Category: European

Commission of the European Communities v United Kingdom Case C-359/97: ECJ 10 Oct 2000

The UK had not complied with its obligations to the commission with regard to VAT in that it had failed to apply VAT to the collection of tolls on the use of roads and bridges where operated privately. The fact that similar operations were carried out by public bodies which would be exempt was insufficient to cause private operators to be exempt. Because the UK had failed to collect these sums, its accounting with the Commission was also in error.

Citations:

Times 10-Oct-2000

VAT, Transport, European

Updated: 10 May 2022; Ref: scu.79306

Boyd Line Management Services Ltd v Ministry of Agriculture Fisheries and Food: CA 6 May 1999

The duty to prevent over-fishing allowed the minister to prevent further fishing by licensed vessels even though the limit had been reached by over fishing by un-licensed vessels. Claim for compensation failed because rules were correct.

Citations:

Gazette 06-May-1999

Statutes:

EC Regulation 3760/92 (OJ 1992 No L389/1)

Jurisdiction:

England and Wales

European

Updated: 10 May 2022; Ref: scu.78525

Pension Benefits: EPOBA 2000

The applicant sought a European patent for a method of calculating and controlling pensions benefits. The claim was ‘1. A method of controlling a pension benefits program by administering at least one subscriber employer account on behalf of each subscriber employer’s enrolled employees each of whom is to receive periodic benefits payments, said method comprising:
providing to a data processing means information from each said subscriber employer defining the number, earnings and ages of all enrolled employees of the said subscriber employer;
determining the average age of all enrolled employees by average age computing means;
determining the periodic cost of life insurance for all enrolled employees of said subscriber employer by life insurance cost computing means; and
estimating all administrative, legal, trustee, and government premium yearly expenses for said subscriber employer by administrative cost computing means; the method producing, in use, information defining each subscriber employer’s periodic monetary contribution to a master trust, the face amount of a life insurance policy on each enrolled employee’s life to be purchased from a life insurer and assigned to the master trust and to be maintained in full force and effect until the death of the said employee, and periodic benefits to be received by each enrolled employee upon death, disability or retirement.’
Held: A computer programmed to carry out the unpatentable method was not within the categories of Art.52(2) – the fact that it was a physical thing (‘concrete’) was enough to take the case out of Art.52(2). It was really a method of doing business. It also rejected the apparatus claim. It acknowledged the ‘technical effect’ test: ‘According to the case law of the boards of appeal the use of the term ‘invention’ in Article 52(1) EPC in conjunction with the so-called ‘exclusion provisions’ of Article 52(2) and (3) EPC, which mention subject-matter that ‘in particular shall not be regarded as inventions within the meaning of paragraph 1’, is understood as implying a ‘requirement of technical character’ or ‘technicality’ which is to be fulfilled by an invention as claimed in order to be patentable. Thus an invention may be an invention within the meaning of Article 52(1) if for example a technical effect is achieved by the invention or if technical considerations are required to carry out the invention . . Claim 1 of the main request is, apart from various computing means mentioned in that claim, directed to a ‘method for controlling a pension benefits program by administering at least one subscriber employer account’. All the features of this claim are steps of processing and producing information having purely administrative, actuarial and/or financial character. Processing and producing such information are typical steps of business and economic methods.

Thus the invention as claimed does not go beyond a method of doing business as such and, therefore, is excluded from patentability under Article 52(2)(c) in combination with Article 52(3) EPC; the claim does not define an invention within the meaning of Article 52(1) EPC.’ and ‘The feature of using technical means for a purely non-technical purpose and/or for processing purely non-technical information does not necessarily confer technical character to any such individual steps of use or to the method as a whole: in fact, any activity in the non-technical branches of human culture involves physical entities and uses, to a greater or lesser extent, technical means. . . Methods only involving economic concepts and practices of doing business are not inventions within the meaning of Article 52(1) EPC.
A feature of a method which concerns the use of technical means for a purely non-technical purpose and/or for processing purely non-technical information does not necessarily confer a technical character to such a method.’

Citations:

T0931/95

Cited by:

Cited – Aerotel Ltd v Telco Holdings Ltd and others, In re Patent Application GB 0314464.9 in the name of Neal Macrossan Rev 1 CA 27-Oct-2006
In each case it was said that the requested patent concerned an invention consisting of a computer program, and was not therefore an invention and was unpatentable. In one case a patent had been revoked on being challenged, and in the other, the . .
Reasoning disapproved – Cappellini and Bloomberg, Re PatC 13-Mar-2007
The applicants appealed rejection of their applications for patents. The comptroller-general had said that patents were in respect of computer programs excluded from registration.
Held: The appeals failed. There was no relevant technical . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 10 May 2022; Ref: scu.245714

Regina v Thomas Scott and Sons Bakers Ltd: 1984

In the field of road transport, Community social legislation ‘aims at the harmonisation of conditions of competition between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and road safety.’

Citations:

[1984] ECR 2863

Cited by:

Cited – Vehicle Inspectorate v Bruce Cook Road Planing Ltd and Another HL 8-Jul-1999
The transport of motorway maintenance vehicles and plant to and from sites on the back of a low loader is not sufficiently closely connected with the use of such machines on the motorways, to attract exemption as for such use from the general . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, European

Updated: 09 May 2022; Ref: scu.196994

Djurgarden-Lilla Vartans Miljoskyddsforening v Stockholms kommun genom dess marknamnd: ECJ 15 Oct 2009

ECJ Directive 85/337/EEC – Public participation in environmental decision-making procedures – Right of access to a review procedure to challenge decisions authorising projects likely to have significant effects on the environment

Judges:

Bonichot P

Citations:

[2009] EUECJ C-263/08

Links:

Bailii

Statutes:

Directive 85/337/EEC, Directive 2003/35/EC

Jurisdiction:

European

Citing:

Opinion – Djurgarden-Lilla Vartans Miljoskyddsforening v Stockholms kommun genom dess marknamnd ECJ 2-Jul-2009
ECJ Directive 85/337/EEC – Environmental impact assessment Aarhus Convention – Directive 2003/35/EC – Access to justice – Whether non-governmental organisations for the protection of the environment have standing . .
Lists of cited by and citing cases may be incomplete.

Environment

Updated: 09 May 2022; Ref: scu.514938

Francis v Secretary of State for Work and Pensions: CA 10 Nov 2005

The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or an adopter, and that she should be similarly entitled.
Held: The regulations were discriminatory, and a declaration was granted. ‘we are bound to apply the test suggested by the House of Lords and to examine whether the ground for different treatment in this case amounts to a status in the sense of a personal characteristic. ‘ and ‘administrative convenience cannot in itself be a sufficient justification for discrimination without some other justification as to why those in an analogous or relevantly similar situation are being excluded.’ Where the Secretary of State relies on administrative convenience and ‘bright line’ rules he must still show some ‘serious adverse consequences’ to justify the discrimination.

