Category: European

Emmott v Minister for Social Welfare and Attorney General: ECJ 25 Jul 1991

Europa So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court. Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created. It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual’ s delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.
Community law precludes the competent authorities of a Member State from relying, in proceedings brought against them by an individual before the national courts in order to protect rights directly conferred upon him by Article 4(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, on national procedural rules relating to time-limits for bringing proceedings so long as that Member State has not properly transposed that directive into its domestic legal system.

Citations:

C-208/90, [1991] ECR I-4269, [1991] EUECJ C-208/90

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Walker-Fox v Secretary of State for Work and Pensions CA 29-Nov-2005
The claimant pensioner had moved to France. He sought to claim a retrospective winter fuel allowance claim. The government had eventually agreed to make payments to UK residents abroad.
Held: The claimant was deemed to have had knowledge of . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 19 May 2022; Ref: scu.160522

Marshall v Southampton and South West Hampshire Area Health Authority (No 2): ECJ 2 Aug 1993

The UK law limiting awards of damages in sex discrimination cases is unlawful, and fails to implement European directive fully. Financial compensation must be at a level adequate to achieve equality between the workers identified.

Citations:

Independent 04-Aug-1993, Times 04-Aug-1993, C-271/91, [1993] ECR 1-4367, [1993] EUECJ C-271/91, [1994] QB 126

Links:

Bailii

Statutes:

Sex Discrimination Act 1975 65

Jurisdiction:

European

Cited by:

Cited – Khatun, Zeb, Iqbal v London Borough of Newham Admn 10-Oct-2003
Each applicant had been accepted as homeless by the respondent, but was then offered alternative accomodation under terms which they found unacceptable. They argued that the Regulations applied. The council had disapplied one statutory guidance in . .
Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Cited – Alabaster v Barclays Bank Plc and Another CA 3-May-2005
The claimant sought increased maternity pay. Before beginning her maternity leave she had been awarded a pay increase, but it was not backdated so as to affect the period upon which the calculation of her average pay was based. The court made a . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – P v Commissioner of Police of The Metropolis SC 25-Oct-2017
This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.160799

Magorrian and Cunningham v Eastern Health and Social Services Board and Department of Health and Social Services: ECJ 11 Dec 1997

Pension entitlements for part time workers discriminated against were to be re-calculated to allow for wrongful treatment since 1976
Europa Reference for a preliminary ruling: Office of the Industrial Tribunal and the Fair Employment Tribunal, Belfast – United Kingdom. Equal pay for men and women – Article 119 of the EC Treaty – Protocol No 2 annexed to the Treaty on European Union – Occupational social security schemes – Exclusion of part-time workers from status conferring entitlement to certain additional retirement pension benefits – Date from which such benefits are payable – National procedural time-limits.

Citations:

Times 22-Dec-1997, C-246/96, [1997] EUECJ C-246/96

Links:

Bailii

Statutes:

EC Treaty Art 177

Jurisdiction:

European

Citing:

Cited – Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen ECJ 27-Oct-1993
Europa Community law does not preclude the application of a national rule of law according to which benefits for incapacity for work are payable no more than one year before the date of claim, in the case where . .

Cited by:

Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 19 May 2022; Ref: scu.161915

Rewe Zentralfinanz v Landwirtschaftskammer Westphalen-Lippe: ECJ 11 Oct 1973

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

Citations:

C-39/73, [1976] ECR 1989

Jurisdiction:

European

Cited by:

Cited – Preston and Others v Wolverhampton Healthcare NHS and Others; Fletcher and Others v Midland Bank Plc HL 26-Feb-1998
‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise

Updated: 19 May 2022; Ref: scu.132278

Rotsart de Hertaing v Benoidt and IGC Housing Service (In Liquidation) and Another: ECJ 14 Nov 1996

ECJ Safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses – Transfer to the transferee of the rights and obligations arising from a contract of employment – Date of transfer.

Citations:

Times 25-Nov-1996, [1997] IRLR 127, C-305/94, [1996] EUECJ C-305/94

Links:

Bailii

Statutes:

EC Directive 77/187/EEC

Cited by:

Cited – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88875

Rockfon A/S v Specialarbejderforbunde I Danmark Acting for Nielsen and Others: ECJ 17 Jan 1996

The term ‘establishment’ for the purpose of consultation on contemplated redundancies meant the work unit to which the relevant workers were assigned: ‘The term ‘establishment’ appearing in Article 1(1)(a) of Directive (75/129/EEC) must therefore be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’, for the unit in question to be endowed with a management which can independently effect collective redundancies.
That interpretation is supported by the fact that the Commission’s initial proposal for a Directive uses the term ‘undertaking’ and that that term was defined in the last sub-paragraph of Article 1(1) of the proposal as ‘local employment unit’. It appears, however, that the Council decided to replace the term ‘undertaking’ by the term ‘establishment’, which meant that the definition originally contained in the proposal and considered to be superfluous was deleted.
The answer to the second part of the preliminary question must therefore be that the term ‘establishment’ appearing in Article 1(1)(a) . . must be understood as meaning, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential, in order for there to be an ‘establishment’ for the unit in question to be endowed with a management which can independently effect collective redundancies.’

Citations:

Times 17-Jan-1996, C-449/93, [1995] EUECJ C-449/93, [1996] IRLR 168, [1996] ICR 673, [1996] CEC 224, [1995] ECR I-4291

Links:

Bailii

Statutes:

Directive 79/129/EEC L48/29

Cited by:

Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Cited – Brookes and 334 Others v Borough Care Services and CLS Care Services Ltd EAT 4-Aug-1998
Where a transfer of a business had been arranged by way of a transfer of shares rather than of the business and particularly in order to avoid the Regulations, the transfer of shares took effect as a transfer of the undertaking and so the . .
Cited – Athinaiki Chartopoiia AE v L Panagiotidis and Others, third party: Geniki Sinomospondia Ergaton Elladas (GSEE) ECJ 15-Feb-2007
ECJ Free Movement of Persons – Collective redundancies – Council Directive 98/59/EC Article 1(1)(a) – Termination of the establishment’s activities of the employer’s own volition – Concept of ‘establishment’.
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88831

Regina v Customs and Excise Commissioners, Ex Parte EMU Tabac Sarl and Others (Imperial Tobacco Ltd, Intervener): ECJ 9 Apr 1998

Excise duty is payable on cigarettes imported as if personal imports but by use of agent in Luxembourg organising he imports as a commercial enterprise.

Citations:

Times 09-Apr-1998, C-296/95, [1998] EUECJ C-296/95

Links:

Bailii

Customs and Excise, European

Updated: 19 May 2022; Ref: scu.88432

Regina v Secretary of State for Trade and Industry ex parte Broadcasting, Entertainment, Cinematographic and Theatre Union: ECJ 26 Jun 2001

The rule in United Kingdom law under which the entitlement to be paid annual leave arose only after an employee had been continuously employed for 13 weeks, did not satisfy European law. Members of the applicant trade union were typically employed on short term repeating contracts and did not receive paid annual holidays. The Directive sought to improve working conditions for employees. There were certain derogations, but not from Article 7, the particular applicable condition. The right was a social right directly conferred on each worker, and the UK regulations were incompatible with that right.

Citations:

Times 28-Jun-2001, C-173/99, [2001] EUECJ C-173/99

Links:

Bailii

Statutes:

Council Directive 93/104/EC concerning certain aspects of the organisation of working time, Working Time Regulations 1998 (1998 No 1833) 13(7)

Cited by:

Cited – Munro v M P B Structures Ltd IHCS 1-Apr-2003
The respondent firm paid their staff holiday pay by adding a proportion to each wage packet. The employee complained that this was in breach of the regulations.
Held: The Regulations gave effect to the directive. The directive treated holiday . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 19 May 2022; Ref: scu.88660

Regina v Ministry of Agriculture Fisheries and Food Ex Parte Hedley Lomas (Ireland) Ltd: ECJ 23 May 1996

The wrongful prevention by a state of the lawful export of animals gave rise to a right to claim for damages.
LMA The UK had refused to grant licences for the export of live sheep to Spain, on the grounds that the slaughterhouses were not complying with the terms of an EC Directive requiring the stunning of animals before slaughter. The UK conceded they were in breach of the Treaty provision on export restrictions but argued that it was justified on the grounds of animal welfare.
Held: This was a sufficiently serious breach, on the basis of

  • Lack of discretion left to MS
  • Clarity of the Treaty provision breached
  • Absence of an established ground for justification.
    Where MS was not called upon to make any legislative choices and had considerably reduced/no discretion – a mere infringement of community law may be sufficient to establish ‘as sufficiently serious breach’

    • Citations:

    Times 06-Jun-1996, [1996] ECR 1 2553, C-5/94, [1997] QB 139, [1996] EUECJ C-5/94

    Links:

    Bailii

    Cited by:

    Cited – Regina v Ministry of Agriculture, Fisheries and Food ex parte Lay and Gage Admn 15-May-1995
    The claimants sought damages for the wrong interpretation of the law by the Ministry, which had restricted their rights to milk quota.
    Held: Making an administrative decision which was in breach of European law was not enough in itself to . .
    Cited – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
    It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
    Lists of cited by and citing cases may be incomplete.

