Category: European

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 creation and increased employment.
  2. John Major’s government saw the initiatives (together with other provisions as part of Social Chapter) as measures which would lead to unemployment and expected an unsympathetic response from business organisations.
  3. Government opt-out of Social Chapter of Maastricht Treaty (TEU)
  4. Working Time Directive introduced some of provisions of Social Chapter in the guise of health and safety. The measures were adopted as a health and safety measure on the basis of Art.118a EC

What were the implications of this route to adoption?
Art.118aEC
(Council) Qualified majority voting – (European Parliament) Co-operation procedure – although the Council ultimately has the final say, it can only over-rule Parliament (and the Commission) if it acts unanimously) as opposed to
Art.100EC – (Council) unanimous voting – (European Parliament) Consultation procedure – this procedure requires that the Council consult the Parliament before it adopts an act. Parliament’s views must be considered but have no binding effect.
The UK challenged the Directive on various grounds

  1. Defective legal basis (lack of competence)
  2. Breach of the principle of proportionality
  3. Misuse of powers
  4. Infringement of an essential procedural requirements.

The ECJ concluded that the UK’s application was unfounded apart from one provision The ECJ annulled the second sentence of Art. 5 of the Council Directive concerning minimum rest periods to include Sundays – could not be justified on basis of health and safety measure. The ECJ dismissed the remainder of the UK’s application.

Citations:

Times 21-Nov-1996, C-84/94, [1997] IRLR 30, [1996] EUECJ C-84/94, [1997] ICR 443

Links:

Bailii

Statutes:

European Treaty Article 118a

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Health and Safety

Updated: 03 June 2022; Ref: scu.161312

Criminal proceedings against Aubertin and others: ECJ 16 Feb 1995

ECJ Since the Treaty provisions on the freedom of movement for persons cannot be applied to activities which are confined in all respects within a single Member State, and Directive 82/489 laying down measures to facilitate the effective exercise of the right of establishment and freedom to provide services in hairdressing does not aim to harmonize the conditions laid down by national rules for access to the occupation of hairdresser and the pursuit of that occupation, Community law does not preclude national rules whereby a Member State requires its own nationals who have received their training in that State to hold a diploma in order to operate a hairdressing salon, while permitting hairdressers who are nationals of other Member States to operate a hairdressing salon without holding such a diploma and without being obliged to entrust its operation to a manager holding that diploma providing they satisfy certain conditions as to the prior pursuit of that occupation.

Judges:

PJG Kapteyn, P

Citations:

C-29/94, [1995] EUECJ C-29/94

Links:

Bailii

Statutes:

Directive 82/489

European, Crime

Updated: 03 June 2022; Ref: scu.161280

Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano: ECJ 30 Nov 1995

Practice by lawyers in other European jurisdictions were governed by the general principles of freedom of establishment under the Treaty: ‘National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.’
ECJ A national of a Member State who pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that State comes under the chapter relating to the right of establishment and not the chapter relating to services. As appears from the third paragraph of Article 60 of the Treaty, the rules on freedom to provide services cover – at least where the provider moves in order to provide his services – the situation in which a person moves from one Member State to another, not for the purposes of establishment there, but in order to pursue his activity there on a temporary basis. The temporary nature of the activities in question has to be determined in the light of its duration, regularity, periodicity and continuity. This does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question. 3. The possibility for a national of a Member State to exercise his right of establishment, and the conditions for his exercise of that right, must be determined in the light of the activities which he intends to pursue on the territory of the host Member State. Where the taking-up of a specific activity is not subject to any rules in the host State, a national of any other Member State will be entitled to establish himself and pursue that activity there. On the other hand, where the taking-up or the pursuit of a specific activity is subject to certain conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. Such conditions, which may consist in particular of an obligation to hold particular diplomas, to belong to a professional body or to comply with certain rules of professional conduct or with rules relating to the use of professional titles, must fulfil certain requirements where they are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty, such as freedom of establishment. There are four such requirements: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. As far as conditions relating to the possession of a qualification are concerned, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned.
The court accepted that it does not have jurisdiction under the preliminary reference procedure to rule on the compatibility of a national measure with EU law

Citations:

Times 13-Dec-1995, C-55/94, [1995] ECR 1-4165, [1995] EUECJ C-55/94

Links:

Bailii

Statutes:

EC Treaty 43, Council Directive 77/249/EEC

Jurisdiction:

European

Citing:

Cited – Ordre des avocats au Barreau de Paris v Onno Klopp ECJ 12-Jul-1984
Europa In laying down that freedom of establishment shall be attained at the end of the transitional period, article 52 imposes an obligation to attain a precise result the fulfilment of which must be made easier . .
Cited – Groupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
Cited – Jean Reyners v Belgian State ECJ 21-Jun-1974
Europa The rule on equal treatment with nationals is one of the fundamental legal provisions of the community. As a reference to a set of legislative provisions effectively applied by the country of establishment . .
Cited – Jean Thieffry v Conseil de l’ordre des avocats a la cour de Paris ECJ 28-Apr-1977
Europa Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty. In so far as community law makes no special provision, these . .
Cited – Kraus v Land Baden-Wurttemberg ECJ 31-Mar-1993
Diplomas acquired in one member state require may authorisation for use in another state. . .
Cited – Vlassopoulou v Ministerium fur Justiz, Bundes- u Europaangelegenheiten Baden-Wurttemberg ECJ 7-May-1991
The authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a . .

Cited by:

Cited – Regina on Application of Dinev and Others v Westminster City Council Admn 24-Oct-2000
Street artists had operated in Leicester Square for many years without either licenses or being prosecuted. The respondent introduced a scheme to regulate them, and the applicants sought to challenge it by way of judicial review, alleging a failure . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, European

Updated: 03 June 2022; Ref: scu.161295

SFEI and others v La Poste and others: ECJ 11 Jul 1996

ECJ 1. Under the procedure laid down in Article 177 of the Treaty, it is not for the Court to determine whether the decision whereby a matter is brought before it was taken in accordance with the rules of national law governing the organization of the courts and their procedure. The Court must abide by the decision from a court of a Member State requesting a preliminary ruling in so far as it has not been overturned in any appeal procedures provided for by national law.
2. A national court, seised of a request that it should draw the appropriate conclusions from an infringement of the prohibition on implementation of planned aid laid down in the last sentence of Article 93(3) of the Treaty, where the matter has also been referred to the Commission, which has not yet given a final decision on the question whether the State measures at issue constitute State aid, is not required to declare that it lacks jurisdiction or to stay proceedings until such time as the Commission has adopted a position on how the measures in question are to be categorized.
The initiation by the Commission of a preliminary examination procedure under Article 93(3) or the consultative examination procedure under Article 93(2) cannot release national courts from their duty to safeguard the rights of individuals in the event of a breach of the requirement to give prior notification. Any other interpretation would have the effect of encouraging the Member States to disregard the prohibition on implementation of planned aid, since the Commission can do no more than order further payments to be suspended so long as it has not adopted its final decision on the substance of the matter, and the effectiveness of Article 93(3) would be weakened if the fact that the Commission was seised of the matter were to prevent the national courts from drawing all the appropriate conclusions from the infringement of that provision.
In that context, a national court may have cause to interpret and apply the concept of aid in order to determine whether a State measure introduced without observance of the preliminary examination procedure provided for in Article 93(3) ought to have been subject to that procedure. Where it entertains doubts, it may seek clarification from the Commission which must, as a consequence of the duty of sincere cooperation resulting from Article 5 of the Treaty, respond as quickly as possible. Furthermore, a national court may or must, in accordance with the second and third paragraphs of Article 177 of the Treaty, refer a question to the Court of Justice for a preliminary ruling on the interpretation of Article 92. Where it consults the Commission or refers a question to the Court, it must decide whether it is necessary to order interim measures in order to safeguard the interests of the parties pending final judgment.
3. The concept of aid within the meaning of Article 92 of the Treaty encompasses not only positive benefits, such as subsidies, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict sense of the word, are of the same character and have the same effect.
It follows that the provision of logistical and commercial assistance by a public undertaking to its subsidiaries, which are governed by private law and carry on an activity open to free competition, is capable of constituting State aid if the remuneration received in return is less than that which would have been demanded under normal market conditions. As regards that last condition, it is for the national court to determine what is normal remuneration for the services in question, such a determination presupposing an economic analysis taking into account all the factors which an undertaking acting under normal market conditions should have taken into consideration when fixing the remuneration for the services provided.
4. Having regard to the importance for the proper functioning of the common market of compliance with the procedure for prior review of planned State aid under Article 93(3) of the Treaty, a national court requested to order the repayment of aid must grant that application if it finds that the aid was not notified to the Commission, unless by reason of exceptional circumstances repayment is inappropriate. Any other interpretation would encourage the Member States to disregard the prohibition laid down in Article 93(3), since if national courts could only order suspension of any new payment, aid already granted would subsist until the Commission’ s final decision finding the aid incompatible with the common market and ordering its repayment.
5. The recipient of aid who does not verify that the aid has been notified to the Commission in accordance with Article 93(3) of the Treaty cannot incur liability solely on the basis of Community law. The machinery for reviewing and examining State aid established by Article 93 does not impose any specific obligation on the recipient of aid.
If, however, according to national law concerning non-contractual liability, the acceptance by an economic operator of unlawful assistance of a nature such as to occasion damage to other economic operators may in certain circumstances cause him to incur liability, the principle of non-discrimination may lead the national court to hold that the recipient of aid paid in breach of Article 93(3) of the Treaty has incurred liability.