Judges:

Auld LJ, Moore-Bick LJ, Sir Peter Gibson

Citations:

[2005] EWCA Civ 1303, Times 17-Nov-2005, [2006] 1 WLR 3202

Links:

Bailii

Statutes:

European Convention on Human Rights 14, Social Fund Maternity and Funeral Expenses (General) Regulations 1987 5

Jurisdiction:

England and Wales

Citing:

Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – The National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
Cited – Petrovic v Austria ECHR 27-Mar-1998
The applicant was refused a grant of parental leave allowance in 1989. At that time parental leave allowance was available only to mothers. The applicant complained that this violated article 14 taken together with article 8.
Held: The . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Engel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .

Cited by:

Cited – Stewart v Secretary of State for Work and Pensions CA 29-Jul-2011
The court considered the arrangements for providing public support for the costs of funerals. The claimant’s son had died whilst she was in prison. Assistance had been refused because, as a prisoner, she was not receiving benefits. She complained . .
Cited – RR v Secretary of State for Work and Pensions SC 13-Nov-2019
Housing benefit regulations had been found unlawful and were amended. The Court now considered what payments should have been made before the amendments came into effect.
Held: The appeal was allowed, and RR’s housing benefit entitlement is to . .
Lists of cited by and citing cases may be incomplete.

Benefits, European, Discrimination, Human Rights

Updated: 09 May 2022; Ref: scu.234694

Reichart v Dresdner Bank: ECJ 1992

Citations:

[1992] ECR 1-2149

Cited by:

Cited – Kuwait Oil Tanker Company S A K Sitka Shipping Incorporated v UBS Ag CA 25-Jan-2002
Officers of the claimant had been found to have defrauded the plaintiff of many millions of pounds. Money had been paid through the defendant, a Swiss bank, and a garnishee order was sought. There was no presumption that, merely because a debt was a . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 08 May 2022; Ref: scu.183273

Compagnia Italiana Alcool Sas di Mario Mariano and Co v Commission of the European Communities: ECJ 19 Dec 1990

ECJ Vinous alcohol – Special sale by tender. Application for interim measures – Interim measures – Conditions for granting – Serious and irreparable damage – Financial damage – Damage which cannot be wholly recouped – Weighing up of all the interests in question (EEC Treaty, Art. 186; Rules of Procedure, Art. 83(2)) The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measures. Damage of a financial nature is not in principle considered to be serious and irreparable unless it could not be wholly recouped if the applicant were to be successful in the main action. Even assuming that the alleged damage could not be made good entirely by an award of damages, the commercial interests which the applicant seeks to protect should be weighed against the interests of the Community.

Citations:

C-358/90

Statutes:

EEC Treaty 186, Rules of Procedure 83(2)

Cited by:

See Also – Compagnia Italiana Alcool v Commission ECJ 7-Apr-1992
ECJ The urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting . .
Lists of cited by and citing cases may be incomplete.

European, Litigation Practice

Updated: 08 May 2022; Ref: scu.160608

Gebr Metelmann gmbh and co Kg v Hauptzollamt Hamburg-Jonas: ECJ 12 Dec 1985

Europa 1. Agriculture – common organization of the markets – export refunds -refunds fixed in advance – condition of payment – departure of the goods ‘ unaltered ‘ from the territory of the community – repackaging following customs clearance – forfeiture of the refund – completion of customs formalities after the event – reference date for determining the rate of refund – actual date of departure (commission regulation no 2730/79, art. 9 (1)) 2. Agriculture – monetary compensatory amounts – advance fixing of compensatory amounts and export refunds – forfeiture of the refund -concomitant forfeiture of the monetary compensatory amount – completion of customs formalities after the event – reference date for determining the rate of the compensatory amount – date adopted for determining the rate of refund (commission regulation no 243/78, art. 2; commission regulation no 1371/81). 1. Article 9 (1) of regulation (EEC) no 2730/79, which provides that the export refund is to be paid on condition that the goods have left the geographical territory of the community ‘ unaltered ‘, must be interpreted as meaning that any alteration in the presentation of the goods, where it is such as to render customs control more difficult, entails forfeiture of the refund. Where, exceptionally, customs export formalities may still be completed after the date on which the goods have left the geographical territory of the community, the rate of refund to be applied is that applicable on that date. 2. Since monetary compensatory amounts may be fixed in advance only if the export refunds and levies are also fixed in advance, forfeiture of the refund fixed in advance also entails forfeiture of the monetary compensatory amounts fixed in advance. Where customs formalities are completed after the event, reference may not be made to different dates for the purpose of fixing the rate of the monetary compensatory amount payable pursuant to regulation no 1371/81 and the rate of the refund.

Citations:

C-276/84

European, Agriculture

Updated: 08 May 2022; Ref: scu.133992

Roberts v Tate and Lyle (Judgment): ECJ 26 Feb 1986

Europa The term ‘ dismissal ‘ contained in article 5(1) of directive no 76/207 must be given a wide meaning ; an age limit for the compulsory redundancy of workers as part of a mass redundancy falls within the term ‘ dismissal ‘ construed in that manner, even if the redundancy involves the grant of an early retirement pension.
In view of the fundamental importance of the principle of equality of treatment for men and women, article 1 (2) of directive no 76/207 on the implementation of that principle as regards access to employment and working conditions, which excludes social security matters from the scope of the directive, must be interpreted strictly. It follows that the exception to the prohibition of discrimination on grounds of sex provided for in article 7 (1)(a) of directive no 79/7 on the progressive implementation of the principle of equal treatment in matters of social security applies only to the determination of pensionable age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits.
Article 5 (1) of directive no 76/207 must be interpreted as meaning that a contractual provision which lays down a single age for the dismissal of men and women under a mass redundancy involving the grant of an early retirement pension, whereas the normal retirement age is different for men and women, does not constitute discrimination on grounds of sex, contrary to community law.

Citations:

C-151/84

European, Employment, Discrimination

Updated: 08 May 2022; Ref: scu.133906

John Friedrich Krohn (gmbh and co Kg) v Bundesanstalt fur Landwirtschaftliche Marktordnung: ECJ 12 Dec 1985

Europa 1. Measures adopted by the institutions – regulations – application by analogy – conditions (commission regulations Nos 2029/82 and 2655/82) 2. Agriculture – common organization of the markets – cereals – import certificates – opportunity offered by regulation no 2655/82 to importers of products falling within subheading 07.06 a of the common customs tariff originating in non-member countries other than Thailand to have licences cancelled – extension to importation of the same products originating in Thailand covered by regulation no 2029/82 – identical conditions concerning time-limits and other procedural requirements (commission regulations Nos 2029/82 and 2655/82, art. 3 (6))

  1. The scope of a regulation is normally defined by its own terms and it may not in principle be extended to situations other than those which it envisaged. The position may be different in certain exceptional cases. Thus, traders are entitled to rely on an application by analogy of a regulation which would not normally be applicable to them if they can show that the rules applicable to their case, on the one hand, are very similar to those which it is sought to have applied by analogy and, on the other hand, contain an omission which is incompatible with a general principle of community law and which can be remedied by application by analogy of those other rules.
  2. Article 3 (6) of commission regulation no 2655/82, laying down rules for implementing the import arrangements for 1982 for products falling within subheading 07.06 a of the common customs tariff originating in third countries other than Thailand must be interpreted as applying to the case of importers of products falling within the said tariff subheading and originating in Thailand as provided for by commission regulation no 2029/82. If that were not so, importers of the said products originating in Thailand, who, until the adoption of regulation no 2029/82, were subject to legal rules corresponding very closely to those governing importers of the same products originating in other non-member countries and who were therefore likely to benefit, on the same basis as the latter, from measures intended to protect legitimate expectation, would be placed in a situation which was contrary to the principle in community law of equal treatment of traders in comparable situations. Article 3 (6) of regulation no 2655/82 is to be applied to the importation of products falling within subheading 07.06 a of the common customs tariff and originating in Thailand subject to the time-limits and other procedural requirements therein laid down.