    Agriculture, European

    Updated: 19 May 2022; Ref: scu.87360

    Regeling v Bestuur Van De Bedrijfsverenging Voor De Metaalnijverheid: ECJ 20 Jul 1998

    An employee who had received partial payment of wages since before start of period of wages guaranteed on employers insolvency, was entitled to treat part earned after start as payment of wages earned before period and could claim his entire losses

    Citations:

    Times 20-Jul-1998, C-125/97, [1998] EUECJ C-125/97

    Links:

    Bailii

    European

    Updated: 19 May 2022; Ref: scu.85945

    Regina v Secretary of State for the Environment, Transport, and the Regions, Ex Parte International Air Transport Association: QBD 3 Jun 1999

    The Association sought judicial review to challenge the 1998 Order.
    Held: Where an EC regulation was properly completed, it was valid even though different member states had, before joining the EC, had subscribed to International Treaties inconsistent with the Regulation, but were not bound by it because of such subscription.

    Judges:

    Jowitt J

    Citations:

    Times 03-Jun-1999, [1999] EWHC Admin 333, [1999] COD 315, [2000] 1 Lloyds Rep 242, [1999] Eu LR 811, [1999] 2 CMLR 1385

    Links:

    Bailii

    Statutes:

    Council Regulation 2027/97, EC Treaty 234, Warsaw Convention 1929, Air Carrier Liability Order 1998, Council Regulation (EC) Number 2027/97

    Citing:

    See Also – Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association Admn 6-Nov-1998
    . .
    Leave – Regina v Secretary of State for Environment Transport and Regions ex parte International Air Transport Association Admn 21-Apr-1999
    . .
    Lists of cited by and citing cases may be incomplete.

    European, Transport

    Updated: 19 May 2022; Ref: scu.85507

    Regina v Secretary of State for the Home Department, Ex Parte Savas: ECJ 23 May 2000

    A convention between the European Union and Turkey had direct effect under one article, but was not sufficiently detailed in other provisions to give a right to an individual to enforce its provisions. The article required Turkish nationals not to be treated worse than EU nationals, but did not itself confer a right of residence.
    Europa EEC-Turkey Association – Restrictions on freedom of establishment and right of residence – Article 13 of the Association Agreement and Article 41 of the Additional Protocol – Direct effect – Scope – Turkish national unlawfully present in the host Member State.

    Citations:

    Times 23-May-2000, C-37/98, [2000] ECR 1-2927, [2000] EUECJ C-37/98

    Links:

    Bailii

    Statutes:

    Protocol to the EEC-Turkey Association Agreement

    Citing:

    reference from – Regina v Secretary of State for Home Department ex parte Savas Admn 24-Apr-1997
    . .

    Cited by:

    See Also – Savas, Regina (on the Application of) v The Secretary of State for the Home Department Admn 11-Dec-2001
    . .
    Cited – Temiz, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Oct-2006
    The claimant sought judicial review of the refusal by the respondent to give him permission to stay in the United Kingdom. As a Turkish national he had absconded after being ordered to be removed, and had since gone into business here.
    Held: . .
    Lists of cited by and citing cases may be incomplete.

    Immigration, European

    Updated: 19 May 2022; Ref: scu.85537

    O’Flynn v Adjudication Officer: ECJ 23 May 1996

    A condition on the making of a funeral grant that the deceased be buried in that country was unlawful. Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community precludes a rule of a Member State which makes grant of a payment to cover funeral expenses incurred by a migrant worker subject to the condition that burial or cremation take place within the territory of that Member State. Unless objectively justified and proportionate to the aim pursued, a provision of national law, even if applicable irrespective of nationality, must be regarded as indirectly discriminatory, and hence not complying with the equality of treatment prescribed by Article 7(2), if it is simply intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. Firstly, as regards funeral expenses, although the costs he incurs will be of the same type as and of comparable amount to those incurred by a national worker, it is above all the migrant worker who may, on the death of a member of the family, arrange for burial in another Member State, in view of the links which the members of such a family generally maintain with their State of origin. Secondly, the refusal to grant the payment if the funeral takes place in another Member State cannot be justified by considerations of public health, or by considerations relating to the cost of funerals, since the cost of transporting the coffin to a place distant from the deceased’ s home is not covered in any event, or by the difficulty of checking the expenses incurred.

    Citations:

    Times 07-Jun-1996, C-237/94, [1996] All ER (EC) 541, [1996] ECR I-2617, [1996] EUECJ C-237/94

    Links:

    Bailii

    Cited by:

    Applied – Secretary of State for Work and Pensions v Carlos Bobezes CA 16-Feb-2005
    The Regulations provided that income support was not payable for a dependent child for any period of four weeks or more where the child was outside Great Britain. The claimant, a Portuguese national had come to Great Britain but had been incapable . .
    Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
    The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
    Held: The . .
    Lists of cited by and citing cases may be incomplete.

    Benefits, European

    Updated: 19 May 2022; Ref: scu.84430

    Partridge v Adjudication Officer Case: ECJ 2 Jul 1998

    Attendance allowance payable in England was properly withdrawn after claimant left England to live in France permanently. Attendance allowance is in special category under the regulations.

    Citations:

    Times 02-Jul-1998, C-297/96, [1998] EUECJ C-297/96

    Links:

    Bailii

    Statutes:

    Disability Living Allowance and Disability Working Allowance Act 1991, EC Treaty Art 177

    Benefits, European

    Updated: 19 May 2022; Ref: scu.84599

    Meyers v Adjudication Officer: ECJ 19 Jul 1995

    EC directive on equal rights requires single parents to set off child care costs.
    A social security benefit designed to keep low income workers in employment or to encourage them into employment was within the scope of Directive 76/207/EC, not only as being directly related to access to employment, but also on the basis that the claimants’ working conditions were affected. The Court said that: ‘To confine the latter concept solely to those working conditions which are set out in the contract of employment or applied by the employer in respect of a worker’s employment would remove situations directly covered by an employment relationship from the scope of the directive.’
    A benefit such as family credit, which may be paid to a person in Great Britain if his income is no higher than a given ceiling, if he, or if he is a member of a couple, he or the other member of the couple, is engaged in remunerative work and he or the other member of the couple is responsible for a child or another member of the same household, and which performs the dual function of keeping poorly paid workers in employment and of meeting family expenses, has by virtue of its first function an objective which brings it within the scope of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
    The concept of access to employment referred to in Article 3 of the directive must not be understood as relating solely to the conditions existing before an employment relationship is created. The prospect of receiving family credit if he accepts low-paid work encourages an unemployed worker to accept such work, with the result that the benefit is related to considerations governing access to employment. Furthermore, compliance with the fundamental principle of equal treatment presupposes that a benefit such as family credit, which is necessarily linked to an employment relationship, constitutes a working condition within the meaning of Article 5 of the directive.

    Citations:

    Times 19-Jul-1995, Ind Summary 11-Sep-1995, C-116/94, [1995] EUECJ C-116/94, [1995] ECR I-2131

    Links:

    Bailii

    Statutes:

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

    Cited by:

    Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
    The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
    Lists of cited by and citing cases may be incomplete.

    Benefits, European

    Updated: 19 May 2022; Ref: scu.83675

    Jensen v Landbrugsministeriet – Ef – Direktorat: ECJ 9 Sep 1998

    Where a farmer had a claim for subsidy from a member state and at the same time the farmer owed money to the state the state had a right to set-off the one against the other before making payment of the subsidy, if did not undermine EC market organisation

    Citations:

    Gazette 09-Sep-1998, C-132/95, Ecj/Cfi Bulletin 14/98, [1998] EUECJ C-132/95

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Agriculture, European

    Updated: 19 May 2022; Ref: scu.82514

    Criminal Proceedings Against Johannes Martinus Lemmens: ECJ 16 Jun 1998

    Evidence called by prosecutor of breathalyser machine was admissible even though the regulations for the type of machine used had not been notified for this purpose as required to the European Commission. The failure created no obstacle to trade.

    Citations:

    Times 20-Jul-1998, Gazette 09-Sep-1998, C-226/97, Ecj/Cfi Bulletin 16/98, 7, [1998] ECR I-3711

    Links:

    Bailii

    Statutes:

    Directive 83/189/EEC

    Cited by:

    Cited – Regina v Budimir and Another CACD 29-Jun-2010
    The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
    Lists of cited by and citing cases may be incomplete.

    Road Traffic, European

    Updated: 19 May 2022; Ref: scu.82527

    Kapasakalis, Skiathitis and Kougiagkas v Greek State: ECJ 9 Sep 1998

    Where a national of a state sought recognition for a qualification obtained entirely within that state, the provisions about recognition of diplomas across member state boundaries did not apply. No freedom of movement of workers issue involved.

