Category: European

Dereci and Others (European Citizenship): ECJ 15 Nov 2011

ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom of movement – Possible difference in treatment compared with EU citizens who have exercised their right to freedom of movement – EEC-Turkey Association Agreement – Article 13 of Decision No 1/80 of the Association Council – Article 41 of the Additional Protocol – ‘Standstill’ clauses
The case concerned the refusal of a residence permit to a third-country national who had entered Austria unlawfully, married an Austrian citizen, and had three minor children who were Austrian citizens. His challenge to the refusal of the residence permit on the basis of Ruiz Zambrano was rejected by the Grand Chamber. It derived from Ruiz Zambrano that ‘the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of EU citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the member state of which he is a national but also the territory of the Union as a whole’ (para 66). That criterion was not satisfied on the facts of Dereci, since the refusal of the residence permit to the third-country national would not necessitate the rest of the family leaving the EU: the children and their mother could remain in Austria without him.
The Grand Chamber stated: ‘Consequently, the mere fact that it might appear desirable to a national of a member state, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have the nationality of a member state to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.’

Judges:

V Skouris P

Citations:

C-256/11, [2011] EUECJ C-256/11, [2012] All ER (EC) 373, [2011] ECR I-11315, ECLI:EU:C:2011:734, [2012] 1 CMLR 45

Links:

Bailii

Jurisdiction:

European

Citing:

Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .

Cited by:

Cited – Campbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – Sanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
Cited – DH (Jamaica) v Secretary of State for The Home Department CA 21-Dec-2012
Elias LJ said: ‘The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to . .
Cited – Sanneh, Regina (on The Application of) v The Secretary of State for Work and Pensions and Another Admn 10-Apr-2013
. .
Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – KA and Others (Regroupement Familial En Belgique) (Border Control, Asylum, Immigration – Judgment) ECJ 8-May-2018
Reference for a preliminary ruling – Border control, asylum, immigration – Article 20 TFEU – Charter of Fundamental Rights of the European Union – Articles 7 and 24 – Directive 2008/115/EC – Articles 5 and 11 – Third-country national subject to an . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 16 May 2022; Ref: scu.448344

KA and Others (Regroupement Familial En Belgique) (Border Control, Asylum, Immigration – Judgment): ECJ 8 May 2018

Reference for a preliminary ruling – Border control, asylum, immigration – Article 20 TFEU – Charter of Fundamental Rights of the European Union – Articles 7 and 24 – Directive 2008/115/EC – Articles 5 and 11 – Third-country national subject to an entry ban – Application for residence for the purposes of family reunification with a Union citizen who has not exercised freedom of movement – Refusal to examine the application

Citations:

[2018] 3 CMLR 28, ECLI:EU:C:2018:308, C-82/16, [2018] EUECJ C-82/16

Links:

Bailii

Jurisdiction:

European

Citing:

Cited – Chavez-Vilchez and Others (Union Citizenship – Article 20 TFEU – Access To Social Assistance and Child Benefit Conditional On Right of Residence In A Member State : Judgment) ECJ 10-May-2017
Reference for a preliminary ruling – Union citizenship – Article 20 TFEU – Access to social assistance and child benefit conditional on right of residence in a Member State – Third-country national responsible for the primary day-to-day care of her . .
Cited – Rendon Marin (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
ECJ (Grand Chamber) Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of a third-country national with a criminal record to reside in a Member . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .

Cited by:

Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 16 May 2022; Ref: scu.615557

Ruiz Zambrano (European Citizenship): ECJ 8 Mar 2011

ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the previous exercise by him of his right of free movement in the territory of the Member States – Grant, in the same circumstances, of a derived right of residence, to an ascendant relative, a third country national, upon whom the minor child is dependent – Consequences of the right of residence of the minor child on the employment law requirements to be fulfilled by the third-country national ascendant relative of that minor
A Colombian national had been living in Belgium with his wife, and working (and paying social security contributions), but without a right to reside. Their three children, born between 2003 and 2005, acquired Belgian nationality at birth, and with it European citizenship and the right of free movement, under article 20 of the Treaty on the Functioning of the European Union (‘TFEU’). When in 2005 he lost his job, he was refused unemployment benefit, because under the relevant national law that depended on his having a right to reside. The European court held that the refusal of such a right was unlawful because it would result in the children being deprived of effective enjoyment of their rights as European citizens.

Judges:

Skouris P

Citations:

[2011] EUECJ C-34/09, C-34/09, [2011] All ER (EC) 491, [2011] 2 FCR 491, [2011] ECR I-1177, [2011] Imm AR 521, [2012] QB 265, [2011] INLR 481, ECLI:EU:C:2011:124, [2011] 2 CMLR 46, [2012] 2 WLR 886

Links:

Bailii

Statutes:

Charter of Fundamental Rights of the European Union, TFEU 20

Jurisdiction:

European

Citing:

Opinion – Ruiz Zambrano (European Citizenship) ECJ 30-Sep-2010
ECJ Opinion – Articles 18, 20 and 21 TFEU – Fundamental rights as general principles of European Union law – Article 7 of the Charter of Fundamental Rights of the European Union – European citizenship – . .

