Category: European

Gatto v Bundesanstalt fur Arbeit (Rec 1990,p I-557,Summ pub ) (Judgment): ECJ 22 Feb 1990

Europa 1.Social security for migrant workers – Family benefits – Concept – Assistance paid to families with children aged over 16 but under 21 who are unemployed – Included

2.Social security for migrant workers – Family benefits – Unemployed worker subject to the legislation of a Member State – Members of the family residing in another Member State – Entitlement to benefits provided for by the legislation applicable to the worker – Condition of entitlement to benefits equivalent to a clause requiring children to reside in the Member State providing the benefits – Inapplicable to a worker whose children fulfil an equivalent condition in the Member State in which they reside

(Regulation No 1408/71 of the Council, Art. 74)

1.Benefits intended to help families to meet the cost of supporting their children aged over 16 but under 21 who are unemployed fall within the definition of ‘family benefits’ in Article 1(u)(i) of Regulation No 1408/71.

2.The purpose of Article 74 of Regulation No 1408/71 is to prevent a Member State from being able to refuse to grant family benefits on account of the fact that a member of the worker’ s family resides in a Member State other than that providing the benefits. Such a refusal could deter Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom. It follows that a condition of entitlement to certain family benefits whereby a worker’ s child must be registered as unemployed with the employment office of the Member State providing the benefits, a condition which can be fulfilled only if the child resides within the territory of that State, comes within the scope of Article 74 and must therefore be considered to be fulfilled where the child is registered as unemployed with the employment office of the Member State in which he resides.

(The grounds of this judgment do not differ from those of the judgment ruling on the interpretation of Article 73 of Regulation No 1408/71, delivered on the same date : judgment of 22 February 1990 in Case C-228/88 Bronzino ((1990)) ECR 531.)

Citations:

C-12/89, [1990] EUECJ C-12/89

Links:

Bailii

Statutes:

Regulation No 1408/71 of the Council Art . 1(u)(i )

European

Updated: 01 June 2022; Ref: scu.160193

Deltakabel v Staatssecretaris van Financien: ECJ 5 Feb 1991

Europa Tax provisions – Harmonization of laws – Indirect taxes on the raising of capital – Waiver by a parent company of a claim against its subsidiary – Subjection to capital duty – Permissible (Council Directive 69/335, Art. 4(2)(b))
Where a parent company clears off a liability of a subsidiary by waiving all or part of a claim against the subsidiary, capital duty may be levied under Article 4(2)(b) of Directive 69/335 concerning indirect taxes on the raising of capital.
Owing to the taking over of all or part of the subsidiary’ s losses, such a waiver represents the provision of a service which increases the assets of that company and may increase the value of its shares by helping to strengthen its economic potential.

Citations:

C-15/89, [1991] EUECJ C-15/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160194

Spronk v Minister van Landbouw en Visserij (Rec 1990,p I-3185) (Judgment): ECJ 12 Jul 1990

Europa The second indent of the first subparagraph of Article 3(1) of Council Regulation (EEC) No 857/84 must be interpreted as conferring a discretionary power on the Member States for the purpose of determining the allocation of special reference quantities which are exempt from the additional levy on milk to producers who have adopted a milk production development plan which has been implemented after 1 January 1981. However, where a Member State decides to take account of the situation of certain producers referred to in that provision, it must, even though the implementation of a development plan in no circumstances confers on the producer concerned the right to obtain reference quantities corresponding to the production capacity acquired by implementing the plan, without being subject to any reductions, take into consideration the level of milk and milk product quantities delivered by the producers in question in the year during which their development plan was completed, provided that where those quantities are not representative of the production capacity acquired after the plan was completed, the Member States must ensure that the quantities bear some relation to the resultant production capacity, and the principle of non-discrimination between the producers concerned.
That provision does not preclude national rules, adopted for the purpose of implementing the said regulation, which are drawn up in such a way that :
(i) producers who have incurred investment obligations may obtain a special reference quantity whether or not such obligations were entered into as part of a development plan;
(ii) that quantity is calculated on the basis of a fixed quantity allocated for each new stall constructed;
(iii) for the purposes of that calculation, the number of stalls actually constructed is reduced by 10% or 20%, depending on whether or not the producer concerned is commencing milk production; and
(iv) the quantity which results from the application of the calculation criteria referred to above is reduced by one-third or a half, depending upon the date on which the new stalls were put into service; that reduction, which varies according to the extent to which the introduction of the additional levy could be foreseen when the investments were carried out is compatible with the principle of proportionality which must be respected in the context of the implementation of the policy of reducing structural milk surpluses. Moreover, producers who have carried out investments, even as part of a development plan, cannot rely on any legitimate expectation in order to claim that a special reference quantity be granted, precisely because of such investments.

Citations:

C-16/89, [1990] EUECJ C-16/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160195

Hauptzollamt Frankfurt am Main-Ost v Deutsche Olivetti: ECJ 6 Jun 1990

ECJ Where an all-inclusive price has been paid for transport to a point beyond the place of introduction into the customs territory of the Community, and the goods have been carried using several different means of transport, the cost of transport referred to in Article 8(1)(e)(i) of Regulation No 1224/80 on the valuation of goods for customs purposes must be calculated either by deducting the cost of transport within the customs territory of the Community, determined on the basis of the schedule of freight rates normally applied, from the price actually paid or payable, or by determining the cost of transport to the place of introduction of the goods into the customs territory of the Community directly on the basis of the rates normally applied. It is for the national authorities to choose the criterion which is more likely to avoid arbitrary and fictitious values.

The proportional assessment of costs according to the distance covered outside and inside the Community required under Article 15(2)(a) of Regulation No 1224/80 when the goods are carried ‘by the same means of transport’ is precluded in cases where several means of transport are used involving the application of different schedules of freight rates. Since container transport may be effected in different ways and the cost varies depending on the way chosen, it cannot be regarded as a ‘means of transport’ within the meaning of Article 15(2)(a) of the regulation.

Citations:

C-17/89, [1990] EUECJ C-17/89

Links:

Bailii

European

Updated: 01 June 2022; Ref: scu.160196

Kingdom of the Netherlands v Commission of the European Communities (Rec 1990,p I-4799) (Judgment): ECJ 13 Dec 1990

Europa 1. Agriculture – Common organization of the markets – Milk and milk products – Butter in public storage – Purchase of butter intended for storage – Storage test period – Testing of the keeping quality of the butter – Testing to be carried out at the end of the test period (Regulation No 685/69 of the Commission, Art. 6, as amended by Regulations Nos 1829/80 and 1836/86) 2. Decisions of the institutions – Statement of reasons – Obligation -Scope – Decision relating to the clearance of accounts in relation to expenditure financed by the EAGGF (EEC Treaty, Art. 190) 1. Having regard to the aim of Article 6 of Regulation No 685/69 establishing a scheme for the purchase by intervention agencies of butter intended for public storage, namely to ensure that butter has good keeping qualities before it is finally taken over by the intervention agency and to make the seller bear the consequences of any abnormal deterioration in the quality of the butter occurring during the storage test period, the testing of the keeping qualities of the stored butter may not be carried out before the end of that period. 2. In the particular context of the preparation of decisions relating to the clearance of accounts in respect of expenditure financed by the EAGGF, the statement of reasons for a decision not to charge to the EAGGF a fraction of the expenditure declared must be regarded as sufficient if the Member State to which that decision was addressed has been closely involved in the process by which the decision came about and is aware of the reasons for which the Commission takes the view that it must not charge the sum in dispute to the EAGGF.

Citations:

Case C-22/89, C-22/89, [1990] EUECJ C-22/89

Links:

Bailii

Statutes:

EEC Treaty 190

European, Agriculture

Updated: 01 June 2022; Ref: scu.160198

Quietlynn and Richards v Southend Borough Council: ECJ 11 Jul 1990

Article 30 of the Treaty should be construed as meaning that national provisions prohibiting the sale of lawful sex articles from unlicensed sex establishments do not constitute a measure having an effect equivalent to a quantitative restriction on imports.
Legislation governing the marketing of certain products which applies without distinction to imported and domestic products and is not intended to regulate trade in goods within the Community has in fact no connection with intra-Community trade provided that the products concerned may be marketed through licensed sex establishments and other channels, that is to say through shops in which sex articles account for only an insignificant proportion of sales and which are therefore not required to be licensed, or by mail order.