    Citations:

    Gazette 09-Sep-1998, C-227/95, C-255/95, C-226/95, Ecj/Cfi Bulletin 18/98, 3, [1998] EUECJ C-226/95, [1998] EUECJ C-227/95

    Links:

    Bailii, Bailii

    Statutes:

    Council Directive 89/48/EEC

    European

    Updated: 19 May 2022; Ref: scu.82671

    Hermes International v FHT Marketing: ECJ 9 Sep 1998

    Where interim orders had been granted following seizure of goods under TRIPS agreement, the court gave guidance on what characteristics where required for it to be considered provisional measures under TRIPS and so imposed time limits.
    ECJ Agreement establishing the World Trade Organisation – TRIPS Agreement – Article 177 of the Treaty – Jurisdiction of the Court of Justice – Article 50 of the TRIPS Agreement – Provisional measures

    Citations:

    Gazette 09-Sep-1998, C-53/96, Ecj/Cfi Bulletin 16/98, [1998] EUECJ C-53/96

    Links:

    Bailii

    Statutes:

    Council Decision 94/800/EC Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

    Cited by:

    Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
    The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
    Held: ‘the present case is concerned with a collection . .
    Lists of cited by and citing cases may be incomplete.

    Intellectual Property, European

    Updated: 19 May 2022; Ref: scu.81344

    Imperial Chemical Industries Plc v Colmer (Inspector of Taxes) (No 2): HL 18 Nov 1999

    Where a group of companies sought consortium group relief, but the majority of the companies within the group were based outside the European Union, the court need not apply European Union standards to the test, but could instead apply the standards appropriate to the UK, and accordingly refuse the relief.

    Citations:

    Times 24-Nov-1999, Gazette 01-Dec-1999, [1999] 1 WLR 2035, [1999] UKHL 48, [1999] UKHL TC – 72 – 1

    Links:

    House of Lords, House of Lords, House of Lords, Bailii, Bailii

    Statutes:

    Income and Corporation Taxes Act 1988 258 (5) (b)

    Citing:

    At ECJ – Imperial Chemical Industries v Colmer ECJ 16-Jul-1998
    A member state was not allowed to impose a tax regime which discriminated against the subsidiaries of a company based in that state where they were based in other member states, but discrimination was allowed where the subsidiaries were based . .

    Cited by:

    Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
    Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
    Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
    The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
    Held: The scheme failed. The restriction imposed did not infringe the right of . .
    Lists of cited by and citing cases may be incomplete.

    Corporation Tax, European, Company

    Updated: 19 May 2022; Ref: scu.81594

    Handels Og Kontorfunktionaerernes Forbund I Danmark (Acting On Behalf of Pedersen) v Faellesforeningen for Danmarks Brugsforeninger (Acting On Behalf of Kvickly Skive): ECJ 19 Nov 1998

    It was discriminatory to refuse payment of maternity benefits where a worker suffered a pathological illness connected to a pregnancy with an allowance of benefits where someone ordinarily sick would receive full pay.

    Citations:

    Times 01-Dec-1998, C-66/96, [1998] EUECJ C-66/96

    Links:

    Bailii

    Statutes:

    Council Directive 75/117/EEC on Equal Pay for Men and Women

    Discrimination, European

    Updated: 19 May 2022; Ref: scu.81215

    Handelsveem Bv and Others v Coreck Maritime GmbH: ECJ 1 Dec 2000

    When a court looked at a choice of the jurisdiction clause, it was not necessary that the clause should withoutmore establish the jurisdiction. A clause could be effective where the forum will be ascertainable at the time by reference to a the circumstances. In this case of the clause required a dispute under a bill of lading to be decided in the country where the carrier had his principal place of business. The requirement under the convention, that the parties should have should of ‘agreed’ the jurisdiction was satisfied where they had agreed a method of establishing it. The Brussels convention applied only if, first, at least one of the parties to the original contract was domiciled in the contracting state and, second, the parties agreed to submit any dispute before the Court of a contracting state.
    ‘The Court has held that, by making the validity of a jurisdiction clause subject to the existence of an ‘agreement’ between the parties, article 17 of the Convention imposes on the court before which the matter is brought the duty of examining first whether the clause conferring jurisdiction upon it was in fact the subject of consensus between the parties, which must be clearly and precisely demonstrated, and that the purpose of the requirements as to form imposed by article 17 is to ensure that consensus between the parties is in fact established . . ‘

    Citations:

    Times 01-Dec-2000, C-387/98, [2000] ECR I-9337, [2000] EUECJ C-387/98

    Links:

    Bailii

    Cited by:

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

    Jurisdiction, Transport, European

    Updated: 19 May 2022; Ref: scu.81216

    Group Josi Reinsurance Company Sa v Universal General Insurance Company: ECJ 9 Aug 2000

    The Brussels Convention rules allowing jurisdiction apply whenever the proposed defendant is domiciled in a convention country. The plaintiff need not be. The special rules on jurisdiction which apply to insurance cases do not apply to reinsurance contracts.

    Citations:

    Times 09-Aug-2000, C-412/98, [2000] EUECJ C-412/98

    Links:

    Bailii

    Statutes:

    Brussels Convention on Enforcement of Judgments in Civil and Commercial Matters 1968

    Cited by:

    Cited – Owusu v Jackson, Mammee Bay Resorts Limited etc CA 19-Jun-2002
    Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .
    Lists of cited by and citing cases may be incomplete.

    Jurisdiction, Insurance, European

    Updated: 19 May 2022; Ref: scu.81058

    Gough and Another v Chief Constable of Derbyshire; Regina (Miller) v Leeds Magistrates’ Court; Lilley v Director of Public Prosecutions: QBD 13 Jul 2001

    Challenges were made to the powers banning the free movement of those convicted of offences of violence. Orders had been made banning the applicants from attending football matches, and requiring attendance at police stations at times of matches abroad. Such orders were not imposed as a penalty, being rather for the purposes of preventing disorder, and so, the human right not to be punished without law was not infringed. Though the effect was prima facie a breach of the right of free movement, there was nothing in the treaty making it impossible for a member state to restrict the freedom of movement of its own nationals on grounds of public policy.

    Judges:

    Lord Justice Aldous, Lady Justice Hale, Lord Justice Waller

    Citations:

    Times 19-Jul-2001, Gazette 31-Aug-2001, [2001] EWHC Admin 554, [2001] 3 WLR 1392

    Links:

    Bailii

    Statutes:

    Football Spectators Act 1989 14(4), European Convention on Human Rights 7

    Jurisdiction:

    England and Wales

    Cited by:

    Appeal from – Gough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
    The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
    Held: Although the proceedings under which orders were made were . .
    Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
    The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
    Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
    Cited – Newman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
    The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
    Lists of cited by and citing cases may be incomplete.

    Crime, Human Rights, European

    Updated: 19 May 2022; Ref: scu.80942

    Fischer v Finanzamt Donaueschingen: ECJ 2 Jul 1998

    The taxpayer ran several gaming clubs under a license authorising roulette type games. He was assessed to VAT, calculated on a probability basis.
    Held: In general VAT was recoverable on unlawful supplies, including unlawful gaming arrangements, but where the national legislation exempted lawful arrangements it could not be applied to unlawful versions. Fiscal neutrality prevented unlawful gaming being treated differently. If gaming was VAT exempt, so also must be unlawful gaming.

    Citations:

    Times 02-Jul-1998, Gazette 09-Sep-1998, C-283/95, Ecj/Cfi Bulletin 15/98, 16, [1998] EUECJ C-283/95

    Links:

    Bailii

    Statutes:

    EC Treaty Art 177

    VAT, European

    Updated: 19 May 2022; Ref: scu.80572

    Elsen v Bundes-Versicherungsanstalt Fur Angestellte: ECJ 14 Feb 2001

    When calculating an old age pension, a member state was wrong to exclude a period in which the applicant had cared for her child in another member state. She was a frontier worker, and the child had been born in the home country. To allow periods in which she had cared for the child in a neighbouring state to be excluded when calculating her pension entitlement would discourage freedom of movement of workers, and was not to be permitted

    Citations:

    Times 14-Feb-2001, C-135/99

    Benefits, European

    Updated: 19 May 2022; Ref: scu.80303

    El-Yassini v Secretary of State for the Home Department: ECJ 11 Mar 1999

    The agreement giving Moroccan citizens rights of residence within the EU did not require a member state to renew a residence permit after the original purpose was satisfied, though not where work permit extended beyond the original residence permit.

    Citations:

    Times 11-Mar-1999, C-416/96

    Statutes:

    Co-operation Agreement between the European Economic Community and the Kingdom of Morocco

    Immigration, European

    Updated: 19 May 2022; Ref: scu.80306

    EC Commission v French Republic: ECJ 9 Sep 1998

    It was open to a member state to disallow reclaim of VAT on a motor vehicle even though it was the very tool of the owners trade. State had right to retain regulations predating the Council Directive disallowing such allowances.