Judges:

G.C. Rodriguez Iglesias, P

Citations:

[1996] ECR I-3547, C-39/94, [1996] EUECJ C-39/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161283

Parliament v Council: ECJ 5 Jul 1995

ECJ 1. Due consultation of the Parliament in the cases provided for by the Treaty constitutes an essential formal requirement breach of which renders the measure concerned void. The effective participation of the Parliament in the legislative process of the Community, in accordance with the procedures laid down by the Treaty, represents an essential factor in the institutional balance intended by the Treaty. Such power reflects the fundamental democratic principle that the people should take part in the exercise of power through the intermediary of a representative assembly.
The duty to consult the European Parliament in the course of the legislative procedure, in the cases provided for by the Treaty, implies the requirement that the Parliament should be reconsulted whenever the text finally adopted, viewed as a whole, departs substantially from the text on which the Parliament has already been consulted, except where the amendments essentially correspond to the wish of the Parliament itself.
It is not possible for the institution adopting the final text to evade that duty on the ground that it was sufficiently well informed as to the opinion of the Parliament on the essential points at issue, since that would result in seriously undermining the effective participation of the Parliament in the legislative processes of the Community which is essential to the maintenance of the institutional balance intended by the Treaty, and would amount to disregarding the influence that due consultation of the Parliament can have on adoption of the measure in question.
2. It is apparent from a comparison between the Commission’ s initial proposal for a directive and the content of Directive 93/89, as adopted by the Council, that as regards the objective of introducing a harmonized system of road charging to include vehicle taxes, excise duty on fuel and charges for the use of certain types of road infrastructure, taking infrastructure and external costs into account, a text requiring the Commission to submit a report and proposals for achieving that objective in order that the Council should adopt a harmonized system by 31 December 1998 at the latest has been replaced by another text under which not only is the Council no longer obliged to adopt a harmonized system within the prescribed period, but also the Commission is no longer required to submit in its report proposals for establishing cost-charging arrangements based on the principle of territoriality.
Those are substantial amendments. Since they do not correspond to any wish expressed by Parliament and do affect the scheme of the proposal as a whole, since the legislative procedure is governed by Articles 75 and 99 of the Treaty, the Parliament must be reconsulted. The fact that it was not reconsulted constitutes an infringement of essential procedural requirements as a result of which Directive 93/89 must be annulled.
3. The need to ensure that annulment, for infringement of the obligation properly to consult Parliament, of Directive 93/89 concerning taxes on certain vehicles used for the carriage of goods by road and road charges for the use of certian infrastructures does not lead to discontinuity in the programme for the harmonization of transport taxation and also important considerations of legal certainty, comparable with those arising where certain regulations are annulled, justify the Court in exercising the power expressly conferred on it by the second paragraph of Article 174 of the EC Treaty when it annuls a regulation and in ruling that all the effects of the annulled directive should be preserved provisionally until the Council has adopted a new directive.
Although the Court does not have jurisdiction, in the context of its review of the legality of an act under Article 173 of the Treaty, to issue an order to the Council imposing a time-limit within which the latter must adopt new rules on the matter, the Council is none the less under a duty to put an end within a reasonable period to the infringement it has committed.

Judges:

G.C. Rodriguez Iglesias, P

Citations:

C-21/94, [1995] EUECJ C-21/94

Links:

Bailii

European, Constitutional

Updated: 03 June 2022; Ref: scu.161274

Irish Farmers Association and others v Minister for Agriculture, Food and Forestry, Ireland and Attorney General: ECJ 15 Apr 1997