Cited by:

Cited – Campbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Sanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
Cited – DH (Jamaica) v Secretary of State for The Home Department CA 21-Dec-2012
Elias LJ said: ‘The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to . .
Cited – Sanneh, Regina (on The Application of) v The Secretary of State for Work and Pensions and Another Admn 10-Apr-2013
. .
Cited – Sanneh and Others v Secretary of State for Work and Pensions CA 10-Feb-2015
The appeals concerned the question of whether ‘Zambrano carers’, who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Rendon Marin (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
ECJ (Grand Chamber) Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of a third-country national with a criminal record to reside in a Member . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

European, Immigration, Children

Leading Case

Updated: 16 May 2022; Ref: scu.452172

Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department: SC 22 Feb 2017

Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the Secretary of State by the 1998 Act to act compatibly with the right to respect for family life guaranteed by article 8 of the ECHR. In each case, the Secretary of State concluded that the appellant did not qualify for leave to remain under the applicable provisions of Appendix FM to the Immigration Rules and that, applying the Immigration Directorate Instructions, ‘Family Members Under the Immigration Rules, Section FM 1.0, Partner and ECHR Article 8 Guidance’ there were no exceptional circumstances warranting the grant of leave to remain outside the Rules.
Held: The appeals failed. The Rules and Instructions applied in these cases were consistent with the proper application of article 8.
In the first case, there was no evidence placed before the respondent that there were exceptional circumstances. Ms Agyarko’s claim could not be regarded as very strong or compelling.
As to Ms Ikuga, part of the decision was incorrectly based. However, looking at the decision taken, the result would have been the same, and she not having put forward anything which might constitute ‘exceptional circumstances’ as defined in the Instructions, that is unjustifiably harsh consequences for the individual such that the refusal of the application would not be proportionate.
The ground of challenge under Article 20 EU failed. If a situation were to arise in which the refusal of a third-country national’s application for leave to remain in the UK would force his or her British partner to leave the EU, in breach of article 20 TFEU, such a situation could be addressed under the Rules as one where there were ‘insurmountable obstacles’, or in any event under the Instructions as one where there were ‘exceptional circumstances’. Typically, however the British citizen would not be forced to leave the EU, any more than in the case of Dereci, and the third-country national would not, therefore, derive any rights from article 20 .

Judges:

Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Reed
Lord Carnwath
Lord Hughes
Lord Hodge

Citations:

[2017] UKSC 11, [2017] WLR(D) 126, [2017] 3 CMLR 3, [2017] 1 WLR 823, [2017] Imm AR 764, [2017] INLR 548, UKSC 2015/0129

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video

Statutes:

Human Rights Act 1998, European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Appeal from – Agyarko and Others, Regina (on The Application of) v The Secretary of State for The Home Department CA 6-May-2015
Appeals against orders for removal after applicants had each married after expiry of the period of their lawful stay. A conceded that her application fell outside the Rules, but said that it was an appropriate case for the exercise of discretion. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Chikwamba v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had fled Zimbabwe. Though her asylum application was refused, she was not returned for the temporary suspension of such orders to Zimbabwe. In the meantime she married and had a child. She now appealed an order for her removal citing . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Cited – Sen v The Netherlands ECHR 21-Dec-2001
. .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Tuquabo-Tekle and Others v The Netherlands ECHR 1-Dec-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection dismissed (estoppel); Violation of Art. 8; Pecuniary damage – claim dismissed; Non-pecuniary damage – financial award; Costs and expenses . .
Cited – Sezen v The Netherlands ECHR 31-Jan-2006
The case concerned ‘a functioning family unit where the parents and children are living together’. The court considered wehether a deportation would infringe the human rights of te applicant: ‘The Court has previously held that domestic measures . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – MF (Nigeria) v Secretary of State for The Home Department CA 8-Oct-2013
The court was asked: ‘How is the reference in rule 398 to ‘exceptional circumstances’ to be understood, compatibly with Convention rights?’
Held: The Court of Appeal accepted the submission made on behalf of the Secretary of State that the . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Alokpa and Moudoulou v Ministre Du Travail, De L’Emploi Et De L’Immigration ECJ 10-Oct-2013
ECJ Citizenship of the Union – Articles 20 TFEU and 21 TFEU – Directive 2004/38/EC – Right of residence of a third-country national who is a direct relative in the ascending line of Union citizens who are minor . .
Cited – Iida v Stadt Ulm ECJ 8-Nov-2012
ECJ Articles 20 TFEU and 21 TFEU – Charter of Fundamental Rights of the European Union – Article 51 – Directive 2003/109/EC – Third-country nationals – Right of residence in a Member State – Directive 2004/38/EC . .

Cited by:

Cited – HC, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-Nov-2017
This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC . .
Cited – Rhuppiah v Secretary of State for The Home Department SC 14-Nov-2018
Ms R had overstayed, but resisted deportation claiming a long term relationship with a man for who she cared. Her leave was continued 11 times. A Seventh Day Adventist, the care she provided was as a friend. Indefinite leave to remain was refused . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Updated: 16 May 2022; Ref: scu.575309

MCB (Area Of Freedom, Security And Justice): ECJ 5 Oct 2010

ECJ Judicial cooperation in civil matters – Matrimonial matters and matters of parental responsibility – The Hague Convention of 25 October 1980 on the civil aspects of international child abduction – Regulation (EC) No 2201/2003 – Children whose parents are not married – Father’s rights of custody – Interpretation of ‘rights of custody’ – General principles of law and Charter of Fundamental Rights of the European Union.

Citations:

C-400/10, [2010] EUECJ C-400/10, [2010] EUECJ C-400/10 – V

Links:

Bailii, Bailii

Jurisdiction:

European

Cited by:

Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 16 May 2022; Ref: scu.425292

Chavez-Vilchez and Others (Union Citizenship – Article 20 TFEU – Access To Social Assistance and Child Benefit Conditional On Right of Residence In A Member State : Judgment): ECJ 10 May 2017

Reference for a preliminary ruling – Union citizenship – Article 20 TFEU – Access to social assistance and child benefit conditional on right of residence in a Member State – Third-country national responsible for the primary day-to-day care of her minor child, a national of that Member State – Obligation on the third-country national to establish that the other parent, a national of that Member State, is not capable of caring for the child – Refusal of residence possibly obliging the child to leave the territory of the Member State, or the territory of the European Union

Citations:

C-133/15, [2017] EUECJ C-133/15, [2018] QB 103, ECLI:EU:C:2017:354, [2017] 3 WLR 1326, [2017] WLR(D) 324

Links:

Bailii, WLRD

Jurisdiction:

European

Cited by:

Cited – KA and Others (Regroupement Familial En Belgique) (Border Control, Asylum, Immigration – Judgment) ECJ 8-May-2018
Reference for a preliminary ruling – Border control, asylum, immigration – Article 20 TFEU – Charter of Fundamental Rights of the European Union – Articles 7 and 24 – Directive 2008/115/EC – Articles 5 and 11 – Third-country national subject to an . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

Benefits

Updated: 16 May 2022; Ref: scu.584297

HC, Regina (on The Application of) v Secretary of State for Work and Pensions: SC 15 Nov 2017

This appeal concerns the rights of so-called ‘Zambrano carers’ and their children to financial support from the state. The appellant, an Algerian national married and had children here, but was refused housing after the break up the marriage. HC challenged the legality of the Regulations, contending that the denial of mainstream welfare and housing provision to a Zambrano carer and her child was unlawful, because it amounted to unlawful discrimination under article 21 of the EU Charter of Fundamental Rights and Freedoms and/or under article 14 of the European Convention of Human Rights.
Held: The appeal failed. The European court had upheld such rights to the extent that they put at risk the enjoyment by the carer of rights under EU law. HC now argued that in EU law, once a right of residence is established, the Zambrano carer was automatically entitled to the same social security assistance as nationals of the host state. In contrast the rights asserted here were ones under domestic law.
Otherwise: Sanneh v Secretary of State for Work and Pensions

Judges:

Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption, Lord Carnwath

Citations:

[2017] UKSC 73, (2018) 21 CCL Rep 127, [2017] 3 WLR 1486, [2018] 2 CMLR 11, [2018] 2 All ER 1, [2018] HLR 6, [2017] WLR(D) 761, [2019] AC 845, UKSC 2015/0215

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 Jun 21 pm Vide, SC 2017 Jun 22 am Video

Statutes:

Child Benefit (General) Regulations 2006, European Convention of Human Rights, EU Charter of Fundamental Rights and Freedoms 21

Jurisdiction:

England and Wales

Citing:

At Admn – Sanneh, Regina (on The Application of) v Secretary of State for Work and Pensions Admn 30-Apr-2012
Challenge to payment of Zambrano Income Support . .
Cited – Ruiz Zambrano (European Citizenship) ECJ 8-Mar-2011
ECJ Citizenship of the Union – Article 20 TFEU – Grant of right of residence under European Union law to a minor child on the territory of the Member State of which that child is a national, irrespective of the . .
Cited – Dereci and Others (European Citizenship) ECJ 15-Nov-2011
ECJ Grand Chamber – Citizenship of the Union – Right of residence of nationals of third countries who are family members of Union citizens – Refusal based on the citizen’s failure to exercise the right to freedom . .
Cited – DH (Jamaica) v Secretary of State for The Home Department CA 21-Dec-2012
Elias LJ said: ‘The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality of life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to . .
Appeal from – Sanneh and Others v Secretary of State for Work and Pensions CA 10-Feb-2015
The appeals concerned the question of whether ‘Zambrano carers’, who are non-EU citizens responsible for the care of an EU citizen child, are entitled to social assistance (that is, non-contributory welfare benefits) on the same basis as EU citizens . .
Cited – Secretary Of State For The Home Department v CS (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
The Court of Justice held: ‘that there are very specific situations in which, despite the fact that the secondary law on the right of residence of third-country nationals does not apply and the Union citizen concerned has not made use of his freedom . .
Cited – Rendon Marin (Judgment : Citizenship Of The Union) ECJ 13-Sep-2016
ECJ (Grand Chamber) Reference for a preliminary ruling – Citizenship of the Union – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of a third-country national with a criminal record to reside in a Member . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .

Cited by:

Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .
Cited – Patel v Secretary of State for The Home Department SC 16-Dec-2019
Zambrano states that a non-member state national (‘TCN’) parent of an EU citizen child resident within the EU is entitled to
reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union . .
Lists of cited by and citing cases may be incomplete.

Benefits, European, Human Rights

Leading Case

Updated: 16 May 2022; Ref: scu.599382

X v United Kingdom: ECHR 3 Oct 1975

The applicant, a serving prisoner, complained that he had been excluded from voting in the referendum on the British membership of the EEC.
Held: Article 10 does not guarantee a right to vote as such.
Article 3 Protocol 1 : the obligations of the High Contracting Parties under this provision are limited to the field of elections concerning the choice of the legislature. British Referendum on EEC membership outisde the scope of this provision.

Citations:

7096/75

Statutes:

European Convention on Human Rights A3P1 810

Jurisdiction:

Human Rights

Cited by:

Cited – Moohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Elections, European

Updated: 15 May 2022; Ref: scu.541521

Hough and Apex v Leyland DAF Ltd: EAT 1991

EAT The employer requested a report as to contracting out their security arrangements in late 1996. The recommendation to contract out came in January 1997. After enquiries in May, a second report repeated the recommendation. Managers were consulted in August and a contract was offered in October, for the change at Christmas, The employer told the union. Meetings took place but each accepted that the question of redundancies was already decided. 29 security staff were made redundant, and their complaint under section 99 EPA was upheld by an Industrial Tribunal. They said the consultation should have commenced in May.
Held: The employer’s appeal failed. Knox J said: ‘We were also pressed on behalf of the employees with the argument that the consultations which the section requires must be meaningful: compare E. Green and Son (Castings) Ltd v Association of Scientific, Technical and Managerial Staffs [1984] ICR 352, 359H and Transport and General Workers’ Union v Ledbury Preserves (1928) Ltd [1985] IRLR 412, and that the quality of the consultation formed a significant factor in leading to the industrial tribunal’s decision that Leyland were in breach of section 99 as well as the timing of the consultation. On the other hand for Leyland it was submitted that although the consultation has to be genuine it does not follow as a matter of law that an employer who embarks on consultation believing that he has an unanswerable case has failed in his statutory obligation to consult. In principle we accept this latter submission but it does not, in our judgment, go to the point which we have to decide which is whether the industrial tribunal erred in law in reaching the decision that Leyland were in breach of section 99.
In our view, they asked themselves the right question that is to say ‘when did Leyland propose to dismiss the security staff as redundant?’ Although they did in our view make two discernible errors in the course of their decision, neither of them affects the validity of the answer which they gave to that question.’
Those errors were, first a finding of fact, found by the EAT to be immaterial, which was unsupported by any evidence; the second was a self-direction by the tribunal that it was not open to them to construe section 99 in line with EC Directive 75/129/ECC.
Knox J said: ‘We are not persuaded that the Directive requires any construction to be adopted of the words of section 99(1) ‘an employer proposing to dismiss as redundant an employee’ which would require a later stage in the employer’s decision-making process to be identified than section 99 (1) in the context of the Act of 1975 alone would require. Whether or not an earlier stage would be appropriate does not arise for decision.’