    Citations:

    Gazette 09-Sep-1998, C-43/96, Ecj/Cfi Bulletin 16/98, 27

    Statutes:

    Sixth VAT Directive Art 17(6)

    VAT, European

    Updated: 19 May 2022; Ref: scu.80242

    EC Commission v Hellenic Republic: ECJ 9 Sep 1998

    The court emphasised the need for the member states to implement the Directive to reduce pollution from the listed substances. States should also state how they intended to test the implementation and also the time scale for implementation

    Citations:

    Gazette 09-Sep-1998, Ecj/Cfi Bulletin 15/98, 14, C-232/95, [1998] EUECJ C-232/95

    Links:

    Bailii, Bailii

    Statutes:

    Council Directive 76/464/EEC

    Environment, European

    Updated: 19 May 2022; Ref: scu.80243

    Dillenkofer and Others v Federal Republic of Germany: ECJ 8 Oct 1996

    Individuals have a right to claim damages for the failure to implement a Community Directive.
    LMA The case concerned a failure to implement a Directive on package holidays.
    Held: The breach by the German State was clearly inexcusable and was therefore sufficiently serious to warrant liability (no mention of conditions). Non transposition of Directive within the prescribed time limit of itself amounted to sufficiently serious breach (lack of discretion left to MS) An action in damages can be brought against the ‘State’ for failure to implement or defective implementation of a Directive.

    Citations:

    Times 14-Oct-1996, [1997] IRLR 60, C-178/94, [1996] EUECJ C-178/94

    Links:

    Bailii

    European

    Updated: 19 May 2022; Ref: scu.79965

    Deliege v Ligue Francophone De Judo et Disciplines Associees Asbl and Others: ECJ 11 Apr 2000

    It was not an unlawful discriminatory provision to restrict those who might take part in professional sports activities in another member state to be first authorised or selected by their own national federation where such competition was not on a national representative team level. If it was derived from a proper need inherent in the organisation of such a competition it could be proper. A selection system might favour some athletes over others, but need not constitute a restriction on the provision of services: ‘a rule requiring professional or semi-professional athletes or persons aspiring to take part in a professional or semi-professional activity to have been authorised or selected by their federation in order to be able to participate in a high-level international sports competition, which does not involve national teams competing against each other, does not in itself, as long as it derives from a need inherent in the organisation of such a competition, constitute a restriction on the freedom to provide services prohibited by Article 49 (ex 59) of the Treaty.’

    Citations:

    Times 19-Apr-2000, C-51/96, C-191/97, [2000] ECR I-2549, [2000] EUECJ C-191/97, [2000] EUECJ C-51/96

    Links:

    Bailii, Bailii

    Statutes:

    ECTreaty Art 234 49

    Cited by:

    Cited – Meca-Medina and Majcen v Commission ECFI 30-Sep-2004
    ECJ Competition – Freedom to provide services – Anti-doping legislation adopted by the International Olympic Committee (IOC) – Purely sporting legislation
    The claimants were athletes who complained that . .
    Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
    The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
    Lists of cited by and citing cases may be incomplete.

    European, Discrimination

    Updated: 19 May 2022; Ref: scu.79891

    Deutsche Telekom Ag v Vick and Another; Same v Schroder; Deutsche Post Ag v Sievers and Another: ECJ 28 Mar 2000

    The social purposes of the Treaty in article 119 (141 EC) overrode the economic aims of the Treaty. Accordingly the article did not preclude a requirement upon a member state which imposed obligations to satisfy that social aim, even though it migt have economic consequences which risked an adverse effect upon that member states international competitiveness.

    Judges:

    R. Schintgen, P

    Citations:

    Times 28-Mar-2000, Case C-50/96, C-271/97, C-270/9, C-234/96, [2000] EUECJ C-271/97, [2000] EUECJ C-234/96

    Links:

    Bailii, Bailii

    Statutes:

    EC Treaty Art 141

    Cited by:

    Cited – Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
    The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
    Held: The challenge failed. The new Order was not in breach of European Union . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, European

    Updated: 19 May 2022; Ref: scu.79944

    D v W: ECJ 24 Oct 2000

    The fact that a service was provided by a doctor did not mean of itself that it came within Art 13 of the Directive. The test was whether the service was part a provision of care by diagnosing and treating some diseases or disorder. The carrying out of investigations to establish genetic differences, which was to provide evidence in paternity proceedings in a court was not part of such a process, and so did not attract exemption from VAT.

    Citations:

    Times 24-Oct-2000, C-384/98

    Statutes:

    Sixth Council Directive 77/388/EC on the harmonisation of laws of the member states relating to turnover taxes; common system of value added tax Art 13

    VAT, European

    Updated: 19 May 2022; Ref: scu.79768

    Crt France International Sa v Directeur Regional Des Impots De Bourgogne: ECJ 11 Aug 1999

    An importer of CB radios to France complained that he had had to pay taxes on the imports. A customs tax is one faced by imported goods but not by goods locally produced. There being no comparable local goods, it must remain a question for the national court. It was wrong to make an artificial comparison between local taxes and customs duties.

    Citations:

    Gazette 11-Aug-1999

    European

    Updated: 19 May 2022; Ref: scu.79700

    Criminal Proceedings Against Skills Motor Coaches Ltd and Others: ECJ 18 Jan 2001

    Where drivers drove away from their home and main centre of work to pick up a vehicle which would require them to record their activities on the tachograph, they were obliged in addition to record the time travelling as another period of work. This was not a situation where a driver had begun driving immediately after a rest period. Whether the driver had had specific instructions as to what to do or had had some element of choice was not conclusive either.

    Citations:

    Times 20-Feb-2001, [2001] EUECJ C-297/99, C-297/99

    Links:

    Bailii

    Statutes:

    Transport Act 1968

    Road Traffic, European

    Updated: 19 May 2022; Ref: scu.79669

    Criminal Proceedings Against Arblade and Others Joined Cases C-369/96 and C-376/96: ECJ 7 Dec 1999

    Where a member state had a minimum wage law, it was not contrary to the rules requiring the free movement of services, to require that a supplier from another state providing services within the state should do so subject to the minimum wage rules of the state in which the service is provided, and to criminalize breaches of such rules. There was no freedom to insist on payment of employers social funds contributions in both states.

    Citations:

    Times 07-Dec-1999

    Statutes:

    ECTreaty Article 234

    Employment, European

    Updated: 19 May 2022; Ref: scu.79653

    Criminal Proceedings Against Wijsenbeek Case: ECJ 12 Oct 1999

    It was not a breach of community law, restricting the free movement of persons within the community, to require a traveller to produce evidence of identity sufficient to establish his nationality and right to cross the frontier. Criminal sanctions for breaches of such a requirement were proper provided they remained proportionate.

    Citations:

    Times 12-Oct-1999

    Statutes:

    ECTreaty Article 234

    European

    Updated: 19 May 2022; Ref: scu.79670

    Criminal Proceedings Against Calfa: ECJ 21 Jan 1999

    A provision by a member state that a national from another member state could be expelled for life on conviction for certain drug offences and without consideration of his personal circumstances or the threat posed was contrary to Community law.

    Citations:

    Times 21-Jan-1999, C-348/96, [1999] EUECJ C-348/96

    Links:

    Bailii

    Statutes:

    ECTreaty 177

    Jurisdiction:

    England and Wales

    Criminal Sentencing, European

    Updated: 19 May 2022; Ref: scu.79657

    Criminal Proceedings Against Goerres: ECJ 21 Aug 1998

    Though national regulations could allow placement of label identifying foodstuffs by the product, it was insufficient compliance with European Directive. The ultimate consumer (not just purchaser) needed to be informed about the product.

    Citations:

    Times 21-Aug-1998

    Statutes:

    ECTreaty Art 177

    Jurisdiction:

    European

    Consumer

    Updated: 19 May 2022; Ref: scu.79660

    Criminal Proceedings Against Hume Case C-193/99: ECJ 5 Oct 2000

    When a driver subject to the tachograph requirements did not take his rest period in one week, the regulation permitting him to aggregate it with that in the week following did not permit him to take two separate rest periods in that week, but rather two periods together. The wording of the directive as expressed in languages other than English was clear, and the English was not very doubtful.

    Citations:

    Times 05-Oct-2000

    Road Traffic, European

    Updated: 19 May 2022; Ref: scu.79662

    Commissioners of Customs and Excise v DFD A/S: ECJ 24 Feb 1997

    ECJ Article 26(2) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes is to be interpreted as meaning that, where a tour operator established in one Member State provides services to travellers through the intermediary of a company operating as an agent in another Member State, VAT is payable on those services in the latter State if that company, which acts as a mere auxiliary organ of the tour operator, has the human and technical resources characteristic of a fixed establishment. Although the place where a supplier’s business is established is the main fiscal point of reference, that reference would not lead to a rational result in that it takes no account of the actual place where the tours are marketed. On the other hand, the alternative approach of levying tax at the place of the fixed establishment from which those services are supplied, because it takes account of the possible diversification of travel agents’ activities in different places within the Community and avoids the distortions of competition which might arise from reliance on the place where the supplier has established his business, in that undertakings trading in a Member State might be encouraged to establish their businesses in a Member State in which the services in question were exempted, is based on the actual economic situation, which constitutes a fundamental criterion for the application of the common system of value added tax.