Citations:

C-165/84

European, Customs and Excise

Updated: 08 May 2022; Ref: scu.133920

Van Binsbergen v Bedrijfsvereniging Voor De Metaalnijverheid: ECJ 3 Dec 1974

A Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 [on freedom to provide services] for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State.

Citations:

[1974] ECR 1299 [13]:, C-33/74

Jurisdiction:

European

European, Employment

Updated: 08 May 2022; Ref: scu.132374

Webb v EMO Air Cargo (UK) Ltd: CA 20 Dec 1991

The applicant had been taken on to stand in for an employee taking maternity leave. She herself became pregnant, and she was dismissed. Her clam for sex discrimination had been rejected by the industrial tribunal and EAT.
Held: Since a man who had been recruited in the same situation would have been dismissed if he taken substantial time off for sickness, there was was no sex discrimination. The dismissal of a temporary replacement employee working in the place of an employee on maternity leave who in turn became pregnant was not discriminatory.

Citations:

Gazette 11-Mar-1992, [1992] 1 All ER 43

Statutes:

Sex Discrimination Act 1975 1(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
At CA – Webb v EMO Air Cargo ECJ 14-Jul-1994
Community Law protects women from dismissal during pregnancy save in exceptional circumstances. It was discriminatory to dismiss a female not on a fixed term contract for pregnancy. The Court rejected an interpretation of the Directive that would . .
See Also – Webb v EMO Air Cargo (UK) Ltd (No 2) HL 20-Oct-1995
The applicant complained that she was dismissed when her employers learned that she was pregnant.
Held: 1(1) (a) and 5(3) of the 1975 Act were to be interpreted as meaning that where a woman had been engaged for an indefinite period, the fact . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European

Updated: 08 May 2022; Ref: scu.90351

Trapeza Eurobank Ergasias v Agrotiki Trapeza tis Ellados AE: ECJ 16 Apr 2015

ECJ Judgment – Reference for a preliminary ruling – State aid – Meaning – Article 87(1) EC – Privileges granted to a bank – Company exercising public service obligations – Existing aid and new aid – Article 88(3) EC – Powers of the national court

Judges:

K. Jurimae, P

Citations:

C-690/13, [2015] EUECJ C-690/13, ECLI:EU:C:2015:235

Links:

Bailii

Statutes:

EC Treaty 87(1)

Jurisdiction:

European

European

Updated: 08 May 2022; Ref: scu.545454

Minister Finansow v Wojskowa Agencja Mieszkaniowa W Warszawie: ECJ 16 Apr 2015

ECJ Judgment – Reference for a preliminary ruling – Taxation – Common system of value added tax – Letting of immovable property – Supply of electricity, heating, water and refuge collection – Agreements between the landlord and the suppliers of those goods and services – Supplies provided to the tenant considered to be provided by the landlord – Service charges – Determination of the taxable amount – Possibility of including service charges in the taxable amount of rental services – Transaction composed of a single supply or several independent supplies

Judges:

M Ilesic P

Citations:

C-42/14, [2015] EUECJ C-42/14, ECLI:EU:C:2015:229

Links:

Bailii

Jurisdiction:

European

VAT

Updated: 08 May 2022; Ref: scu.545457

SC Enterprise Focused Solutions Srl v Spitalul Judetean De Urgenta Alba Iulia: ECJ 16 Apr 2015

Reference for a preliminary ruling – Public procurement – Supply – Technical specifications – Principles of equal treatment and of non-discrimination – Obligation of transparency – Reference to a product of a particular brand – Assessment of the equivalence of the product offered by a tenderer – Reference product no longer in production

Judges:

T. von Danwitz, P

Citations:

C-278/14, [2015] EUECJ C-278/14, [2015] WLR(D) 174, ECLI:EU:C:2015:228

Links:

Bailii, WLRD

Jurisdiction:

European

European

Updated: 08 May 2022; Ref: scu.545885

Drogenhilfe Koln Projekt v OHIM (Rauschbrille): ECFI 16 Apr 2015

ECJ Judgment – Community trade mark – Application for Community word mark Rauschbrille – Absolute grounds for refusal – Descriptive character – Lack of distinctive character – Article 7, paragraph 1 b) and c) of Regulation (EC) No 207/2009

Citations:

T-319/14, [2015] EUECJ T-319/14

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 08 May 2022; Ref: scu.545877

Schlyter v Commission: ECFI 16 Apr 2015

ECJ Judgment – Access to documents – Regulation (EC) No 1049/2001 – Article 4(2), third indent – Exception relating to the protection of the purpose of investigations – Regulation (EC) No 1367/2006 – Article 6(1) – Detailed opinion of the Commission concerning a draft Order relating to the annual declaration of nanoparticle substances, notified by the French authorities to the Commission in accordance with the provisions of Directive 98/34/EC – Refusal of access

Citations:

T-402/12, [2015] EUECJ T-402/12, ECLI:EU:T:2015:209

Links:

Bailii

Statutes:

Regulation (EC) No 1049/2001 4(2), Regulation (EC) No 1367/2006 6(1), Directive 98/34/EC

Jurisdiction:

European

European

Updated: 08 May 2022; Ref: scu.545886

Lewis, Regina (on the Application of) v Redcar and Cleveland Borough Council: Admn 20 Dec 2007

The claimant sought registration of an open area as a Commons under the 2006 Act. Until 2002 it had been tenanted by a golf club. The inspector had recommended against registration, saying that the use by the public for lawful pastimes had been for more than twenty years, but that this use had been generally deferential to the tenants, and so had not been as of right’.
Held: To establish a common, the use had to be ‘as of right’ and the use had acknowledged the tenants’ and therefore the land-owners’ rights. The claim for a common failed.

