Category: European

Acciaieria Ferriera Di Roma v ECSC High Authority: ECJ 10 May 1960

1. The provisions governing the language of the case are not provisions appertaining to public policy.
2. The court is cognizant of four languages as are all the institutions of the three communities. Therefore, by virtue of an irrebuttable presumption of law, the court is deemed to have knowledge of the contents of documents produced which are drawn up in the official languages of the community. Such a document may not be regarded as a fact unknown to the court within the meaning of the first paragraph of article 38 of the statute of the court annexed to the ecsc treaty.
3. An application for revision of a judgment is admissible only on discovery of a fact which, on the one hand, was unknown both to the court and to the party applying for the revision when the judgment was given and, on the other hand, is of such a nature as to be a decisive factor relating to the judgment the revision of which is claimed.

Citations:

C-1/60, [1960] EUECJ C-1/60

Links:

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European

Updated: 20 May 2022; Ref: scu.131623

Hamborner Bergbau Ag and Others v ECSC High Authority: ECJ 16 Dec 1960

ECJ Judgment – Procedure – action for failure to act – amendment of legal basis of an application – inadmissibility (ECSC treaty, article 35 ) when the matter was raised with the high authority within the meaning of article 35 it was asked to take a decision concerning the applicant’s request on the basis of a specific legal ground . Since the implied decision of refusal was taken within the context of this claim and of the legal ground pleaded, an action brought against the implied decision of refusal which puts forward a different claim based on a different ground is inadmissible .

Citations:

C-41/59, [1960] EUECJ C-41/59

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European

Updated: 20 May 2022; Ref: scu.131614

Commission EEC v Italy: ECJ 19 Dec 1961

ECJ In the case of an action under the second paragraph of article 169 of the EEC Treaty, it is for the court to say whether the failure has occurred, without having to examine whether, subsequent to the bringing of the action, the state in question took the measures necessary to bring the infringement to an end.
The opinion referred to in article 169 of the eec treaty must be considered to contain a sufficient statement of reasons to satisfy the law when it contains a coherent exposition of the reasons which led the commission to the conviction that the state concerned failed to fulfil an obligation under the treaty.
The ‘standstill’ obligation laid down in article 31 of the EEC Treaty is absolute; it comprises no exceptions, not even partial or temporary ones.
The protective measures referred to in article 226 may only be authorized within the framework of the special procedure prescribed by that article, that is to say, on unequivocal, formal application by the government concerned, since the measures constitute exceptions to the rules of the treaty, liable to disturb the functioning of the common market.
Member states may not rely on either the urgency or the seriousness of a situation to evade the procedure of article 226. By the very fact that it was provided as an emergency procedure, this procedure excludes any unilateral action by member states.
As distinct from article 226 of the eec treaty, article 36 of the treaty is directed to eventualities of a non-economic kind which are not liable to prejudice the principles laid down by articles 30 to 34. In particular, that article does not establish a generic protective clause additional to that provided by article 226 and allowing member states to derogate by unilateral action from the procedure and the guarantees laid down by that provision.

Citations:

C-7/61, [1961] EUECJ C-7/61

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Statutes:

EEC Treaty 169

European

Updated: 20 May 2022; Ref: scu.131640

Jean-E Humblet v Belgian State: ECJ 16 Dec 1960

ECJ Judgment – Interpretation – provisions establishing guarantees for the protection of rights – interpretation in favour of the individual concerned.
Procedure – interpretation or application of the protocol on the privileges and immunities of the ECSC – jurisdiction of the court in relation to member states – limits. (ECSC Treaty, articles 31 and 43; protocol on the privileges and immunities of the ECSC, article 16)
Procedure – interpretation or application of the protocol on the privileges and immunities of the ECSC – infringement of that protocol by a member state – right of action of a community official who has been prejudiced – prior exhaustion of other community procedures (protocol on the privileges and immunities of the ecsc, article 16)
Procedure – interpretation or application of the protocol on the privileges and immunities of the ecsc – exclusive nature of the court’s jurisdiction – right of action – prior exhaustion of rights of recourse to national courts. (Protocol on the privileges and immunities of the ecsc, article 16)
Officials of the ECSC – privileges and immunities – exemption from taxation – individual right (protocol on the privileges and immunities of the ECSC, articles 11 and 13).
Officials of the ecsc – privileges and immunities – exemption from taxation – scope – determination of the rate applicable to other income – assessment on the joint income of an official of the ecsc and of his spouse (protocol on the privileges and immunities of the ecsc, article 11)
Obligations of the member states – measure by a member state contrary to the treaty – ruling by the court – consequences (ecsc treaty, article 86).

Citations:

C-6/60, [1960] EUECJ C-6/60

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European

Updated: 20 May 2022; Ref: scu.131627

Fiddelaar v Commission EEC: ECJ 16 Dec 1960

EAT Judgment – Procedure – proceedings in which the court has unlimited jurisdiction – irregular conclusions – judgment of its own motion against defendant
Officials – on contract – period prior to promulgation of staff regulations – conditions applicable – disputes – jurisdiction of the court (EEC treaty, articles 173, 179)
Officials – on contract – period prior to promulgation of staff regulations – servants within the meaning of article 179 of EEC treaty – concept
Officials – on contract – period before adoption of the staff regulations – contract of employment – public law contract
Officials – on contract – period prior to promulgation of staff regulations – contract of employment – temporary engagement under article 246 of EEC treaty (EES Treaty, article 246(3))
Officials – on contract – period prior to promulgation of staff regulations – contract of employment of unlimited duration – contract pending contract of limited duration (EEC treaty, article 246(3))
Officials – on contract – period prior to promulgation of staff regulations – dismissal – infringement of the principle of good faith – liability of the administration – compensation for damage
Officials – administrative measure – necessity for adequate statement of reasons

Citations:

C-44/59, [1960] EUECJ C-44/59R, [1960] EUECJ C-44/59

Links:

Bailii, Bailii

European

Updated: 20 May 2022; Ref: scu.131620

Netherlands v ECSC High Authority: ECJ 19 Feb 1960

Europa Although for the publication of price-lists and conditions of sale applied within the common market the treaty has expressly given the high authority a legislative power, providing even for review by the consultative committee, the absence of any provision in this respect in article 70 shows that in the transport sector the treaty denies the high authority any express power to take implementing decisions. Neither the wording nor the general structure of the treaty gives the high authority implied legislative power with regard to the publication of transport tariffs. The obligatory publishing of prices does not mean that transport tariffs have to be published. The expressions ‘price-lists and conditions of sale’ in article 60 refer only to price-lists and conditions of sale of goods and not to those of transport for charges are only one element of the seller’s cost price, which he is not required to publish. Nor is it possible to infer general powers for the high authority with regard to checking discrimination from a structural and functional correlation between the obligation to publish the prices of products and the obligation to publish transport costs. The high authority cannot under these powers introduce preventive measures by way of decision and in this connexion lay down that scales or rates must be published, since its legislative power in the matter is exceptional and subject to renunciation by the member states which the treaty does not provide for either expressly or by implication in the sphere of the publication of transport tariffs. Article 88 does not give the high authority legislative power similar to the power with regard to the general law of the treaty. The high authority cannot therefore rely on this provision to take decisions creating obligations on the part of the member states. The only object of the reasoned decision referred to in article 88 is the recording of failure to fulfil obligations arising either from an imperative provision of the treaty or a decision or recommendation prior to the application of this article. Article 88 opens means of implementation and is the ultima ratio enabling the community interests enshrined in the treaty to prevail over the inertia and resistance of member states. Nevertheless article 88 must be strictly interpreted. The recording of a failure on the part of a member state to fulfil an obligation imposed by the treaty cannot, in a matter such as the publication of transport charges where the high authority has no legislative power, relate to the means indicated by the high authority to attain the proposed objective but only to the failure to attain this objective.

Citations:

C-25/59, [1960] EUECJ C-25/59

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131603

De Gezamenlijke Steenkolenmijnen In Limburg v ECSC High Authority: ECJ 24 Mar 1960

(Order only) The government of the Federal Republic of Germany is, for the purpose of making its submissions in support of its conclusions during the written procedure, required to use the language of the case used in the main action, namely Dutch; but is authorized to use the german language for the oral procedure.