Judges:

Knox J

Citations:

[1991] ICR 696

Statutes:

Employment Protection Act 1975 99, EC Directive 75/129/ECC

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

Employment, European

Updated: 15 May 2022; Ref: scu.421397

Regina (on the application of Loutchansky and Others) v The First Secretary of State: 2005

The court considered the right of a worker claiming a community right to work here: ‘the underlying principle is that, in order to render a community right effective, it may be necessary to recognise a derivative right in a non-national who has no independent community rights.’ The Austrian employer would not be able to exercise its Art 49 rights without having the advantage of Dr Loutchansky’s entry into, and service within, the UK. Any prohibition on Dr Loutchansky’s entry and service had therefore to be justified, and such justification assessed in accordance with community law procedures.

Judges:

Moses J

Citations:

[2005] 3 CMLR 15

Statutes:

EC Treaty 49

Jurisdiction:

England and Wales

Cited by:

Cited – Low and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 21-Jan-2009
In each case the applicant, a company based in Ireland had employed in its restaurants, Chinese nationals who were unlawfully present here. The company sought judicial review of the arrest of its employees.
Held: ‘None of the claimants had any . .
Lists of cited by and citing cases may be incomplete.

Immigration, European

Updated: 15 May 2022; Ref: scu.280082

Foto-Frost v Hauptzollamt Lubeck-Ost: ECJ 22 Oct 1987

ECJ Lack of jurisdiction of national courts to declare acts of Community institutions invalid – Validity of a decision on the post-clearance recovery of import duties.

Citations:

C-314/85

Jurisdiction:

European

Cited by:

Cited – H J Banks and Co Ltd v British Coal Corporation ECJ 13-Apr-1994
The European Commission has exclusive jurisdiction over ECSC treaty disputes. The duty of sincere cooperation imposed the obligation on the national court to mitigate as far as possible in the interests of the Community the risk of a conflicting . .
Cited – Crehan v Inntrepreneur Pub Company (CPC) CA 21-May-2004
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 15 May 2022; Ref: scu.134235

Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association: Admn 6 Nov 1998

Citations:

[1998] EWHC Admin 1052

Cited by:

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

Transport, European

Updated: 15 May 2022; Ref: scu.139173

Regina v Secretary of State for Environment Transport and Regions ex parte International Air Transport Association: Admn 21 Apr 1999

Citations:

[1999] EWHC Admin 332

Citing:

See Also – Regina v Secretary of State for Environment, Transport and Regions ex parte International Air Transport Association Admn 6-Nov-1998
. .

Cited by:

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

Transport, European

Updated: 15 May 2022; Ref: scu.139596

Society of Lloyd’s v Clementson: ECJ 29 Nov 1995

Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings.

Citations:

Gazette 29-Nov-1995

Statutes:

EC Treaty Art 85

Jurisdiction:

European

Citing:

Reference from – Society of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .

Cited by:

Referred to – Society of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Lists of cited by and citing cases may be incomplete.

Insurance, European

Updated: 15 May 2022; Ref: scu.89370

Society of Lloyd’s v Clementson and Another: CA 11 Nov 1994

It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty.

Citations:

Times 16-Nov-1994, Independent 11-Nov-1994

Statutes:

EC Treaty Article 5

Jurisdiction:

England and Wales

Citing:

Appeal from – Society of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Referred to – Society of Lloyd’s v Clementson ECJ 29-Nov-1995
Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings. . .

Cited by:

Appealed to – Society of Lloyds v Clementson, Same v Mason ComC 11-Jan-1994
An undertaking given on joining Lloyds is a sufficiently binding contract. . .
Appeal from – Society of Lloyd’s v Clementson and Another CA 11-Nov-1994
It was arguable that a central insolvency fund created to manage the Lloyd’s liabilities distorted competition, and was therefore unenforceable. The court refused to make a preliminary ruling on the applicability of article 85 of the EC Treaty. . .
Reference from – Society of Lloyd’s v Clementson ECJ 29-Nov-1995
Lloyds Name is a separate undertaking and Lloyds’ is an association of undertakings. . .
Lists of cited by and citing cases may be incomplete.

European, Insurance

Updated: 15 May 2022; Ref: scu.89374

Societe D’Informatique Service Realisation Organisation v Ampersand Software Bv: ECJ 25 Sep 1995

Court’s refusal to stay enforcement of foreign court order cannot be appealed against. Different jurisdictions not to be used to get advantage on enforcement.

Citations:

Ind Summary 09-Oct-1995, Times 25-Sep-1995

Statutes:

EC Treaty Articles 37 and 38, Brussels Convention 1968

Jurisdiction:

European

Citing:

Reference from – Societe D’Informatique Service Realisation Org v Ampersand Software Bv CA 29-Sep-1993
Foreign judgment registered here despite claim that it was obtained by fraud. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 15 May 2022; Ref: scu.89368

Emesa Sugar (Free Zone) Nv v Aruba (No 2) Case C-17/98): ECJ 29 Feb 2000

A national court had jurisdiction to make an order against a Non-EC body in order to prevent an imminent infringement of community law, provided that the court had proper and serious doubts about the implementation of the community law, the matter was urgent, and the national court made proper allowance for the Community’s interests.