ECJ 1 Agriculture – Common organization of the markets – Milk and milk products – Additional levy on milk – Temporary suspension of a percentage of the reference quantities exempt from the levy – Conversion into definitive reduction without compensation – Principle of protection of legitimate expectations – Right to property – Principle of proportionality – Principle of non-discrimination – Breach – None
(EC Treaty, Art. 40(3); Council Regulation No 804/68, Art. 5c3)(g), inserted by Regulation No 816/92, and Regulation No 3950/92, Art. 3, as amended by Regulation No 1560/93)
2 Acts of the institutions – Statement of reasons – Obligation – Scope
(EC Treaty, Art. 90)
3 In so far as Article 5c3)(g) of Regulation No 804/68, inserted by Article 1(3) of Regulation No 816/92, and Article 3 of Regulation No 3950/92, as amended by Article 1 of Regulation No 1560/93, converted the temporary withdrawal of a percentage of the reference quantity exempt from the milk levy, within the meaning of Regulation No 775/87, into a definitive reduction of that quantity without compensation for the producers, those provisions do not breach the principles of the protection of legitimate expectations, non-discrimination and proportionality or the fundamental right to property.
First, with regard to the principle of the protection of legitimate expectations, a prudent and discriminating trader should have anticipated, particularly in view of the continuing surpluses on the market in milk, in addition to the gradual decrease in compensation, other measures to reduce milk production, such as the conversion of the temporary suspension of reference quantities into definitive reductions.
Secondly, those regulations, which correspond to aims pursued in the general interest and which seek to remedy the surpluses on the milk products market, do not affect the actual substance of the right to property.
Thirdly, the conversion of the temporary suspension, after five years, into a definitive reduction without compensation does not infringe the principle of proportionality, since, within the framework of the Community legislature’s broad discretionary powers in the field of the common agricultural policy, that conversion does not seem an inappropriate means of achieving the aim of the additional levy scheme, which is to reduce milk production further and permanently.
Finally, it does not conflict with the principle of non-discrimination between producers or consumers, since both beneficiaries of the Community definitive discontinuation of milk production programme and producers who remain active are compensated for the suspended quantities. In fact, while the suspended quantity was included in the calculation of the quantity to be compensated upon definitive discontinuation, the producer who remained active received compensation for the suspended quantity until the end of the eighth 12-month period of the application of the additional levy scheme.
4 The statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the institution which enacted the measure so as to inform the persons concerned of the justification for the measure adopted and to enable the Court to exercise its powers of review. It is not necessary, however, for details of all relevant factual and legal aspects to be given, in so far as the question whether the statement of the grounds for a decision meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.

Judges:

JL Murray, P

Citations:

C-22/94, [1997] EUECJ C-22/94, [1997] 2 CMLR 621, [1997] ECR I-1809

Links:

Bailii

Statutes:

EC Treaty, Art. 40(3), Regulation No 804/68

European, Agriculture

Updated: 03 June 2022; Ref: scu.161275

X v Commission: ECJ 26 Sep 1994

ECJ 1. By virtue of Article 51 of the Statute of the Court of Justice of the EEC, an appeal against a decision of the Court of First Instance is to be limited to points of law and lies on grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interest of the appellant or the infringement of Community law by the Court of First Instance. A plea in law which restricts itself to contesting the findings of fact made by the Court of First Instance is therefore inadmissible.
2. The combined effects of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure is that an appeal must indicate precisely the contested elements of the judgment of the Court of First Instance which it is requested to have set aside, and also the legal arguments which specifically support that request.
That requirement is not satisfied by an appeal which merely repeats or reproduces word for word the arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that court; in reality, such an appeal amounts to no more than a request for a reexamination of the application submitted to the Court of First Instance, a matter which falls outside the jurisdiction of the Court of Justice by virtue of Article 49 of its Statute.

Judges:

O Due, P

Citations:

C-26/94, [1994] EUECJ C-26/94P

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161277

Laperre v Bestuurscommissie beroepszaken in de provincie Zuid-Holland (Rec 1996,p I-273) (Judgment): ECJ 8 Feb 1996

Europa Social policy – Equal treatment for men and women in matters of social security – Directive 79/7 – Article 4(1) – Scheme of social assistance for older and/or partially incapacitated workers who are long-term unemployed subject to conditions relating to previous employment and age – Scheme enabling many more men than women to avoid another, less favourable, scheme of social assistance – Objective justification – Permissibility.

Citations:

C-8/94, [1996] EUECJ C-8/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161267

Cavarzere Produzioni Industriali and others v Ministero dell’Agricoltura e delle Foreste and others: ECJ 11 Aug 1995

ECJ Member States may not, for the marketing year starting on 1 July, exercise the power to adjust the quotas of undertakings, conferred on them by Article 25(2) of Regulation No 1785/81 on the common organization of the markets in the sugar sector, after the date of 1 March set by Regulation No 193/82 laying down general rules for transfers of quotas in the sugar sector, even if the Council regulation fixing the quotas and stating that power to be applicable has been adopted after 1 March, since no Community legislation expressly derogating from that time-limit has been enacted.
That power may be exercised at the same time as an adjustment of quotas pursuant to Article 2 of Regulation No 193/82 following a transfer of undertakings or factories, provided that the specific conditions governing the application of each of those provisions are complied with. It permits Member States to reduce the A quota and the B quota of an undertaking by 10% each.
That 10% margin of manoeuvre relates to the A and B quotas allocated to an undertaking, within the framework of the quota system in force, by a national decision taken by the Member State on the basis of Article 24 of that regulation, sharing out among the undertakings operating in its territory the basic A and B quantities allocated to it.
In providing that in Italy that margin of manoeuvre is not confined to the 10% limit where it is used to transfer quotas on the basis of ‘restructuring plans’, the second subparagraph of Article 25(2) of Regulation No 1785/81 refers to plans concerning the sugar sector as a whole at national or regional level.