Citations:

C-30/59, [1960] EUECJ C-30/59, [1961] EUECJ C-30/59

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European, Litigation Practice

Updated: 20 May 2022; Ref: scu.131607

“Geitling” Ruhrkohlen-Verkaufsgesellschaft mbH, “Mausegatt” Ruhrkohlen-Verkaufsgesellschaft mbH “Prasident” Ruhrkohlen-Verkaufsgesellschaft mbH and associated companies v High Authority of the European Coal and Steel Community: ECJ 12 Feb 1960

ECJ The grounds of a decision limited to stressing the objectives to be attained by the high authority to ensure compliance with the treaty but expressly refraining from laying down precise rules which will have to be settled in the future, do not constitute a decision but simply a notice not binding the high authority in the future and not excluding the possibility of its changing its view. Where a decision contains no provisions having legal effects of a legislative or individual nature but is simply an internal measure taken by the High Authority, the applicant cannot be adversely affected. The claims of the applicant for the annulment of a decision which has not been ‘revoked with retroactive effect’ but simply ‘revoked’ are valid in respect of the period between the entry into force of the decision and its revocation; they have not ‘lost their purpose’; but if the applicant subsequently states to the court that he considers them to have done so, this statement is in the nature of a withdrawal of claim. If the wording of the grounds of a decision wrongly gives the impression that a definite view has already been taken and accordingly that there is a true decision justifying an action being brought and unreasonably causing costs to be incurred, the costs are to be borne in part by the defendant.

Citations:

C-16/59, [1960] EUECJ C-16/59

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131597

Geitling Ruhrkohlen-Verkaufsgesellschaft and Others v ECSC High Authority: ECJ 12 May 1959

ECJ Order – 1. The suspension of the operation of a decision constituting a refusal of authorization is not equivalent to the grant of the authorization refused. That authorization may be granted only by the administration, over which the court has no power of direction. The ‘other . . Interim measures’ referred to in the last paragraph of article 39 of the ecsc treaty can only be of a conservatory nature and do not give the court the power to substitute itself for the administration or to take, even provisionally, administrative decisions in place of the executive.
2. There is no justification for granting a suspension of operation where the applicants fail to establish that the measures prescribed by the contested decision would cause them damage which could not be redressed if the decision were annulled at the hearing of the main action.

Citations:

C-19/59, [1959] EUECJ C-19/59R

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131598

Italy v ECSC High Authority: ECJ 15 Jul 1960

Europa Although for the publication of price-lists and conditions of sale applied within the common market the treaty has expressly given the high authority a legislative power, providing even for review by the consultative committee, the absence of any provision in this respect in article 70 shows that in the transport sector the treaty denies the high authority any express power to take implementing decisions. Neither the wording nor the general structure of the treaty gives the high authority implied legislative power with regard to the publication of transport tariffs. The obligatory publishing of prices does not mean that transport tariffs have to be published. The expressions ‘price-lists and conditions of sale’ in article 60 refer only to price-lists and conditions of sale of goods and not to those of transport for charges are only one element of the seller’s cost price, which he is not required to publish. Nor is it possible to infer general powers for the high authority with regard to checking discrimination from a structural and functional correlation between the obligation to publish the prices of products and the obligation to publish transport costs. The high authority cannot under these powers introduce preventive measures by way of decision and in this connexion lay down that scales or rates must be published, since its legislative power in the matter is exceptional and subject to renunciation by the member states which the treaty does not provide for either expressly or by implication in the sphere of the publication of transport tariffs. Article 88 does not give the high authority legislative power similar to the power with regard to the general law of the treaty. The high authority cannot therefore rely on this provision to take decisions creating obligations on the part of member states. The only object of the reasoned decision referred to in article 88 is the recording of failure to fulfil obligations arising either from an imperative provision of the treaty or a decision or recommendation prior to the application of this article. Article 88 opens means of implementation and is the ultima ration enabling the community interests enshrined in the treaty to prevail over the inertia and resistance of member states. Nevertheless article 88 must be strictly interpreted. The recording of a failure on the part of a member state to fulfil an obligation imposed by the treaty cannot, in a matter such as the publication of transport charges where the high authority has no legislative power, relate to the means indicated by the high authority to attain the proposed objective but only to the failure to attain this objective.

Citations:

C-20/59, [1960] EUECJ C-20/59

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131599

Barbara Erzbergbau AG and others v High Authority of the European Coal and Steel Community: ECJ 10 May 1960

It appears directly from article 4 and from the context of article 70 that the first paragraph of the latter provision imposes – both on the states and on the high authority – a substantive and binding rule requiring the application of its provisions.
The case of discrimination covered by the first paragraph of article 70 refers exclusively to conditions of transport and therefore to the comparability of different routes and locations from the point of view of transport.
Damage caused by discrimination may be considered as a consequence by which that discrimination may be detected. It is not however implied by definition in the concept of discrimination, the meaning of that concept being primarily that unequal conditions are laid down for comparable cases.
Special rates and conditions within the meaning of the fourth paragraph of article 70 are not only those adopted in the interest of undertakings, but also those which are advantageous to them. Therefore even reasons for the adoption of special rates and conditions which are entirely foreign to the interests of an undertaking deriving an advantage cannot exclude or restrict the application of the abovementioned provision.
The adverse effect on the profitability of an undertaking of the lack of special rates and conditions does not render those rates and conditions consonant with the principles of the treaty and therefore does not, in cases where the fourth paragraph of article 70 applies, put the high authority under an obligation based on articles 2 and 3.
A protective rate is compatible with the treaty only in exceptional cases, notably where the undertaking receiving assistance is experiencing disadvantages created by factors other than those of an economic nature; such a rate is legitimate only in so far as it is necessary in order to enable the undertaking to adapt itself to new conditions or to survive an accidental disadvantage.
In giving reasons for its decisions, the high authority may confine itself to considering the concrete cases which are submitted to it and to explaining its interpretation of the treaty in a positive manner. In no way is it required to reject or to criticize other possible interpretations, and its functions do not include the elaboration of general theories on the matters covered by the treaty.

Citations:

C-3/58, [1960] EUECJ C-3/58

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131576

Federal Republic of Germany v High Authority of the European Coal and Steel Community: ECJ 10 May 1960

Action on the part of the high authority within the meaning of the first paragraph of article 37 must be interpreted as referring only to an action which has already occurred and not a decision which the high authority has the as yet unresolved intention of adopting.
The case of discrimination covered by the first paragraph of article 70 refers exclusively to conditions of transport and therefore to the comparability of different routes and locations from the point of view of transport.
Special rates and conditions within the meaning of the fourth paragraph of article 70 are not only those adopted in the interest of undertakings, but also those which are advantageous to them. Therefore even reasons for their adoption which are entirely foreign to the interests of an undertaking receiving an advantage cannot exclude or restrict the application of the abovementioned provision.
The adverse effect on the profitability of an undertaking of the lack of special rates and conditions does not render those rates and conditions consonant with the principles of the treaty and therefore does not, in cases where the fourth paragraph of article 70 applies, put the high authority under an obligation based on articles 2 and 3.
A protective rate is compatible with the treaty only in exceptional cases, notably where the undertaking receiving assistance is experiencing disadvantages created by factors other than those of an economic nature; such a rate is legitimate only in so far as it is necessary in order to enable the undertaking to adapt itself to new conditions or to survive an accidental disadvantage.

Citations:

C-19/58, [1960] EUECJ C-19/58

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131578

Mirossevich v ECSC High Authority: ECJ 12 Dec 1956

ECJ 1. The jurisdiction of the court derives from article 42 of the treaty in conjunction with the arbitration clause in the contract of employment and the provisions of the relevant staff regulations.
2. Since there is no provision for time-limits either in respect of applications through official channels or of applications to the court, a time-limit similar to that in article 33 of the treaty and in article 39 of the statute of the court of justice cannot be applied by analogy having regard to the provisions contained in the aforementioned articles.
3. It is for the administrative authority to evaluate in its discretion the capacity of candidates to carry out given duties and for the court where appropriate to review the ways and means which may have led to this evaluation. An unfavourable assessment of the capacity of a candidate to be employed as a translator cannot reasonably be made as a result of a single translation.
4. Where there is a strong presumption in support of an argument it is for the other party to rebut it.
5. Uncertainty with regard to the outcome which a probationary period would have had if it had duly taken place rules out certain damage. Non-material damage by reason of the improper nature of the decision to refuse a definitive appointment may be compensated by successive offers of a new post involving possibilities of promotion.