Judges:

C N Kakouris P

Citations:

C-23/89, [1990] EUECJ C-23/89

Links:

Bailii

European, Licensing

Updated: 01 June 2022; Ref: scu.160199

CNL-SUCAL v HAG (HAG 2): ECJ 17 Oct 1990

Europa Free movement of goods – Industrial and commercial property – Trade mark – Similar products protected in different Member States by identical marks or marks liable to be confused belonging to two entirely separate undertakings – Opposition of the proprietor of the mark in one Member State to the importation of products marketed by the other undertaking under its own trade mark – Whether permissible – Common origin of the two marks prior to expropriation resulting in separate proprietors being entitled to use the trade mark – Not relevant

(EEC Treaty, Arts 30 and 36)

Articles 30 and 36 of the EEC Treaty do not preclude national legislation from allowing an undertaking which is the proprietor of a trade mark in a Member State to oppose the importation from another Member State by an undertaking which is legally and economically independent of it and without its consent of similar products lawfully bearing in the latter State an identical trade mark or one which is liable to be confused with the protected mark, even if the mark under which the goods in dispute are imported originally belonged to a subsidiary of the undertaking which opposes the importation and was acquired by a third undertaking following the expropriation of that subsidiary.

From the date of expropriation and notwithstanding their common origin, each of the marks independently fulfilled its function, within its own territorial field of application, of guaranteeing that the marked products originated from one single source.

Citations:

C-10/89, [1990] 3 CMLR 571, [1990] EUECJ C-10/89, [1990] ECR I-3711

Links:

Bailii

Cited by:

Cited – Scandecor Developments AB v Scandecor Marketing AV and Others and One Other Action HL 4-Apr-2001
A business had grown, but the two founders split, and set up separate business. There was no agreement as to the use of the trading names and trade marks. The original law of Trade Marks prohibited bare exclusive licenses, licences excluding the . .
Cited – Mastercigars Direct Ltd v Hunters and Frankau Ltd CA 8-Mar-2007
An allegation was made that Cuban cigars imported by the claimant infringed the trade marks of the respondents being either counterfeit or parallel imports, and were impounded. The claimant sought a declaration of non-infringement and their release, . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 01 June 2022; Ref: scu.160191

Unifert Handels GmbH, Warendorf v Hauptzollamt Munster: ECJ 6 Jun 1990

ECJ Common Customs Tariff – Customs value – Transaction value – Determination – Parties to the contract of sale established in the Community – Not material – Successive sales at different prices – Choices open to importer – Demurrage charges – Included in the cost of transport – ‘Buying commission’ paid by the buyer to the seller – Included in the transaction value – Quantity of goods unloaded smaller than quantity purchased, without affecting stipulated purchase price – Not material

(Council Regulation No 1224/80, Arts 3(1) and 8(1)(e); Council Directive 79/695, Art. 8(1))

The definition of the transaction value in Article 3(1) of Regulation No 1224/80 on the valuation of goods for customs purposes, according to which that value corresponds to the ‘price actually paid or payable for the goods when sold for export in the customs territory of the Community’, takes no account of the place of establishment of the parties to the contract of sale. The price stipulated in a contract of sale concluded between persons established in the Community may, therefore, be regarded as the transaction value within the meaning of that provision.

Where, in successive sales of goods, more than one price actually paid or payable fulfils the requirements laid down in Article 3(1) of Regulation No 1224/80, any of those prices may be chosen by the importer for the purposes of determining the transaction value. If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation.

Demurrage charges, in other words compensation payable for keeping vessels in port, form part of the cost of transport within the meaning of Article 8(1)(e) of Regulation No 1224/80 and, consequently, are to be added to the price actually paid or payable in order to determine the customs value.

A payment made by the buyer to the seller, invoiced separately and described as a ‘buying commission’, forms part of the price actually paid or payable for the imported goods.

The price actually paid or payable should not be reduced proportionately where a discrepancy is found between the quantity of goods unloaded and the quantity purchased which does not exceed the weight discrepancy allowance agreed upon between the parties and does not lead to a reduction of the stipulated purchase price.

Citations:

C-11/89, [1990] EUECJ C-11/89

Links:

Bailii

Cited by:

Cited – Asda Stores Ltd v Revenue and Customs CA 27-Mar-2014
The appellant imported clothing manufactured outside the EU, along with hangers supplied by a third party. The manufacturers were re-imbursed the cost of acquiring the hangers, but the appellants had agreed an inflated price with the hanger . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 01 June 2022; Ref: scu.160192

ADI (UK) Limited v Firm Security Group Limited: CA 22 Jun 2001

ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a location and in circumstances, and the EAT found an economic entity. The state of the European and domestic authorities is unsatisfactory. The hearing had taken place between the two ECM judgments. Emphasis is placed on the need to take all relevant factors into account. The present case is to be regarded as an example of a labour intensive case, such as was Suzen, but the EAT had not considered the reason for not taking on the previous employees.
May LJ said: ‘In my view confusion and uncertainty have arisen because the need for a legal transfer or merger, still present in the Directive, has been eliminated by purposive judicial interpretation, yet the perceived need to find a transfer of some kind remains.’

Judges:

Lord Justice Simon Brown, Lord Justice May, Lord Justice Dyson

Citations:

[2001] EWCA Civ 971, [2001] 3 CMLR 8, [2001] Emp LR 969, [2001] IRLR 542

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Council Directive 77/187/EEC

Jurisdiction:

England and Wales

Citing:

Considered – ECM (Vehicle Delivery) Services Ltd v B Cox and others CA 22-Jul-1999
Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract . .
Considered – Allen and Others v Amalgamated Construction Co Ltd ECJ 10-Dec-1999
The European rules protecting employees rights on the transfer of undertakings operated also when employees when employees were transferred between two separate companies which were subsidiaries of another. They were legally distinct employers, even . .
Considered – Liskojarvi and Another v Oy Liikenne Ab ECJ 25-Jan-2001
There is an inherent conflict between the need to promote freedom of competition, and the need to restrict competition to promote continuity of employment. The transfer of undertakings regulations must apply to the re-allocation of public service . .
Considered – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
Cited – Suzen v Zehnacker Gebaudereinigung Krankenhausservice (Judgment) ECJ 11-Mar-1997
A transfer of a contract to provide business services, without the transfer of significant assets was not a transfer of an undertaking within the Directive. Nevertheless the transfer of tangible assets was only one factor among several. . .
Appeal from – ADI (UK) Ltd v Willer and others EAT 18-Apr-2000
EAT The employees appealed against a finding that there had been no transfer of an undertaking when their service business had been sold and they had been dismissed.
Held: The appeal failed. No assets, . .

Cited by:

Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
Held: The regulations did not require that in order to be governed by the regulations, a business . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 01 June 2022; Ref: scu.160088

British Horseracing Board Ltd and Others v William Hill Organization Ltd: CA 31 Jul 2001

The Board had established a database of information about horse racing. It was costly. The defendants recovered the information from a licensed user, and used it for its own business purposes. It was not suggested that the licensee had any right to sub-licence the data. The Board had succeeded, at first instance, in arguing that the defendant had infringed its database rights. It was argued that the judge had failed to acknowledge that the defendants had not taken advantage of the way in which the maker had rendered the contents individually accessible. However nothing the regulations required that element. Nevertheless, in a case where any doubt as to the interpretation of a directive required resolution, that question could be referred to the European Court of Justice. It was so referred.

Judges:

Mr Justice Clarke, Lord Justice Peter Gibson, Lord Justice Kay

Citations:

[2001] EWCA Civ 1268

Links:

Bailii

Statutes:

Directive 96/9/EC, Copyright and Rights in Databases Regulations 1997 (1997 No 3032)

Jurisdiction:

England and Wales

Citing:

Appeal from – British Horseracing Board Ltd v William Hill Organisation Ltd PatC 9-Feb-2001
The defendants received data, prepared and distributed by the claimants, regarding horse races, and incorporated the information into their web pages as part of a betting service. There might have been other, indirect, ways of obtaining the same . .