Citations:

C-1/94, [1995] EUECJ C-1/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161256

P v S and Cornwall County Council: ECJ 30 Apr 1996

An employee at an educational establishment told management that he intended to undergo gender reassignment. He was given notice of dismissal.
Held: The scope of the Directive was not confined to discrimination based on the fact that a person was of one or other sex but also extended to discrimination arising from the gender reassignment of a person. The Court stated: ‘Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. Where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment. To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the court has a duty to safeguard.’ The Advocate General described the applicant as female: ‘I do so regardless not only of her original sex (male) as it appears on her birth certificate but also of the moment at which, as a result of the final surgical operation, she actually changed her physical sex.’

Citations:

C-13/94, [1996] ICR 795, [1996] IRLR 347, [1996] EUECJ C-13/94, [1996] All ER (EC) 397, [1997] 2 FCR 180, [1996] 2 CMLR 247, [1996] CEC 574, [1996] ECR I-2143, [1996] 2 FLR 347, [1996] Fam Law 609

Links:

Bailii

Statutes:

Council Directive 76/207/EEC

Jurisdiction:

European

Cited by:

Distinguished – Ashton v The Chief Constable of West Mercia Constabulary EAT 27-Jul-2000
Where a dismissal was properly related to poor work performance, the fact that such a deterioration in performance was associated with a gender reassignment process being undergone by the employee, did not make the dismissal sex discrimination. To . .
Cited – Croft v Royal Mail Group Plc (formerly Consignia Group plc) CA 18-Jul-2003
The employee was a transsexual, awaiting completion of surgical transformation to a woman. The employer said she could not use the female toilet facilities, but was offered use of the unisex disabled facilities.
Held: The 1975 Act provides for . .
Cited – A v West Yorkshire Police HL 6-May-2004
The claimant was a male to female trans-sexual who had been refused employment as a police officer by the respondent, who had said that the staturory requirement for males to search males and for females to search females would be impossible to . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Applied – Chessington World of Adventures Ltd v Reed EAT 27-Jun-1997
News Group Newspapers Ltd had been joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public . .
Cited – Goodwin v The United Kingdom ECHR 11-Jul-2002
The claimant was a post operative male to female trans-sexual. She claimed that her human rights were infringed when she was still treated as a man for National Insurance contributions purposes, where she continued to make payments after the age at . .
Cited – MB v Secretary of State for Work and Pensions SC 5-Jul-2016
The court was asked about the age at which entitlement to a pension began for someone of transgender.
Held: The court was divided, and the issue was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 03 June 2022; Ref: scu.161269

Dubois and Cargo v Garonor: ECJ 11 Aug 1995

ECJ Articles 9 and 12 of the Treaty, which prohibit the levying of customs duties and charges having equivalent effect in intra-Community trade, must be interpreted as applying to a ‘transit charge’ designed to compensate a private undertaking for bearing costs arising from the performance by the customs and veterinary services of their tasks as providers of services in the public interest even if it has not been imposed by the State but arises from an agreement concluded by a private undertaking with its customers.
Those articles require the Member States to bear the costs of the controls and formalities carried out in connection with the movement of goods across frontiers and therefore prohibit, in intra-Community trade, the charging to economic agents, whether by virtue of a unilateral measure adopted by the authorities or as a result of a series of private contracts, of the costs of inspections and administrative formalities carried out by customs offices, the only charges authorized being those which constitute consideration for a specific service actually rendered to an economic agent individually.
However, a charge which applies generally to all vehicles in international transit whose load is cleared through customs within the confines of the road station and does not confer on economic agents, in connection with the completion of customs procedures, any advantages other than those which derive from the Community transit procedure which was established in the interests of the common market by Regulations Nos 542/69 and 222/77, does not fall within that category.

Judges:

Gulmann P

Citations:

C-16/94, [1995] EUECJ C-16/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161270

SAFBA v Ministre du Budget: ECJ 4 May 1995

ECJ Article 8(1), third subparagraph (a), of Regulation No 3330/74 on the common organization of the markets in the sugar sector, as amended by Regulation No 1396/78, Article 8(2), third subparagraph (a), of Regulation No 1785/81, which is in identical terms and replaced Regulation No 3330/73, and Article 6(4) of Regulation No 1358/77 laying down general rules for offsetting storage costs for sugar must be interpreted as meaning that the prescribed conditions for materialization of the obligation to pay the storage levy are satisfied only when the sugar is disposed of, and not when it is produced.