Citations:

C-10/55, [1956] EUECJ C-10/55

Links:

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European

Updated: 20 May 2022; Ref: scu.131556

Geitling Ruhrkohlen-Verkaufsgesellschaft and Others v ECSC High Authority: ECJ 20 Mar 1957

ECJ Article 34 of the treaty is no bar to the admissibility of an application for annulment against an isolated provision of a decision as a whole, because an annulling judgment does not anticipate the measures which the high authority may be required to adopt in order to amend its decision, having regard to the annulment (treaty, articles 33, 34).
According to the general provisions of articles 5 and 15 of the treaty, the high authority is required to state the reasons for its decisions, mentioning those facts on which the legal justification for the measure depends and the considerations which have led it to adopt its decision . The reasons on which the decision is based must be stated in order that review by the court shall be possible . The high authority is not required to discuss all the objections which might be raised against the decision. It is not necessary to state independent and exhaustive reasons for an isolated article of a complex decision, when sufficient reasons can be deduced from the context of all the findings stated in support of the decision as a whole (treaty, articles 5, 15).

In order to judge whether there has been an infringement of essential procedural requirements, it is not necessary to examine whether the conception of the high authority is correct in law . What matters is that it must be logically compatible with the decision adopted (treaty, article 33).
In principle, it is not only a joint-selling agreement as such that is subject to authorization, but also the detailed methods of implementation and the particular rules established for that purpose (treaty, article 65).
The high authority is not required to alter the contents of an agreement which is submitted to it under article 65, in order for it to qualify for authorization (treaty, article 65).
Where it is not necessary to take into consideration and to assess economic facts in order to find that an agreement is of a restrictive nature, the court has unlimited jurisdiction to review that finding (treaty, second sentence of first paragraph of article 33).
Articles 4 (b) and 65 of the treaty govern the different aspects of economic life in their respective fields of application. Those two articles do not exclude neither do they annul each other; on the contrary, they serve to bring about the objectives of the community. They are thus complementary in this respect. In certain cases their provisions can cover acts justifying a simultaneous and concurrent application of the said articles (treaty, articles 4 (b), 65).
Discrimination between producers is possible. Where a selling agency takes into account purchases made by its wholesalers from two other given agencies, whereas the same competition should exist between them as exists between the first of those agencies and the other producers of the community – whose sales it does not take into account – that method of proceeding constitutes indirect discrimination in that it encourages the purchasers towards a preference for obtaining supplies of the products distributed by those other two agencies, to the detriment of the remaining producers of the community (treaty, article 4 (b)).
Where traders – who are purchasers within the meaning of article 4 (b) – ordering the same quantity of goods from a given selling agency are treated unequally by the said agency according to whether they also obtain supplies from certain other agencies, unequal treatment exists for inadequate reasons and it constitutes discrimination between traders (treaty, article 4 (b)).

Citations:

C-2/56, [1957] ECR 011, [1957] EUECJ C-2/56

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Cited by:

Cited – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
Lists of cited by and citing cases may be incomplete.

European

Updated: 20 May 2022; Ref: scu.131558

Syndicat De La Siderurgie Du Centre-Midi v ECSC High Authority (Judgment): ECJ 26 Jun 1958

An association of undertakings has capacity to institute proceedings before the court of justice against a general decision if that decision is capable of affecting certain interests, even though perhaps divergent, which have been entrusted to it (treaty, second paragraph of article 33, articles 48 and 80). Proceedings instituted by an association of undertakings are admissible if the association formally alleges that on one or more occasions a misuse of powers affecting its members has been committed, if it produces a relevant statement of the reasons leading it to believe that there has been a misuse of powers on one or more occasions and if the purpose of the arguments upon which it relies is to obtain a declaration that, when the high authority adopted the contested provisions, it exercised the powers conferred upon it by the treaty for purposes other than those for which they were conferred upon it (treaty, second paragraph of article 33). The financial arrangements referred to in article 53 are arrangements based on the transfer of resources, in particular arrangements in the nature of equalization or compensation. They constitute ‘ indirect ‘ intervention procedures, within the meaning of article 57 of the treaty, as distinct from the direct means of action such as the establishment of production quotas (article 58) or the allocation of resources (article 59) (treaty, articles 53 and 57). The express reference made to article 3 in article 53 does not release the high authority from its duty to observe the other articles of the treaty and in particular articles 2, 4 and 5. Articles 2 to 5 must always be observed because they establish the fundamental objectives of the community. Those provisions are equally binding and must be read together if they are to be properly applied (treaty, articles 2, 3, 4, 5 and 53). The provisions of articles 2 to 5 can stand by themselves and accordingly, in so far as they have not been adopted in any other provision of the treaty, they are directly applicable. If they have been adopted or are governed by other provisions of the treaty words relating to the same provision must be considered as a whole and applied together. In practice it will always be necessary to reconcile to a certain degree the various objectives of article 3 since it is clearly impossible to attain them all fully and simultaneously as those objectives constitute general principles which must be observed and harmonized as far as possible (treaty, articles 2, 3, 4 and 53). Protection of the common interest does not rule out, if the circumstances so require, the inclusion in a measure combining the pursuit of the various objectives laid down in article 3 of the treaty of all measures of a selective or gradual nature compatible with the principle of equality and necessary for carrying out the tasks laid down in the said article. Consequently an indirect means of action on production cannot be considered as incompatible with the protection of the common interest on the pretext that it involves different treatment (treaty, first paragraph of article 3). Since the procedures for which provision is made in article 59 and annex ii to the treaty consist exclusively in establishing consumption priorities and allocating resources they are directly and solely of a quantitative nature and are thereby distinct from all indirect action on production by means of prices without restriction of the volume of purchases, like the action effected by a financial arrangement established in accordance with article 53(b) (treaty, articles 53(b) and 59 and annex ii). The provisions of article 54 in no way impede the adoption of measures in accordance with the provisions of articles 3, 5, 53(b), 57 and 59 of the treaty, taken together, the application of which may influence investments planned by undertakings. In particular the financial arrangements referred to in article 53(b), which the high authority is entitled to use as an indirect means of action on production, entail by their nature results capable of affecting the plans of undertakings, such as, for example, their investment plans (treaty, articles 53 (b) and 54). A special charge within the meaning of article 4 (c) does not obtain when the high authority, in making a financial arrangement of the kind provided for in article 53 (b), imposes higher contributions upon certain undertakings than upon others since this unequal allocation of charges is based upon objectively-established criteria which are justified by the objectives which are properly pursued under the said arrangement (treaty, articles 4 (c) and 53 (b)). Although economic circumstances justify measures concerning the financial charge imposed upon undertakings those measures must not be more restrictive than is necessary for the purpose of the financial arrangement (articles 53 (b) and 65 (2) (b)).

Citations:

C-12/57, [1958] EUECJ C-12/57

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131569

Algera and Others v Common Assembly: ECJ 12 Jul 1957

ECJ 1. The adoption of an administrative measure creates a presumption as to its validity. The illegality of an individual administrative measure entails its complete nullity only in exceptional cases. In principle, such an administrative measure can be set aside only by means of annulment or withdrawal, in so far as those measures are lawful.
2. A lawful administrative measure creating individual rights cannot in principle be unilaterally withdrawn. This rule applies in particular as regards the appointment of an official. No provision of the treaty lays down the conditions upon which an institution of the community can lawfully set aside an administrative measure creating individual rights, which was invalidly adopted. Therefore the court of justice must decide the question by reference to the rules acknowledged by the legislation, the learned writing and the case-law of the member states.
at all events, the withdrawal of an illegal measure of the kind stated is in principle permissible within a reasonable period of time.
3. The fact that an administrative measure is partially unlawful does not justify the withdrawal of the measure in its entirety, unless the effect of the withdrawal of the unlawful part is to deprive the measure of its justification.
4. If a servant has been validly established in a post in accordance with the staff regulations of the community, the unlawful withdrawal of that measure by the institution concerned constitutes a wrongful act or omission which entails an obligation on the part of that institution to make good the injury caused to the servant.
(treaty, first paragraph of article 40).
5. Contracts of employment concluded with servants before the staff regulations entered into force render them eligible for establishment within the meaning of the staff regulations.
that eligibility is particularly marked when the servant has been given an express, formal promise that he will be brought within the ambit of the staff regulations, especially when the entry into force of the latter is imminent
(convention on the transitional provisions, third paragraph of article 7).
6. Only the institutions of the community are competent to take decisions concerning establishment within the meaning of the staff regulations. The treaty does not provide for any participation by the committee of presidents
(treaty, fourth paragraph of article 6; article 78 (3)).
7. The second subparagraph of article 78 (3), which provides for the participation of the committee of presidents in certain administrative measures, creates an exception in relation to the principle of the independence (fourth paragraph of article 6 of the treaty) and the autonomy (first subparagraph of article 78 (3) of the treaty) of the institutions of the community; therefore it is to be strictly construed.
none the less, the committee must participate in the fixing of the salaries of servants
(article 78 (3)).
in reaching a decision on the form which this participation must take, the court of justice is not bound either by the point of view of the committee or by the provisions of the staff regulations. Quite apart from the question whether the institution concerned must obtain in advance the consent or merely the opinion of the committee, in any case a classification measure adopted without one or other of these formalities is unlawful.
(treaty, fourth paragraph of article 6; article 31; first and second subparagraphs of article 78 (3)).
8. The exception constituted by the second subparagraph of article 78 (3) to the principle of the participation of the committee of presidents in the determination of the salaries of servants relates only to those cases in which a provision of the treaty lays down a special method of determination as well as to the case where there is an implementing regulation adopted on the basis of such provision. Nor can the autonomy which the common assembly derives from its nature as a parliamentary institution be said to conflict with the power which article 78 confers on the committee of presidents. The functional autonomy of the assembly exists only within the limits of the tasks assigned to it by the treaty
(treaty, fourth paragraph of article 6; second subparagraph of article 78 (3)).
9. An order which is legal and valid in law, bringing a servant of the community within the ambit of the staff regulations and assigning him a definite grade and step of seniority, confers individual rights on the person concerned.
10. The applicant is not bound to cite the provisions on which he relies; it is enough if the application contains ‘the facts and submissions on which the application is based’ and ‘the conclusions’
(protocol on the statute of the court of justice, article 22; rules of procedure of the court, article 29 (3)).

Citations:

C-7/56, [1957] EUECJ C-7/56

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131559

De Gezamenlijke Steenkolemijnen In Limburg v ECSC High Authority: ECJ 4 Feb 1959

Europa Proceedings may be brought under article 35 only inasmuch as the applicant has first raised the matter with the high authority in accordance with the provisions of the first paragraph of that article . This initial requirement is necessary not only because the time-limit set for the party concerned commences to run with effect from the request submitted to the high authority but also because of the need for notification which, by impugning the inaction of the high authority, forces it to take a decision within a limited period regarding the legality or otherwise of its inaction (article 35 of the ecsc treaty).
The basis of an action cannot be changed, even by way of an alternative, in the reply.
If, after giving a state the opportunity to submit its comments, pursuant to article 88, the high authority receives undertakings from the state which convince it that the state has not failed to fulfil an obligation under the treaty, it has no alternative but to discontinue the action taken . Article 88 of the treaty confers no power on the high authority to take, in respect of member states, decisions registering approval but only decisions recording failure to fulfil an obligation under the treaty (article 88 of the ECSC treaty).

Citations:

C-17/57, [1959] EUECJ C-17/57

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131572

Kergall v Common Assembly: ECJ 19 Jul 1955

ECJ Servants of the community – disputes with the institutions – jurisdiction of the court (treaty, article 42) Servants of the community – period prior to the adoption of the staff regulations – contract of employment – precursor of the staff regulations – interpretation (convention on the transitional provisions, third paragraph of article 7). Servants of the community – professional ability – assessment by the administration – review by the court. Servants of the community – abolition of a post – powers of the administration – reassignment of the servant (treaty, article 31). Liability of the community – wrongful act on the part of the administration – injury – obligation to make good (treaty, article 40).

Citations:

C-1/55, [1955] EUECJ C-1/55

Links:

Bailii

Statutes:

ECSC Treaty 40 42

European

Updated: 20 May 2022; Ref: scu.131551

Associazione Industrie Siderurgiche Italiane (Assider) v High Authority Of The European Coal And Steel Community: ECJ 11 Feb 1955

ECJ Application for annulment – general decision of the high authority – applicant undertakings and associations of undertakings – admissibility (Treaty, art. 33) For an application by an undertaking or by an association of undertakings against a general decision of the high authority to be admissible it is enough for the applicant formally to allege that there has been a misuse of powers affecting it. The allegation must indicate the reasons for which the applicant considers that there has been a misuse of powers affecting it. If the applicant is an association of undertakings, it is sufficient for it to claim that there has been a misuse of powers affecting one or more undertakings which are members of the association. The treaty does not impose any further condition for an application to be admissible such as, for example, proof that a misuse of powers affecting the applicant has actually been committed, since this latter question goes to the substance.

Citations:

C-3/54, [1955] EUECJ C-3/54

Links:

Bailii

Cited by:

See Also – Assider v ECSC High Authority ECJ 28-Jun-1955
ECJ In the event of several applications made against the same decision of the high authority and where as a result of one of these applications the decision is annulled, the other applicants have each the right . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 20 May 2022; Ref: scu.131529

Societe Des Charbonnages De Beeringen v ECSC High Authority: ECJ 29 Nov 1956

ECJ 1. Decision no 22/55, adopted within the context of a special system provided for in relation to Belgium for the duration of the transitional period by article 26 of the convention which applies in accordance with specific rules, however detailed and varied they may be, to all undertakings and transactions governed by that system, is in the nature of a general decision. In this instance, the fact that all the undertakings referred to by the contested decision are grouped within the applicant association does not affect the general nature of that decision. The territorial limitation of the area of application of the contested decision does not imply individual identification; the fact that a general decision has specific consequences does not affect its nature as a general decision. The question whether a decision is individual or general in nature must be decided on the basis of objective criteria; it does not depend upon its form but on its scope.
2. The passage in the letter of the high authority of 28 may 1955, determining unequivocally the attitude which it has decided to take should certain circumstances mentioned in the letter arise, is in the nature of a decision within the meaning of article 14 of the treaty.
3. In spite of an unquestionable link between two applications, a general reference to a statement made in the other case is not sufficient for the application to be in accordance with the provisions of article 22 of the statute of the court of justice and of article 29 of the rules of procedure of the court. The grounds relied upon for the first time in the reply, in the absence of any reference to them in the application, are inadmissible.
4. If the treaty provides that private undertakings are entitled to seek the annulment of a general decision on the ground of misuse of powers affecting them, that is because they have no right of action on any other ground. There is nothing in the treaty from which it may be concluded that private undertakings have been granted such a right to review the ‘constitutionality’ of general decisions, since they are quasi-legislative measures adopted by a public authority with legislative effect ‘erga omnes’. If article 33 accepts the existence of a right to bring an application for the annulment of a general decision on the ground of misuse of powers affecting an undertaking, that is an exception which is explained by the fact that, in this case, it is still the individual factor which prevails. In order for an application for the annulment of a general decision to be admissible it is sufficient for the applicant to claim formally that there has been a misuse of powers affecting it, indicating convincingly the reasons which, in its opinion, give rise to the presumption of a misuse of powers; examination of the justification for the submission of misuse of powers thus relied on is a question of substance.
5. The payment of differing rates of equalization on the basis of physical conditions of production tends to ensure that comparable cases receive comparable benefit and, therefore, to avoid discrimination. Equalization need not necessarily cover the entire difference between the reduced selling prices and receipts at the beginning of the transitional period, since it is only a necessary protective measure to avoid hurried and dangerous shifts in production levels. The convention does not provide for any guarantee that original levels of receipts will be maintained.
6. Amounts of equalization vary necessarily from one case to another, but the mere existence of variations is not proof that the high authority fixed those amounts arbitrarily and in a manner extraneous to the aim of article 26 of the convention.
7. If certain undertakings were not carrying out the work of reorganization and re-equipment, such that they incurred liability, they would thus have deprived themselves by their own fault of the right to benefit from equalization.
8. The reduction or even withdrawal of equalization in only certain individual cases does not result in the types referred to in those exceptional cases being placed outside the price list, since there can be only one price list resulting from the application of article 26 ( 2 ) for all consumers of belgian coal.