Cited by:

Reference from – The British Horseracing Board Ltd and Others v William Hill Organization Ltd ECJ 9-Nov-2004
bhb_whECJ2004
The claimant sought to prevent re-use by the defendant of information from its horse racing subscription service. They claimed that they had a database right in the information. It cost andpound;4m per year to assemble.
Held: The expression . .
See Also – British Horseracing Board Ltd and Another v William Hill Organization Ltd CA 13-Jul-2005
The Court allowed William Hill’s appeal, holding that BHB had not established that the ECJ had given its earlier ruling on the basis of an erroneous assumption of fact and that the result of applying the ruling was that BHB’s Database did not fall . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 01 June 2022; Ref: scu.159876

Consorzio Del Prosciutto Di Parma v Asda Stores Limited and others: HL 8 Feb 2001

The name ‘Parma Ham’ was controlled as to its use under Italian law, and the associated mark, the ‘corona ducale’, was to be applied to a sale of Parma Ham, including any packaging. Proper Parma Ham was imported and resold through the defendant’s stores, under the name Parma Ham, but without the mark being shown. The claimants asserted that the Italian law was applicable in England through European Law. As a regulation it was of direct effect in UK law without separate implementation, and was intended to create private rights. The packaging was part of the system of guaranteeing the origin of the goods and of protecting the value of the name. The regulation was valid, and enforceable. Nevertheless the question of whether such goods could be sold without the mark was to be referred to the European Court.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Lord Scott of Foscote

Citations:

[2001] UKHL 7, [2001] ETMR 53, [2001] 1 CMLR 43, [2002] FSR 3

Links:

House of Lords, Bailii

Statutes:

Council Regulation (EEC) No 2081/92 on geographical indications and designations of origin

Jurisdiction:

England and Wales

Citing:

Cited – Cutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
Cited – Consorzio per la tutela del formaggio Gorgonzola v Kaserei Champignon Hofmeister GmbH and Co KG ECJ 4-Mar-1999
Upon the registration of a PDO (‘protected designation of origin’) national rules ceased to apply and ‘only the legal rules laid down in the Regulation are, together with the Treaty rules, relevant for the purpose of answering the questions referred . .
Appeal from – Consorzio Del Prosciutio Di Parma v Asda Stores Ltd and Another CA 4-Dec-1998
A rule regarding the designation of origin of goods, disallowing the use of an origin name, must be readily ascertainable in the detail of the regulation, in order to be directly applicable. Designations for Parma Ham, were not readily discoverable, . .
Cited – Foto-Frost v Hauptzollamt Luebeck-Ost ECJ 22-Oct-1987
Europa Lack of jurisdiction of national courts to declare acts of Community institutions invalid – Validity of a decision on the post-clearance recovery of import duties. Case 314/85. . .
Cited – H J Banks and Co Ltd v British Coal Corporation ECJ 13-Apr-1994
The European Commission has exclusive jurisdiction over ECSC treaty disputes. The duty of sincere cooperation imposed the obligation on the national court to mitigate as far as possible in the interests of the Community the risk of a conflicting . .
Cited – Commission v Germany ECJ 23-May-1985
The question was asked as to whether Germany had given effect in domestic law to a directive which required the mutual recognition of nursing diplomas. German law conferred no right of recognition upon holders of diplomas from other member states . .
Cited – Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others ECJ 13-Nov-1990
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity . .
Cited – Societe Terrapin (Overseas) Ltd. v Societe Terranova Industrie Ca Kapferer and Co ECJ 22-Jun-1976
The court discussed the doctrine of exhaustion of rights: ‘. . . the proprietor of an industrial or commercial property right protected by the law of a member state cannot rely on that law to prevent the importation of a product which has lawfully . .
Cited – Bristol-Myers Squibb and others v Paranova ECJ 11-Jul-1996
ECJ 1. Reliance by a trade mark owner on his rights as owner in order to prevent an importer from marketing a product which was put on the market in another Member State by the owner or with his consent where . .
Cited – Consorzio del Prosciutto di Parma v Marks and Spencer plc 1990
Italian regulations are not directly enforceable within the United Kingdom. . .
Cited – Hoffmann La Roche Ag v Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse Mbh ECJ 24-May-1977
The court considered the application of the doctrine of exhaustion of rights in the context of trade marks. The exercise of trade mark rights had to take account of and might be restricted by the prohibitions contained in the Treaty of Rome intended . .
Cited – 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 – Pfizer Inc v Eurim-Pharm Gmbh ECJ 3-Dec-1981
ECJ The essential function of a trade mark is to guarantee the identity of the origin of the marked product to the consumer or final user by enabling him to distinguish without any possibility of confusion . .

Cited by:

Reference From – Consorzio del Prosciutto di Parma and Salumificio S Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd ECJ 20-May-2003
Europa Reference for a preliminary ruling: House of Lords – United Kingdom. Protected designations of origin – Regulation (EEC) No 2081/92 – Regulation (EC) No 1107/96 – Prosciutto di Parma – Specification – . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European

Updated: 31 May 2022; Ref: scu.159106

Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2): HL 17 Feb 2000

Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from any discriminatory reason. It was not a breach of the Directive.
Lord Nicholls said: ‘The burden placed on the government in this type of case is not as heavy as previously thought. Governments must be able to govern. They adopt general policies, and implement measures to carry out their policies. Governments must be able to take into account a wide range of social, economic and political factors. The Court of Justice has recognised these practical considerations. If their aim is legitimate, governments have a discretion when choosing the method to achieve their aim. National courts, acting with hindsight, are not to impose an impracticable burden on governments which are proceeding in good faith. Generalised assumptions, lacking any factual foundation, are not good enough. But governments are to be afforded a broad measure of discretion. The onus is on the Member State to show (1) that the allegedly discriminatory rule reflects a legitimate aim of its social policy, (2) that this aim is unrelated to any discrimination based on sex, and (3) that the Member State could reasonably consider that the means chosen were suitable for attaining that aim.’

Judges:

Lord Slynn of Hadley Lord Goff of Chievley Lord Jauncey of Tullichettle Lord Nicholls of Birkenhead Lord Steyn

Citations:

Gazette 02-Mar-2000, [2000] UKHL 12, [2000] 1 All ER 857, [2000] 1 WLR 435, [2000] ICR 244

Links:

House of Lords, Bailii

Statutes:

Equal Treatment Directive (76/207/EC), Sex Discrimination Act 1975, Unfair Dismissal (Variation of Qualifying Period) Order 1985 (1985 No 752)

Jurisdiction:

England and Wales

Citing:

Returned from – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
See Also – Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another QBD 1995
(Divisional and Court of appeal) The claimants sought judicial review of a condition requiring an employee to have had two years of continuous employment before becoming eligible to make a claim for unfair dismissal. This condition was neutrally . .
Reference to ECJ – Regina v Secretary of State for Employment, ex parte Seymour Smith (1) HL 13-Mar-1997
The House referred to the European Court the question of whether the extension of the minimum period of employment before employment rights were acquired, was discriminatory. . .

Cited by:

Cited – Regina (on the application of Smith) v Barking and Dagenham London Borough Council and another Admn 19-Nov-2002
The applicants sought to argue that the attempt to evict him from the caravan site he occupied infringed his article 8 and 14 rights. Though the Isaacs case had decided there was good reason to deny security, he argued that was no longer applicable, . .
Returned to – Seymour-Smith and Perez; Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another ECJ 9-Feb-1999
Awards made by an industrial tribunal for unfair dismissal are equivalent to pay for equal pay purposes. A system which produced a differential effect between sexes was not indirect discrimination unless the difference in treatment between men and . .
Applied – Secretary of State for Trade and Industry v Rutherford and Another; Same v Bentley EAT 2-Oct-2003
The claimants sought to challenge the legislation which removed their employment rights upon attaining the age of 65, arguing that this was discriminatory against men. The Secretary of State appealed the tribunal’s decision.
Held: The tribunal . .
Cited – Rutherford and Another v Secretary of State for Trade and Industry CA 3-Sep-2004
The claimants alleged that the legislation governing retirement was indirectly discriminatory against men. Though the right not to be unfairly dismissed maximum age limit was the same for men and for women, that did not apply on a redundancy.
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 . .
Cited – Home Office v Bailey and others CA 22-Mar-2005
Prison officers claimed awards for sex discrimination. The employer replied that the pools of comparators each contained members of either sex. The appellants sought to establish that any less favourable treatment of them in comparison with the . .
Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Cited – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
Cited – O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment, European

Updated: 31 May 2022; Ref: scu.159046

Regina v Secretary of State for Health and Others, ex parte Imperial Tobacco Limited and others: HL 7 Dec 2000

Where a party sought an injunction to prevent a government from implementing a European Union directive, pending a decision from the European Court, on whether domestic or community law was to be applied, the domestic court must refer the matter to the European Court of Justice. This was necessary to achieve consistency throughout the Union, and even though such an order would interfere with the operation of the directive.