Citations:

Times 29-Feb-2000

Jurisdiction:

European

International

Updated: 15 May 2022; Ref: scu.80309

Emesa Sugar (Free Zone) Nv v Aruba Case C-17/98: ECJ 29 Feb 2000

It was not open to a party to a case before the European Court of Justice to seek opportunity to make written representations on opinions submitted to the Court by the Advocate General. Opinions of the Court of Human Rights that a party should have opportunity to see and comment upon all matters put before a tribunal were not applicable in this case. The role of the Advocates General was not to act in a partisan manner, and their views were given in a quasi-judicial capacity.

Citations:

Times 29-Feb-2000

Jurisdiction:

European

European, Administrative, Human Rights

Updated: 15 May 2022; Ref: scu.80310

Ciasse Nationale D’Assurance Vieillesse Des Travailleurs Salries v Thibault: ECJ 13 May 1998

Rules which precluded an employee who was absent for maternity reasons from taking part in performance assessments affecting future promotion rights were breach of Council Directive.

Citations:

Times 13-May-1998

Statutes:

Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment Art 2(3) Art 5(1)

Discrimination, European

Updated: 15 May 2022; Ref: scu.79129

Ice Mountain Ibiza v EUIPO – Etyam (Ocean Beach Club Ibiza): ECFI 25 May 2016

(Judgment) Brand of the European Union – Opposition proceedings – Application for figurative mark of the EU ocean beach club ibiza – Earlier national figurative and word marks ocean drive and Ibiza-hotel THE OCEAN GROUP – Cancellation of the earlier mark serving basis for the contested decision – No need to adjudicate

Citations:

T-753/14, [2016] EUECJ T-753/14

Links:

Bailii

Jurisdiction:

European

European, Intellectual Property

Updated: 15 May 2022; Ref: scu.564880

Commission v McCarron Poultry: ECFI 25 May 2016

ECJ (Judgment) Arbitration clause – Fifth Framework Programme of the European Community for research, technological development and demonstration activities (1998-2002) – Contract relating to ‘Energy, environment and sustainable development’ – Termination of the contract – Reimbursement of part of the amount advanced – Default interest – Procedure by default

Citations:

T-226/14, [2016] EUECJ T-226/14, ECLI:EU:T:2016:313

Links:

Bailii

Jurisdiction:

European

European

Updated: 15 May 2022; Ref: scu.564871

Meroni v Recoletos Limited: ECJ 25 May 2016

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 44/2001 – Recognition and enforcement of provisional and protective measures – Concept of ‘public policy’

Judges:

R. Silva de Lapuerta (Rapporteur), P

Citations:

C-559/14, [2016] EUECJ C-559/14, [2016] WLR(D) 285, ECLI:EU:C:2016:349

Links:

Bailii, WLRD

Statutes:

Regulation (EC) No 44/2001

Jurisdiction:

European

European

Updated: 15 May 2022; Ref: scu.564889

U-R Lab v EUIPO (The Dining Experience): ECFI 25 May 2016

ECJ (Judgment) Mark of the European Union – Application for figurative marks of the European Union and verbal THE DINING EXPERIENCE – Absolute ground for refusal – Lack of distinctive character – Article 7, paragraph 1 b) of Regulation (EC) No 207/2009 – Obligation to state reasons – Article 75 of Regulation No 207/2009

Citations:

T-422/15, [2016] EUECJ T-422/15, ECLI:EU:T:2016:314

Links:

Bailii

Jurisdiction:

European

European, Intellectual Property

Updated: 15 May 2022; Ref: scu.564898

Abdoulaya and Others v Regie Nationale Des Usines Renault SA: ECJ 20 Oct 1999

A payment of a lump sum to female workers taking maternity leave so as to offset occupational disadvantage from the taking of that leave was not an infringement of equal pay provisions. The claim was that the payment went beyond making allowance for physical differences accompanying maternity to recompense for social disadvantage was equally felt by both men and women. The payment was proper since it did reflect real differences arising from the absence from work.

Citations:

Times 20-Oct-1999, C-218/98, [1999] EUECJ C-218/98

Links:

Bailii

Statutes:

EC Treaty Art 14

Discrimination, European

Updated: 15 May 2022; Ref: scu.77607

MS v Secretary of State for Work and Pensions (ESA): UTAA 22 Jul 2020

A non-European Economic Area national formerly married to an European Economic Area national, who has the right of permanent residence, may rely on that right and is not required to meet the conditions applicable to a ‘family member who has retained the right of residence’ in regulation 10 of the Immigration (European Economic Area) Regulations 2016, such as holding worker status.

Citations:

[2020] UKUT 235 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Benefits, European

Updated: 14 May 2022; Ref: scu.656571

Energy Technologies ET SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM): ECFI 28 Feb 2005

ECJ Community trade mark – Representation by a lawyer – Manifest inadmissibility. ACTION brought against the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 7 July 2004 (Case R 366/20024) concerning an application for registration of the word mark UNEX as a Community trade mark

Citations:

T-445/04

European, Intellectual Property

Updated: 13 May 2022; Ref: scu.225481

Bayerische Motorenwerke AG (BMW) and BMW Nederland BV v Deenik: ECJ 23 Feb 1999

The expressions complained of as trade mark infringements were ‘BMW specialist,’ ‘Specialised in BMWs’ and ‘Repairs and maintenance of BMWs’.
Held: The Court proceeded on the basis that this was an Art.5(1)(a) case of identical marks and goods. It did not explicitly first identify the sign used by the defendant. But it was obvious what it was: just BMW. The other words in context were wholly devoid of any trade mark significance.