Citations:

C-9/55, [1956] EUECJ C-9/55

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131555

Industrie Siderurgiche Associate v High Authority Of The European Coal And Steel Community: ECJ 11 Feb 1955

ECJ Application for annulment. Decisions of the high authority – statement of reasons – reference to opinions obtained. For an application by an undertaking or by an association of undertakings against a general decision of the high authority to be admissible it is enough for the applicant formally to allege that there has been a misuse of powers affecting it. The allegation must indicate the reasons for which the applicant considers that there has been a misuse of powers affecting it. If the applicant is an association of undertakings, it is sufficient for it to claim that there has been a misuse of powers affecting one or more undertakings which are members of the association.
the treaty does not impose any further condition for an application to be admissible such as, for example, proof that a misuse of powers affecting the applicant has actually been committed, since this latter question goes to the substance. Under article 15 of the Treaty, the High Authority is bound to state in its decisions the reasons for which it decided to promulgate the rules in question and is bound to refer to the fact that the opinions required by the treaty have been obtained. On the other hand, the Treaty does not require that it should mention, still less that it should try to refute, the divergent opinions expressed by the consultative bodies or by some of their members; failure to do so cannot be regarded as proof, or even the merest evidence, in support of the submission of misuse of powers.

Citations:

C-4/54, [1955] EUECJ C-4/54

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131530

Netherlands v ECSC High Authority: ECJ 21 Mar 1955

ECJ The High Authority is obliged to mention in the reasons for its decision the essential elements of the findings of fact on which the legal justification for the measure depends. On the other hand the treaty does not require that it should state, and still less that it should refute, the opinions expressed in this regard by consultative bodies or by certain of their members. The procedural requirements laid down by the treaty for the adoption of decisions may be regarded as essential and consequently the question whether they have been observed must be examined by the court. The affirmation that the requisite consultations were held cannot relieve the court of the duty to carry out an examination with regard to the application of those requirements. The existence of agreements was provisionally authorized subject to certain conditions by decision no 37/53 of 11 july 1953 adopted in application of article 12 of the convention and with the reservation that such agreements might subsequently be prohibited. The fixing of maximum prices laid down in accordance with article 61 of the treaty may be restricted to one part of the common market. The existence of a situation which might justify the application of the provisions of Article 66(7) does not in itself constitute an obstacle to the exercise by the high authority of the powers assigned to it by subparagraph (a) of the first paragraph of article 61. In order to examine whether the fixing of maximum prices is necessary a distinction should be made between the finding of facts and economic circumstances on which the decision is based and the conclusions drawn by the high authority in its subsequent evaluation of the situation. A study of the market taking account of factors relating to the market structure and economic trends would constitute an evaluation within the meaning of the second sentence of the first paragraph of article 33. The examination by the court extends to the evaluation of the situation resulting from the economic facts and circumstances if the objection is supported by appropriate evidence. The mere assertion of a manifest failure to observe the treaty is not sufficient to open the way to examination by the court; on the other hand article 33 does not require proof to be given in advance which would immediately entail the annulment of the decision. The term ‘ manifest ‘ presupposes that a certain degree is reached in the failure to observe the legal provisions so that the failure to observe the treaty appears to derive from an obvious error in the evaluation, having regard to the provisions of the treaty, of the situation in respect of which the decision was taken. In the case of subparagraph (a) of the first paragraph of article 61 the manifest failure to observe the treaty can only result from the finding by the court of the existence of an economic situation which, prima facie, reveals no necessity for the contested measure in the pursuit of the objectives set out in article 3 of the treaty, in particular paragraph (c). Proof of the motives for the contested decision such as to establish misuse of powers may be evident either from the preparations, including the deliberations of the consultative committee and of the council of ministers, or else from the incompatibility of the contested decision with the avowed and evident aims of the decision.

Citations:

C-6/54, [1955] EUECJ C-6/54

Links:

Bailii

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.131531

Groupement Des Industries Siderurgiques Luxembourgeoises v ECSC High Authority: ECJ 24 Nov 1955

ECJ Having regard to the application submitted by the Luxembourg Government on 30 September 1955 to intervene in the actions pending before the Court of Justice of the European communities between groupement des industries siderurgiques Luxembourgeoises and High Authority of the European Coal and Steel Community.

Citations:

C-7/54, C-9/54, [1956] EUECJ C-7/54

Links:

Bailii

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.131533

Association Des Utilisateurs De Charbon Du Grand-Duche De Luxembourg v ECSC High Authority: ECJ 24 Nov 1955

ECJ Having Regard To The Application Submitted By The Luxembourg Government On 30 September 1955 To Intervene In The Actions Pending Before The Court Of Justice Of The European Communities Between Association Des Utilisateurs De Charbon Du Grand-Duche De Luxembourg And High Authority Of The European Coal And Steel Community (Joined Cases 8 And 10/54);

Citations:

C-8/54, [1956] EUECJ C-8/54

Links:

Bailii

European

Updated: 20 May 2022; Ref: scu.131535

Wilson and Others v St Helens Borough Council; Meade and Another v British Fuels Ltd: HL 29 Oct 1998

The House faced two questions regarding the protection given by the Regulations: ‘whether the dismissed employee can compel the transferee to employ him or whether he is given the right to enforce as against the transferee such remedies under national law as he could have enforced against the transferor.’ and ‘whether, if despite dismissal they were entitled to retain the benefit of their previous terms, the employees either by initially agreeing terms with their new employers, or by continuing to work for the new employers or by accepting the statement of terms and conditions subsequently varied any entitlement to the previous terms and conditions.’
Held: A dismissal on a transfer of undertaking was actually a dismissal and not a nullity. The TUPE regulations added rights to take action for a dismissal, they did not change the underlying law against specific performance in employment law.
Lord Slynn said: ‘the existing rights of employees are to be safeguarded if there is a transfer. That means no more and no less than that the employee can look to the transferee to perform those obligations which the employee could have enforced against the transferor. The employer, be he transferor or transferee, cannot use the transfer as a justification for dismissal, but if he does dismiss it is a question for national law as to what those rights are. As I have already said, in English law there would as a general rule be no order for specific performance. The claim would be for damages for wrongful dismissal or for statutory rights including, it is true, reinstatement or re-engagement where applicable . . The Directive is to ‘approximate’ the laws of the Member States. Its purpose is to ‘safeguard’ rights on a transfer. The ‘rights’ of an employee must depend on national rules of the law of contract or of legislation. There is no Community law of contract common to Member States, nor is there a common system or remedies. The object and purpose of the Directive is to ensure in all member states that on a transfer an employee has against the transferee the rights and remedies which he would have had against the original employer.’ and

‘where there is a transfer of an undertaking and the transferee actually takes on the employee the contract of employment is automatically transferred so that, in the absence of a permissible variation, the terms of the initial contract go with the employee, who though he may refuse to go, cannot as a matter of public policy waive the rights which the Directive and the Regulations confer on him. Where the transferee does not take on the employees who are dismissed on transfer the dismissal is not a nullity though the contractual rights formerly available against the transferor remain intact against the transferee. For the latter purpose, an employee dismissed prior to the transfer contrary to Article 4(1), i.e. on the basis of the transfer, is to be treated as still in the employment of the transferor at the date of transfer’

Judges:

Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn, Lord Clyde, Lord Hutton

Citations:

Times 30-Oct-1998, Gazette 25-Nov-1998, [1998] UKHL 37, [1999] 2 AC 52, [1998] 4 All ER 609, [1998] 3 WLR 1070

Links:

House of Lords, Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Garland v British Rail Engineering Ltd (No 2) HL 22-Apr-1982
Under English law and under Community law, the national court should construe a regulation adopted to give effect to a Directive as intended to carry out the obligations of the Directive and as not being inconsistent with it if it is reasonably . .
Cited – von Colson and Kamann v Land Nordrhein-Westfalen ECJ 10-Apr-1984
LMA Art.177[Art.234] EC proceedings – Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company Deutsche Tradex GmbH. Both had been rejected. The German . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Knud Wendelboe and Others v LJ Music Aps, In Liquidation ECJ 7-Feb-1985
Europa Council directive no 77/187 does not require the member states to enact provisions under which the transferee of an undertaking becomes liable in respect of obligations concerning holiday pay and . .
Cited – Foreningen Af Arbejdsledere I Danmark v A/S Danmols Inventar, In Liquidation ECJ 11-Jul-1985
Europa Article 1(1) of Council Directive no 77/187 does not apply to the transfer of an undertaking, business or part of a business where the transferor has been adjudged insolvent and the undertaking or business . .
Cited – P Bork International A/S, in liquidation v Foreningen af Arbejdsledere I Danmark ECJ 15-Jun-1988
ECJ Although it is true that, unless otherwise expressly provided, Directive 77/187 relating to the safeguarding of employees’ rights in the event of transfers of undertakings may be relied upon solely by workers . .
Appeal from – Meade and Another v British Fuels Ltd EAT 11-Mar-1996
. .
Cited – Katsikas and others v Konstantinidis and others ECJ 16-Dec-1992
ECJ Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings is to be interpreted as not . .
Cited – Ann Watson Rask and Christensen v ISS Kantineservice A/S ECJ 12-Nov-1992
Europa Article 1(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of . .
Cited – Giuseppe d’Urso, Adriana Ventadori and others v Ercole Marelli Elettromeccanica Generale SpA ECJ 25-Jul-1991
Europa Article 3(1) of Directive 77/187 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of . .

