Category: European

Kempf v Staatssecretaris Van Justitie: ECJ 3 Jun 1986

The term ‘worker’ when used within community legislation should not be interpreted restrictively.

Citations:

C-139/85, R-139/85, [1986] EUECJ R-139/85, [1986] ECR 1741

Links:

Bailii

Cited by:

Cited – Barry v London Borough of Southwark CA 19-Dec-2008
The claimant a citizen of the Netherlands, appealed against the refusal to grant him housing assistance. He had been unemployed save for taking casual work during the Wimbledon championships, but the Authority had denied that he was a worker. He had . .
Cited – Prix v Secretary of State for Work and Pensions SC 31-Oct-2012
The claimant had come from France to England, and worked as a teaching assistant. She set out on a course to train as a teacher but became pregnant, gave up the course, and eventually gave up work temporarily. Her claim to Income Support was refused . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 May 2022; Ref: scu.134103

Commission v Belgium: ECJ 18 Mar 1986

ECJ 1. The purpose of the pre-litigation procedure provided for by article 169 of the Treaty, which forms part of the general supervisory tasks entrusted to the commission by the first indent of article 155, is to give the member state concerned an opportunity either to justify its position or, if it so wishes, to comply of its own accord with the requirements of the treaty. If that attempt to reach a settlement proves unsuccessful, the member state concerned is requested to comply with its obligations as set out in the reasoned opinion within the period prescribed therein.
2. Article 12(b) of the Protocol on the privileges and immunities of the European Communities provides that officials and other servants of the community are exempt from any requirement to register in the population registers in the member states in which the places of employment of the community institutions are situated. It follows from that provision and article 5 of the EEC Treaty that the member states must refrain from adopting any measure which would have the effect of compelling officials and other servants of the community, whether directly or indirectly, to apply for registration in the population registers. A constraint of that kind is operative in particular where a member state attaches unfavourable consequences to non-registration by officials and other servants of the communities. Municipal by-laws which have the effect of subjecting officials and other servants of the communities residing within the territory of the municipalities concerned to an indirect constraint to register in the population registers in order to avoid liability to a municipal tax are therefore contrary to article 5 of the treaty in conjunction with article 12(b) of the protocol on the privileges and immunities of the european communities.
3. The existence of remedies available through the national courts for challenging measures incompatible with community law cannot prejudice the making of the application referred to in article 169 of the Treaty since the two procedures have different objectives and effects.

Citations:

C-85/85, [1986] EUECJ C-85/85

Links:

Bailii

European

Updated: 22 May 2022; Ref: scu.134080

Ahlstrom v Commission: ECJ 20 Jan 1994

ECJ Procedure – Costs – Rectification of the judgment

Citations:

C-89/85, [1994] EUECJ C-89/85

Links:

Bailii

Citing:

See Also – A Ahlstrom Osakeyhtio and others v Commission ECJ 31-Mar-1993
ECJ 1. The statement of objections, the aim of which is to provide undertakings alleged to have infringed the rules of competition with all the information they need to enable them to defend themselves . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 May 2022; Ref: scu.134083

