugaia Construcoes and Engil Sociedade de Construcao Civil SA v Urlaubs-und Lohnausgleichskasse der Bauwirtschaft etc ECJ 25-Oct-2001
ECJ Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a Member State from imposing national rules guaranteeing entitlement to paid . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 04 July 2022; Ref: scu.231672

Schulte v Deutsche Bausparkasse Badenia AG: ECJ 25 Oct 2005

ECJ Environment and Consumers – Consumer protection – Doorstep selling – Purchase of immovable property – Investment financed by a secured loan – Right of cancellation – Effects of cancellation.
‘when hearing a case between individuals, the national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive . .’ and ‘If the Bank had informed Mr and Mrs Schulte of their right of cancellation under the HWiG at the correct time, they would have had seven days to change their minds about concluding the loan agreement. If they had chosen then to cancel it, it is common ground that, given the link between the loan agreement and the purchase contract, the latter would not have been concluded.
In a situation where the Bank has not complied with the obligation to inform the consumer incumbent on it under Art.4 of the Directive, if the consumer must repay the loan under German law as construed in the case law of the Bundesgerichtshof, he bears the risks entailed by financial investments such as those at issue in the main proceedings . .
However, in a situation such as that in the main proceedings, the consumer could have avoided exposure to those risks if he had been informed in time of his right of cancellation.
In those circumstances, the Directive requires Member States to adopt appropriate measures so that the consumer does not have to bear the consequences of the materialisation of those risks. The Member States must therefore ensure that, in those circumstances, a bank which has not complied with its obligation to inform the consumer bears the consequences of the materialisation of those risks so that the obligation to protect consumers is safeguarded.
Accordingly, in a situation where, if the Bank had informed the consumer of his right of cancellation, the consumer would have been able to avoid exposure to the risks inherent in investments such as those at issue in the main proceedings, Art.4 requires Member States to ensure that their legislation protects consumers who have been unable to avoid exposure to such risks, by adopting suitable measures to allow them to avoid bearing the consequences of the materialisation of those risks.’

Judges:

V Skouris, P

Citations:

C-350/03, [2005] EUECJ C-350/03, [2005] ECR I-9215, [2006] All ER (EC) 420, [2006] 1 CMLR 11, [2006] CEC 115

Links:

Bailii

Cited by:

Cited – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Lists of cited by and citing cases may be incomplete.

European, Consumer

Updated: 04 July 2022; Ref: scu.231494

Commission v United Kingdom (Freedom To Provide Services): ECJ 20 Oct 2005

ECJ Failure of a Member State to fulfil obligations – Directive 2001/19/EC – Mutual recognition of diplomas, certificates and other qualifications – Nurse, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor – Failure to transpose within the period prescribed – Gibraltar.

Citations:

C-505/04, [2005] EUECJ C-505/04

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.231251

Commission v Portugal: ECJ 20 Oct 2005

ECJ Failure of a Member State to fulfil obligations – Directive 90/388/EEC – Telecommunications – Article 4D – Rights of way – Lack of a guarantee of non-discrimination in the grant of rights of way – Non-transposition.

Judges:

P. Jann, P

Citations:

C-334/03, [2005] EUECJ C-334/03

Links:

Bailii

Statutes:

Directive 90/388/EEC 4D

European, Media

Updated: 04 July 2022; Ref: scu.231248

Commission v France: ECJ 20 Oct 2005

ECJ Failure of-State – Public procurement – Directive 92/50/EEC – Procedures for the award of public service contracts – Freedom to provide services – Agency of d-delegated project – Persons to whom may be entrusted with the task of control -delegated project – Exhaustive list of legal persons under French law

Judges:

A. Rosas

Citations:

C-264/03, [2005] EUECJ C-264/03

Links:

Bailii

Statutes:

Directive 92/50/EEC

European

Updated: 04 July 2022; Ref: scu.231246

Scott SA v Commission of the European Communities: ECJ 6 Oct 2005

ECJ (Judgment) Appeal – Unlawful State aid – Temporal application of Regulation (EC) No 659/1999 – Decision on incompatibility and recovery of aid – Limitation period – Interruption – Need to inform the beneficiary of the aid of an interrupting action.

Citations:

C-276/03, [2005] EUECJ C-276/03

Links:

Bailii, Bailii

European

Updated: 04 July 2022; Ref: scu.231195

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 Attorney general now criticised the judge for failing to allow for the extent of Parliamentary scrutiny afforded to secondary legislation.
Held: ‘It is the people of the United Kingdom, the electorate, who are entitled to the assurance that laws are normally made by primary legislation and will only exceptionally be amended by secondary legislation. ‘ However, s2(2) of the 1972 Act was sui generis: ‘Unlike other provisions allowing for the amendment of primary legislation by secondary legislation, it flows directly from the Treaty obligations of the United Kingdom. ‘ The obligations identified and incorporated were obligations even though secondary, and were validly incoporated.
Waller LJ said that the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws.