Judges:

Jackson J

Citations:

[2007] EWHC 3166 (Admin), [2008] JPL 1156, [2008] ACD 38

Links:

Bailii

Statutes:

Council Directive 79/409/EC of 2nd April 1979, on the Conservation of Wild Birds, Commons Act 2006 15

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lewis, Regina (on the application of) v Redcar and Cleveland Borough Council and Another CA 15-Jan-2009
The claimants sought registration of land as a common, saying that it had been used by the local residents for social activities for many years. The council had licenced the land for use as a golf course for many years.
Held: The residents’ . .
At First Instance – Lewis, Regina (on The Application of) v Redcar and Cleveland Borough Council and Another SC 3-Mar-2010
The claimants sought to have land belonging to the council registered as a village green to prevent it being developed. They said that it had for more than twenty years been used by the community for various sports. The council replied that it had . .
Lists of cited by and citing cases may be incomplete.

Planning, European, Land

Updated: 07 May 2022; Ref: scu.271202

M and others v HM Treasury: Admn 22 Sep 2006

The claimants sought payment of benefits. They would otherwise have been entitled, and were not suspected themselves, but were family members of persons listed as suspected terrorists under the Resolution, and had been denied benefits acordingly. The court was asked whether the payment of social security benefits to families of a person who was listed would be in breach of UN Security Council Resolution.
Held: The respondent had not acted unlawfully in restricting the payment of benefits.

Judges:

Kenneth Parker QC J

Citations:

[2006] EWHC 2328 (Admin)

Links:

Bailii

Statutes:

United Nations Security Council Resolution 1390 (2002)

Jurisdiction:

England and Wales

Cited by:

Appeal from – M and Others, Regina (on the Application Of) v Revenue and Customs and others CA 6-Mar-2007
The applicants complained that though none of them was suspected of terrorist activity, their finances had been restricted because of their family connections with Osama Bin Laden. . .
At First Instance – M, Regina (on the Application of) v Her Majestys Treasury HL 30-Apr-2008
The House referred to the ECJ a question about the implementation of UN resolutions imposing sanctions on Al-Qa’ida. . .
At First Istance – M (FC) and Others v Her Majesty’s Treasury (Common Foreign And Security Policy) ECJ 14-Jan-2010
Europa Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban Prohibition of making funds available for the benefit of persons and . .
At first instance – M (FC) and Others (Common Foreign And Security Policy) ECJ 29-Apr-2010
Control of Funds of Terrorist Associates
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 – Freezing of funds and economic resources – . .
Lists of cited by and citing cases may be incomplete.

Benefits, European, Crime

Updated: 07 May 2022; Ref: scu.245355

Foster v British Gas plc: HL 1991

The House was asked for a preliminary ruling before a referral of the case to the ECJ as to whether the applicants could rely as against the British Gas Corporation on an unimplemented Council Directive. Although the gas industry had been privatised by the time of the litigation and the rights and liabilities of the British Gas Corporation had been transferred to British Gas plc the courts had to consider the position of a nationalised industry.
Held: The Corporation was a body against which the Directive could be enforced, thus overruling all the lower courts. ‘The principle laid down by the ECJ is that the state must not be allowed to take advantage of its own failure to comply with Community Law. The policy of the BGC which involved discrimination against women in breach of the Directive, was no doubt thought to be in the financial and commercial interests of the BGC. The advantages of that policy would accrue indirectly to the State which provided through the BGC a supply of gas for all citizens generally and which was entitled to the surplus revenue of the BGC. If the BGC were allowed to escape the consequences of an admitted breach of the Directive the State would be taking advantage of its own failure to comply with Community Law. I can see no justification for a narrow or strained construction of the ruling of the ECJ which applies to a body ‘under the control of the state’ …………… I decline to apply the ruling of the ECJ, couched in terms of broad principle and purposive language characteristic of Community Law in a manner which is, for better or worse, sometimes applied to enactments in the United Kingdom parliament.’

Citations:

[1991] 2 AC 306, [1991] 1 QB 40

Statutes:

Directive 1976 EEC/76/207 5(1)

Jurisdiction:

England and Wales

Citing:

At ECJ – Foster and others v British Gas plc ECJ 12-Jul-1990
The defendants (BGC) were nationalised suppliers of gas. BGC was by statute a body with a legal persona operating under the supervision of the authorities. Its members were appointed by the Secretary of State, who also determined their remuneration. . .

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 . .
Cited – Doughty v Rolls Royce Plc CA 19-Dec-1991
The claimants sought to assert their rights under the Equal Treatment Directive, whoch had not been implemented. She had been made to retire at 60, but said that had she been a man she would not have had to retire until she reached 65 years old. She . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Discrimination

Updated: 07 May 2022; Ref: scu.242676

HM Revenue and Customs v Vodafone 2: ChD 2006

The revenue had sought an order for disclosure of documents relating to the income of wholly controlled subsidiaries. There was no difference between the case where a question of Community law arose on which a preliminary ruling by the ECJ was required and any other point of law. In either case it was not enough that the Revenue considered that the law was as they contended it to be.
Held: ‘If the reasonableness of the grounds for not issuing a closure notice depends on a question of law which the Commissioners can decide, surely the right course is for them to decide it. Or at the every least it must be open to them to decide it.’ There was no reason why the commissioners should not be able to decide a point of law on a schedule 33 application. The commissioners had been correct to say that the inspector should seek a ruling from the ECJ.

Judges:

Park J

Citations:

[2006] STC 483

Jurisdiction:

England and Wales

Citing:

Appeal from – Vodafone v Revenue and Customs SCIT 24-May-2005
. .

Cited by:

Appeal from – HM Revenue and Customs v Vodafone 2 CA 28-Jul-2006
The inspector had sought additional information from the company with respect to its tax returns, believing that the company had not provided sufficient information about the earnings of foreign controlled companies. They now challenged the ability . .
Lists of cited by and citing cases may be incomplete.

Corporation Tax, Taxes Management, European

Updated: 07 May 2022; Ref: scu.244206

A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening): SC 9 Sep 2013

Acquisition of Habitual Residence

Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member state such as the United States. The Regulation also deals with how child abduction cases are to be dealt with as between member states of the European Union, and the various international conventions dealing with children, including this one, formed part of the legislative history of the Regulation.
When determining the ‘habitual residence’ of a child for the purpose of the Brussels II Regulation revised and the Hague Convention, the Shah test should not be followed, the search being rather for the place which reflects ‘some degree of integration by the child into the social and family environment’, the intentions of the parents being no more than one relevant factor; in the majority’s view (Lord Hughes disagreeing on this point) physical presence was a necessary element.
The Court summarised the applicable law: ‘i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.’