Judges:

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Hoffmann Lord Clyde Lord Millett

Citations:

Times 20-Dec-2000, [2000] UKHL 60, [2001] 1 All ER 850, [2001] 1 WLR 127

Links:

House of Lords, Bailii

Statutes:

Directive 98/43/EC

Jurisdiction:

England and Wales

Citing:

Cited – Zuckerfabrik Suderdithmarschen and Zuckerfabrik Soest v Hauptzollamt Itzehoe and Hauptzollamt Paderborn ECJ 21-Feb-1991
. .
Lists of cited by and citing cases may be incomplete.

European, Constitutional, Media

Updated: 31 May 2022; Ref: scu.159094

Regina v Sissen: CACD 8 Dec 2000

The fact that some parrots, the breed of which was subject to import controls as endangered species, had been imported into Austria first, did not prevent a defendant in England committing the offence of being involved in their importation by eventually receiving them in England. The offence was a continuing one. Council regulations had direct effect in member states without the need for enacting legislation. The English Act referred to such regulations directly.

Citations:

Times 09-Jan-2001, Gazette 01-Feb-2001, [2000] EWCA Crim 67

Links:

Bailii

Statutes:

Council Regulation (EEC) No 3626/82 (OJ), Customs and Excise Management Act 1979 170(2)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Sissen, Regina (on the Application of) v Newcastle Upon Tyne Crown Court and Another Admn 9-Jul-2004
. .

Cited by:

See Also – Sissen, Regina (on the Application of) v Newcastle Upon Tyne Crown Court and Another Admn 9-Jul-2004
. .
Lists of cited by and citing cases may be incomplete.

European, Animals, Crime

Updated: 31 May 2022; Ref: scu.158717

Brian Watson v First Choice Holidays and Flights Limited and Aparta Hotels Caledonia S A: CA 25 Jun 2001

Two tourists were injured whilst on holiday in Spain. One recovered damages in Spain; the other sued the tour operators here, and the Spanish hotel operator resisted being joined, saying that his business being in Spain, he should not be sued here. The Regulations clearly enabled the tour operator to be sued here, and the operator in turn could seek his indemnity from the hotel operator here under the Convention. The parties could not be protected from the possibility of facing different consequences from different courts when there were several linked cases. The cases were referred to the European Court of Justice for their decision.

Judges:

Judge, Latham LJJ

Citations:

[2001] EWCA Civ 972

Links:

Bailii

Jurisdiction:

England and Wales

Contract, European, Personal Injury, Consumer

Updated: 31 May 2022; Ref: scu.147592

Evans v Secretary of State for Environment, Transport and Regions Motor Insurers’ Bureau: CA 18 Jan 2001

Citations:

[2001] EWCA Civ 32, [2001] EWCA Civ 1211

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – White v White and The Motor Insurers Bureau HL 1-Mar-2001
The requirements as to the extent of knowledge in the mind of a passenger sufficient to defeat a claim against the Motor Insurers Bureau, of the driver’s lack of insurance, was actual knowledge. The rules implemented a European Directive which . .
See Also – Mighell v Reading and Another and Evans v Motor Insurers Bureau and White v White and Another CA 30-Sep-1998
Passengers were injured in motor vehicles. The drivers were uninsured, and the MIB had declined to make payment. The doctrine of direct effect did not apply where the allegation was that the Motor Insurers Bureau arrangement did not comply with a . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Road Traffic, European, Insurance

Updated: 31 May 2022; Ref: scu.147396

B v Secretary of State for Home Department: CA 18 May 2000

The claimant had come to England as a child from Italy. As an adult, he was convicted of a sexual assault against his daughter, and after release from his prison sentence of five years, he now appealed against a deportation order, saying that the respondent had failed to take account of the length of time he had been here and, given the non-continuation of contact with his wife and children, the unlikelihood of his re-offending.
Held: The decision needed to be proportionate under two provisions, European and Human Rights law.
European law guaranteed freedom of movement within the EU for workers, subject to limitations on public policy grounds, which included the personal conduct of the individual, but ‘Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures’
In any event, in the imposition of limitations on the right of free movement of EU nationals, member states must respect any relevant provision of the European Convention on Human Rights.

Judges:

Simon Brown, Ward, Sedley LJJ

Citations:

[2000] EWCA Civ 158, [2000] Imm AR 478, [2000] INLR 361, [2000] 2 CMLR 1086

Links:

Bailii

Statutes:

European Convention on Human Rights 8, Immigration Act 1971 3(5), Asylum and Immigration Appeals Act 1993 9

Jurisdiction:

England and Wales

Citing:

Cited – Goremsandu v Secretary of State for the Home Department CA 1996
The applicant had been convicted of incest with his daughter, and served with a deportation notice on release from prison.
Held: Removal on ‘public policy’ grounds may be a justified response to sufficiently serious criminal conduct, if . .
Cited – Regina v Secretary of State for the Home Department ex parte Marchon CA 23-Feb-1993
It was permissible for the Home Secretary to order the deportation of a convicted drug trafficker for the public good, even though he was an EC national, and though there was nothing to suggest any propensity to commit any further offences. It was . .
Cited – Al-Sabah (Sheikh Mohammed Nasser) v Immigration Appeal Tribunal CA 1992
The applicant, a Kuwaiti citizen of previous good character had been ordered to be deported after serving a sentence for drugs and dishonesty. He sought review of the IAT’s refusal of his appeal, arguing that Rule 162 of the 1983 rules required the . .
Cited – Elliniki Radiophonia Tileorass-AE v Plisofatissis and Kouvelas ECJ 18-Jun-1991
ellinikiECJ1991
National measures adopted in order to give effect to Community rights must themselves comply with the fundamental principles of Community law: ‘With regard to Article 10 of the European Convention on Human Rights, referred to in the ninth and tenth . .
Cited – Regina v Pierre Bouchereau ECJ 27-Oct-1977
ECJ The different language versions of a community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 31 May 2022; Ref: scu.147191

Regina v Secretary of State Environment, ex parte Friends of the Earth Ltd and Another: QBD 4 Apr 1994

The Secretary of State may accept undertakings from water companies to provide a wholesome water supply, rather than requiring a court to order them to achieve the same thing.

Citations:

Times 04-Apr-1994, Independent 12-Apr-1994

Statutes:

Water Industry Act 1991 68(1)(a)

Jurisdiction:

England and Wales

Environment, European, Utilities

Updated: 31 May 2022; Ref: scu.87695

ECM (Vehicle Delivery) Services Ltd v B Cox and others: CA 22 Jul 1999

Employees within a unit, who were employed to satisfy requirements of a particular contract in one firm, had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was a transfer of an undertaking within the Regulations. Mummery LJ summarised the issue as being whether ‘there was a continuation in the hands of ECM of the existence of a discrete economic entity previously carried on by Axial’.

Judges:

Henry, Mummery, Laws LJJ

Citations:

Gazette 22-Sep-1999, (1999) IRLR 559, [1999] ICR 1162, [1999] EWCA Civ 1927

Links:

Bailii

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794)

Jurisdiction:

England and Wales

Citing:

Cited – ECM (Vehicle Delivery Service) Ltd v Cox and Others EAT 10-Jun-1998
Employees within a unit employed to satisfy requirements of a contract in one firm had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was transfer of . .

Cited by:

Considered – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
Appealed to – ECM (Vehicle Delivery Service) Ltd v Cox and Others EAT 10-Jun-1998
Employees within a unit employed to satisfy requirements of a contract in one firm had the right to transfer to a different firm which wrested the contract from the original employers. The arrangement of changing the contract was transfer of . .
Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 31 May 2022; Ref: scu.146842

Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested: CA 1 Jul 1999

The respondent had made an order banning the processing of milk products from the interested party’s farm into cheese products. Cheese manufacturers objected to the order. The order had been held unlawful, and the Secretary of State now appealed.
Held: Proportionality itself is not always equated with intense scrutiny

Judges:

Lord Bingham of Cornhill LCJ, Otton, Robert Walker LJJ

Citations:

[1999] EWCA Civ 1739, (2000) 2 LGLR 41, [1999] COD 321, [1999] 3 CMLR 123, (2000) 55 BMLR 38, [1999] EuLR 968, [2000] EHLR 52

Links:

Bailii

Statutes:

Food Safety Act 1990 13

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Health, ex parte Eastside Cheese Company QBD 1-Dec-1998
An order made by the Secretary of State for a cheese manufacturer to cease production and to seize product without compensation as an emergency was disproportionate where the local officers had adequate power under section 9 under which compensation . .
See Also – Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .

Cited by:

See Also – Regina v Secretary of State for Health ex parte Eastside Cheese Company (a Firm) and R A Duckett and Co Interested CA 1-Jul-1999
Application for leave to appeal to House of Lords – refused. However ‘on public health issues which require the evaluation of complex scientific evidence, the national court may and should be slow to interfere with a decision which a responsible . .
Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Health, Consumer, Administrative

Updated: 30 May 2022; Ref: scu.146654

XH and AIT, Regina (on The Application of) v Secretary of State for The Home Department: Admn 28 Jul 2016

The claimants challenged the right of the respondent, purporting to us the royal prerogative, to withdraw their passports on being suspect of terrorist links.
Held: The claims were dismissed. The use of the Royal Preogative was long established, and ‘we are in no doubt that it is not to be implied that Parliament intended to abrogate the Royal Prerogative power in relation to terrorism related activities when it enacted the TPIM Act.’

Judges:

Hamblen LJ, Cranston J

Citations:

[2016] EWHC 1898 (Admin), [2016] WLR(D) 437

Links:

Bailii, WLRD

Statutes:

Terrorism Prevention and Investigation Measures Act 2011, Charter of Fundamental Rights of the European Union 41, Parliament and Council Directive EC/2004/38 27

Jurisdiction:

England and Wales

European, Human Rights, Constitutional

Updated: 30 May 2022; Ref: scu.567875

Fens spol. sro v Slovenska republika: ECJ 5 Jul 2018

Customs Duties On Exports – Energy – Opinion – Free movement of goods – Customs duties on exports – Charges having equivalent effect to customs duties – Internal taxation – Charge for network services for the transmission of electricity

Citations:

C-305/17, [2018] EUECJ C-305/17 – O, ECLI:EU:C:2018:536

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 29 May 2022; Ref: scu.620019

Actavis Group Ptc And Actavis UK v Boehringer Ingelheim Pharma GmbH and Co. KG: ECJ 12 Mar 2015

ECJ Judgment – Reference for a preliminary ruling – Medicinal products for human use – Regulation (EC) No 469/2009 – Article 3 – Supplementary protection certificate – Conditions for obtaining such a certificate – Medicinal products containing in whole or in part the same active ingredient – Medicinal products placed on the market in succession – Combination of active ingredients – Active ingredient previously marketed in the form of a medicinal product with a single active ingredient – Conditions for obtaining several certificates on the basis of the same patent – Modification of the active ingredients of a basic patent

Judges:

A. O Caoimh, P

Citations:

C-577/13, [2015] EUECJ C-577/13

Links:

Bailii

Statutes:

Regulation (EC) No 469/2009 3

Jurisdiction:

European

Health

Updated: 29 May 2022; Ref: scu.544271

‘Go Fair’ Zeitarbeit OHG v Finanzamt Hamburg-Altona: ECJ 12 Mar 2015

Judgment – References for a preliminary ruling – VAT – Directive 2006/112/EC – Article 132(1)(g) – Exemption for supplies of services closely linked to welfare and social security work – Concept of ‘bodies recognised as being devoted to social wellbeing’ – Temporary-work agency – Hiring out of qualified care workers – Exemption not allowed

Judges:

K Jurimae (Rapporteur), P

Citations:

C-594/13, [2015] EUECJ C-594/13, ECLI:EU:C:2015:164

Links:

Bailii

Statutes:

Directive 2006/112/EC 132(1)(g)

Jurisdiction:

European

European, VAT

Updated: 29 May 2022; Ref: scu.544270

eVigilo Ltd v Priesgaisrines apsaugos ir gelbejimo departamentas prie Vidaus reikalu ministerijos: ECJ 12 Mar 2015

ECJ Judgment – Reference for a preliminary ruling – Public procurement – Directives 89/665/EEC and 2004/18/EC – Principles of equal treatment and transparency – Connection between the successful tenderer and the contracting authority’s experts – Obligation to take that connection into account – Burden of proving bias on the part of an expert – Such bias having no effect on the final result of the evaluation – Time-limit for instituting proceedings – Challenging the abstract award criteria -Those criteria clarified after the exhaustive reasons for the award of the contract had been communicated – Degree of the tenders’ conformity with the technical specifications as an evaluation criterion)

Judges:

T. von Danwitz, P

Citations:

C-538/13, [2015] EUECJ C-538/13, ECLI:EU:C:2015:166

Links:

Bailii

Statutes:

Directive 89/665/EEC, Directive 2004/18/EC

Jurisdiction:

European

European

Updated: 29 May 2022; Ref: scu.544273

Regina (Van Hoogstraten) v Governor of HM Prison Belmarsh: QBD 23 Sep 2002

The prisoner was awaiting sentence. He had dismissed his legal team, and wanted to appoint Italian lawyers, and avvocato to advise him, in the expectation that the Italian lawyer would later engage English lawyers to present his case in court. He wanted his lawyer to see him in prison, and appealed the prison’s refusal to allow access for the lawyer.
Held: The rule required a ‘legal adviser’, and an avvocato was included within the 1978 order, which in turn implemented European Law. As a prisoner awaiting sentence, he was undergoing a trial process, and had his rights governed by the Convention, which meant that he must have adequate opportunity to prepare his mitigation and his defence. The Italian lawyer must be allowed entry to the prison.

Judges:

Jackson J

Citations:

Gazette 31-Oct-2002, Times 05-Nov-2002

Statutes:

Prison Rules 1999 2, European Communities (Services of Lawyers) Order 1978, European Convention on Human Rights

Jurisdiction:

England and Wales

Prisons, Legal Professions, European, Human Rights

Updated: 29 May 2022; Ref: scu.177844

Castle Cement v Environment Agency: Admn 22 Mar 2001

The court was asked ‘whether the burning of Cemfuel, as a fuel in the Ribblesdale and Ketton Cement Works operated by the Applicant (Castle), amounts to the burning of ‘hazardous waste’, as the Environment Agency has concluded, or to the burning of a non-waste fuel, as Castle contends.’
Held: Stanley Burnton J said: ‘Whether material is ‘waste’ cannot depend on whether any particular holder of it stores and uses it in an environmentally and otherwise safe manner. Its categorisation should depend on its qualities, not on the qualities of its storage or use. Otherwise the material would be and cease to be waste and come within and outside the controls on hazardous waste as it passed from one holder to another. This would be inconsistent with any rational system of waste control.’ and
‘But for the subsequent judgment of the European Court of Justice in Arco, I should have gratefully adopted Carnwath J’s fine exegesis of the law on this subject. As it is, and regrettably from my point of view, his judgment must now be read subject to the decision of the court in Arco. In particular the last sentence of para 46 of his judgment is inconsistent with paragraphs 94 and 97 of the judgment in Epon.’

Judges:

Stanley Burnton J

Citations:

[2001] EWHC Admin 224

Links:

Bailii

Statutes:

Waste Framework Directive, 75/442/EEC, Council Directive 91/156/EEC, Council Directive 91/692/EEC

Citing:

Limited – Regina v Environment Agency ex parte Dockgrange Limited and Mayer Parry Limited Admn 22-May-1997
The verb ‘discard’ in the Waste Framework Directive has a special and limited meaning which requires the materials to be subjected to a disposal or recovery operation.
Carnwath J said: ‘The general concept is now reasonably clear. The term . .

Cited by:

Cited – Attorney-General’s Reference (No 5 of 2000) CACD 6-Jun-2001
Waste products could become ‘controlled waste’ and subject to licensing procedures without there being a recovery or disposal operation being involved. A rendering process produced a condensate which the company wished to spread on farm land without . .
Lists of cited by and citing cases may be incomplete.

Environment, Licensing, European

Updated: 29 May 2022; Ref: scu.140294

Martin John Davies v Hillier Nurseries Limited: Admn 29 Jan 2001

If, at the time a plant was placed in a pot to be grown, it was also intended that the pot should be used when the plant was sold, then the pot was deemed to be packaging and was subject to the rules with regard to packaging recycling obligations. The pots into which the plants were finally transplanted were expected to be discarded by customers. The primary purpose was not for the growth of the plants, but was used as ‘packaging conceived so as to constitute a sales unit’ The original purpose was only one element of all the circumstances which the court should look at.