Cited by:

Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 20 May 2022; Ref: scu.90550

The Polo/Lauren Co LP v PT Dwidua Langgeng Pratama International Freight Forwarders Case: ECJ 14 Apr 2000

Council regulations empowered customs officers of member states to seize goods suspected of being counterfeit or pirated and in breach of Trade Mark and other laws This applied even to goods which were merely seized in transit through a member state, from a non-EU source to a non-EU destination. The validity of the regulation was not capable of doubt, and no factor had been identified which could challenge its validity. The wording of the regulation expressly envisaged such action.

Citations:

Times 14-Apr-2000, C-383/98, [2000] EUECJ C-383/98

Links:

Bailii

Cited by:

Cited – Nokia Corporation v Revenue and Customs ChD 27-Jul-2009
Nokia sought judicial review of a decision of the Commissioners to release a consignment of goods which it said were infringing counterfeits of its own models. The Commissioners said that in the absence of evidence that they were intended for . .
Lists of cited by and citing cases may be incomplete.

European, Customs and Excise, Intellectual Property

Updated: 20 May 2022; Ref: scu.89840

Sa Chaussure Bally v Ministry of Finance Belgium: ECJ 20 Sep 1993

The Vatable amount is based on what a purchaser pays ignoring any commissions.

Citations:

Ind Summary 20-Sep-1993, Times 22-Jul-1993, C-18/92, C-18/92, [1993] EUECJ C-18/92

Links:

Bailii

Cited by:

Cited – Revenue and Customs v Debenhams Retail Plc CA 18-Jul-2005
The store introduced a system whereby when a customer paid by credit card, the charges made to them for card handling were expressed as a separate amount on the receipt. The store then said that VAT was payable only on the net amount allocated to . .
Lists of cited by and citing cases may be incomplete.

VAT, Consumer, European, VAT

Updated: 20 May 2022; Ref: scu.88964

Societe Generale Des Grandes Sources D’Eaux Minerales Francaises v Bundesant Fur Finanzen: ECJ 9 Sep 1998

Where original VAT invoice was lost a duplicate should be accepted for refund claim even though from other member state where there was no doubt about the transaction, and the loss was not the fault of the taxpayer, and no risk of double reclaim of VAT duty.

Citations:

Gazette 09-Sep-1998, C-361/96, Ecj/Cfi Bulletin 15/98, 7, [1998] EUECJ C-361/96

Links:

Bailii

Jurisdiction:

European

VAT, European

Updated: 20 May 2022; Ref: scu.89369

Shanning International Ltd v Lloyds TSB Bank plc; Lloyds TSB Bank plc v Rasheed Bank and another: ComC 17 Dec 1999

The parties were linked together by a series of bonds, deposits, and guarantees and indemnities which had been designed to enable trade with a customer in Iraq. The Regulation operated to prevent any claim being made under the bond, and therefore the bank could not resist an action for the repayment of a deposit on the basis that it might be called upon under its own bond.

Judges:

Langley J

Citations:

Times 19-Jan-2000, [1999] EWHC 280 (Comm)

Links:

Bailii

Statutes:

Regulation (EEC) No 3541/92

Cited by:

Appeal from – Shanning International Limited (In Liquidation) v Lloyds TSB Bank Plc (Formerly Lloyds Bank Plc) Part 20 and Rasheed Bank and Sbg Holdings Limited Part 20 CA 25-May-2000
. .
At first instance – Shanning International Ltd (in liquidation) v Lloyds Bank plc Lloyds Bank plc v Rasheed Bank HL 2-Jul-2001
Under a series of cross guarantees, equipment was supplied to Iraq. Final payment was due on delivery of the final equipment. Before it could be delivered, the prohibitions came into effect against satisfying or making any claims in connection with . .
Lists of cited by and citing cases may be incomplete.

Banking, European

Updated: 20 May 2022; Ref: scu.89188

Sirdar v Army Board and Another: ECFI 27 Oct 1999

It was possible for the Royal Marine unit to exclude the employment of a woman as a chef. The requirement not to discriminate was overriding save where the nature of the work makes the sex of the worker a determining factor. The nature and rules of a marine unit, required interoperability, in that any member could be called upon to fulfil any role. The marines occupied a particular status and role which made such discrimination necessary and proper.

Citations:

Times 27-Oct-1999, C-273/97, [1999] EUECJ C-273/97, ECLI:EU:C:1999:523, [1999] ECR I-7403

Links:

Bailii

Statutes:

EC Treaty art 234, Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment etc

Jurisdiction:

European

Citing:

See Also – Sirdar v Ministry of Defence EAT 15-Sep-1995
The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Employment

Updated: 20 May 2022; Ref: scu.89281

Robinson (Jamaica) v Secretary of State for The Home Department: SC 16 Dec 2020

This appeal concerns the extent to which a non-member state national, who is the parent of a dependent European Union citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano

Judges:

Lady Black, Lord Lloyd-Jones, Lord Sales, Lord Burrows, Lord Stephens

Citations:

[2020] UKSC 53

Links:

Bailii, Bailii Summary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for The Home Department v Robinson (Jamaica) CA 2-Feb-2018
Right of third-country national parent with criminal record to reside in member state – proportionality guidance . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 20 May 2022; Ref: scu.656807

Secretary of State for The Home Department v Robinson (Jamaica): CA 2 Feb 2018

Right of third-country national parent with criminal record to reside in member state – proportionality guidance

Judges:

Underhill, Lindblom, Singh LJJ

Citations:

[2018] EWCA Civ 85, [2018] 4 WLR 81, [2018] WLR(D) 62, [2018] Imm AR 892

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – Robinson (Jamaica) v Secretary of State for The Home Department SC 16-Dec-2020
This appeal concerns the extent to which a non-member state national, who is the parent of a dependent European Union citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 20 May 2022; Ref: scu.604160

Swatch v OHMI – Panavision Europe (Swatchball): ECFI 19 May 2015

ECJ Judgment – Community trade mark – Opposition proceedings – Application for Community word mark SWATCHBALL – Community word and figurative marks and international word and figurative marks SWATCH and swatch – Relative ground for refusal – Damage to reputation – Article 8(5) of Regulation (EC) No 207/2009

Judges:

M. Prek (Rapporteur), P

Citations:

T-71/14, [2015] EUECJ T-71/14, ECLI:EU:T:2015:293

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009 8(5)

Jurisdiction:

European

European, Intellectual Property

Updated: 20 May 2022; Ref: scu.547048

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

ECJ Judgment – Community trade mark – Opposition proceedings – Figurative Community trade mark Cuetara Maria ORO – Earlier Community and national figurative marks ORO – Partial refusal to register – Relative ground for refusal – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation (EC) No 207/2009

Judges:

M. van der Woude (Rapporteur), P

Citations:

T-218/13, [2015] EUECJ T-218/13, ECLI: EU: T: 2015 305

Links:

Bailii

Statutes:

Regulation (EC) No 207/2009

Jurisdiction:

European

European, Intellectual Property

Updated: 20 May 2022; Ref: scu.547042

CDDW -v Ministerul Finantelor Publice: ECJ 21 May 2015

ECJ Judgment – Preliminary reference – Equal treatment in employment and occupation – Directive 2000/78 / EC – Articles 2, 3, paragraph 1, and 6 – Prohibition of discrimination based on age – Discrimination made on the basis of membership of a professional category or place of work – National legislation prohibiting, subject to certain limits, the overlapping of a retirement pension with the wage income from the exercise of a professional activity in the public sector – Automatic Termination of the employment relationship or service relationship

Citations:

C-262/14, [2015] EUECJ C-262/14, ECLI:EU:C:2015:336

Links:

Bailii

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.547046

IBM Corporation/Data processor network: EPO 1990

A new method of communicating between programs and data files within the computer, so that they operated effectively as a single entity, was held by the Board to be properly ‘regarded as solving a problem which is essentially technical’ and therefore it did not fall foul of art 52(2). While programs for computers were included in the items listed in Article 52(2), if the claimed subject matter had a technical character it was not excluded from patentability.