Judges:

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson

Citations:

[2013] UKSC 60, [2014] 1 AC 1, [2013] WLR(D) 345, [2013] 3 FCR 559, [2013] 3 WLR 761, [2013] Fam Law 1528, [2014] 1 All ER 827, [2014] 1 FLR 111, UKSC 2013/0106

Links:

Bailii, Bailii Summary, SC, SC Summary, WLRD

Statutes:

Council Regulation (EC) No 2201/2003

Jurisdiction:

England and Wales

Citing:

Appeal from – In re A (Children) CA 31-Jan-2013
. .
Cited – B v H (Habitual Residence: Wardship) FD 2002
A mother of three children, who was pregnant with her fourth child, accompanied the father on a visit to Bangladesh. After their arrival the father announced his intention to remain there and refused to hand over the passports of the mother and . .
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 . .
Cited – Owusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – JKN v JCN (Divorce: Forum) FD 19-Apr-2010
Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR . .
Cited – AB v CB FD 10-Oct-2012
Whether English divorce proceedings instituted here by the wife AB should be stayed to enable Indian proceedings for divorce instituted there earlier by CB.
Held: Bodey J stayed the wife’s English petition on the ground that India was the more . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Cited – Al Habtoor v Fotheringham CA 15-Feb-2001
There is no jurisdiction in wardship over a child not habitually resident in England. A child born in England of and English mother and Dubai father had gone to live with his mother in Dubai at the invitation of the father, but had there retained . .
Cited – Re R (Abduction: Habitual Residence) 2004
. .
Cited – In re P-J (Children) (Abduction: Consent) FD 2009
. .
Cited – A (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
Cited – In re P-J (Children) (Abduction: Consent) CA 23-Jun-2009
An application was made under the 1985 Act. The mother answered by saying that the removal of the child had been approved by the father.
Held: The mother’s appeal failed. The father had clearly indicated that he withdrew his consent before the . .
Cited – In re H-K (Children) CA 10-Oct-2011
. .
Cited – DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
Cited – DL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
Cited – In re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .
Cited – in Re M (Abduction: Habitual Residence) CA 1996
The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. . .
Cited – In re S (A Child: Abduction) CA 27-Nov-2002
M’s appeal from refusal of order for return of a child under the Hague Convention. . .
Cited – In Re T (A Child: Article 15 of B2R) ((Care Proceedings: Request to Assume Jurisdiction) FD 13-Mar-2013
A pregnant 17 year old Slovakian girl ran away from a children’s home in Slovakia and gave birth to the baby in the UK.
Held: Although the court decided to transfer the case to Slovakia under article 15, Mostyn J said: ‘It is not disputed that . .
Cited – A (Area of Freedom, Security And Justice) ECJ 29-Jan-2009
ECJ Area of Freedom, Security And Justice – Opinion – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental . .
Cited – Mercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
Cited – Hope v Hope 5-Aug-1854
A child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. Lord Cranworth LC explained this: ‘The jurisdiction of this Court, which is entrusted to the holder of the . .
Cited – In re P (GE) (An infant) CA 1965
A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether . .
Cited – in Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) FD 15-Apr-2008
The court exercised the wardship jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to . .
Cited – In re N (A Child) (Abduction: Appeal) CA 11-Jul-2012
M appealed against refusal of an order dismissing her application for the return of her daughter. The main issue related to T’s habitual residence and a claim that the jurisdiction of the court in England and Wales could be founded upon T being . .
Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – SH v HH (Jurisdiction to Grant Wardship) CA 8-Jul-2011
The British father, of Afghan origin, travelled back to Afghanistan to marry. His wife, the mother, planned to come to England but had never left Afghanistan when their first child was born. Her subsequent journey (alone) to England may have . .
Cited – Mozes v Mozes 9-Jan-2001
United States Court of Appeals, Ninth Circuit . .

Cited by:

Cited – JO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – Cornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
Cited – M (Children : Habitual Residence : 1980 Hague Child Abduction Convention) CA 25-Aug-2020
F sought the return of his children to Germany. They had lived there, but brought to the UK by M with F’s consent. She stayed for a year, and the court now considered where was their habitual residence. The judge considered that they had not lost . .
Cited – Mittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .
Appeal from – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Children, European, International

Leading Case

Updated: 06 May 2022; Ref: scu.515109

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

Glidewell LJ considered the significance of the difference between the wording of the EC Directive, and the section implementing it and said: ‘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] ICR 720

Statutes:

EC Directive (75/129/EEC) 2(2), Trade Union and Labour Relations (Consolidation) Act 1996 188

Jurisdiction:

England and Wales

Cited by:

No Longer Good Law – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Followed – 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 – Scotch Premier Meat Ltd v Stuart Burns and others EAT 28-Apr-2000
EAT Redundancy – Definition . .
Lists of cited by and citing cases may be incomplete.

Employment, European

Updated: 05 May 2022; Ref: scu.301663

Regina v Secretary of State for Health; Scientific Committee for Tobacco and Health ex parte Imperial Tobacco Limited and Others: Admn 6 Jul 1998

Citations:

[1998] EWHC Admin 712

Jurisdiction:

England and Wales

Cited by:

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

European, Media, Health

Updated: 05 May 2022; Ref: scu.138833

Mary Murphy and others v An Bord Telecom Eireann: ECJ 4 Feb 1988

Article 119 of the EEC Treaty, which is directly applicable in the sense that the workers concerned may rely on it in legal proceedings and in the sense that national courts or tribunals must take it into account as a constituent part of community law, must be interpreted as covering, in addition to the case of unequal pay for equal work or work of equal value, the case where a worker who relies on that provision to obtain equal pay within the meaning thereof is engaged in work of higher value than that of the person with whom a comparison is to be made. It is for the national court or tribunal before which a party relies on a directly applicable Treaty provision, within the limits of its discretion under national law, when interpreting and applying domestic law, to give to it, where possible, an interpretation which accords with the requirements of the applicable community law and, to the extent that this is not possible, to hold such domestic law inapplicable.

Citations:

C-157/86, [1988] ICR 445, [1988] 1 CMLR 879

Jurisdiction:

European

Cited by:

Cited – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Lists of cited by and citing cases may be incomplete.

European, Discrimination

Updated: 05 May 2022; Ref: scu.134435

W N Staatssecretaris van Financien Case C-420/98: ECJ 19 Apr 2000

It was correct for a member state to forward to another member state details about the maintenance payments made by a citizen to a resident of the other country where it was anticipated that a tax loss might arise if such information was not transmitted. It was not necessary either for the anticipated loss to be substantial or actual, or for the nature of the potential tax loss to be covered expressly.

Citations:

Times 19-Apr-2000

Statutes:

Council Directive 77/799/EEC concerning mutual assistance by member states in the field of direct taxation

Jurisdiction:

European

European

Updated: 05 May 2022; Ref: scu.90218

Edding and Co v Hauptzollamt Hamburg St Annen: ECJ 10 Dec 1970

Europa The normal price which constitutes the value for customs purposes is in principle the price actually paid for a specific item of goods at the time of sale in conditions of free competition; it is unnecessary to distinguish between the various means of transport even if the choice of one of them may appear unusual with regard to the goods in question.
It includes the carriage and freight referred to in article 7 of regulation no 803/68. Unless exceptions are expressly laid down such costs are those actually incurred even where the choice of the means of transport seems unusual in relation to the goods in question and they result in fixing a normal price higher than the cif price for the same goods transported by a more usual means of transport.