    Citations:

    Times 24-Feb-1997, C-260/95, [1997] EUECJ C-260/95

    Links:

    Bailii

    VAT, European

    Updated: 19 May 2022; Ref: scu.79380

    Clean Car Autoservice Gesmbh v Landeshauptmann Von Wien: ECJ 13 May 1998

    An employer can make use of EU legislation allowing free movement of workers as much as can individual employees. Member state requiring an own national head of company was invalid.

    Citations:

    Times 13-May-1998, C-350/96, [1998] EUECJ C-350/96

    Links:

    Bailii

    Statutes:

    ECTreaty Art 48

    Employment, European

    Updated: 19 May 2022; Ref: scu.79211

    Clees v Hauptrollamt Wuppertal: ECJ 4 Jan 1999

    For customs clearance purposes a vintage car is presumed of historic interest if still in its original state without alteration to brakes chassis and steering, over 30 years old, not still in production, but authority could still show not significant.

    Citations:

    Times 04-Jan-1999, C-259/97, [1998] EUECJ C-259/97

    Links:

    Bailii

    Statutes:

    Common Customs Tarriff (OJ 1987 L256-p1)

    European

    Updated: 19 May 2022; Ref: scu.79212

    Commission of the European Communities (Supported by the United Kingdom) v Hellenic Republic: ECJ 7 Jul 2000

    When assessing the penalty to be imposed on a member state for failing to comply with a judgement of the court the court had to look at the duration of the breach, its seriousness, and its ability to pay. Here a fine of 20.000 Euros per day was imposed upon Greece for failing to control discharges into the sea in breach of court orders over several years.
    The court described a waste management plan within the meaning of Article 7 of the Directive as ‘a comprehensive programme with a view to attaining certain objectives’.

    Citations:

    Times 07-Jul-2000, C-387/97, [2000] ECR I-5047, [2000] EUECJ C-387/97

    Links:

    Bailii

    Cited by:

    Cited – Regina v Daventry District Council ex parte Thornby Farms Admn 28-Jul-2000
    The council granted licences for the disposal of waste animal carcasses by incineration. The objectors said the council had failed to take note of art 4 of the directive, and that as clinical waste alternative regimes applied.
    Held: Animal . .
    Cited – Derbyshire Waste Ltd v Blewett and Another CA 11-Nov-2004
    Glapswell Colliery had closed. The owners sought to use it for waste disposal by landfill. The objector had obtained judicial review of the permission granted.
    Held: The intention of the Landfill Directive was to discourage its use other than . .
    Lists of cited by and citing cases may be incomplete.

    European, Environment

    Updated: 19 May 2022; Ref: scu.79301

    Commission of the European Communities v French Republic (Supported by United Kingdom Intervener): ECJ 18 Jun 1998

    (Judgment) It was open to member states to refuse to allow claim VAT input reclaims on articles purchased for transport which constituted the very tool of the trade of a taxpayer. Driving instructors may not reclaim VAT on their transport.

    Citations:

    Times 02-Jul-1998, C-43/96, [1998] EUECJ C-43/96

    Links:

    Bailii

    Statutes:

    Council Directive 77/388/EEC, EC Treaty 169

    Jurisdiction:

    European

    VAT, European

    Updated: 19 May 2022; Ref: scu.79302

    Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland: ECJ 30 Apr 1999

    The system in the UK of the government accepting undertakings from water companies as to the steps to be taken to comply with European regulations as to water standards had been used to allow non-compliance. The UK was in breach of requirements.

    Citations:

    Times 30-Apr-1999, C-340/96, [1999] EUECJ C-340/96

    Links:

    Bailii

    Statutes:

    Council Directive 80/778/EEC, Water Industry Act 1991

    European, Utilities

    Updated: 19 May 2022; Ref: scu.79307

    Chief Adjudication Officer v Wolke; Remelien v Secretary of State for Social Security: HL 13 Nov 1997

    The claimant was an EC national who had become resident here but was not seeking work, since she cared for her children. The Secretary of State said that since she was not seeking work, she was not entitled to remain and should make arrangements to leave the UK.
    Held: The letter asking a claimant to make arrangements to return to his or her own European state was not sufficient of itself to remove his right to claim benefits.

    Judges:

    Lord Hoffmann

    Citations:

    Gazette 17-Dec-1997, Times 01-Dec-1997, [1997] UKHL 50, [1998] 1 All ER 129, [1997] 1 WLR 1640, [1998] 1 FLR 444, [1998] 1 FCR 119, [1998] Fam Law 193

    Links:

    House of Lords, Bailii

    Statutes:

    Income Support (General) Regulations 1987 21(3)(b), Social Security Contributions and Benefits Act 1992 175, Immigration (European Economic Area) Order 1994

    Citing:

    Cited – Regina v Immigration Appeal Tribunal, ex parte Antonissen ECJ 26-Feb-1991
    ECJ The free movement of workers enshrined in Article 48 of the Treaty entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the . .
    Cited – Regina v Stanislaus Pieck ECJ 3-Jul-1980
    Any formality for the purpose of granting leave, coupled with a passport or an identity card check at the frontier, was contrary to article 3(2) of Directive 68/360 E.E.C. which prohibited Member States from demanding an entry visa or equivalent . .
    Cited – Centre Public D’Aide Sociale De Courcelles v Lebon ECJ 18-Jun-1987
    A right to equal treatment with regard to social and tax advantages accorded by article 7(2) of Regulation No. 1612/68 E.E.C. applied only to workers and not to nationals of Member States who move in search of employment. The latter were entitled . .
    Cited – Regina v Secretary of State for Home Department Ex Parte Vitale; Regina v Same Ex Parte Do Amaral QBD 18-Apr-1995
    A European Union citizen’s right to stay in UK is not unqualified, he must expect to have to seek or find work. The decision of the Home Secretary could be judicially reviewed and ‘in the course of his appeal before the Social Security Appeal . .

    Cited by:

    Cited – London Borough of Barnet v Ismail and Another CA 6-Apr-2006
    The court considered the entitlement to housing support of nationals of other EEA states receiving Income Support here despite their being still subject to immigration control.
    Held: Such EEA nationals were eligible for housing benefit. The . .
    Lists of cited by and citing cases may be incomplete.

    Benefits, Immigration, European

    Updated: 19 May 2022; Ref: scu.79052

    Caisse De Pension Des Employes Prives v Kordel et Al Case C-397/96: ECJ 22 Oct 1999

    Where a citizen was injured in one member state, but resided and claimed benefits in another, the rights against the person who caused the injury had to be assessed under the law of the member state in which the accident took place, but a state claiming subrogation could not claim more than the amounts of benefits it actually paid in accordance with its own law.

    Citations:

    Times 22-Oct-1999

    Personal Injury, European

    Updated: 19 May 2022; Ref: scu.78827

    Buehler Ag v Chronos Richardson Ltd: CA 20 Mar 1998

    The rejection of an opposition claim to a European Patent by the European Patents Office, did not create an estoppel for an English Court looking at a similar issue.

    Judges:

    Roch, Aldous LJJ

    Citations:

    Times 03-Apr-1998, [1998] 2 All ER 960, [1998] EWCA Civ 509

    Links:

    Bailii

    Statutes:

    Patents Act 1977 72

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Special Effects Ltd v L’Oreal Sa and Another CA 12-Jan-2007
    The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
    Held: It was not . .
    Lists of cited by and citing cases may be incomplete.

    Intellectual Property, European

    Updated: 18 May 2022; Ref: scu.78729

    Bunzl v Martin Bunzl International Ltd and Others: ChD 3 Aug 2000

    Security for costs had been ordered against a Swiss resident claimant. Although Switzerland is not in the EU or in the EEA and therefore rules against discrimination against nationals of member states did not apply, Switzerland was still a signatory to the Brussels and Lugano Conventions for enforcement of judgments. The discretion to require security for costs was slightly wider a regards a Swiss national, but the court should still general follow the rule in Fitzgerald. Orders for security for costs against nationals of other EU member states were discriminatory.

    Citations:

    Times 19-Sep-2000, Gazette 03-Aug-2000

    European, Costs, International

    Updated: 18 May 2022; Ref: scu.78741

    Burgemeester En Wethouders Van Haarlemmerlied En Spaarnwoude v Gedeputerde Staten Van Noord-Holland: ECJ 9 Sep 1998

    Where a development which might have significant environmental impact was proposed it was necessary to ensure that an environmental impact assessment had been carried out. It was not open to member states to exempt some types of development.

    Citations:

    Gazette 09-Sep-1998, C-81/96, Wcj/Cfi Bulletin 16/98, 28

    Statutes:

    Council Directive 90/313/EEC Freedom of Access to information on the environment.