A Ahlstrom Osakeyhtio and others v Commission: ECJ 31 Mar 1993

ECJ 1. The statement of objections, the aim of which is to provide undertakings alleged to have infringed the rules of competition with all the information they need to enable them to defend themselves effectively before the Commission adopts a final decision, must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to take cognizance of the conduct complained of by the Commission.
That requirement is not fulfilled by a statement of objections which, in contrast to the Commission’ s final decision, does not set out distinctly the two infringements involved, each having its own characteristics which relate to factors as crucial as the participants in the consultation or the period of the infringement.
2. A concerted practice refers to a form of coordination between undertakings which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. The criteria of coordination and cooperation which enabled that term to be defined must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market.
Those criteria are not satisfied in the case of price announcements which are made by producers to users and which, in themselves, constitute market behaviour which does not lessen each undertaking’ s uncertainty as to the future attitude of its competitors since, at the time when each undertaking engages in such behaviour, it cannot be sure of the future conduct of the others.
3. Parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. It is necessary to bear in mind that, although Article 85 of the Treaty prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors.
4. In order to comply with the rights of the defence in a procedure involving the application of the competition rules, the undertakings concerned must have been afforded the opportunity, before the Commission adopts its decision, to make known their views on the allegations made against them and on the documents on which those allegations are based.
Those rights are not complied with where, in establishing the infringement set out in its final decision, the Commission must have relied on documents gathered after the statement of objections was drawn up and on which the undertakings concerned have had no opportunity to make their views known.
5. Any agreement whose object or effect is to restrict competition by fixing prices for an intermediate product is capable of affecting intra-Community trade, even if there is no trade in that product between Member States, where the product constitutes the raw material for another product marketed elsewhere in the Community.
6. If an agreement is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or fact, that the agreement may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way that it might hinder the attainment of the objectives of a single market between States.
7. The fact that a clause contained in an agreement between undertakings and intended to restrict competition has not been implemented by the contracting parties is not sufficient to remove it from the prohibition in Article 85(1) of the Treaty.
8. By its nature, a clause contained in an agreement between undertakings and designed to prevent a buyer from reselling or exporting goods he has bought is liable to partition the markets and consequently to affect trade between Member States.
9. An undertaking given to the Commission by undertakings in a procedure involving the application of the competition rules must be regarded as a measure which can be the subject of an action for annulment under Article 173 of the Treaty. The obligations imposed by that undertaking must be treated in the same way as orders requiring an infringement to be brought to an end, as provided for by Article 3 of Regulation No 17, which authorizes the Commission to take any measures, including both orders to act and injunctions to refrain from acting, which are necessary to terminate the infringement established. In giving that undertaking, the undertakings merely assent, for their own reasons, to a decision which the Commission is empowered to adopt unilaterally.
10. Where an undertaking has acted in breach of Article 85(1) of the Treaty, it cannot escape being penalized altogether on the ground that another trader has not been fined, when that trader’ s circumstances are not even the subject of proceedings before the Court.

Judges:

GC Rodriguez Iglesias, P

Citations:

C-89/85, [1993] ECR I-1307, [1993] 4 CMLR 407, [1993] EUECJ C-89/85

Links:

Bailii, Bailii

Cited by:

See Also – Ahlstrom v Commission ECJ 20-Jan-1994
ECJ Procedure – Costs – Rectification of the judgment . .
Cited – Deutsche Bahn Ag and Others v Morgan Advanced Materials Plc SC 9-Apr-2014
The Court was asked whether claims against MAM for losses suffered by reason of a cartel infringing article 81(1) TEC (now article 101 TFEU) were time-barred, and also as to substantive questions about the nature of the decisions of the European . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 22 May 2022; Ref: scu.134084

Cockerill-Sambre v Commission: ECJ 26 Nov 1985

ECJ 1. Notice of an ECSC individual decision addressed to an undertaking may be properly and validly given at the latter’s registered office, even if the undertaking has asked the commission to give notice at another address.
2. If notice of an ECSC individual decision has been properly and validly given at the registered office of the undertaking to which it is addressed, neither the fact that the commission did not reply to the undertaking’s letters seeking to have notice given at another address, nor the undertaking’s internal problems of communication constitute unforeseeable circumstances or force majeure within the meaning of article 39 of the statute of the court of justice of the european coal and steel community.

Citations:

C-42/85, [1985] EUECJ C-42/85

Links:

Bailii

European

Updated: 22 May 2022; Ref: scu.134046

Adams v Commission: ECJ 11 Mar 1986

1. The fact that an official has submitted a request for reconsideration of a decision adversely affecting him cannot prevent the time for bringing an action against that decision from running. Any other solution – that is, if officials were able, by the repeated submission of requests of that sort, indefinitely to extend the time- limit for bringing an action – would be incompatible with the system of remedies instituted by the staff regulations and with the principle of legal certainty. 2. An action brought against a decision not to admit a candidate to a competition adopted after reconsideration of an identical previous decision is admissible in so far as it appears that the second decision actually replaced the first and cannot be regarded as merely confirming it. 3. An official cannot rely, in support of an action brought against a decision not to admit him to a competition, on submissions alleging irregularities in the competition notice if he did not challenge in good time the provisions of that notice which, in his view, adversely affected him. Were it otherwise, it would be possible to challenge a competition notice long after it had been published and after most or all of the operations carried out in connection with the competition had already taken place, and that would be contrary to the principles of legal certainty, legitimate expectation and sound administration. 4 . In the context of a competition the selection board is called upon to assess factors known to the candidates, whether it be qualifications which they hold, tests which they have undergone or periodic reports of which they are aware and on which they have had an opportunity to comment. That constitutes a guarantee that the competition will be properly conducted and a protection against arbitrariness, inasmuch as the candidates are aware of all the factors which entered into the selection board’s assessment and are therefore well placed to contest that assessment if they consider that it is wrong. If, on the other hand, the selection board bases its decision at least in part, as it did in this case, on factors such as information supplied by, and the opinions of, the candidates’ superiors, of which the candidates concerned have no knowledge, they have no opportunity to defend themselves against statements made by third parties which, though they may well be perfectly correct, may also be incorrect for one reason or another. The fact that candidates did not have an opportunity to state their views on the opinions expressed on them by their superiors, account of which was taken by the selection board, constitutes a breach of a principle governing the competition procedure which justifies annulment of decisions refusing to admit those candidates.

