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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Commercial - From: 1985 To: 1989

This page lists 17 cases, and was prepared on 20 May 2019.

 
Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland Case 207/83
25 Apr 1985
ECJ

European, Commercial
Europa Free movement of goods - quantitative restrictions - measures having equivalent effect - legislation requiring an indication of origin on certain products - prohibited - consumer protection - not a permissible ground of justification (EEC treaty, art. 30)
national legislation prohibiting the retail sale of certain products imported from other member states unless they bear or are accompanied by an indication of origin has the effect of increasing the production costs of the imported goods and of making it more difficult to sell them. Even if it is applicable without distinction to domestic and imported products, it is in practice and by its nature intended to enable the consumer to distinguish between those two categories of products, which may prompt him to give his preference to national products; no imperative reason relating to consumer protection justifies such legislation so that it must be considered a measure having an effect equivalent to a quantitative restriction prohibited by article 30 of the treaty.

 
Sa Etablissements Piszko And Others v Sa Dammarie Distribution 'Centre Leclerc' And Sa Carrefour Supermarche R-115/84; [1985] EUECJ R-115/84
25 Sep 1985
ECJ

Commercial
National rules on fuel prices.
[ Bailii ]

 
 Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc; CA 14-Mar-1986 - [1986] 1 WLR 763; [1987] QB 815; (1986) 2 BCC 99086; [1986] EWCA Civ 8; [1986] 2 All ER 257
 
Criminal Proceedings against Asjes and Others, Gray And Others, Maillot and Others And Ludwig And Others. R-213/84; [1986] EUECJ R-213/84; [1986] ECR 1425
30 Apr 1986
ECJ

Commercial, Transport
The tribunal de police de Paris sought a preliminary ruling in criminal proceedings against the executives of airlines and travel agencies, who were charged with infringing the French Civil Aviation Code when selling air tickets by applying tariffs that were different from the approved tariffs. According to the French Code, all airlines had to submit their tariffs to the Government for approval. The Ministry's decision approving the tariff proposed by an airline rendered that tariff binding on all traders. The tribunal de police asked whether such a system was incompatible with the competition provisions of the Treaty. Held: The question was understood to ask whether it is contrary to the Member States' obligations under the Treaty to enforce approved tariffs if those tariffs are the result of an agreement, a decision or a concerted practice between the airlines contrary to Article 85. The Court referred to international agreements concerning civil aviation and the Chicago Convention on International Civil Aviation that re-affirms the principle of each State's sovereignty over the airspace above its territory. The Court noted that, based on that principle of sovereignty, a network of bilateral agreements has been set up whereby States have authorised the establishment of one or more air routes between their respective territories. Those bilateral agreements follow a standard model which provides, amongst other things, that the tariffs for air services will be fixed by the companies that are authorized to operate the routes envisaged by each agreement. Those tariffs, which are often negotiated under the auspices of the International Air Transport Association (IATA), are then subject to the approval of the authorities of the signatory States. However, the French Government accepted that the bilateral agreements to which they were a signatory did not require them to ignore EU competition rules when approving tariffs.
In light of the structure created by Articles 88 and 89, the fact that an agreement may fall within the ambit of Article 85 does not, the Court held, suffice for it to be immediately prohibited by Article 85(1) and so automatically void under Article 85(2). Such a conclusion would be contrary to the general principle of legal certainty which is a rule of law that must be upheld in the application of the Treaty. It would have the effect of prohibiting and rendering automatically void certain agreements, even before it is possible to ascertain whether Article 85 as a whole is applicable to those agreements. Thus, the Court held, until the entry into force of implementing measures under Article 87, agreements are prohibited under Article 85(1) and are automatically void under Article 85(2) only in so far as they have been held by the authorities of the Member States, pursuant to Article 88, to fall under Article 85(1) and not to qualify for exemption from the prohibition under Article 85(3)
1 Citers

[ Bailii ]
 
Lithgow And Others v The United Kingdom 9006/80; 9263/81; [1986] ECHR 8; (1986) 8 EHRR 329; 9262/81
8 Jul 1986
ECHR
R Ryssdal, President
Human Rights, Commercial
ECHR No violation of P1-1. The phrase "subject to the conditions provided for by law" requires the existence of and compliance with adequately accessible and sufficiently precise domestic legal provisions. As to the need for a reasonable relationship of proportionality between the means employed and the aim sought to be realised, and the requirement that a balance must be struck between the general interest to the community and protection of the individual's fundamental rights, the taking of property without reasonable compensation would normally constitute a disproportionate interference.
The applicants complained of the nationalisation of their industries under the 1977 Act.
Aircraft and Shipbuilding Industries Act 1977 - European Convention on Human Rigts P1A1
1 Citers

[ Bailii ]
 