Judges:

The Lord Chief Justice Of England And Wales, And Mr Justice Newman

Citations:

Times 16-Feb-2001, [2001] EWHC Admin 58, [2001] EWHC Admin 587

Links:

Bailii

Statutes:

Producer Responsibility Obligations (Packaging Waste) Regulations 1997 (S.I. 1997 No. 648), Council Directive 94/62/EC on Packaging and Packaging Waste

Environment, Agriculture, European

Updated: 29 May 2022; Ref: scu.140269

Regina v The Department of Trade and Industry, ex parte Alba Radio Limited, Pifco Limted: Admn 30 Nov 2000

The claimants sought to challenge regulations putting into effect the directive.

Judges:

Nigel Pleming QC

Citations:

[2000] EWHC Admin 423

Links:

Bailii

Statutes:

Electrical Equipment (Safety) Regulations 1994, Consumer Protection Act 1987, Council Directive 73/23/EEC, European Communities Act 1972 2(2)

Judicial Review, European

Updated: 29 May 2022; Ref: scu.140239

Regina v Secretary of State for Trade and Industry, ex parte Trades Union Congress: Admn 23 May 2000

Citations:

[2000] EWHC Admin 345

Links:

Bailii

Cited by:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

European, Litigation Practice

Updated: 29 May 2022; Ref: scu.140160

Fulmen v Council: ECFI 8 Sep 2011

ECFI Interim measures – Common foreign and security policy – Restrictive measures against Iran in order to prevent nuclear proliferation – Freezing of funds and economic resources – Application for stay of execution – Lack of urgency

Citations:

T-439/10, [2011] EUECJ T-439/10, [2012] EUECJ T-439/10

Links:

Bailii, Bailii

Jurisdiction:

European

European

Updated: 28 May 2022; Ref: scu.444107

Melli Bank plc v Council (Common Foreign And Security Policy): ECJ 28 Jun 2011

ECJ Appeal – Restrictive measures against Iran aimed at preventing nuclear proliferation – Extension of restrictive measures to entities ‘owned or controlled’ by persons or entities identified as being engaged in, directly associated with, or providing support to, Iran’s nuclear activities – Wholly-owned subsidiary – Council’s discretion for inclusion in the lists – Reasons for inclusion – Proportionality – Duty to state reasons.

Citations:

C-380/09, [2011] EUECJ C-380/09, [2012] EUECJ C-380/09, [2011] EUECJ C-380/09 – P

Links:

Bailii, Bailii, Bailii

European

Updated: 28 May 2022; Ref: scu.441285

Hasselblad (GB) Ltd v Orbison: CA 1985

In the course of proceedings brought by the European Commission against Hasselblad, Mr Orbison wrote a letter to the Commission upon which the appellant then sued for damages for libel. The court considered the dangers of national and European courts separately examining evidence in cases where each had some jurisdiction.
Held: Sir John Donaldson MR said: ‘The first question which arises is whether this letter is to be regarded as sufficiently closely connected to the process of giving evidence for it to be necessary to extend absolute privilege to it, assuming always that absolute privilege would attach to evidence to the like effect given to the Commission.’ and as to jurisdiction ‘it cannot be right that the national courts and Community institutions shall both independently weigh the force of particular evidence with the possibility of inconsistent results.’ The privilege of immunity given to a court was a privilege that should not be extended.
Sir John Donaldson MR continued (obiter): ‘Mr Burton [counsel for the appellant] takes the point that an informer in England has only the benefit of qualified privilege: Shufflebottom v Allday (1857) 5 W.R. 315. Bringing the matter more up to date and relating it to an inquiry similar to that undertaken by the Commission, Mr Burton submits, rightly, that if Mr Orbison’s letter had been addressed to the Director General of the Fair Trading, he could have been sued for libel and would have had to be content with the defence of qualified privilege.’

Judges:

Sir John Donaldson MR

Citations:

[1985] 1 QB 475

Jurisdiction:

England and Wales

Citing:

Cited – Shufflebottom v Allday 1857
The defendant had been robbed. He described the robber to a constable who arrested the plaintiff. Seeing him in custody, the defendant said: ‘That is the man’. After having been remanded in custody for two days, the plaintiff was then acquitted . .

Cited by:

Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction, Defamation

Updated: 28 May 2022; Ref: scu.197721

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 to consult, and the obstruction of their rights of establishment under European law.
Held: To the extent that the application form as originally designed was incompatible with the Treaty, it had been amended. That some artists might have originally been deterred from applying was insufficient on its own to justify a review. Some consultation had taken place, and the practical difficulties in a consultation were not insuperable. However the traders were already acting unlawfully, and therefore they could have no legitimate expectation that they should be consulted.

Judges:

Kay J

Citations:

[2000] EWHC Admin 407

Links:

Bailii

Statutes:

City of Westminster Act 1999, EC Treaty 43

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
Cited – Regina v Tower Hamlets London Borough Council, ex parte Kayne-Levenson CA 1975
There is a clear public interest in the regulation of street markets. . .
Cited – Regina v Southwark Crown Court ex parte Watts CA 1991
A street market license was properly refused renewal, where the stall was not operated in person by the licensee for a period of four weeks. The Act required his personal supervision of the stall. Such a requirement was not in breach of the . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Devon County Council Ex Parte Baker, Regina v Durham County Council Ex Parte Broxson CA 22-Feb-1993
A Local Authority considering closing a residential home did not have a duty to notify and consult with each resident who might be affected, but did have a duty to act fairly, and to give sufficiently prominent notice and sufficient time to allow . .
Cited – Regina v Rochdale Metropolitan Borough Council, ex parte Schemet QBD 1993
The court considered the withdrawal of a policy whereby the local authority paid travelling expenses for the attendance of pupils at denominational schools outside the area.
Held: Relief was granted. The authority should have consulted those . .
Lists of cited by and citing cases may be incomplete.

Licensing, Local Government, European

Updated: 28 May 2022; Ref: scu.140223

Campogrande v Commission: ECFI 19 Feb 1998

ECFI Officials – Vacancy notice – Level of the post to be filled – Appointment to a grade A4/A5 post of head of unit – Illegality of the decision of the Commission of 19 July 1988 – Rejection of application for post.

Citations:

T-3/97, [1998] EUECJ T-3/97

Links:

Bailii

Jurisdiction:

European

European

Updated: 28 May 2022; Ref: scu.173312

Caballero v Fondo de Garantia Salarial (Fogasa): ECJ 12 Dec 2002

ECJ Social policy – Protection of employees in the event of the insolvency of their employer – Directive 80/987/EEC – Scope – ‘Claims’ – ‘Pay’ – ‘Salarios de tramitacion’ – Payment guaranteed by the guarantee institution – Payment subject to the adoption of a judicial decision.

Citations:

C-442/00, [2002] EUECJ C-442/00

Links:

Bailii

Statutes:

Directive 80/987/EEC

Jurisdiction:

European

Employment

Updated: 28 May 2022; Ref: scu.178725

Regina v Commissioners of Customs and Excise ex parte Lunn Poly and another: Admn 2 Apr 1998

The application of differential rates of insurance premium tax, in order to prevent price shifting between products sold together, was against European law and void.

Citations:

Times 08-Apr-1998, [1998] EWHC Admin 391

Links:

Bailii

Statutes:

EC Treaty Art 92(1), Finance Act 1997

Jurisdiction:

England and Wales

European

Updated: 27 May 2022; Ref: scu.138512

Regina v Her Majesty’s Treasury; Commissioners of Customs and Excise and Attorney General ex parte Shepherd Neame Limited: Admn 21 Jan 1998

UK government has sole discretion on imposition of beer duties, not subject to challenge within European Community context.

Citations:

Times 02-Feb-1998, [1998] EWHC Admin 43

Links:

Bailii

Statutes:

Finance (No 2) Act 1997 8

Customs and Excise, European

Updated: 27 May 2022; Ref: scu.138164

Rewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment): ECJ 16 Dec 1976

‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’
1. The prohibition laid down in article 13 of the treaty and that laid down in article 13 of regulation no 159/66/eec have a direct effect and confer on citizens rights which the national courts are required to protect.
2. In the absence of community rules on this subject, it is for the domestic legal system of each member state to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. The position would be different only if the conditions made it impossible in practice to exercise the rights which the national courts are obliged to protect.