Citations:

[1990] EPOR 91, 06/83

Jurisdiction:

England and Wales

Cited by:

Cited – Lantana Ltd v The Comptroller General of Patents, Design and Trade Marks CA 13-Nov-2014
The inventor company appealed against rejection of its application for a patent for a computer program.
Held: The appeal failed: ‘on the facts found by the Hearing Officer, the invention is no more than the computerisation of a process which . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 20 May 2022; Ref: scu.538770

Schrader v CPVO: ECJ 21 May 2015

ECJ Judgment – Appeals – Community plant variety rights – Community Plant Variety Office (CPVO) – Regulation (EC) No 2100/94 – Articles 20 and 76 – Regulation (EC) No 874/2009 – Article 51 – Application to initiate nullity proceedings in respect of Community plant variety rights – Principle of examination by the CPVO of its own motion – Proceedings before the Board of Appeal of the CPVO – Substantial evidence

Citations:

C-546/12, [2015] EUECJ C-546/12

Links:

Bailii

Statutes:

Regulation (EC) No 2100/94, Regulation (EC) No 874/2009 151

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.547045

Formula One Licensing v OHMI – Idea Marketing (F1H2O): ECFI 21 May 2015

ECJ Judgment – Community trade mark – Opposition proceedings – International registration designating the European Community – Word mark F1H2O – Community, international, Benelux and national word and figurative marks with the element ‘F1’ – Relative grounds for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Unfair advantage taken of the distinctive character or reputation of the earlier trade marks – Article 8(5) of Regulation No 207/2009 – Rejection of the opposition

Judges:

D. Gratsias, P

Citations:

T-55/13, [2015] EUECJ T-55/13, ECLI:EU:T:2015:309

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 20 May 2022; Ref: scu.547039

Haqen v Zeehaqhe: ECJ 1990

ECJ ‘Article 6(2) makes provision for a special jurisdiction, which the Plaintiff may choose because of the existence, in clearly defined situations, of a particularly close connecting factor between a dispute and the court which may be called upon to hear it, with a view to the efficacious conduct of the proceedings (judgment of 22 November 1978 in Case 33/78 Somafer SA v Saar-Ferngas AG [1978] ECR 2183). The Convention thus enables the entire dispute to be heard by a single court. Consequently, the related nature of the main action and the action on a warranty or guarantee suffices to found jurisdiction on the part of the court in which the action on a warranty or guarantee has been brought, irrespective of the basis on which it has jurisdiction in the original proceedings; in this respect, the jurisdiction provided for in Article 2 and that provided for in Article 5 are equivalent.’

Citations:

[1990] ECR 1-1845

Jurisdiction:

European

Cited by:

Cited – Kinnear and Others v Falconfilms Nv and Others QBD 27-Jan-1994
The deceased had died in an accident whilst filming in Spain for the defendants. The plaintiff personal representatives sought damages here, while the defendants denied that the court had jurisdiction under the 1968 Convention, and said that the . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 20 May 2022; Ref: scu.512159

Seattle Genetics Inc v Osterreichisches Patentamt: ECJ 6 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Intellectual and industrial property – Proprietary medicinal products – Regulation (EC) No 469/2009 – Article 13(1) – Supplementary protection certificate – Duration – Concept of the ‘date of the first authorisation to place the product on the market in the European Union’ – Whether account is to be taken of the date of the decision granting authorisation or the date on which notification was given of that decision

Citations:

C-471/14, [2015] EUECJ C-471/14

Links:

Bailii

Statutes:

Regulation (EC) No 469/2009 13(1)

Jurisdiction:

European

Intellectual Property

Updated: 20 May 2022; Ref: scu.553104

Tarsia v Statul roman: ECJ 6 Oct 2015

ECJ Judgment – Reference for a preliminary ruling – Principles of equivalence and effectiveness – Res judicata – Recovery of undue payments – Recovery of taxes levied by a Member State in breach of EU law – Final decision of a court or tribunal imposing payment of a tax which is incompatible with EU law – Application for revision of such a decision – National legislation allowing the revision, in the light of later preliminary rulings given by the Court, of final decisions of a court or tribunal made exclusively in administrative proceedings

Citations:

C-69/14, [2015] EUECJ C-69/14, ECLI:EU:C:2015:662

Links:

Bailii

Jurisdiction:

European

European

Updated: 20 May 2022; Ref: scu.553106

Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment): ECJ 6 Oct 1993

Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, benefits provided for by private occupational pension schemes] that there is a time-lag between the accrual of entitlement to the pension, which occurs gradually throughout the employee’s working life, and its actual payment, which is deferred until a particular age . . Given the reasons explained in para 44 of the Barber judgment for limiting its effects in time, it must be made clear that equality of treatment in the matter of occupational pensions may be claimed only in relation to benefits payable in respect of periods of employment subsequent to 17 May 1990, the date of the Barber judgment . .’

Citations:

Times 12-Oct-1993, C-109/91, [1993] EUECJ C-109/91, [1995] ICR 74, [1993] ECR I-4879, [1993] IRLR 601, [1995] 2 CMLR 357

Links:

Bailii

Jurisdiction:

European

Citing:

Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .

Cited by:

Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
Cited – O’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
Cited – Miller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 20 May 2022; Ref: scu.160690

O’Brien v Ministry of Justice and Others: CA 6 Oct 2015

The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no retroactivity’ principle of EU law was ‘that EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect. The purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected.’ The Part Time Workers Directive did not apply retrospectively so as to bring periods of service performed before the directive came into effect into the calculation of the claimant’s pension entitlement.
Lewison LJ identified two relevant principles of EU law. First was the ‘no retroactivity’ principle and the ‘future effects’ principle. The first of these principles prescribed that ‘EU legislation does not have retroactive effect unless, exceptionally, it is clear from its terms or general scheme that the legislator intended such an effect, that the purpose to be achieved so requires and that the legitimate expectations of those concerned are duly respected’. Having found that to require payment of a spouse’s pension to Mr Walker’s husband, after Mr Walker’s death, would be to give the Framework Directive retrospective effect, it concluded that the no retroactivity principle precluded this. The second principle was that amending legislation applies immediately to the future effects of a situation which arose under the law as it stood before amendment, unless there was a specific provision to the contrary.

Judges:

Lord Dyson MR, Lewison, Underhill LJJ

Citations:

[2015] EWCA Civ 1000, [2016] ICR 182, [2015] WLR(D) 406, [2015] Pens LR 543, [2016] 1 CMLR 28, [2015] IRLR 1005

Links:

Bailii, WLRD

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 1(2)(3), Council Directive 97/81/EC

Jurisdiction:

England and Wales

Citing:

See Also – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See Also – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJ – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC (1) – 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 . .
Appeal from – The Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .

Cited by:

Cited – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .
Appeal from – O’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
Appeal from – Walker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
Cited – Miller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, European

Updated: 20 May 2022; Ref: scu.553048

O’Brien v Ministry of Justice: SC 12 Jul 2017

The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a retirement pension falls due for payment. The directive applies ratione temporis where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directive’s entry into force, the directive applies to the future effects of that situation.’
Case referred to the ECJ: ‘Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non-discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part-time worker, if they would be taken into account when calculating the pension of a comparable full-time worker?’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 46, [2017] WLR(D) 478, [2017] IRLR 939, [2017] ICR 1101

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Council Directive 97/81/EC, Judicial Pensions Act 1981, Judicial Pensions and Retirement Act 1993, Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

See Also – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
See Also – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At ECJ – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SC(1) – 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 . .
At EAT – The Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal from – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Cited – Istituto nazionale della previdenza sociale (INPS) v Lotti, Matteucci (Social Policy) ECJ 10-Jun-2010
EU Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
Cited – Istituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
Cited – Commission v Moravia Gas Storage ECJ 26-Mar-2015
Judgment – Appeals – Internal market in natural gas – Obligation of natural gas undertakings – Organisation of a system of negotiated third party access to gas storage facilities – Decision of the Czech authorities – Temporary exemption for future . .
Cited – Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .

Cited by:

Reference to ECJ – Miller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 20 May 2022; Ref: scu.589261

Walker v Innospec Ltd and Others: SC 12 Jul 2017

The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was precisely the same as that which would have been paid to a heterosexual man. There was no reason for the company to anticipate that it would not become liable to pay a survivor’s pension to his lawful spouse. The date when that pension will come due, provided Mr Walker and his partner remain married and his partner does not predecease Mr Walker, is the time at which denial of a pension would amount to discrimination on the ground of sexual orientation.
‘it is vital to keep the two concepts distinct. ‘No retroactivity’ and ‘future effects’ are principles of law which apply to all EU legislation, unless a contrary intention can be found. The Barber exception is an example of a technique used by the CJEU to limit the generally retroactive application of its judgments, which it will only exercise in the most exceptional circumstances and where the impact would be truly ‘catastrophic’. The court limits the temporal application of its judgments in cases where reliance has been placed on a different understanding of the law and legitimate expectations may be upset, but only in the most special circumstances. Therefore, how the court exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle.’
‘Mr Walker’s husband, provided he does not predecease him, and that they remain married at the time of Mr Walker’s death, is entitled under the Framework Directive to a spouse’s pension calculated on the basis of all the years of Mr Walker’s service with Innospec. On that account, paragraph 18 of Schedule 9 is incompatible with the Framework Directive. In particular, paragraph 18(1)(b) which authorises a restriction of payment of benefits based on periods of service before 5 December 2005 cannot be reconciled with what I consider to be the plain effect of the Directive.’

Judges:

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed, Lord Carnwath, Lord Hughes JJSC

Citations:

[2017] UKSC 47, [2017] IRLR 928, [2017] ICR 1077, [2017] WLR(D) 477, UKSC 2016/0090

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170308am Video, SC 20170308pm Video, SC 20170317am Video, SC 20170317pm Video

Statutes:

Civil Partnership Act 2004, Council Directive 2000/78/EC

Jurisdiction:

England and Wales

Citing:

Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Cited – Defrenne v Sabena (No 2) ECJ 8-Apr-1976
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It may be relied on before the national courts. These courts have a . .
Cited – Andersson and Wakeras-Andersson v Svenska Staten ECJ 15-Jun-1999
(External relations) Article 234 EC (ex-Article 177) – EEA Agreement – Jurisdiction of the Court of Justice – Accession to the European Union – Directive 80/987/EEC – Liability of a State
Advocate General Jacobs said: ‘Retroactive effect . .
Cited – Bilka-Kaufhaus v Webers Von Hartz ECJ 13-May-1986
ECJ An occupational pension scheme which, although established in accordance with statutory provisions, is based on an agreement between the employer and employee representatives constitutes an integral part of . .
Cited – Barber v Guardian Royal Exchange Assurance Group ECJ 17-May-1990
Europa The benefits paid by an employer to a worker on the latter’s redundancy constitute a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the . .
Cited – Vroege v Nciv Instituut Voor Volkshuisvesting Bv and Stichting Pensioenfonds Nciv ECJ 28-Sep-1994
1. Social policy – Male and female workers – Equal pay – Pay – Concept – Right to join a private occupational pension scheme – Included – Exclusion of married women from membership – Not permissible – Exclusion of part-time workers – Part-time staff . .
Appeal from – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Cited – Innospec Ltd and Others v Walker EAT 18-Feb-2014
EAT Sex Discrimination : Sexual Orientation discrimination / transexualism : The recipient of an occupational pension since 2003, under the terms of a pension scheme which provided survivor’s benefits to spouses . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Land Nordrhein-Westfalen v Pokrzeptowicz-Meyer ECJ 29-Jan-2002
External relations – Europe Agreement between the Communities and Poland – Interpretation of the first indent of Article 37(1) – Prohibition of discrimination based on nationality as regards conditions of employment or dismissal for Polish workers . .
Cited – Maruko v Versorgungsanstalt der deutschen Buhnen ECJ 6-Sep-2007
ECJ Pension paid by a compulsory occupational pension – Refusal survival due to the absence of marriage to same-sex partners Directive 2000/78 / EC Scope Exclusion of social security benefits Concept of pay – . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Parris v Trinity College Dublin and Others ECJ 24-Nov-2016
No retrospection for pensions of civil partnership
ECJ (Judgment) Reference for a preliminary ruling – Equal treatment in employment and occupation – Directive 2000/78/EC – Article 2 – Prohibition of discrimination on grounds of sexual orientation and age – . .

Cited by:

Cited – Miller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 20 May 2022; Ref: scu.589262

O’Brien v Ministry of Justice: ECJ 17 Nov 2011

ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this connection, I would also point out that it is difficult to determine how the rights granted by the Framework Agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge; on the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus also the essence of their independence.
Independence in terms of the essence of an activity is not therefore an appropriate criterion for justifying the exclusion of a professional category form the scope of the Framework Agreement.’

Judges:

Kokott AG

Citations:

C-393/10, [2011] EUECJ C-393/10

Links:

Bailii

Statutes:

Directive 97/81/EC

Jurisdiction:

European

Citing:

At EAT – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At CA – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At SC – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .

Cited by:

Opinion – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
Opinion – 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 . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Legal Professions

Updated: 20 May 2022; Ref: scu.448725

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 expressed and all employees, regardless of age, had to satisfy it in order to qualify to bring unfair dismissal claims. Statistics, however, showed that proportionately fewer women employees than male employees were able to satisfy it and, accordingly, that a higher proportion of women than of men were disadvantaged by it. The dicisional court dismissed the request, but it succeeded at appeal.
Balcombe LJ summarised the arguments placed before the Divisional Court: ‘So the first question we have to resolve is: What is the test which the Court should apply in deciding whether the effect of the two-year qualifying period prima facie discriminates against women? On behalf of the Secretary of State Mr Richards submits that the comparison is between the proportion of women who can comply with the qualification and the proportion of men who can comply with the qualification, and the former proportion must be considerably smaller than the latter. On behalf of the applicants Mr Allen submits that the essential comparison is between the proportion of women who cannot comply with the qualification (ie those who are disadvantaged by the qualification) and the proportion of men who cannot comply with the qualification, and then to consider the ratio between these two proportions. An example taken from the evidence will illustrate the difference between these two approaches. In the year 1985, out of a total workforce of some 18.73 million persons, 61% were male and 39% female; 77.4% of the male workers had two years’ service or more, but only 68.9% of the female workforce. So the proportion of females to males with two years’ or more service was 89:100. If, on the other hand, one looks at those with less than two years’ service, 31.1% of the female workforce had less than two years’ service compared with 22.6% of the male workforce, ie about 3:2.’ . . And ‘In my judgment Mr Allen’s submission cannot be correct unless it is qualified – which, to be fair to him, he concedes may be necessary. In paragraph 17 of his second affidavit on behalf of the Secretary of State, Mr Peter Parker makes the following point:
‘If the question is asked whether a considerably greater proportion of women than of men cannot comply with a given requirement or condition . . the results can be seriously misleading. If a hypothetical requirement is considered which 99.5% of men can comply with but only 99% of women, it follows that the proportion of women who cannot comply with the requirement is twice as great as the proportion of men who cannot comply. The figures relevant to the present proceedings are very much less extreme; nevertheless the arguments advanced . . are of the same kind and are, it is contended, similarly misleading.’
The logic of this argument is unanswerable and, indeed, unanswered by the applicants or their expert witnesses.’
McCulloch J said: ‘My conclusion is that, in considering whether there is considerable disparity, the court should look both at the relative percentages of those who meet the requirement and at the relative percentages of those who do not. Of these, the more important group will be those who qualify. The following example makes the point. If 98% of men qualify and 2% do not, and if 96% of women qualify and 4% do not, it would not be right to conclude that the disparity was considerable. But if only 4% of men and only 2% of women qualified the opposite conclusion might well be correct.’
The Court of Appeal allowed the appeal and declared that the Statutory Instrument (SI) introducing the two year qualifying period was incompatible with the Equal Treatment Directive. They did nor adjudicate on the question whether or not the SI infringed what was then Article 119 of the Treaty:’Despite our anxieties, however, we have been forced to the conclusion that on the material before us it has been demonstrated that for the period leading up to the dismissals of the two applicants there had been and continued to be a considerable and persistent difference in the numbers and percentages of men and women in the groups that did comply and the groups that did not comply with the two year qualification period.’

Judges:

Balcombe LJ, McCulloch J

Citations:

[1995] ICR 889

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Secretary of State for Employment, Ex Parte Seymour-Smith and Another CA 3-Aug-1995
The rule which extended to two years, the time before the vesting of employment rights was discriminatory, since it affected more women than men. . .
See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 19 May 2022; Ref: scu.211369