Judges:

PJG Kapteyn, P

Citations:

C-19/94, [1995] EUECJ C-19/94

Links:

Bailii

Statutes:

Regulation No 3330/74, Regulation No 3330/73, Regulation No 1396/78, Regulation No 1785/81

European

Updated: 03 June 2022; Ref: scu.161273

Zentrale zur Bekampfung unlauteren Wettbewerbs v Langguth: ECJ 29 Jun 1995

ECJ Agriculture – Common organization of the markets – Wine – Description and presentation of wines – ‘Qualitaetsweine mit Praedikat’ (quality wines bearing quality indications) – Repetition on the label of the terms ‘Kabinett’, ‘Spaetlese’ or ‘Auslese’ as parts of a brand name – Whether permissible – ‘Qualitaetsweine b.A.’ (German quality wines produced in specified regions) – Repetition on the label of the term ‘Weissherbst’ as part of a brand name – Whether permissible
(Council Regulation No 2392/89, Art. 40; Commission Regulation No 3201/90, Art. 3(2), 3(3)(a), first subpara. and 3(3), second subpara.)
Article 3(2) of Regulation No 3201/90 laying down detailed rules for the application of Regulation No 2392/89 laying down general rules for the description and presentation of wines and grape musts must be interpreted as not precluding the labelling of ‘Qualitaetsweine mit Praedikat’ (quality wines bearing quality indications) from repeating the terms ‘Kabinett’, ‘Spaetlese’ or ‘Auslese’ – in addition to their prescribed use (in lettering of the same type and height as the name of the specified region or of a geographical unit smaller than the specified region) – in different lettering with higher letters, particularly in a conspicuous manner as part of a brand name.
Similarly, Article 3(3)(a), first indent, in conjunction with the second subparagraph of Article 3(3) of that regulation must be interpreted as not precluding the repetition on the label, in the case of ‘Qualitaetsweine b.A.’ (German quality wines produced in specified regions), of the term ‘Weissherbst’ – in addition to its use in the same lettering as that used for indicating the specified region – in larger letters, particularly in a conspicuous manner as part of a brand name.
In its specific provisions concerning the use of brand names on labelling, particularly in Article 40 of Regulation No 2392/89 cited above, Community legislation does not impose any restriction concerning the lettering of the characters and the size of a brand name in relation to the indication on the label of the name of the specified region or of a geographical unit smaller than the specified region. Accordingly, a brand name which, moreover, is not as such capable of misleading consumers in any way is not to be regarded as likely to confuse or mislead those to whom it is addressed on the ground that it is presented in a conspicuous manner, even if it contains a word that has been designated by the rules in question as information which may be used in the appellation of a quality wine produced in a specified region.

Citations:

C-456/93, [1995] EUECJ C-456/93

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161233

Megner and Scheffel v Innungskrankenkasse Vorderpfalz: ECJ 14 Dec 1995

The mere fact that the legislative provision affects far more women than men at work cannot be regarded as a breach of Article 119 of the Treaty.

Citations:

C-444/93, [1995] EUECJ C-444/93

Links:

Bailii

Cited by:

Cited – Hockenjos v Secretary of State for Social Security (No 2) CA 21-Dec-2004
The claimant shared child care with his former partner, but claimed that the system which gave the job-seeker’s child care supplement to one party only was discriminatory.
Held: In such cases the supplement usually went to the mother, and this . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination

Updated: 03 June 2022; Ref: scu.161223

Commission v Noonan: ECJ 11 Aug 1995

ECJ In an action challenging an act adversely affecting an official which was adopted during a recruitment procedure the applicant may rely on the unlawfulness of acts adopted at an earlier stage in the procedure provided that they are closely linked to the contested act. Since the recruitment procedure is a complex administrative operation composed of a series of decisions which are closely linked, to deny applicants that possibility would be to oblige them to bring as many actions as there are acts in the procedure capable of adversely affecting them. The availability of a plea of unlawfulness of earlier acts in the procedure cannot, when it is the competition notice which the applicant challenges, depend on distinctions as to the degree of clarity and precision of the notice. The considerations pertaining to the complexity of the recruitment procedure which justify the availability of such a plea remain entirely apt even if the condition in the competition notice which is at issue is clear and precise.