Judges:

Waller, May, Jacob LJJ

Citations:

Times 07-Nov-2005, [2005] EWCA Civ 1191, [2006] Ch 337

Links:

Bailii

Statutes:

EC Directive 98/71/EC, Registered Designs Regulations 2001, European Communities Act 1972 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Regina v Ministry of Agriculture Fisheries and Food Ex Parte Hedley Lomas (Ireland) Ltd ECJ 23-May-1996
The wrongful prevention by a state of the lawful export of animals gave rise to a right to claim for damages.
LMA The UK had refused to grant licences for the export of live sheep to Spain, on the grounds . .
Cited – Addison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .
Cited – 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 . .
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
Cited – Perth and Kinross Council v Donaldson and Others 2004
The court considered whether the TUPE regulations in going beyond what was required under the European Directive was invalid.
Held: ‘If it is to be suggested that the 1981 Regulations have effectively allowed the Directive to operate in that . .
Cited – des Gaz SA v Falks Veritas Ltd CA 1974
The court considered for the first time, the effect of the Rome Treaty. It ‘came about because of a tin can’ .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, . .

Cited by:

Cited – Slack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – Brent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Constitutional

Updated: 04 July 2022; Ref: scu.231233

Office national de l’emploi v Ioannis Ioannidis (European Citizenship): ECJ 15 Sep 2005

ECJ Job-seekers – European citizenship – Principle of non-discrimination – Article 39 EC – Tideover allowances for young people seeking their first employment – Grant conditional on completion of secondary education in the Member State concerned.

Citations:

C-258/04, [2005] EUECJ C-258/04

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.230045

Bioid v OHIM: ECJ 15 Sep 2005

ECJ Appeal – Community trade mark – Article 7(1)(b) of Regulation (EC) No 40/94 – Word and figurative mark – BioID – Absolute ground for refusal to register – Trade mark devoid of any distinctive character.

Citations:

C-37/03, [2005] EUECJ C-37/03

Links:

Bailii

Statutes:

Regulation (EC) No 40/94 7(1)(b)

European, Intellectual Property

Updated: 04 July 2022; Ref: scu.230034

Commission v Germany (Transport): ECJ 15 Sep 2005

ECJ Failure of a Member State to fulfil obligations ? Directive 91/439/EEC ? Driving licences – Minimum age requirement to drive certain vehicles – Possibility of driving vehicles in a category other than the one for which a driving licence has been issued – Compulsory registration and exchange of driving licences.

Citations:

C-372/03, [2005] EUECJ C-372/03

Links:

Bailii

European, Road Traffic

Updated: 04 July 2022; Ref: scu.230041

Commission v Denmark (Free Movement Of Persons): ECJ 15 Sep 2005

ECJ Failure of a Member State to fulfil obligations – Freedom of movement for workers – Motor vehicles – Making available to the employee by the employer – Vehicle registered in the Member State of the employer – Employee resident in another Member State – Taxation of the motor vehicle.

Citations:

C-464/02, [2005] EUECJ C-464/02

Links:

Bailii

European, Road Traffic

Updated: 04 July 2022; Ref: scu.230040

Intermodal Transports BV v Staatssecretaris van Financien (Common Customs Tariff): ECJ 15 Sep 2005

ECJ Common Customs Tariff – Tariff headings – Classification in the combined nomenclature – Heading 8709 – Magnum ET120 Terminal Tractor – – Article 234 EC – Obligation of a national court to refer a question for a preliminary ruling – Conditions – Binding tariff information issued for a third party by the customs authorities of another Member State concerning a similar vehicle

Citations:

C-495/03, [2005] EUECJ C-495/03

Links:

Bailii

European, Customs and Excise

Updated: 04 July 2022; Ref: scu.230044

United Antwerp Maritime Agencies and Seaport Terminals (Customs Union): ECJ 15 Sep 2005

ECJ Customs union – Creation of a customs debt on importation – Goods in temporary storage – Unlawful removal of the goods from customs supervision – Person liable for the debt.

Citations:

C-140/04, [2005] EUECJ C-140/04

Links:

Bailii

European, Customs and Excise

Updated: 04 July 2022; Ref: scu.230053

Casini v Commission (Staff Regulations): ECFI 15 Sep 2005

ECJ Commission officials – Promotion – Financial year 2002 – Non-inclusion on the list of officials promoted to Grade A 6 – Duty to state reasons – Consideration of comparative merits – Manifest error of assessment – convincing nature of subsequent statements of members of the service staff – Action for annulment – Action for damages

Citations:

T-132/03, [2005] EUECJ T-132/03

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.230035

Cindu Chemicals EA (Approximation Of Laws): ECJ 15 Sep 2005

ECJ Directive 76/769/EEC – Dangerous substances – Ability of the Member States to lay down additional conditions for the placing on the market and use of a biocidal product the use of whose active substance is restricted by the directive – Wood preservatives containing coal-tar distillates (carbolineum and creosote) – Wood preservatives containing copper, chrome and arsenic.