Citations:

C-63/97, [1999] ECR-I 905

Cited by:

Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 11 May 2022; Ref: scu.162052

The Secretary of State For Health, The Secretary Of State For Trade and Industry, H M Attorney General v Imperial Tobacco Limited etc: CA 16 Dec 1999

The fact that a European Directive appeared to be likely to be subject to a successful adverse finding in a pending hearing, was not sufficient to restrict the right of a member state to legislate to give effect to the Directive, even if they chose to give it effect before the required date. The damage which might follow from such an implementation was short of irreparable.

Citations:

Times 17-Dec-1999, Gazette 13-Jan-2000

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Health; Scientific Committee for Tobacco and Health ex parte Imperial Tobacco Limited and Others Admn 6-Jul-1998
. .
Lists of cited by and citing cases may be incomplete.

European, Media, Health

Updated: 11 May 2022; Ref: scu.135999

Webb (Judgment): ECJ 17 Dec 1981

Where an undertaking hires out, for remuneration, staff who remain in the employ of that undertaking, no contract of employment being entered into with the user, its activities constitute an occupation which satisfies the conditions laid down in the first paragraph of article 60 of the eec treaty. Accordingly they must be considered a ‘ ‘ service ‘ ‘ within the meaning of that provision.
The essential requirements of article 59 of the treaty became directly and unconditionally applicable on the expiry of the transitional period. Those essential requirements abolish all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a member state other than that in which the service is to be provided. The freedom to provide services is one of the fundamental principles of the treaty and may be restricted only by provisions which are justified by the general good and which are imposed on all persons or undertakings operating in the member state in which the service is to be provided in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the member state of his establishment.
Article 59 of the treaty does not preclude a member state which requires agencies for the provision of manpower to hold a licence from requiring a provider of services established in another member state and pursuing such activities on the territory of the first member state to comply with that condition even if he holds a licence issued by the state in which he is established, provided, however, that in the first place when considering applications for licences and in granting them the member state in which the service is provided makes no distinction based on the nationality of the provider of the services or his place of establishment, and in the second place that it takes into account the evidence and guarantees already produced by the provider of the services for the pursuit of his activities in the member state in which he is established.

Citations:

C-279/80

European, Employment

Updated: 11 May 2022; Ref: scu.133160

Van der Wal (supported by Kingdom of the Netherlands, Intervener) v Commission of the European Communities Joined Cases C-174/98P and C-189/98P: CA 22 Feb 2000

When a national court sought assistance from the European Commission by way of opinions in deciding proceedings before that national court, the advice given was not to be held confidential from third parties simply on the basis that it was prepared for legal proceedings. Instead it had to ask the requesting court to state whether or not disclosure would breach national law. The public interest exemption from disclosure was not so wide or simple.

Citations:

Times 22-Feb-2000

Jurisdiction:

England and Wales

European, Administrative

Updated: 11 May 2022; Ref: scu.90120

Regina v Secretary of State for the Home Department Ex Parte Yiadom: CA 1 May 1998

The decision to exclude an EU national from United Kingdom for the facilitation of illegal immigration was proper, even though the decision was also motivated by a wish to avoid the costs of prosecution and imprisonment for the national purse.

Citations:

Times 01-May-1998

Jurisdiction:

England and Wales

Immigration, European

Updated: 11 May 2022; Ref: scu.88648

Chestnut Medical Technologies v OHIM (Pipeline): ECFI 11 Oct 2011

ECFI Community trade mark – Application for registration of the Community word mark PIPELINE – Absolute ground for refusal – Descriptive character – Article 7(1)(c) of Regulation (EC) No 207/2009 – Obligation to state the reasons on which the decision is based – Article 75 of Regulation No 207/2009

Citations:

T-87/10, [2011] EUECJ T-87/10

Links:

Bailii

Statutes:

Regulation No 207/2009 75, Regulation (EC) No 207/2009 7(1)(c)

Jurisdiction:

European

Intellectual Property

Updated: 11 May 2022; Ref: scu.445421

Griffin v South West Water Services Ltd: 1995

The court asked at what point the European Directive imposed a duty to consult on an employer contemplating redundancies.
Held: The words ‘is contemplating’ referred to a point before proposals were formulated. Obiter, Blackburne J said ‘the obligation to consult only arises when the employer’s contemplation of redundancies has reached the point where he is able to identify the workers likely to be affected and can supply the information which the Article requires him to supply . . I cannot see that the Article requires the employer to embark upon the process of consultation at any particular moment, much less as soon as he can be said to have in mind that collective redundancies may occur. The essential point to my mind, is that the consultation must be one where, if they wished to do so, the workers’ representatives can make constructive proposals and have time in which to do so before the relevant dismissal notices are sent out. This process cannot sensibly begin until, as it seems to me, a point has been reached where the information identified in Article 2 (3) is available.’

Judges:

Blackburne J

Citations:

[1995] IRLR 15

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

Employment, European

Updated: 11 May 2022; Ref: scu.421398

Marks and Spencer Plc v Customs and Excise: HL 12 Jul 2006

Question referred to ECJ. Five questions were referred.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Scott of Foscote and Lord Walker of Gestingthorpe

Citations:

[2006] UKHL 69(Report), [2008] STC 1408

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Decision to refer – Marks and Spencer Plc v Customs and Excise HL 28-Jul-2005
The claimant had sought repayment of overpaid VAT, and the respondent resisted arguing that this would be an unjust enrichment. A reference to the European Court was sought.
Held: It was not possible to say that the House’s opinion was acte . .
At CA – Marks and Spencer Plc v Commissioners of Customs and Excise (No 5); Commissioners of Customs and Excise v University of Sussex CA 21-Oct-2003
The company sought to reclaim overpaid VAT.
Held: If the UK government had failed properly to implement the directive, then a person affected had the right to claim the benefit of direct enforceability. However, the directive itself was . .