Citations:

C-27/70

European

Updated: 05 May 2022; Ref: scu.131921

W Beus GmbH and Co v Hauptzollamt Munchen (Judgment): ECJ 13 Mar 1968

Europa Agriculture – common agricultural policy – common organization of the markets – fruit and vegetables – entry price – deduction of taxes on imports, including the German turnover equalization tax – fixing – duties of the commission (regulation no 23 of the council of the EEC of 4 April 1962, sixth subparagraph of article 11(2); regulation no 65/65 of the council of the EEC of 13 may 1965, article 1) 2. Agriculture – common agricultural policy – common organization of the markets – fruit and vegetables – reference price – fixing – power of the commission to exercise its discretion – review by the court (regulation no 23 of the council of the EEC of 4 April 1962, second subparagraph of article 11(2); regulation no 65/65 of the council of the EEC of 13 may 1965, article 1) 3. Agriculture – common agricultural policy – objectives – protection of the interests of producers and consumers – conflict of interests – principle of community preference (EEC treaty, article 39; article 44(2)) 4. Measures adopted by community institutions – statement of reasons in regulations – requirement to state the reasons on which the measure is based – extent (EEC treaty, article 190). 1. The expression ‘ other taxes on imports ‘ appearing in the sixth subparagraph of article 11(2) of regulation no 23, as amended by article 1 of regulation no 65/65/eec covers the turnover equalization tax collected in Germany (‘ umsatzausgleichssteuer ‘) as well as the community countervailing charge collected on the basis of the said regulations. In calculating the entry price of fruit and vegetables from third states, it is necessary therefore to deduct from the amount of these taxes the prices recorded on the representative import markets of the member states. Since the said sixth subparagraph provides that the entry price shall be fixed ‘ on the basis of the lowest prices recorded on the representative import markets ‘, the commission must take into account the lowest prices ruling on each market during the observation period. 2. The expression ‘ considerable part of the marketed output throughout the year or during a part thereof ‘, used in the second subparagraph of article 11(2) of regulation no 23, as amended by the sole article of regulation no 65/65/eec, shows that the commission has a certain area of discretion as to the choice of varieties to be considered for fixing the reference price for fruit and vegetables. The court must therefore confine itself where necessary to considering whether or not the choice made by the commission is of an arbitrary nature. 3. The objectives set out in article 39 of the EEC treaty, which are intended to safeguard the interests of farmers and consumers, may not all be simultaneously and fully attained. In balancing these interests, the council must take into account, where necessary, in favour of the farmers the principle known as ‘ community preference ‘, which is one of the principles of the treaty and which in agricultural matters is laid down in articles 44(2). 4. The extent of the requirement, laid down by article 190 of the treaty, to state the reasons on which measures are based, depends on the nature of the measure in question. The statement of the reasons for a regulation may be confined to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to attain on the other. Consequently it is not possible to require that it should set out the various facts, which are often very numerous and complex, on the basis of which the regulation was adopted, or a fortiori that it should provide a more or less complete evaluation of those facts.

Citations:

C-5/67

European, Agriculture

Updated: 05 May 2022; Ref: scu.131835

Firma Milchwerke H Wohrmann and Sohn KG v Hauptzollamt Bad Reichenhall(Judgment): ECJ 4 Apr 1968

Europa Agriculture – common agricultural policy – common organization of the markets – milk and milk products – importation from third countries – charge by way of turnover tax – not a charge having an effect equivalent to a customs duty – legality (regulation no 13/64/eec of the council of 5 February 1964, article 12(2)). A tax imposed on the importation of products from third countries does not constitute a charge having an effect equivalent to a customs duty within the meaning of article 12(2) of regulation no 13/64 on the progressive establishment of a common organization of the markets in milk and milk products when it is imposed as a charge under the national system of turnover tax. Cf. Paragraph 5, summary, case 57/65, (1966) ECR 295.

Citations:

C-7/67

European, Agriculture

Updated: 05 May 2022; Ref: scu.131837

Kaba v Secretary of State for the Home Department Case C-356/98: ECJ 19 Apr 2000

UK rules required that a wife of a migrant European worker must be resident for four years before applying for indefinite leave to remain, but a spouse of a person settled in the UK need only be resident for one year. There was no discrimination contrary to European Law which prevented rules restricting the free movement of workers. The right sought by the application went beyond the rights protected by the EU Treaty. The residential rights of migrant workers are not unconditional.

Citations:

Times 19-Apr-2000

Statutes:

Council Regulation (EEC) No 1612/68 on freedom of movement for community workers, article 7(2), ECTreaty Article 234

Jurisdiction:

European

Immigration, European

Updated: 05 May 2022; Ref: scu.82661

Viking Line Abp v International Transport Workers’ Federation and Another: ComC 16 Jun 2005

The claimant sought an injunction against the respondent international union of trades unions to restrain industrial action intended to prevent its transfer of registration of a ferry plying between Finland and Estonia to Estonia. It sought also a declaration that such action would be contrary to the free movement requirements of the EU Treaty.
Held: The anticipated action would amount to a restriction on the claimants freedomto establish guaranteed by the treaty. Article 43 was directly effective in member states, and therefore the claimant was entitled to its declaratory and injunctive reliefs. In reliance on the free movement Articles, particularly Article 43 of the EC Treaty the court granted to the claimants permanent injunctions restraining the Finnish Seamen’s Union and the International Transport Workers’ Federation from taking industrial action. The industrial action threatened by the two trade unions imposed restrictions on the freedom of movement of establishment contrary to Article 43, and also in the alternative, the free movement of workers and the free provision of services contrary to Articles 39 and 49, and that it, and thus threat of such action, would be unlawful.
In reliance on the free movement Articles, particularly Article 43 of the EC Treaty the court granted to the claimants permanent injunctions restraining the Finnish Seamen’s Union and the International Transport Workers’ Federation from taking industrial action. The industrial action threatened by the two trade unions imposed restrictions on the freedom of movement of establishment contrary to Article 43, and also in the alternative, the free movement of workers and the free provision of services contrary to Articles 39 and 49, and that it, and thus threat of such action, would be unlawful.

Judges:

Gloster J

Citations:

Times 22-Jun-2005, [2005] EWHC 1222 (Comm), [2005] 1 CLC 951, [2006] ILPr 4, [2005] 3 CMLR 2, [2005] Eu LR 1036

Links:

Bailii

Statutes:

EC Treaty 843

Jurisdiction:

England and Wales

Citing:

Cited – Union Royale Belge des societes de Football Association and others v Bosman and others ECJ 15-Dec-1995
bosmanECJ1995
A request for the Court to order a measure of inquiry under Article 60 of the Rules of Procedure, made by a party after the close of the oral procedure, can be admitted only if it relates to facts which may have a decisive influence and which the . .
Cited – Roman Angonese v Cassa di Risparmio di Bolzano SpA ECJ 6-Jun-2000
Europa Under the preliminary ruling procedure provided for by Article 177 of the Treaty (now, after amendment, Article 234 EC), it is for the national courts alone, which are seised of a case and which must . .

Cited by:

Appeal from – 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.