Citations:

C-282/03, [2005] EUECJ C-282/03

Links:

Bailii

European

Updated: 04 July 2022; Ref: scu.230037

AB v Finanzamt fur den 6 7 und 15 Bezirk (Privileges And Immunities): ECJ 8 Sep 2005

ECJ Protocol on the Privileges and Immunities of the European Communities – Staff regulations – Conditions of employment applicable to other servants – Local member of staff at the representation of the Commission in Austria – Tax treatment.

Citations:

C-288/04, [2005] EUECJ C-288/04

Links:

Bailii

European

Updated: 03 July 2022; Ref: scu.229962

Espace Trianon SA, Societe wallonne de location-financement SA (Sofibail) v Office communautaire et regional de la formation professionnelle et de l’emploi (FOREM) (Law Relating To Undertakings): ECJ 8 Sep 2005

ECJ Public procurement – Directive 89/665/EEC – Review procedures concerning the award of public contracts – Persons to whom review procedures must be available – Tender by a consortium – Prohibition against members of a consortium bringing an action individually – Meaning of ‘interest in obtaining a public contract’.

Citations:

C-129/04, [2005] EUECJ C-129/04

Links:

Bailii

Statutes:

Directive 89/665/EEC

European

Updated: 03 July 2022; Ref: scu.229975

Mobistar v Commune De Fleron (Freedom To Provide Services): ECJ 8 Sep 2005

ECJ Article 59 of the EC Treaty (now, after amendment, Article 49 EC) – Telecommunications services – Directive 90/388/EEC – Article 3c – Lifting of all restrictions – Communal taxes on pylons, masts and transmission antennae for GSM.

Citations:

C-544/03, [2005] EUECJ C-544/03

Links:

Bailii

Statutes:

EC Treaty 59

European, Media

Updated: 03 July 2022; Ref: scu.229978

Belgacom Mobile Sa v Commune De Schaerbeek (Freedom To Provide Services): ECJ 8 Sep 2005

ECJ Article 59 of the EC Treaty (now, after amendment, Article 49 EC) – Telecommunications services – Directive 90/388/EEC – Article 3c – Lifting of all restrictions – Communal taxes on pylons, masts and transmission antennae for GSM.

Citations:

C-545/03, [2005] EUECJ C-545/03

Links:

Bailii

Statutes:

Directive 90/388/EEC

European, Media

Updated: 03 July 2022; Ref: scu.229963

North Western Health Board v McKenna (Social Policy): ECJ 8 Sep 2005

The claimant female employee was, for almost the entire duration of her pregnancy, on sick leave on medical advice by reason of a pathological condition linked to her pregnancy. After her maternity leave had ended, she was still unable to work on medical grounds and took further sick leave. She received full pay during her maternity leave but half pay for part of her sick leave. The sick-leave scheme of her employer did not distinguish between pregnancy-related illnesses and other forms of illness; thus, for remuneration purposes, she was treated in the same way as a sick man who was absent from work for the same number of days would have been treated. Ms McKenna claimed that she had suffered sex discrimination inasmuch as her pregnancy-related illness had been treated in the same way as a non pregnancy-related illness.
Held: The Court disagreed. The fact that pregnancy-related illnesses are sui generis (affecting only female employees) does not mean that ‘a female worker who is absent by reason of a pregnancy-related illness is entitled to the maintenance of full pay, whereas a worker absent by reason of an illness unrelated to pregnancy does not have such a right’. (17) The Court then compared a female employee who cannot work on medical grounds related to pregnancy to a male employee who cannot work on other medical grounds and concluded: ‘Community law does not require the maintenance of full pay for a female worker who is absent during her pregnancy by reason of an illness related to that pregnancy. During an absence resulting from such an illness, a female worker may thus suffer a reduction in her pay, provided that she is treated in the same way as a male worker who is absent on the grounds of illness, and provided that the amount of payment made is not so low as to undermine the objective of protecting pregnant workers’. Equal pay for men and women – Illness arising prior to maternity leave – Pregnancy-related illness – Person subject to the general sick-leave scheme- Effect on pay – Absence offset against the maximum total number of days of paid sick leave over a specified period.

Judges:

CWA Timmermans, P

Citations:

C-191/03, [2005] EUECJ C-191/03, [2006] All ER (EC) 455, [2006] CEC 69, [2005] ECR I-7631, [2006] 1 CMLR 6, [2005] IRLR 895, [2006] ICR 477

Links:

Bailii

European, Discrimination

Updated: 03 July 2022; Ref: scu.229977