Cited by:

Reference to ECJ – Marks and Spencer Plc v Customs and Excise HL 4-Feb-2009
The taxpayer requested refund of VAT overpaid on chocolate covered cakes. The CandE resisted saying that the money had been substantially already paid by its customers. The case had been referred twice to the ECJ, who answered that the maintenance . .
Reference – Marks and Spencer v Her Majesty’s Commissioners of Customs and Excise ECJ 13-Dec-2007
ECJ Value added tax – Derogation under Article 28 of Directive 77/388 – Principle of neutrality Principle of equal treatment Right to obtain a refund of the tax in the event of incorrect interpretation of . .
Reference – Marks and Spencer v Her Majesty’s Commissioners of Customs and Excise ECJ 10-Apr-2008
(Third Chamber of the Court of Justice) Taxation Sixth VAT Directive Exemption with refund of tax paid at the preceding stage Erroneous taxation at the standard rate Right to zero rate Entitlement to refund Direct effect General principles of . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 11 May 2022; Ref: scu.243082

Chafiq Ayadi v Council: ECFI 12 Jul 2006

ECJ Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Competence of the Community – Freezing of funds – Fundamental rights – Jus cogens – Review by the Court – Action for annulment.

Citations:

T-253/02, [2006] EUECJ T-253/02

Links:

Bailii

Jurisdiction:

European

Crime, Human Rights

Updated: 11 May 2022; Ref: scu.243084

Belgium v Commission C-5/01: ECJ 12 Dec 2002

(Judgment) ECSC Treaty – Aid granted by the Member States – Annulment of Commission Decision 2001/198/ECSC of 15 November 2000 concerning State aid granted by Belgium to Cockerill Sambre SA

Citations:

[2002] EUECJ C-5/01, [2002] ECR I-11991

Links:

Bailii

Jurisdiction:

European

European

Updated: 11 May 2022; Ref: scu.178727

Regina v Secretary of State for Trade and Industry Ex Parte Trades Union Congress: CA 17 Oct 2000

Where a court referred an issue to the European Court, it was for that court in its discretion to decide whether interim relief might be granted, and an appellate court should not normally interfere in that exercise. The considerations for such a grant of interim relief pending a reference had been fully set out by the House of Lords in Factortame, being the threshold condition, the existence of a serious case to be tried, the balance of convenience, the strength of the case on the reference, and the potential losses incurred according to the grant or refusal of interim relief. Referring to a speech from Lord Goff in Factortame (2): ‘I venture to draw from that latter passage that Lord Goff was recognising that there may be an unusual – I infer in Lord Goff’s view it would be a very unusual case – where there was no strong prima facie case that the law was invalid, but where, nevertheless, it would be appropriate because of the weight of other factors to grant interim relief. But that case apart, Lord Goff in my judgment appears to regard the importance of not restraining a public authority by interim injunction except in a case such as that he refers to at the end of the passages I have cited as being, not a paramount factor, but an important threshold principle to which the court that is being asked to consider interim relief must direct its attention in the first instance.’

Judges:

Lord Justice Buxton

Citations:

Times 17-Oct-2000, (2000) IRLR 565

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Appeal from – Regina v Secretary of State for Trade and Industry, ex parte Trades Union Congress Admn 23-May-2000
. .

Cited by:

Cited – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, European

Updated: 11 May 2022; Ref: scu.87956

Regina v Independent Television Commission, Ex Parte TVDanmark 1 Ltd: CA 25 Oct 2000

The ITC did not have power to refuse to consider a renewed application for permission by a British broadcasting company to exercise its exclusive rights to televise matches of the Danish National football team in a forthcoming tournament as against a Danish public service broadcaster who would reach a greater proportion of the Danish population. Attempts to bring such events to a wider audience were properly exercised at the time of the grant of the rights, but not later after they had been granted.

Citations:

Gazette 26-Oct-2000, Times 25-Oct-2000, [2001] 1 WLR 74

Statutes:

Television Broadasting transmitted across Frontiers Directive 1989/55/EEC, Broadcasting Act 1996

Jurisdiction:

England and Wales

Media, Administrative, European

Updated: 11 May 2022; Ref: scu.85319

Regina v Durham County Council and Others Ex Parte Huddleston: CA 15 Mar 2000

A quarry owner had allowed his mineral extraction licence to lapse, and sought to renew the permission. The authority failed to issue a decision within the appropriate time period, and a deemed permission was granted. The UK system appeared not to require an environmental impact assessment to be made before such a grant, in breach of European law. It was held that under such circumstances, a private individual deprived of his rights under European law, should be allowed to challenge the deemed permission. The directive had direct effect.

Citations:

Times 15-Mar-2000, Gazette 30-Mar-2000, [2000] 1 WLR 1484

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Durham County Council Sherburn Stone Company Limited Secretary of State for Environment, Transport and Regions ex parte Rodney Huddleston CA 15-Feb-1999
. .
See Also – Regina v Durham County Council Sherburn Stone Company Limited ex parte Huddlestone Admn 28-Jul-1999
. .
See Also – Regina v Durham County Council ex parte Rodney Huddleston Admn 17-Aug-1999
Variation of interim injunction to allow works preparatory to development pending appeal against refusal of planning permission. . .
Appeal from – Regina v Durham County Council Ex Parte Huddleston QBD 28-Jan-2000
A quarry owner had allowed his mineral extraction licence to lapse, and sought to renew the permission. The authority failed to issue a decision within the appropriate time period, and a deemed permission was granted. It was held however that where . .

Cited by:

Cited – Finn-Kelcey v Milton Keynes Council and MK Windfarm Ltd CA 10-Oct-2008
Judicial Review must be timely
The appellant challenged the grant of permission for a wind farm on neighbouring land. His application for judicial review had been rejected for delay and on the merits.
Held: The court repeated the requirement that an application must be both . .
Lists of cited by and citing cases may be incomplete.