    Environment, European, Planning

    Updated: 18 May 2022; Ref: scu.78743

    Brown v Rentokil Ltd: ECJ 30 Jun 1998

    Dismissal for any illness associated with pregnancy is for a sex related reason, and is discriminatory, and unlawful irrespective of the contractual right being otherwise applied equally to men suffering illness. Pregnancy is a period during which disorders and complications may arise compelling a woman to undergo strict medical supervision and, in some cases, to take absolute rest for all or part of her pregnancy. Those disorders and complications, which may cause incapacity for work, form part of the risks inherent in the condition of pregnancy and are thus a specific feature of that condition

    Judges:

    C. Gulmann, P

    Citations:

    Times 02-Jul-1998, Gazette 09-Sep-1998, [1998] IRLR 445, C-394/96, ECJ/CFI Bulletin 18/98, 1, [1998] EUECJ C-394/96, [1998] ECR I-4185, [1998] ICR 790, [1998] Fam Law 597, [1999] 1 FCR 49, [1998] 2 FLR 649, [1998] 2 CMLR 1049, [1998] CEC 829

    Links:

    Bailii

    Statutes:

    EC Treaty Art 177, Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment etc

    Citing:

    Appeal from – Reversed – Brown v Rentokil Ltd IHCS 10-Mar-1995
    Mrs Brown was employed by Rentokil as a driver, transporting and changing ‘Sanitact’ units in shops. In her view, it was heavy work. She told Rentokil that she was pregnant. She had difficulties associated with the pregnancy. From 16 August 1990 . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, European

    Updated: 18 May 2022; Ref: scu.78709

    Brookes and 334 Others v Borough Care Services and CLS Care Services Ltd: EAT 4 Aug 1998

    Where a transfer of a business had been arranged by way of a transfer of shares rather than of the business and particularly in order to avoid the Regulations, the transfer of shares took effect as a transfer of the undertaking and so the regulations caught the transaction, even though the Directive made no mention of such a transfer.

    Citations:

    Gazette 10-Dec-1998, [1998] IRLR 636, [1998] UKEAT 210 – 98 – 0408, [1998] ICR 1198

    Links:

    Bailii

    Statutes:

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

    Jurisdiction:

    England and Wales

    Citing:

    Cited – Rockfon A/S v Specialarbejderforbunde I Danmark Acting for Nielsen and Others ECJ 17-Jan-1996
    The term ‘establishment’ for the purpose of consultation on contemplated redundancies meant the work unit to which the relevant workers were assigned: ‘The term ‘establishment’ appearing in Article 1(1)(a) of Directive (75/129/EEC) must therefore be . .

    Cited by:

    Cited – Astle and others v Cheshire County Council and Omnisure Property Management Ltd EAT 20-May-2004
    EAT Issue whether Employment Tribunal asked itself the right question and/or was perverse in failing to find that the principal reason for the Council’s changed arrangements was to thwart TUPE and hence that the . .
    Lists of cited by and citing cases may be incomplete.

    Employment, European

    Updated: 18 May 2022; Ref: scu.78672

    Bossa v Nordstress Ltd: EAT 13 Mar 1998

    The defendant company had refused to employ the complainant at Heathrow on the basis that he was Italian, and relied upon exemptions in the 1976 Act.
    Held: A Statutory provision which permitted discrimination against a worker employed in Europe operated against the Treaty obligation to afford free movement of workers and is to be ignored.

    Citations:

    Times 13-Mar-1998

    Statutes:

    Race Relations Act 1976 8, EC Treaty Art 48

    Discrimination, European

    Updated: 18 May 2022; Ref: scu.78497

    Bavarian Lager Company Ltd v Commission of the European Communities (Supported by United Kingdom, Intervener): ECJ 10 Nov 1999

    Where an opinion had been drafted in anticipation of being signed in support of a case to be brought by the Commission to enforce EC law, but the matter was settled with the member state involved before the draft report was approved and signed, the Commission was entitled to refuse to disclose the report. It was merely preparatory to the issue of a reasoned opinion.

    Citations:

    Times 10-Nov-1999, T-309/97, [1999] EUECJ T-309/97

    Links:

    Bailii

    Statutes:

    EC Treaty Art 226 EC

    European, Administrative

    Updated: 18 May 2022; Ref: scu.78292

    Kareem (Proxy Marriages – EU Law) Nigeria: UTIAC 16 Jan 2014

    a. A person who is the spouse of an EEA national who is a qualified person in the United Kingdom can derive rights of free movement and residence if proof of the marital relationship is provided.
    b. The production of a marriage certificate issued by a competent authority (that is, issued according to the registration laws of the country where the marriage took place) will usually be sufficient. If not in English (or Welsh in relation to proceedings in Wales), a certified translation of the marriage certificate will be required.
    c. A document which calls itself a marriage certificate will not raise a presumption of the marriage it purports to record unless it has been issued by an authority with legal power to create or confirm the facts it attests.
    d. In appeals where there is no such marriage certificate or where there is doubt that a marriage certificate has been issued by a competent authority, then the marital relationship may be proved by other evidence. This will require the Tribunal to determine whether a marriage was contracted.
    e. In such an appeal, the starting point will be to decide whether a marriage was contracted between the appellant and the qualified person according to the national law of the EEA country of the qualified person’s nationality.
    f. In all such situations, when resolving issues that arise because of conflicts of law, proper respect must be given to the qualified person’s rights as provided by the European Treaties, including the right to marry and the rights of free movement and residence.
    g. It should be assumed that, without independent and reliable evidence about the recognition of the marriage under the laws of the EEA country and/or the country where the marriage took place, the Tribunal is likely to be unable to find that sufficient evidence has been provided to discharge the burden of proof. Mere production of legal materials from the EEA country or country where the marriage took place will be insufficient evidence because they will rarely show how such law is understood or applied in those countries. Mere assertions as to the effect of such laws will, for similar reasons, carry no weight.
    h. These remarks apply solely to the question of whether a person is a spouse for the purposes of EU law. It does not relate to other relationships that might be regarded as similar to marriage, such as civil partnerships or durable relationships.

    Citations:

    [2014] UKUT 24 (IAC)

    Links:

    Bailii

    Jurisdiction:

    England and Wales

    Immigration, European

    Updated: 18 May 2022; Ref: scu.522257

    Regina v British Coal Corporation and Secretary of State for Trade and Industry ex parte Vardy and Others: QBD 1993

    British Coal Corporation had decided to close 31 deep mine collieries. The court was asked as to just what consultation obligations fell on the employer under the 1946 Act.
    Held: The section did create an obligation to consult. Glidewell LJ, made obiter comments on the similar consultation duties under section 188 of the 1992 Act: ‘In my judgment, this section does not require a consultation about the reason for the redundancy, including whether or not a plant should close. ‘ As to article 2 of the Directive, he said: ‘By Article 2(2) the scope of the consultations is in part defined. In my view the fact that consultations are to begin as soon as the employer contemplates redundancies and that they are to include ways and means of avoiding redundancies indicates that the Directive is to be interpreted as including consultation on ways of avoiding redundancies by not closing the particular establishment, if that is what the employer has in mind.’ Section 188 was therefore not consistent with the Directive: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act 1992 is such that the section cannot be interpreted as having the same meaning as the Directive.
    I say this because in the Directive consultation is to begin as soon as an employer contemplates redundancies, whereas under the Act of 1992 it only needs to begin when he proposes to dismiss as redundant an employee. The verb ‘proposes’ in its ordinary usage relates to a state of mind which is much more certain and further along the decision-making process than the verb ‘contemplates;’ in other words, the Directive envisages consultation at an early stage when the employer is first envisaging the possibility that he may have to make employees redundant. Section 188 applies when he has decided that, whether because he has to close a plant or for some other reason, it is his intention, however reluctant, to make employees redundant. Moreover, section 188 of the Act 1992 contains no words equivalent to those contained in Article 2 (2) of Directive (75/129/EEC).’

    Judges:

    Glidewell LJ, Hidden J

    Citations:

    [1993] IRLR 104, [1993] ICR 720

    Statutes:

    Coal Industry (Nationalisation) Act 1946 46, Council Directive of 24 June 1992 92/56/EEC, Trade Union and Labour Relations (Consolidation) Act 1992 188(2)(a) 189

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
    EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
    Followed – Middlesbrough Borough Council v TGWU Unison EAT 4-May-2001
    The council sought to make redundancies because of its financial circumstances following re-organisation. The employees said the consultation procedure had been a sham.
    Held: Fair consultation involves giving the body consulted a fair and . .
    Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
    EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
    Lists of cited by and citing cases may be incomplete.

    Employment, European

    Updated: 18 May 2022; Ref: scu.416025

    Mann and others v Secretary of State for Employment: HL 8 Jul 1999

    When acting effectively as a guarantor of a company’s obligations to its employees upon insolvency in paying unpaid wages, the Secretary of State for Employment was entitled to set off against those payments, payments made by way of compensation by administrative receivers by way of a protective award for employment entitlements. European Directives did not apply on receiverships. The House described the provisions of section 166 and 167 as a ‘state guarantee’ and the Secretary of State was a ‘guarantor, liable only for whatever the employee was entitled to be paid by his employer’.