European, Employment, European

Updated: 05 May 2022; Ref: scu.228021

Test Claimants In The Franked Investment Income Group Litigation and Others v Revenue and Customs: SC 20 Nov 2020

Judges:

Lord Reed, President, Lord Hodge, Deputy President, Lord Carnwath, Lord Lloyd-Jones, Lord Briggs, Lord Sales, Lord Hamblen

Citations:

[2020] UKSC 47

Links:

Bailii, Bailii Press Sumary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Corporation Tax, European, Limitation

Updated: 04 May 2022; Ref: scu.656386

Sindicato de Medicos de Asistancia Publica (SIMAP) v Colsilieria de Sanidad y Consumo de la Generalidad Valenciana: ECJ 3 Oct 2000

Doctors working in primary health care teams are subject to the Working Time Directive. They are not to be assimilated as public service workers alongside emergency services. All time on call was working time and overtime if present at a health centre, but if merely contactable then the rules applied to the time actually spent. Merely being on call at night regularly did not make them night workers, but they could be classed as shift workers where appropriate. Consents given collectively by a trade union are not to be equated with consent given by the doctor himself.
ECJ Social policy – Protection of the safety and health of workers – Directives 89/391/EEC and 93/104/EC – Scope – Doctors in primary health care teams – Average period of work – Inclusion of time on call – Night workers and shift workers

Citations:

Times 18-Oct-2000, [2000] ICR 1116, C-303/98, [2000] IRLR 845, [2000] EUECJ C-303/98

Links:

Bailii

Statutes:

Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work, Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time

Jurisdiction:

European

Cited by:

Cited – Landeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
Cited – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Cited – Hughes v Jones and Another EAT 3-Oct-2008
EAT WORKING TIME REGULATIONS
NATIONAL MINIMUM WAGE
A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours . .
Cited – Gallagher and others v Alpha Catering Services Ltd CA 8-Nov-2004
The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and . .
Cited – Hughes v The Corps of Commissionaires Management Ltd CA 8-Sep-2011
The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Employment, Health Professions

Updated: 04 May 2022; Ref: scu.162474

Regina v HM Treasury, Ex Parte University of Cambridge: ECJ 3 Oct 2000

When considering public law governed the procedural requirements for procurement contracts, the court had to consider whether body was financed ‘for the most part’ by public funds. The words referred to the majority of income, and the calculations of what was publicly financed was to include those sums received from government otherwise than for consideration by way of services or supplies. For an educational institution this would include funds by way of grants, but would not include payments for research and similar.

Citations:

Times 17-Oct-2000, C-380/98, [2000] All ER (EC) 920, [2000] 1 WLR 2514, [2000] EUECJ C-380/98

Links:

Bailii

Statutes:

Council Directive 92/50 relating to the co-ordination of procedures for the award of public service contracts

Jurisdiction:

European

Cited by:

Cited – Hampshire County Council v Beer (T/A Hammer Trout Farm); Regina (Beer) v Hampshire Farmers’ Market Ltd CA 21-Jul-2003
The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers . .
Lists of cited by and citing cases may be incomplete.

Education

Updated: 04 May 2022; Ref: scu.162516

O (Peter) v F KG: 16 Dec 2003

(Austrian Oberster Gerichtshof (Supreme Court)) The court considered a claim to copyright in photographs of grape varieties used as illustrations in a book. They were applying an approach to copyright based on the principle that the work must be the creator’s own intellectual creation.
Held: ‘In accordance with more recent jurisdiction of the finding Senate, photographs are to be considered photographic works in the sense of s.3(2) UrhG (Copyright Law), if they are the result of the creator’s own intellectual creation, with no specific measure of originality being required. What is decisive is that an individual allocation between photograph and photographer is possible in so far as the latter’s personality is reflected by the arrangements (motif, visual angle, illumination, etc.) selected by him. Such freedom of creation does certainly exist not only for professional photographers with regard to works claiming a high artistic level, but also for a lot of amateur photographers, who take pictures of everyday scenes in the form of photos of landscapes, persons and holiday pictures; also, such photographs shall be deemed photographic works, as far as the arrangements used cause distinctiveness. This criterion of distinctiveness is already met, if it can be said that another photographer may have arranged the photograph differently [ . . ]. The two-dimensional reproduction of an object found in nature is considered to have the character of a work in the sense of copyright law, if one’s task of achieving a representation as true to nature as possible still leaves ample room for an individual arrangement [ . . ].

Citations:

[2006] ECDR 9

Cited by:

Cited – Temple Island Collections Ltd v New English Teas Ltd and Another PCC 12-Jan-2012
The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 04 May 2022; Ref: scu.535637

Galp Energia Espana SA v European Commission: ECJ 16 Sep 2013

Some of the addressees of a Commission Decision had appealed, but they sought annulment of the Decision as against all its addressees.
Held: ‘Principally, the applicants submit claims seeking annulment of the contested decision in its entirety and not in so far as it concerns them.
However, a decision adopted in a competition matter with respect to several undertakings, although drafted and published in the form of a single decision, must be seen as a set of individual decisions finding that each of the addressees is guilty of the infringement or infringements of which they are accused and imposing on them, where appropriate, a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the European Union judicature, and remains binding on those addressees which have not applied for its annulment (Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij v Commission [2002] ECR I-8375, paras 99 and 100).
Accordingly, the applicants are not entitled to seek the annulment of the contested decision in so far as it concerns other addressees.’

Citations:

Case T-462/07

Cited by:

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

European

Updated: 04 May 2022; Ref: scu.523730

Phoenix General Insurance Co of Greece SA v Halvanon Insurance Co Ltd: CA 1987

Kerr LJ summarised the aim of the Directives underlying the 1977 Regulations as being to achieve a uniform classification of non-life insurance businesses and of insured risks for the purposes of the supervision of insurers with a view to ensuring their solvency and proper administration. He continued: ‘The wording of the Regulations appears to me to demonstrate that the allocation of particular insurances into their appropriate class of Regulations requires the need for an examination of the manner in which the particular risks are written. This is a question of the true construction of the wording of the cover (see per Lord Reid, at p. 468C) and the wording of the classes of the Regulations are directed to this question. In the context of the possibility of committing a criminal offence, by writing unauthorised insurance business, this interpretation is no doubt undesirable, artificial and unbusinesslike. And if it were not for the safeguard against prosecutions in section 81 of the Act of 1974 and the transitional provisions of the Regulations to which I come later, I should struggle even more strongly against this interpretation of the Regulations. But in his examination of the authorities Mr. Kentridge satisfied me that whenever it has been material to consider the nature of the precise interest or risk insured, its description in the contract is crucial. Thus, in Wilson v. Jones (1867) L.R. 2 Ex. 139, where a shareholder in a cable laying company took out cover on the successful laying and installation of a transatlantic cable of which part was subsequently lost at sea, it was held that he could recover because his insurance was upon the success of the adventure and not upon the cable itself, in which he had no insurable interest. Similarly in other well known marine insurance cases such as Joyce v. Kennard (1871) L.R. 7 Q.B. 78 and Cunard Steamship Co. Ltd. v. Marten [1902] 2 K.B. 624, where it was essential to determine whether the insurance was ‘on’ goods or insurance against liability for goods, the wording of the cover and not the nature of the insurable interest was held to be decisive.
The conclusion to which I am driven, unfortunately from the point of view of what seems to me to be business sense, is that this is the approach which has to be adopted for the purpose of assigning the ‘nature of business’ in Schedule 1 to its appropriate class of the Regulations.’