Citations:

C-33/76, [1976] ECR 1989, R-33/76, [1976] EUECJ R-33/76, [1976] EUECJ R-33/76, [1976] ECR 1989, [1977] 1 CMLR 533

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Preston and Others v Wolverhampton Healthcare NHS Trust and Others, Fletcher and Others v Midland Bank Plc (No 2) HL 8-Feb-2001
Part-time workers claimed that they had been unlawfully excluded from occupational pension schemes because membership was dependent on an employee working a minimum number of hours per week and that that was discriminatory because a considerably . .
Cited – Harmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 27 May 2022; Ref: scu.132443

Aristides Vlachos v Court Of Justice Of The European Communities.: ECJ 13 Dec 1984

ECJ 1. While recruitment marks entry into a category or a service of the community institutions, promotion governs the advancement of the career thus begun within the category or service which the candidate has entered. The community institutions are therefore right to treat an official’s appointment to a higher career bracket following an internal competition as promotion and in that regard to apply the rules of the staff regulations on promotion properly so called. The official ‘promoted’ through that procedure may not be treated more favourably under the staff regulations than an official who has completed the required minimum period of service.
2. An official eligible for promotion who had to complete a probationary period before being established must, even after completion of the probationary period, complete the minimum period of service required by the staff regulations.

Citations:

C-21/83, [1984] EUECJ C-21/83

Links:

Bailii

Jurisdiction:

European

Employment

Updated: 27 May 2022; Ref: scu.215275

Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue: SC 23 May 2012

The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European subsidiaries, breach of EU Treaty guarantees of freedom of establishment and of movement of capital. The court was now asked as to the calculation of damages. Two remedies might be available: a demand for repayment of tax unlawfully demanded (under Woolwich), or for tax paid under a mistake of law (under DMG). The first would be time barred. The limit had been relaxed under the 1980 Act for the second. The Court of Appeal had found the Woolwich type remedy the appropriate one. The taxpayer appealed.
Held: As to whether Parliament had the right to amend the law in a way which disallowed access to both types of claims, the principle issue, a reference was made back to the European Court. The claimants’ appeal were dismissed on the issues of the application of section 32(1)(c) of the 1980 Act applied to their claims, and as to the significance of the difference between tax paid under demand or on filing a tax return.
The appeal succeeded in arguing that section 33 can be given an interpretation which conforms with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available to the appellants. The appeal on this issue was allowed.
Lord Hope said: ‘I would hold that Parliament could not lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action by section 320 FA 2004.’

Judges:

Lord Hope, Deputy President, Lord Walker, Lord Brown, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed

Citations:

[2012] UKSC 19, [2012] WLR(D) 161, [2012] STC 1362, [2012] 2 WLR 1149, [2012] 3 All ER 909, [2012] BTC 312, [2012] 2 AC 337, [2012] Bus LR 1033, [2012] STI 1707, UKSC 2010/0085

Links:

Bailii, SC, SC Summary

Statutes:

Limitation Act 1980 32(1)(c), Finance Act 2007 107

Jurisdiction:

England and Wales

Citing:

At First Instance – Test Claimants In the FII Group Litigation v HM Revenue and Customs ChD 27-Nov-2008
The claimants were companies with parent companies in the UK and other subsidiaries not so resident, both in the EU and outside. They complained of the differences in treatment under corporation tax of the payment of dividends between the . .
Appeal from – Franked Investment Group Litigation Test Claimants v Inland Revenue and Another CA 23-Feb-2010
. .
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 – ACF Chemiefarma v Commission ECJ 15-Jul-1970
ECJ 1. The provisional character conferred by article 9(3) of Regulation no 17 on steps taken by national authorities in connexion with the implementation of article 85 of the EEC Treaty cannot call in question . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
At ECJ – Test Claimants In The FII Group Litigation v CIR ECJ 12-Dec-2006
ECJ (Opinion of Geelhoed AG) Interpretation of Articles 43 and 56 EC and Articles 4(1) and 6 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent . .
Cited – Brooksbank v Smith 24-Feb-1836
In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
Cited – Baker v Courage and Co 1910
The plaintiff had owned a public house. On selling the leasehold to the defendants brewers, they had overpaid him by andpound;1,000. He deposited a sum at interest with the defendants. When he came to withdraw the last of the deposit (by coincidence . .
Cited – Phillips-Higgins v Harper QBD 1954
A claim was made to recover monies due under a contract where the plaintiff had failed to realise that the balance was due to her, and by that mistake the action was concealed from her.
Held: Pearson J said: ‘But that is not sufficient. . .
Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .
Cited – Morgan Guaranty v Lothian Regional Council SCS 1-Dec-1994
. .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Boake Allen Ltd and others v HM Revenue and Customs CA 31-Jan-2006
The claimant companies had paid corporation tax under rules which had later been found to be discriminatory. They now sought repayment by virtue of double taxation agreements with the countries in which the parent companies were based.
Held: . .
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 – NEC Semi-Conductors Limited and Other Test Claimants v The Commissioners of Inland Revenue ChD 24-Nov-2003
UK companies were subsidiaries of companies resident abroad, and complained that they were unable to make group income elections.
Held: The prohibition infringed non-discrimination provisions of double taxation agreements – non-discrimination . .

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

European, Corporation Tax, Limitation, Taxes Management, Damages

Leading Case

Updated: 27 May 2022; Ref: scu.459618

Fleming (T/A Bodycraft) v Revenue and Customs: HL 23 Jan 2008

The transitional rules introducing time limits for failing to deduct VAT inputs made insufficient allowance for the decisions in Marks and Spencer and Grundig.
Held: Lord Hope said: ‘To be compatible with EU law, taxpayers were entitled to be told in advance of any transitional arrangements that would enable them to submit late accrued claims for the deduction of input tax despite the introduction of the time limit. They were entitled to be given sufficient notice to familiarise themselves with the new regime, including the period of grace that was to be allowed for the submission of accrued claims during a transitional period.’

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Carswell, Lord Neuberger of Abbotsbury

Citations:

[2008] UKHL 2, [2008] 1 All ER 1061, [2008] BVC 221, [2008] Eu LR 455, [2008] STI 181, [2008] NPC 5, [2008] 1 WLR 195, [2008] BTC 5096, [2008] 1 CMLR 48, [2008] STC 324

Links:

Bailii

Statutes:

Value Added Tax Act 1994, Value Added Tax Regulations 1995 (SI 1995/2518).

Jurisdiction:

England and Wales

Citing:

Cited – Marks and Spencer plc v Commissioners of Customs and Excise ECJ 11-Jul-2002
The claimant challenged the reduction of the limitation period from six years to three for the reclaiming of overpaid VAT with immediate effect, depriving it of the opportunity to recover sums paid in excess. The company sold vouchers. It paid VAT . .
Cited – Grundig Italiana SpA v Minstero delle Finanze ECJ 24-Sep-2002
Europa Internal taxes contrary to Community law – Recovery of sums paid but not due – National legislation retroactively reducing time-limits for bringing proceedings – Compatibility with the principle of . .
At VDT – Fleming (T/A Bodycraft) v Customs and Excise VDT 23-Apr-2004
VDT INPUT TAX – whether claim made in 2000 for input tax for 1989 and 1990 for which no tax invoice was issued was part of a claim made in 1993 – no – whether the 2000 claim was prevented by the 3 year cap . .
At ChD – Fleming T/A Bodycraft v Commisioners of Customs and Excise ChD 25-Feb-2005
Appeal against dismissal of the Appellant’s appeal from the decision of the Commissioners of Customs and Excise to refuse to repay to the Appellant input tax on three new Aston Martin motor cars out of a batch of thirteen such cars purchased by the . .

Cited by:

Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
Cited – Revenue and Customs v Taylor Clark Leisure Plc SC 11-Jul-2018
Several companies within a group paid VAT. Later the basis of charge to output VAT was revised, and a reclaim became due, but the VAT group had been dissolved. Could the appellant, former lead within the group now make the reclaim.
Held: . .
Cited – Prudential Assurance Company Ltd v Revenue and Customs SC 25-Jul-2018
PAC sought to recover excess advance corporation tax paid under a UK system contrary to EU law. It was now agreed that some was repayable but now the quantum. Five issues separated the parties.
Issue I: does EU law require the tax credit to be . .
Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Leading Case

Updated: 27 May 2022; Ref: scu.263817

FMX Food Merchants Import Export Co Ltd v Revenue and Customs: SC 29 Jan 2020

This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court now considered the time limits for such demands. The tax payer imported garlic, saying it was from Cambodia and exempt, but the respondent said they were from China and subject to duty. The taxpayer said the demand was issued outside a three year time limit.
Held: The appeal was allowed. The post clearance demand system was in place to allow criminal proceedings to take their full course, and the likelihood of such proceedings disapplied the three year limit. The domestic law doctrines of abuse of process and laches concern the conduct of legal proceedings, not the communication of a customs debt and did not assist. The Limitation Act specifically excluded customs debts. EU law provided that where no limit applied, action was required in a reasonable time, and on the facts here, HMRC had so acted. No reference was required to the ECJ.