    Citations:

    Times 19-Jul-1999, [1999] UKHL 29, [1999] ICR 898

    Links:

    House of Lords, Bailii

    Jurisdiction:

    England and Wales

    Citing:

    Appeal from – Mann and Others v Secretary of State for Employment CA 30-Sep-1996
    LMA An Industrial tribunal does not have the jurisdiction to entertain Francovich state liability for damages actions – these must be heard by the ordinary courts. . .

    Cited by:

    Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
    The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
    Lists of cited by and citing cases may be incomplete.

    Employment, Insolvency, European

    Updated: 17 May 2022; Ref: scu.159013

    Atkins v Wrekin District Council and Another: ECJ 11 Jul 1996

    A concessionary fares scheme did not fall within the scope of sex discrimination laws. Equal treatment of men and women – Concessionary fares on public passenger transport services – Scope of Directive 79/7/EEC – Link with retirement age.
    ECJ On a proper interpretation of Article 3(1) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, a scheme under which concessionary fares on public passenger transport services are granted to certain classes of persons, including certain elderly persons, does not fall within the scope of the Directive.
    First, a benefit consisting of concessionary fares on public passenger transport services does not afford direct and effective protection against one of the risks listed in Article 3(1) and the fact that the recipient of a benefit is, as a matter of fact, because of his age, in one of the situations envisaged by that article does not suffice to bring that benefit as such within the scope of the Directive.
    Secondly, it cannot be concluded from the fact that, besides referring to the field of social security, Article 1 of Directive 79/7 refers to other elements of social protection provided for in Article 3 and that Article 3(1)(a) refers to statutory schemes which provide protection against the risks listed, without specifying that those schemes must fall under social security, that the scope of the Directive extends to social protection as a whole, and consequently to measures such as the said concessionary fares. In view of the unequivocal terms of the title of Directive 79/7, the various recitals in its preamble and Article 1 thereof, which all state that the Directive is intended to ensure the progressive implementation of the principle of equal treatment for men and women in matters of social security, the reference to other elements of social protection provided for in Article 3 cannot be interpreted otherwise than as referring to provisions concerning social assistance, which generally fall outside the area of social security but fall within the scope of the Directive pursuant to Article 3(1)(b) where they are intended to supplement or replace the schemes referred to in Article 3(1)(a).

    Judges:

    G.C. Rodriguez Iglesias, P

    Citations:

    Times 02-Aug-1996, C-228/94, [1996] EUECJ C-228/94

    Links:

    Bailii

    Statutes:

    Transport Act 1985 93(7), Directive 79/7/EEC

    Discrimination, European, Transport

    Updated: 17 May 2022; Ref: scu.77938

    Antoine Kortas: ECJ 6 Oct 1999

    Where a Directive measure has direct effect, it has that effect notwithstanding that it is passed under Article 100a(4) of the Treaty (now Article 95 EC) which allowed derogations by member states. The direct effect applied even though a notice of intended derogation had been received.

    Citations:

    Gazette 06-Oct-1999, C-319/97, Ecj/Cfi Bulletin 15/99 7

    European

    Updated: 17 May 2022; Ref: scu.77820

    Arsenal Football Club Plc v Reed: ChD 6 Apr 2001

    The defendant had sold memorabilia using the claimant’s name, and marks for thirty years. He sought to make it clear that the products were not sourced from the club. They were purchased, generally, by people who wore them as badges of allegiance to the club. The claim of passing off failed because the club had brought no evidence of confusion as to the source of them. The use appeared to infringe the claimant’s trade mark rights, but there is confusion as to whether such use constituted a non-trade mark use and could not be restrained by the Act, and whilst the judge was constrained to find for the claimant, he invited the parties to consider an appeal or reference to the European Court of Justice.

    Citations:

    Times 26-Apr-2001, [2001] EWHC Ch 440

    Links:

    Bailii, Bailii

    Statutes:

    Trade Marks Act 1994 10, Trade Marks Directive 89/104/EEC (1989 OJ No L40/5)

    Citing:

    Referred to – Arsenal Football Club plc v Reed ECJ 12-Nov-2002
    The trade mark owner sought orders against a street vendor who sold articles using their marks. He asserted that the marks were not attached to show any quality, but were used by the fans as badges of allegiance.
    Held: The function of a trade . .

    Cited by:

    Reference From – Arsenal Football Club plc v Reed ECJ 12-Nov-2002
    The trade mark owner sought orders against a street vendor who sold articles using their marks. He asserted that the marks were not attached to show any quality, but were used by the fans as badges of allegiance.
    Held: The function of a trade . .
    Lists of cited by and citing cases may be incomplete.

    Intellectual Property, European

    Updated: 17 May 2022; Ref: scu.77875

    Angestelltenbetriebsrat Der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse: ECJ 20 May 1999

    Where two groups worked doing similar work, but one had superior qualifications, those qualifications could justify a pay differential. They were not to be treated as doing the same work.

    Citations:

    Times 20-May-1999, C-309/97, [1999] EUECJ C-309/97, [2000] ICR 1134

    Links:

    Bailii

    Statutes:

    Council Directive 75/117/EEC on the approximation of laws relating to equal pay for men and women., EC Treaty Art 234

    Cited by:

    Cited – Matthews and others v Kent and Medway Towns and Fire Authority and others HL 1-Mar-2006
    Retained or part-time firefighters sought parity of working conditions with full time firefighters.
    Held: The retained firefighters’ appeal succeeded (Lords Carswell and Mance dissenting). The test was whether the part-time and full time . .
    Lists of cited by and citing cases may be incomplete.

    Discrimination, European

    Updated: 17 May 2022; Ref: scu.77799

    Allen and Others v Amalgamated Construction Co Ltd: ECJ 10 Dec 1999

    The European rules protecting employees rights on the transfer of undertakings operated also when employees when employees were transferred between two separate companies which were subsidiaries of another. They were legally distinct employers, even though some management was common within the group.

    Citations:

    Times 10-Dec-1999, [2000] ICR 436, C-234/98, [2000] IRLR 119, [1999] EUECJ C-234/98

    Links:

    Bailii

    Statutes:

    Council Directive 77/187/EEC

    Jurisdiction:

    European

    Citing:

    Cited – Spijkers v Gebroeders Benedik Abattoir ECJ 18-Mar-1986
    ECJ Social policy – approximation of laws – transfers of undertakings – safeguarding of employees’ rights – Directive no 77/187 – transfer – meaning
    (Council Directive no 77/187, art. 1(1).
    The . .
    Cited – Suzen v Zehnacker Gebaudereinigung Krankenhausservice (Judgment) ECJ 11-Mar-1997
    A transfer of a contract to provide business services, without the transfer of significant assets was not a transfer of an undertaking within the Directive. Nevertheless the transfer of tangible assets was only one factor among several. . .

    Cited by:

    Considered – ADI (UK) Limited v Firm Security Group Limited CA 22-Jun-2001
    ADI appealed against a decision that, when they took over a services contract, there had been a transfer within the Regulations.
    Held: Though no assets tangible or otherwise, had been transferred, this was a contract to provide services at a . .
    Cited – Fairhurst Ward Abbotts Limited v Botes Building Limited and others CA 13-Feb-2004
    A claim was made under the TUPE regulations. The company replied that the part of the business transferred was not a discrete economic entity.
    Held: The regulations did not require that in order to be governed by the regulations, a business . .
    Lists of cited by and citing cases may be incomplete.

    Employment

    Updated: 17 May 2022; Ref: scu.77740

    Morgan Stanley Dean Witter Bank Ltd v Visa International Service Association: 2 May 2001

    Judges:

    Toulson J

    Citations:

    Unreported, 2 May 2001

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
    The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
    Held: . .
    Lists of cited by and citing cases may be incomplete.

    European

    Updated: 17 May 2022; Ref: scu.243369

    Regina v International Stock Exchange, ex parte Else (1982) Ltd: CA 1993

    The court gave guidance on the circumstances under which questions should be referred to the European Court of Justice.

    Judges:

    Sir Thomas Bingham MR

    Citations:

    [1993] QB 534

    Jurisdiction:

    England and Wales

    Cited by:

    Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
    The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
    Held: The scheme failed. The restriction imposed did not infringe the right of . .
    Cited – Horvath, Regina (on the Application of) v Secretary of State for Environment, Food and Rural Affairs Admn 21-Jul-2006
    The claimant sought to challenge the validity of the 2004 Regulations whereby the payment under the Single Payment Scheme was reduced because of the existence of a public right of way across the land.
    Held: ‘there are cogent arguments for the . .
    Lists of cited by and citing cases may be incomplete.