Judges:

Kerr LJ

Citations:

[1988] QB 216, [1987] 2 All ER 152

Statutes:

Insurance Companies (Classes of General Business) Regulations 1977

Cited by:

Cited – Digital Satellite Warranty Cover Ltd and Another v Financial Services Authority SC 13-Feb-2013
The appellants challenged an order for the dissolution of their company under the 2000 Acts. They had provided warranties for assorted consumer electrical goods which amounted to insurance, but said that they were not required to be registered under . .
Lists of cited by and citing cases may be incomplete.

Financial Services, European

Updated: 04 May 2022; Ref: scu.470964

Piaggio (Germany): 14 Feb 2007

Court of Cassation Sez 6 (Italy). The appellant challenged the issue by the Hamburg Public Prosecutor’s Office of a European Arrest Warrant on the ground that it should have been issued and signed by a judge.
Held: The argument failed: ‘The claim alleging breach of article 1(3) of Law no 69 of 2005 on the ground that the EAW was not signed by a judge is completely unfounded.
The provision allegedly requiring signature by a judge does not refer to the EAW, as the appellant mistakenly claims, but to the precautionary measure on the basis of which the warrant was issued: in the present case, it is in fact the arrest warrant issued by the Hamburg District Magistrate’s Court on 24 August 2005, regularly signed by Judge Reinke.
The guarantee specified in the aforesaid article1(3) does not relate to the act requesting the Member State to grant extradition but is directly connected with the custodial measure, that is to say it is a substantial guarantee concerned with the basic conditions underlying the EAW, which must be subject to jurisdiction. In this procedure, the true guarantee of personal freedom is not the fact that the EAW is issued by a judicial authority but the fact that the warrant is based on a judicial measure.
Moreover, article 6 of the framework decision leaves to the individual Member State the task of determining the judicial authority responsible for issuing (or executing) a European Arrest Warrant, and the Italian implementing law, with regard to the active extradition procedure, provides for certain cases in which the Public Prosecutor’s office is to be responsible for issuing the EAW (article 28 of Law no 69/2005).
Essentially, the alleged breach of the law in respect of the fact that the EWA was signed by the Hamburg Public Prosecutor’s Office, must be excluded.’

Citations:

Unreported, 14 Feb 2007

Cited by:

Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Lists of cited by and citing cases may be incomplete.

European, Extradition

Updated: 04 May 2022; Ref: scu.459854

DTL Corporacion v OHMI – Vallejo Rosell (Generia): ECFI 9 Dec 2014

ECJ Judgment – Community trade mark – Opposition proceedings – Community trade mark Generia – Earlier Community figurative mark Generalia generacion renovable – Relative ground for refusal – Likelihood of confusion – Article 8, paragraph 1 b) of Regulation (EC) No 207/2009 – Article 63, paragraph 2 and Article 75 of Regulation No 207/2009

Citations:

T-176/13, [2014] EUECJ T-176/13, ECLI: EU: T: 2014: 1028

Links:

Bailii

Jurisdiction:

European

Intellectual Property

Updated: 02 May 2022; Ref: scu.539798

Carvel and Guardian Newspapers v Council: ECFI 19 Oct 1995

ECFI Article 4 of Council Decision 93/731 on public access to Council documents lays down exceptions to the principle that the public is to have access to such documents, distinguishing between the cases referred to in Article 4(1), in which access may not be granted where its disclosure could undermine certain interests listed therein, and those referred to in Article 4(2), in which access may be refused to protect the confidentiality of the Council’ s proceedings.
It is clear both from the terms of Article 4 and from the objective pursued by the decision, namely to allow the public wide access to Council documents, that the Council must, when exercising its discretion under Article 4(2), genuinely balance the interest of citizens in gaining access to its documents against any interest of its own in maintaining the confidentiality of its deliberations. Citizens enjoy rights under Article 4(2) which the Council cannot defeat merely by relying on the fact that under Article 5 of its Rules of Procedure its deliberations are covered by an obligation of professional secrecy, since that obligation applies, according to that article itself, only in so far as the Council does not decide otherwise.
Where it is established that the competing interests involved were not balanced before disclosure was refused, in particular because the reason given was that the Council’ s Rules of Procedure do not allow disclosure of documents such as those requested, relating to the Council’ s deliberations, such refusal must therefore be annulled.

Citations:

Times 02-Nov-1995, T-194/94, [1995] EUECJ T-194/94

Links:

Bailii

Jurisdiction:

European

Media

Updated: 02 May 2022; Ref: scu.172875

Oceano Grupo Editorial SA v Quintero: ECJ 2000

The court asked whether, in a case brought against an individual consumer, the court could investigate the unfairness of the relevant term of the contract at issue of its own motion.
Held: In such a case the court could act of its own motion. In this case the term was unfair. Article 7(2) refers to a ‘decision’ by a court or an administrative authority as to whether a term is unfair.

Citations:

[2000] ECR I-4941

Statutes:

Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts 7(2)

Jurisdiction:

European

Cited by:

Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.

European, Consumer, Contract

Updated: 01 May 2022; Ref: scu.271000

Litster and Others v Forth Dry Dock and Engineering Co Ltd: SCS 1988

(Second Division of the Inner House of the Court of Session) Twelve applicants worked for an employer who went into insolvent receivership. The receivers agreed to sell the business assets. An hour before completion the workers were dismissed and handed letters stating that no payments would be made for holiday pay or damages for failure to give the statutory period of notice. None were taken on by the new owners of the undertaking. The Industrial Tribunal had held that the dismissal was unfair, that the applicants were employed immediately before the transfer and were dismissed by reason of the transfer. Their dismissal was therefore unfair under Regulation 8 of TUPE and the liability of their former employers was transferred to the transferee. Held; The employer’s appeal was allowed.

Citations:

[1988] IRLR 289

Statutes:

Transfer of Undertakings (Protection of Employment) Regulations 1981

Cited by:

Cited – Hughes v Doncaster Metropolitan Borough Council HL 1991
A claimant’s claim for compensation on the compulsory acquisition of his land is but one claim for all those losses which flow from a compulsory acquisition of which the value of the land taken and any injury to retained land is but part of the . .
Appeal from – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – Lassman and Others v Secretary of State for Trade and Industry CA 19-Apr-2000
The claimants worked for Rotaprint when it went into receivership in 1988, and then for the receiver before being transferred to Pan Graphics. Statutory redundany payments were made on the receivership of Rotaprint. The claimants sought further . .
Lists of cited by and citing cases may be incomplete.

Employment, Scotland, European

Updated: 01 May 2022; Ref: scu.270271