Citations:

C-294/84, [1986] EUECJ C-294/84

Links:

Bailii

European

Updated: 22 May 2022; Ref: scu.134006

Zuckerfabrik Bedburg v Council and Commission: ECJ 14 Jan 1987

1. Article 215 of the Treaty does not prevent the court from being asked to declare the community liable for imminent damage foreseeable with sufficient certainty even if the damage cannot yet be precisely assessed.
2. The lawfulness of Regulations nos 855/84 and 2677/84 cannot be called in question with regard to article 39 (1) of the treaty since article 39(1)(b) cannot be interpreted as guaranteeing the processing industry a certain profit margin and the other objectives referred to in article 39 have not been jeopardized by the modification of the representative rates by the contested regulations.
Neither the monetary compensatory amounts nor the representative rates are intended to guarantee that each individual trader will receive for his products a price that, expressed in the national currency, does not vary, so that a reduction of the value in national currency of the stocks held by traders following a revaluation of the representative rates intended to approximate those rates to the central rates cannot in itself constitute interference with the property rights of those traders.
3. In order to consider whether a provision of community law is in conformity with the principle of proportionality it is necessary to check whether the measures imposed by the provision are appropriate for achieving the intended objective and whether they exceed the limits of what is necessary to that end.
4. The community is not liable to sugar-processing undertakings in a member state for losses they suffer as a result of the alteration of the representative rates by regulations nos 855/84 and 2677/84, since the alteration and the terms of its implementation were not unforeseeable, met the general interest and contained transitional measures intended to mitigate the effects for the said undertakings.

Citations:

C-281/84, [1987] EUECJ C-281/84

Links:

Bailii

European

Updated: 22 May 2022; Ref: scu.133997

Spijkers v Gebroeders Benedik Abattoir: ECJ 18 Mar 1986

ECJ Social policy – approximation of laws – transfers of undertakings – safeguarding of employees’ rights – Directive no 77/187 – transfer – meaning
(Council Directive no 77/187, art. 1(1).
The expression’ transfer of an undertaking, business or part of a business to another employer’ in article 1(1) of directive no 77/187 envisages the case in which the business in question retains its identity. In order to establish whether or not such a transfer has taken place, it is necessary to consider whether, having regard to all the facts characterizing the transaction, the business was disposed of as a going concern, as would be indicated inter alia by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities.

Citations:

[1986] 2 CMLR 296, C-24/85, [1986] ECR 1119, R-24/85, [1986] EUECJ R-24/85

Links:

Bailii

Cited by:

Cited – Ronald McLeod, James Welsh v Charles Bingram T/Aphoenix Taxis Rainbow Cars Ltd T/A Rainbow Taxis EAT 22-Apr-2002
EAT Transfer of Undertakings – Transfer
A company purported to dissolve, but the business was then effectively resurrected by the second respondent. The claimants asserted that there had been a transfer . .
Cited – 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 . .
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 . .
Cited – Gefco UK Ltd v J S Oates Car and Delivery Co Ltd EAT 17-Jun-2005
EAT TUPE
Employment Tribunal correctly applied relevant European Court of Justice authorities in assessing the Spijkers factors and holding there was a relevant transfer of part of an undertaking. . .
Lists of cited by and citing cases may be incomplete.