    European, Litigation Practice

    Updated: 17 May 2022; Ref: scu.237704

    Trafalgar Tours Ltd v Customs and Excise Commissioners: CA 1990

    United Kingdom legislation is to be construed so far as possible so as to give effect to the purpose(s) of the European directives. As to the meaining of ‘consideration’ under the Sixth Directive: ‘Having regard to art 11A(1)(a) of the Sixth Directive, we are, therefore, subject to one important qualification prepared to accept that the expression ‘consideration’ in s 10(2) of the 1983 Act means everything which the supplier has received or is to receive from the purchaser, the customer or a third party for the relevant supplies. The one important qualification is this. The concept of receipt for this purpose is not to be confined to mere physical receipt; anything which is received by persons for and on behalf of the supplier must be treated for this purpose as received by the supplier himself . . . ‘

    Citations:

    [1990] STC 127

    Jurisdiction:

    England and Wales

    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.

    European, VAT

    Updated: 17 May 2022; Ref: scu.229020

    Johanna Maria Delahaye v Ministre de la Fonction publique et de la Reforme administrative: ECJ 11 Nov 2004

    Safeguarding of employees’ rights in the event of a transfer of an undertaking to the State – Possibility for the State to impose rules of public law – Reduction of the amount of remuneration.

    Citations:

    C-425/02

    Jurisdiction:

    European

    European, Employment

    Updated: 16 May 2022; Ref: scu.219611

    Commission v Council C-281/01: ECJ 12 Dec 2002

    (Judgment) International agreements – Community competence – Legal basis – Articles 133 EC and 175(1) EC – Energy Star Agreement – Energy-efficient labelling programmes for office equipment

    Citations:

    C-281/01, [2002] EUECJ C-281/01, ECLI:EU:C:2002:761

    Links:

    Bailii

    Jurisdiction:

    European

    European

    Updated: 16 May 2022; Ref: scu.178730

    Noonan v Commission: ECFI 28 Mar 1996

    ECJ Any condition in a competition notice which prohibits candidates with a university degree from entering a competition for category C posts is unlawful – as is any decision of a selection board based on such a condition – because it is incompatible with the principle of equal treatment in conjunction with the first paragraph of Article 27 of the Staff Regulations, which provides inter alia that recruitment shall be directed to securing for the institution the services of officials of the highest standard of ability, efficiency and integrity.
    The fact that the appointing authority enjoys a wide discretion in choosing competition requirements is irrelevant. The choice to be made in the exercise of that power must always be governed by the requirements of the posts to be filled and, more generally, the interests of the service. There is no link at all, however, between the contested condition and those requirements or interests.
    Likewise irrelevant are the conditions laid down in Article 5(1) of the Staff Regulations and the requirements in Article 1(1) of Annex III to the Staff Regulations. Article 5(1), which lays down the minimum education and experience required for each staff category neither requires nor authorizes the application of a criterion which excludes candidates from a competition solely on the ground that they have a higher level of education than a particular maximum determined inter alia by the minimum for a category higher than that to which the competition relates. As regards Article 1(1) of Annex III, which lists the requirements to be stated in competition notices, it is evident that it does not relate to the diplomas and other evidence of formal qualifications possession of which entails exclusion of the holder from the competition, and that it also says nothing of the choice to be made by the appointing authority as regards the precise nature of the qualifications which may be required for a particular competition.

    Citations:

    T-60/92

    Citing:

    See Also – Noonan v Commission ECFI 16-Sep-1993
    Officials – Admissibility – Action challenging a decision of a selection board applying the conditions laid down in a competition notice. . .
    Lists of cited by and citing cases may be incomplete.

    European

    Updated: 16 May 2022; Ref: scu.172580

    Comitu Central d’Entreprise de la SA Vittel and Comitu d’Etablissement de Pierval v Commission of the European Communities: ECFI 6 Jul 1993

    ECFI Where the effect of suspending the operation of a Commission decision authorizing, at the request of employees’ representative bodies in some of the undertakings concerned, a concentration between undertakings pursuant to Regulation No 4064/89 would be to suspend the authorization granted throughout the course of the proceedings before the Court, and where the effect of granting the interim measures applied for in the alternative would be to prolong the existence of a dominant position liable to have irreversible repercussions on competition in the sector concerned, it is incumbent on the judge hearing the application for interim measures to weigh all the interests involved. Accordingly, not only must the interests of the applicants be balanced against the Commission’ s interest in restoring effective competition but regard must also be had to the interests of third parties, in particular the undertakings concerned, so as to avoid both the creation of an irreversible situation and serious and irreparable damage to one of the parties to the proceedings or to a third party or else to the public interest. In circumstances such as those, there is no justification for granting the measures sought unless it appears that the employees represented by the applicants would otherwise be exposed to a situation jeopardizing their future position. In this case, the decision at issue cannot, in principle, have repercussions on the rights of the employees of the undertakings concerned and there is no risk of direct damage to them such as to justify the grant of interim measures. As regards the damage which the employees of the transferor allege would result from the fact that, in their view, the transfer runs counter to their right to maintenance of the assets of the undertaking, the applicants, merely referring to the minimal amount of the financial consideration given for the transfer, have not shown how a decrease in the assets of that undertaking would be liable, at first sight, to entail a risk of serious and irreparable damage regarding the maintenance of employment within the undertaking. In any event, it is common ground that the transfer price derives not from the Commission decision but from the negotiations undertaken by the undertakings concerned. As regards the damage that the employees of the undertaking to be transferred allege they would suffer by ceasing to enjoy the social advantages conferred on them either by their individual contracts or by the collective agreement in force in the transferor undertaking, Articles 3 and 4 of Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings provide that a transferor’s rights and obligations arising from a contract of employment or from an employment relationship are transferred to the transferee. Moreover, under the applicable domestic employment legislation, any collective employment agreement of indefinite duration may be repudiated by the parties to it under the conditions laid down therein. It follows that, even if the alleged damage appears sufficiently certain, it cannot be a direct result of the Commission decision. Just as the decision does not require the new employers to call in question the collective agreement applicable to the employees of the undertaking transferred, suspension of its transfer would not provide any protection against the possibility of repudiation of the collective agreement in force.

    Citations:

    T-12/93

    Cited by:

    See Also – CCE Vittel and others v Commission ECFI 27-Apr-1995
    ECJ Competition – Regulation (EEC) No 4064/89 – Decision declaring a concentration compatible with the common market – Action for annulment – Admissibility – Trade unions and works councils – Act of direct and . .
    Lists of cited by and citing cases may be incomplete.

    European, Employment

    Updated: 16 May 2022; Ref: scu.172641

    Celtec Limited v John Astley Julie Owens, Deborah Lynn Hawkes: EAT 5 Oct 2001

    The employer appealed a finding that there had been continuity of employment between itself and a previous employer. The employees had sought a statement as to their terms of employment. The employer was a training and enterprise council, to whom the employees had first been seconded from the Department of Employment. There was an unresolved dispute at the time about whether continuity of employment was maintained. The EAT noted the statutory presumption in favour of continuity. The organisation was a labour intensive one. The Tribunal had been right to ask first what it was had been transferred, and then when. The tribunal was correct in allowing a wide interpretation of the meaning of ‘undertaking’ under the regulations. The employees had resigned before taking up employment, and so were not employed immediately before the transfer. The appeal was allowed.
    EAT Transfer of Undertakings – Transfer
    EAT European Material – Acquired Rights Directive

    Judges:

    The Honourable Mr Justice Hooper

    Citations:

    EAT/293/00, [2001] IRLR 788, [2001] UKEAT 293 – 00 – 0510

    Links:

    Bailii, EATn

    Statutes:

    Employment Rights Act 1996 218, Transfer of Undertakings (Protection of Employment) Regulations 1981 (1981 No 1794), Acquired Rights Directive 75/129/EEC

    Jurisdiction:

    England and Wales

    Citing:

    See Also – Celtec Limited v John Astley Julie Owens Deborah Lynn Hawkes EAT 1-Oct-2001
    EAT Transfer of Undertakings – Transfer. . .

    Cited by:

    Appeal from – J Astley and others v Celtec Ltd CA 19-Jul-2002
    Civil servants had been transferred to Training and Enterprise Councils in 1990, and resigned from the Civil Service in 1993. They appealed a decision that there had not been a transfer of an undertaking, and that they had continuity of employment. . .
    See Also – Celtec Limited v John Astley Julie Owens Deborah Lynn Hawkes EAT 1-Oct-2001
    EAT Transfer of Undertakings – Transfer. . .
    At EAT – Celtec Limited v Astley and others HL 10-Nov-2003
    The employments of civil servants had been transferred to the defendant company. There had been some delay between their resignations and the new arrangements. The employee claimed the protection of the directive, saying that there had been a . .
    At EAT – Celtec Ltd v John Astley and Others ECJ 26-May-2005
    Europa Directive 77/187/EEC – Article 3(1) – Safeguarding of employees’ rights in the event of transfers of undertakings – Transferor’s rights and obligations arising from a contract of employment or from an . .
    At EAT – North Wales Training and Enterprise Council Ltd v Astley and others HL 21-Jun-2006
    Civil servants had been transferred to a private company. At first they worked under secondment from the civil service. They asserted that they had protection under TUPE and the Acquired Rights Directive. The respondent said that there had only been . .
    Lists of cited by and citing cases may be incomplete.

    Employment, European

    Updated: 16 May 2022; Ref: scu.168356