Planning, Environment, European

Updated: 11 May 2022; Ref: scu.85241

Regina v Hammersmith and Fulham London Borough Council Ex Parte Trustees of the Council for the Protection of Rural England: QBD 26 Oct 1999

The authority gave permission for a new shopping centre up to 600,000 sq ft as an urban project. The Trustees sought that the permission be set aside since the council had not undertaken an environmental impact assessment, and under the EC Treaty they had the right to make such a request. It was held that an individual could not seek to enforce a directive once it had been properly enshrined in a member state’s law. ‘ . . I accept that in exercising discretion with regard to costs . . I should seek to give effect to the overriding objective and should have particular regard to the need, so far as practicable, to ensure that the parties are on an equal footing and that the case is dealt with in a way which is proportionate to the financial position of each party. Those aspects of the overriding objective seem to me to be embedded in any event in the principles laid down in ex p CPAG.’

Judges:

Richards J

Citations:

Gazette 13-Jan-2000, CAT 26 October 1999

Statutes:

Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (1988 No 1199)

Jurisdiction:

England and Wales

Cited by:

Cited – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – Regina v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) QBD 31-Jul-2000
Developers submitted applications for outline permission for the development of a business park. The applicant sought to quash the grant on the basis that the environmental assessment was insufficiently detailed, and contained reserved matters, and . .
Lists of cited by and citing cases may be incomplete.

Environment, Planning, European

Updated: 11 May 2022; Ref: scu.85293

Nabadda and Others v Westminster City Council; Gomilsek v Haringey London Borough Council: CA 24 Feb 2000

Swedish students on vocational courses in the UK had received loans from their home country, but were denied the grants towards their course fees which were made to English students. They claimed race discrimination. Although the withholding of grants was an indirect discrimination, it fell outside the Act and was not actionable because the acts of discrimination were done in pursuance of an enactment or statutory instrument. It was wrong to try to use the Race Relations Act to try to give effect to unrelated European legislation.

Citations:

Gazette 24-Feb-2000, Times 15-Mar-2000

Statutes:

Race Relations Act 1976 41(1)(b)

Jurisdiction:

England and Wales

Discrimination, Benefits, European

Updated: 11 May 2022; Ref: scu.84152

Kimberley-Clark Worldwide Inc v Proctor and Gamble Ltd and Another: CA 1 Dec 1999

Where a party to an action asserted that the patent holder had abused his monopoly position, the courts in England had discretion to refuse the patent holder leave to apply to amend his patent. When dealing with such issues, the court was entitled to take into account a wider range of issues than that contemplated by the European Patent Office.

Citations:

Times 01-Dec-1999, Gazette 08-Dec-1999

Statutes:

Patents Act 1977 75, Convention on the Grant of European Patents (Munich 1973)

Jurisdiction:

England and Wales

European, Intellectual Property

Updated: 10 May 2022; Ref: scu.82778

Customs and Excise Commissioners v Madgett and Another T/A Howden Court Hotel: QBD 15 Jan 1996

A hotel’s offering of a coach trip to collect guests may make them travel agents for VAT purposes. The case was referred on to the ECJ.

Citations:

Ind Summary 15-Jan-1996

Jurisdiction:

England and Wales

Citing:

Reffered to – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .

Cited by:

Reference from – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 10 May 2022; Ref: scu.79733

Commission of the European Community v United Kingdom: ECJ 24 Aug 1993

The wording in the directive regarding the ‘traditional practice of bathing by large numbers’ is precise, and the UK must implement it.
Europa 1. Acts of the institutions – Directives – Implementation by the Member States – Information given to the Commission concerning planned measures – Obligation of the Commission to react within a specific period – None – Possibility of subsequently bringing proceedings against a Member State for failure to fulfil obligations (EEC Treaty, Arts 5, 169 and 189, third para.) 2. Approximation of laws – Quality of bathing water – Directive 76/160 – Bathing waters – Definition – Areas specially equipped for bathing and supervised by lifeguards – included irrespective of the actual number of bathers (Council Directive 76/160, Art. 1(2)(a), second indent) 3. Approximation of laws – Quality of bathing water – Directive 76/160 – Implementation by the Member States – Obligation as to the result to be achieved (Council Directive 76/160)
1. A Member State which is bound to implement a directive is not entitled to draw the inference from the Commission’s initial failure to react to a communication addressed to it regarding the manner in which the Member State intended to implement the directive that the Commission, which was obliged by neither Article 5 of the Treaty nor the provisions of the directive to express a view within a given period, had approved the criteria notified. It is for the Commission to decide when it intends to formulate objections and there is nothing to prevent it subsequently bringing proceedings against the Member State for failure to fulfil obligations. 2. The definition of ‘bathing water’ within the meaning of the second indent of Article 1(2)(a) of Directive 76/160 concerning the quality of bathing water must, in the light of the directive’ s underlying purpose as expressed in the recitals in the preamble thereto, be understood as encompassing at all events the waters of bathing resorts equipped with certain facilities, such as changing huts, toilets and markers indicating bathing areas, and supervised by lifeguards. 3. Directive 76/160 concerning the quality of bathing water, Article 4(1) of which imposes an obligation on Member States to take all the measures necessary to ensure that their bathing waters conform to the physical, chemical and microbiological values laid down by the directive within a period of ten years from its notification, requires Member States to take steps to ensure that the prescribed results are attained within the period laid down; apart from the derogations expressly provided for by the directive they may not rely on particular circumstances to justify a failure to fulfil that obligation.

Citations:

Independent 24-Aug-1993, C-56/90

Environment, European

Updated: 10 May 2022; Ref: scu.79309

Commission of the European Communities v Ireland: ECJ 19 Oct 1999

The Directive gave member states some discretion as to setting criteria to be fulfilled before a project could be said to have a substantial effect and so require an environmental assessment before being allowed to proceed. Nevertheless, it was not open to members to use a simple size measurement as such a criteria, since this made no allowance for the possible substantial effects of even small projects.

Citations:

Times 19-Oct-1999, C-392/96

Statutes:

Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment., EC Treaty Art 226

Environment, European

Updated: 10 May 2022; Ref: scu.79304