Judges:

Lord Reed, Lord Hodge, Lord Briggs, Lady Arden, Lord Kitchin

Citations:

[2020] UKSC 1, [2020] STC 363, [2020] 2 All ER 161, [2020] 1 WLR 757, [2020] WLR(D) 55, UKSC 2018/0218

Links:

Bailii, SC Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2019 Oct 14 am Video, SC 2019 Oct 14 pm Video

Jurisdiction:

England and Wales

Citing:

At FTTTx – FMX Food Merchants Ltd v Revenue and Customs FTTTx 29-Nov-2013
FTTTx Customs duty – import of Chinese garlic, falsely declared as Cambodian in origin – late issue of post-clearance demand note for unpaid duty – whether the customs debt was the result of an act which, at the . .
At UTTC – Revenue and Customs v FMX Food Merchants Import Export Co Ltd UTTC 10-Dec-2015
Customs Duty – import of Chinese garlic falsely declared as Cambodian origin – Customs Code Art 221 – customs debt resulting from a criminal act – post clearance demand issued after expiry of the three year period – no express provisions in UK law . .
Appeal from – FMX Food Merchants Import Export Co Ltd v HM Revenue and Customs CA 30-Oct-2018
Post-clearance demand for customs duty almost seven years after the taxpayer had imported garlic into the United Kingdom, which had been falsely declared to be of a certain origin, and just under four years after the customs became aware of the . .
Cited – Rewe-Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Judgment) ECJ 16-Dec-1976
‘the right of individuals to rely on the directly effective provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty’
1. The . .
Cited – Valsts ienemumu dienests v Veloserviss SIA ECJ 10-Dec-2015
(Judgment) Reference for a preliminary ruling – Community Customs Code – Post-clearance examination of declarations – Principle of the protection of legitimate expectations – National rules placing restrictions on re-examination of the results of a . .
Cited – Firma Ernst Kollmer Fleischimport Und -Export v Hauptzollamt Hamburg-Jonas ECJ 6-Oct-2015
Judgment – Reference for a preliminary ruling – Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Article 1(2) and the first subparagraph of Article 3(1) – Recovery of an export refund – Limitation period . .
Cited – Haahr Petroleum v Abenra Havn and others ECJ 17-Jul-1997
(Judgment) Maritime transport – Goods duty – Import surcharge . .
Cited – Sanders And Others v Commission (Staff Regulations) ECFI 5-Oct-2004
Claim for damages for loss sustained as a result of the alleged failure to recruit the applicants as temporary servants of the European Communities during the time they worked for the Joint European Torus (JET) Joint Undertaking. It was, in essence, . .
Cited – Nencini v Parliament ECJ 19-Jun-2014
ECJ (Advocate General’s Opinion) Appeal – Former Member of the European Parliament – Allowances to cover expenses incurred in the performance of parliamentary duties – Debt resulting from the application of the . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – Agra Srl v Agenzia Dogane – Ufficio delle Dogane di Alessandria ECJ 17-Jun-2010
Europa Regulation (EEC) No 2913/92 – Community Customs Code – Article 221(3) and (4) – Post-clearance recovery of the customs debt – Limitation period – Act which could give rise to criminal court proceedings. . .
Cited – Allen and Others v Commission (Appeal) ECJ 14-Dec-2011
Appeal – Staff employed at the JET joint undertaking – Application of a legal status different from that of members of the temporary staff – Compensation for material damage suffered – Time-limits for instituting proceedings – Late submission – . .
Cited – Ze Fu Fleischhandel, Vion Trading GmbH v Hauptzollamt Hamburg-Jonas ECJ 5-May-2011
ECJ Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Article 3 – Recovery of an export refund – 30-year limitation period – Limitation rule forming part of the . .
Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – Fleming (T/A Bodycraft) v Revenue and Customs HL 23-Jan-2008
The transitional rules introducing time limits for failing to deduct VAT inputs made insufficient allowance for the decisions in Marks and Spencer and Grundig.
Held: Lord Hope said: ‘To be compatible with EU law, taxpayers were entitled to be . .
Cited – Swansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .
Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, European

Updated: 27 May 2022; Ref: scu.646807

Nencini v Parliament: ECJ 19 Jun 2014

ECJ (Advocate General’s Opinion) Appeal – Former Member of the European Parliament – Allowances to cover expenses incurred in the performance of parliamentary duties – Debt resulting from the application of the procedure for recovery of overpayments – Prescription rules – Article 73 bis of the Financial Regulation – Dies a quo – Article 85b of the Implementing Rules – Principle of legal certainty – Principle of reasonable time

Judges:

Szpunar AG

Citations:

C-447/13, [2014] EUECJ C-447/13 – O, [2014] EUECJ C-447/13

Links:

Bailii, Bailii

Jurisdiction:

European

Cited by:

Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 27 May 2022; Ref: scu.527246

Agra Srl v Agenzia Dogane – Ufficio delle Dogane di Alessandria: ECJ 17 Jun 2010

Europa Regulation (EEC) No 2913/92 – Community Customs Code – Article 221(3) and (4) – Post-clearance recovery of the customs debt – Limitation period – Act which could give rise to criminal court proceedings.

Citations:

C-75/09, [2010] EUECJ C-75/09

Links:

Bailii

Statutes:

Regulation (EEC) No 2913/92

Jurisdiction:

European

Cited by:

Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise

Updated: 27 May 2022; Ref: scu.420170

Rewe-Zentralfinanz Egmbh v Direktor Der Landwirtschaftskammer Westfalen-Lippe: ECJ 11 Oct 1973

Customs duties – charges having an effect equivalent to – meaning – phyto-sanitary examination – charges – imposition – prohibition
(EEC treaty, article 13 (2))
pecuniary charges, whatever their amount, imposed for reasons of phyto-sanitary examination of products when they cross the frontier, which are determined according to criteria of their own, which criteria are not comparable with those for determining the pecuniary charges attaching to similar domestic products, are deemed charges having an effect equivalent to customs duties.
The activity of the administration of the state intended to maintain a phyto-sanitary system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge.

Citations:

R-39/73, [1973] EUECJ R-39/73

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 27 May 2022; Ref: scu.214336

Ze Fu Fleischhandel, Vion Trading GmbH v Hauptzollamt Hamburg-Jonas: ECJ 5 May 2011

ECJ Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Article 3 – Recovery of an export refund – 30-year limitation period – Limitation rule forming part of the general civil law of a Member State – Application ‘by analogy’ – Principle of legal certainty – Principle of the protection of legitimate expectations – Principle of proportionality.

Judges:

J-C Bonichot, President

Citations:

C-201/10, [2011] EUECJ C-201/10

Links:

Bailii

Statutes:

Regulation (EC, Euratom) No 2988/95

Jurisdiction:

European

Cited by:

Cited – FMX Food Merchants Import Export Co Ltd v Revenue and Customs SC 29-Jan-2020
This appeal concerns the meaning and effect of the phrase ‘Customs Debt’ in article 221(4) of the former Customs Code of the EU, contained in Council Regulation (EEC) No 2913/92. Customs duties may be due under ‘post-clearance demands’ and the Court . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 27 May 2022; Ref: scu.439641

Etihad Airways Pjsc v Flother: CA 18 Dec 2020

‘ important issue of principle concerning the scope and effect of Article 31(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (‘Brussels Recast’). The issue, shortly stated, is whether Article 31(2), on its true interpretation as a matter of EU law, applies to an agreement conferring exclusive jurisdiction on the courts of a Member State of the EU, in circumstances where the exclusive choice of court agreement applies to proceedings initiated by one party, but not (or not necessarily) to proceedings initiated by the other party. ‘

Judges:

Lord Justice Henderson

Citations:

[2020] EWCA Civ 1707

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, European

Updated: 26 May 2022; Ref: scu.656877

Konkurrensverket v SJ: ECJ 19 Sep 2018

(Opinion) Reference for a preliminary ruling – Public contracts in the rail transport sector – Network provision or operation activities – Concept of network – Award of a contract for the cleaning of trains by a wholly owned State railway undertaking – No prior call for competition

Citations:

C-388/17, [2018] EUECJ C-388/17 – O, [2019] EUECJ C-388/17

Links:

Bailii, Bailii

Jurisdiction:

European

Transport

Updated: 26 May 2022; Ref: scu.622618