Citations:

C-448/93, [1995] EUECJ C-448/93P

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161226

Hauptzollamt Hamburg-St Annen v Thyssen Haniel Logistic: ECJ 1 Jun 1995

Europa Common Customs Tariff – Tariff headings – Mixture of amino acids used for the preparation of infusion solutions – Product naturally intended for medical use – Classification under heading 30.03 (subheading 30.03 A II (b))
The Common Customs Tariff, as amended by Regulation No 3618/86, amending Regulation No 3331/85 amending Regulation No 950/68, must be interpreted to the effect that a sterile powder made up of amino acids mixed in precise proportions and used for the preparation of infusion solutions falls under heading 30.03 (subheading 30.03 A II (b)). On the basis of its objective characteristics and properties – being sterile, pyrogen-free, with a high level of purity and precise dosage of the various amino acids – the product is naturally intended for medical use and more particularly for the preparation of infusion solutions by the addition of water, and use of the product in question in human nutrition by way of mouth is a purely theoretical possibility. In view of that intended use and in the light of Note A(4) of the Customs Cooperation Council’s Explanatory Notes to Heading 30.03, it therefore falls within the category of medicaments.

Citations:

C-459/93, [1995] EUECJ C-459/93

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161236

Kalanke v Freie Hansestadt Bremen: ECJ 17 Oct 1995

An automatic preference of women ceteris paribus was discriminatory and unlawful. Any derogation from article 2.4 must be interpreted strictly.

Citations:

Times 26-Oct-1995, C-450/93, [1995] EUECJ C-450/93, [1995] ECR I-3051

Links:

Bailii

Statutes:

Equal Treatment Directive (Council Directive 76/207/EEC

Jurisdiction:

European

Cited by:

Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 03 June 2022; Ref: scu.161228

Lloyd’s Register of Shipping v Societe Campenon Bernard: ECJ 6 Apr 1995

Actions which would be deemed to have been undertaken by a branch of company need not necessarily be performed where the branch is physically located.

Citations:

Times 03-May-1995, C-439/93, [1995] EUECJ C-439/93

Links:

Bailii

Statutes:

Brussels Convention1968 5(5)

Cited by:

Cited – Anton Durbeck GmbH v Den Norske Bank ASA CA 3-Feb-2003
Claimant cargo owners sought to have decided in England, their dispute with the respondent. The respondent was domiciled in a country signatory to the Convention, and had offices here.
Held: To establish jurisdiction for the English courts, . .
Lists of cited by and citing cases may be incomplete.

European, Company

Updated: 03 June 2022; Ref: scu.161219

Regina v Licensing Authority of the Department of Health and Norgine, ex parte Scotia Pharmaceuticals (Judgment): ECJ 5 Oct 1995

Europa Point (8)(a)(ii) of the second paragraph of Article 4 of Directive 65/65 concerning proprietary medicinal products, as amended by Directive 87/21, which establishes in certain circumstances an abridged procedure for the issue of marketing authorization for proprietary medicinal products and lays down the conditions under which recourse may be had to that procedure, must, having regard both to the fundamental objective of the directive, which is to safeguard public health, and to the need to ensure that recourse to simplified procedures for marketing products similar to those already authorized does not result in damage to the interests of innovative firms, be interpreted as meaning that a national authority with competence to issue national marketing authorization cannot have discretion to issue authorization under the abridged procedure when the abovementioned conditions have not been satisfied. That means that such authorization may not be issued where the particulars and documents submitted in support of an application do not contain detailed references to published scientific literature presented in accordance with each of the requirements laid down in Parts 2 and 3 of the Annex to Directive 75/318 concerning analytical, pharmacotoxicological and clinical standards and protocols in respect of the testing of proprietary medicinal products, and where those documents do not comprise experts’ reports complying with each of the requirements laid down in Articles 1 and 2 of Directive 75/319 concerning proprietary medicinal products.

Citations:

C-440/93, [1995] EUECJ C-440/93

Links:

Bailii

European, Health

Updated: 03 June 2022; Ref: scu.161220

Neckermann Versand v Hauptzollamt Frankfurt am Main-Ost: ECJ 9 Aug 1994

Europa Heading 61.08 (‘women’s or girls’ … pyjamas, …, knitted or crocheted’) of the Combined Nomenclature of the Common Customs Tariff, as amended by Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and Regulation No 3174/88 amending Annex I to the latter regulation, must be interpreted as meaning that not only sets of two knitted garments which, according to their outward appearance, are intended to be worn exclusively in bed but also sets used mainly for that purpose must be considered to be pyjamas. However, the mere fact that it is possible to wear in bed a set of two knitted garments, according to the generally accepted practice in the Member State concerned at the time when the goods are there cleared through customs, is not sufficient to justify classification under that heading.

Citations:

C-395/93, [1994] EUECJ C-395/93, [1994] ECR I-4027

Links:

Bailii

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 . .
Lists of cited by and citing cases may be incomplete.