European, Employment

Updated: 22 May 2022; Ref: scu.134033

F Berghoefer GmbH and Co KG v ASA SA: ECJ 11 Jul 1985

Brussels Convention – Interpretation of Article 17 – Validity of an oral jurisdiction agreement confirmed in writing by one party only.
‘It must be pointed out that . . article 17 of the Convention does not expressly require that the written confirmation of an oral argument should be given by the party who is to be affected by the agreement. Moreover, as the various observations submitted to the Court have rightly emphasized, it is sometimes difficult to determine the party for whose benefit a jurisdiction agreement has been concluded before proceedings have actually been instituted.
If it is actually established that jurisdiction has been conferred by express oral agreement and if confirmation of that oral agreement by one of the parties has been received by the other and the latter has raised no objection to it within a reasonable time thereafter, the aforesaid literal interpretation of article 17 will also, as the Court has already decided in another context . . be in accordance with the purpose of that article, which is to ensure that the parties have actually consented to the clause. It would therefore be a breach of good faith for a party who did not raise any objection subsequently to contest the application of the oral agreement.’

Citations:

C-221/84, R-221/84, [1985] EUECJ R-221/84, [1985] ECR 2699

Links:

Bailii

Cited by:

Cited – Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
Lists of cited by and citing cases may be incomplete.

European, Jurisdiction

Updated: 22 May 2022; Ref: scu.133963

Johnston v Chief Constable of the Royal Ulster Constabulary: ECJ 15 May 1986

The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which underlies the constitutional traditions common to the member states and which is laid down in articles 6 and 13 of the Convention, does not allow a certificate issued by a national authority stating that the conditions for derogating from the principle of Equal Treatment for men and women for the purposes of protecting public safety are satisfied to be treated as conclusive evidence so as to exclude the exercise of any power of review by the courts. The provision contained in article 6 to the effect that all persons who consider themselves wronged by discrimination between men and women must have an effective judicial remedy may be relied upon by individuals as against a member state which has not ensured that it is fully implemented in its internal legal order. It is not permissible to read into the treaty, regardless of the specific cases envisaged by certain of its provisions, a general proviso covering any measure taken by a member state for reasons of public safety. Recognition of such a general proviso might impair the binding nature of community law and its uniform application. It follows that acts of sex discrimination done for reasons related to the protection of public safety must be examined in the light of the derogations from the principle of equal treatment of men and women. Since article 2 (2) of Directive 76/207 authorizes derogations from the right to equal treatment as regards access to employment and working conditions, it must be interpreted strictly and applied in accordance with the principle of proportionality. In deciding whether, by reason of the context in which the activities of a police officer are carried out, the sex of the officer constitutes a determining factor for that occupational activity, it is not excluded that a member state may take into consideration, subject to control by the national courts, requirements of public safety in order to restrict general policing duties, in an internal situation characterized by frequent assassinations, to men equipped with fire-arms. Since article 2 (3) of directive 76/207 authorizes derogations from the right to equal treatment as regards access to employment and working conditions, it must be interpreted strictly. The protection of women which it envisages does not include protection against the risks and dangers, such as those to which any armed police officer is exposed when performing his duties in a given situation, that do not specifically affect women as such. In all cases in which a directive has been properly implemented its effects reach individuals through the implementing measures adopted by the member states concerned. The member states ‘ obligation to achieve the result envisaged by a directive and their duty under article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of the member states including, for matters within their jurisdiction, the courts. It follows that, in applying national law, and in particular the provisions of national legislation specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of article 189 of the eec treaty. Individuals may claim the application, as against a state authority charged with the maintenance of public order and safety acting in its capacity of employer, of the principle of equal treatment for men and women laid down in article 2 (1) of directive 76/207 to the matters referred to in articles 3 (1) and 4 concerning the conditions for access to posts and to vocational training and advanced vocational training in order to have a derogation from that principle contained in national legislation set aside in so far as it exceeds the limits of the exceptions permitted by article 2 (2).

Citations:

C-222/84, [1986] ECR 1651, [1987] QB 129, [1986] 3 WLR 1038, [1987] ICR 83, [1986] 3 All ER 135, R-222/84, [1986] EUECJ R-222/84

Links:

Bailii

Statutes:

Council Directive 76/207 6

Cited by:

Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Barracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Doughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination, Human Rights

Updated: 22 May 2022; Ref: scu.133964