European, Customs and Excise

Updated: 03 June 2022; Ref: scu.161196

Specialarbejderforbundet i Danmark v Dansk Industri: ECJ 31 May 1995

Equal pay provisions apply to piece rate work- Employer to justify differences. where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, so that there is a prima facie case of sex discrimination, article 119 of the EEC Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex.

Citations:

Times 23-Jun-1995, [1996] ICR 51, C-400/93, [1995] EUECJ C-400/93

Links:

Bailii

Statutes:

EECTreaty Art 177

Cited by:

Cited – Nelson v Carillion Services Ltd CA 15-Apr-2003
The appellant challenged dismissal of her claim for equal pay. It had been rejected on the ground that the employer had shown a material factor justifying the difference in pay.
Held: Enderby establishes that the burden of proving sex . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 03 June 2022; Ref: scu.161200

SISRO v Ampersand Software: ECJ 11 Aug 1995

ECJ Article 37(2) and the first paragraph of Article 38 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, are to be interpreted as meaning that a decision by which a court of a Contracting State, seised of an appeal against authorization to enforce an enforceable judgment of a court in another Contracting State, refuses a stay or lifts a stay previously ordered does not constitute a ‘judgment given on the appeal’ within the meaning of the said Article 37(2) and therefore cannot be contested by an appeal in cassation or similar form of appeal limited to the examination of points of law only. Moreover, the court seised of such an appeal on a point of law under Article 37(2) of the Convention does not have jurisdiction to impose or reimpose such a stay.

Citations:

C-432/93, [1995] EUECJ C-432/93

Links:

Bailii

European, Jurisdiction

Updated: 03 June 2022; Ref: scu.161214

Regina v H M Treasury, ex parte British Telecommunications: ECJ 26 Mar 1996

The Government should not be ordered to pay compensation for failing to implement a European Directive which remained ambiguous. A failure to implement a directive into national law may be actionable but there would normally be only small damages. The breach here had not involved a manifest and grave disregard of European law.
LMA BT alleged improper implementation of a Directive on public procurement in the water, energy, transport and telecommunications sector. BT claimed to be financially disadvantaged and sought damages on the Francovich principle. Held: (does the case turn on discretion on implementation) the provisions of the Directive were sufficiently unclear as to justify the UK’s error. The court confirmed that ‘a restrictive approach to state liability is justified’
ECJ 1. It is not open to a Member State, when transposing into national law Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, to determine which telecommunications services are to be excluded from its scope in implementation of Article 8(1), since that power is vested in the contracting entities themselves.
However, where a Member State has itself determined, in transposing that directive into national law, which services of a contracting entity are to be excluded in implementation of Article 8, it is not obliged under Community law to pay that entity compensation for damage suffered by it as a result of the error thus committed.
In the present case, the conditions which must be fulfilled in order for a Member State to incur liability to compensate individuals for damage caused to them as a result of a breach of Community law committed by it in the exercise of legislative functions in which it has a discretion, such as the transposition of a directive, are not wholly met. There has not been a sufficiently serious breach of Community law, since Article 8(1), which has been incorrectly transposed, is imprecisely worded and the interpretation given to it in good faith by the Member State in question, albeit erroneous, was not manifestly contrary to the wording of the directive or to the objective pursued by it.
2. In the light of its wording and purpose, the criterion which Article 8(1) of Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors lays down in order to exclude from the scope of the directive certain contracts awarded by entities providing services in the fields in question, namely that ‘other entities are free to offer the same services in the same geographical area and under substantially the same conditions’, is to be verified as a matter of law and of fact, having regard in particular to all the characteristics of the services concerned, the existence of alternative services, price factors, the dominance or otherwise of the contracting entity’ s position on the market and any legal constraints.
3. In the case of a breach of Community law for which a Member State, acting in a field in which it has a wide discretion in taking legislative decisions, can be held responsible, Community law confers on injured parties a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.
Those conditions are applicable to the situation in which a Member State incorrectly transposes a Community directive into national law. A restrictive approach to State liability is justified in such a situation, for the reasons already given to justify the strict approach to non-contractual liability of Community institutions or Member States when exercising legislative functions in areas covered by Community law where the institution or State has a wide discretion – in particular, the concern to ensure that the exercise of those legislative functions is not hindered by the prospect of actions for damages whenever the general interest requires the institutions or Member States to adopt measures which may adversely affect individual interests.

Judges:

G.C. Rodriguez Iglesias, P

Citations:

Gazette 04-Sep-1996, Times 16-Apr-1996, C-392/93, (1996) QB 615 (ECJ), [1996] EUECJ C-392/93

Links:

Bailii

Cited by:

Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Lists of cited by and citing cases may be incomplete.

European, Utilities

Updated: 03 June 2022; Ref: scu.161193