In re Multi Guarantee Ltd [1987] BCLC 257
1987
CA
Lawton LJ, Nourse LJ
Commercial
Nourse LJ said of the Condon Case: "The principle of cases such as those is that the court will direct a trustee in bankruptcy not to insist on his full legal rights if it would be unacceptable for him to do so. The principle is subject to qualifications, of which the most important is that the court will only take that course in a case where it would be dishonest or shabby or the like for the trustee to insist on his full legal rights."
Lawton LJ said: "Various words have been used in the cases to indicate the kind of conduct to which the principle of Ex p James, Re Condon (1874) LR 9 Ch App 609 may apply, such as "a point of moral justice", "dishonest", "dishonourable", "unworthy", "unfair" and "shabby". Those words are not words of art at all. They are words of ordinary English usage and the concept behind them is, as I understand the cases, that an officer of the court, such as a trustee in bankruptcy or a liquidator, should not behave in a way which a reasonable member of the public, knowing all the facts, would regard as either dishonest, unfair or dishonourable."
1 Cites

1 Citers


 
British-American Tobacco Company Ltd, R J Reynolds Industries Inc v Commission Of The European Communities C-156/84; [1987] EUECJ C-156/84
17 Nov 1987
ECJ

Commercial
ECJ (Competition )
1. An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation.
Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission' s investigation, and the limits of such rights are reached where they begin to interfere with those companies' rights to a fair hearing.
The obligation of professional secrecy laid down in article 214 of the treaty and article 20(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets.
The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.

2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty.
Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business.
That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company.
Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1 ) of the treaty are met, its review of the commission' s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.

5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.
[ Bailii ]
 
British-American Tobacco Company Ltd and R J Reynolds Industries Inc v Commission of the European Communities Joined Cases 142 and 156/84; C-142/84
17 Nov 1987
ECJ

Company, Judicial Review, Commercial
Europa An investigation carried out by the commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between companies which have submitted an application under article 3 of regulation no 17/62, having shown that they have a legitimate interest in seeking an end to the alleged infringement, and companies which are the object of the investigation. Although complainants must be given the opportunity to defend their legitimate interests during the administrative proceedings and the commission must consider all the matters of fact and of law which they bring to its attention, their procedural rights are not as far-reaching as the right to a fair hearing of the companies which are the object of the commission' s investigation, and the limits of such rights are reached where they begin to interfere with those companies' rights to a fair hearing. The obligation of professional secrecy laid down in article 214 of the treaty and article 20*(2) of regulation no 17/62 is mitigated in regard to complainants, but they may not in any circumstances be provided with documents containing business secrets. The legitimate interests of complainants are fully protected where they are informed of the outcome of the confidential negotiations between the commission and the companies which are the object of its investigation with a view to bringing the agreements or practices complained of into conformity with the rules laid down in the treaty; the right of the commission and those companies to enter into confidential negotiations would be imperilled if the complainants were given the right to attend such negotiations or be kept informed of the progress made in order to submit their observations on the proposals put forward by one party or the other.
2. Where the acquisition of shares in a competing company is the subject-matter of agreements entered into by companies which remain independent after the entry into force of the agreements, the issue must first be examined from the point of view of article 85 of the treaty. Although the acquisition by one company of an equity interest in a competitor does not in itself constitute conduct restricting competition, such an acquisition may nevertheless serve as an instrument for influencing the commercial conduct of the companies in question so as to restrict or distort competition on the market on which they carry on business. That would be true in particular where, by the acquisition of a shareholding or through subsidiary clauses in the agreement, the investing company obtains legal or de facto control of the commercial conduct of the other company or where the agreement provides for commercial cooperation between the companies or creates a structure likely to be used for such cooperation, or where the agreement gives the investing company the possibility of reinforcing its position at a later stage and taking effective control of the other company. Every agreement must be assessed in its economic context and in particular in the light of the situation on the relevant market. Where the companies concerned are multinational corporations which carry on business on a worldwide scale, their relationships outside the community cannot be ignored, and it is necessary in particular to consider the possibility that the agreement in question may be part of a policy of global cooperation between them. The commission must exercise particular vigilance in the case of a stagnant and oligopolistic market, such as that for cigarettes.
3. Although as a general rule the court undertakes a comprehensive review of the question whether or not the conditions for the application of article 85*(1) of the treaty are met, its review of the commission' s appraisals of complex economic matters is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers.
4. The acquisition by one company of a shareholding in a competing company can constitute an abuse of a dominant position within the meaning of article 86 of the treaty only where that shareholding results in effective control of the other company or at least in some influence on its commercial policy.
5. Where the commission rejects an application pursuant to article 3 of regulation no 17/62, it need only state the reasons for which it did not consider it possible to hold that an infringement of the rules on competition had occurred, and it is not obliged to explain any differences in relation to the statement of objections, since that is a preparatory document containing assessments which are purely provisional in nature and are intended to define the scope of the administrative proceedings with regard to the companies against which they are brought, or to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings.

 
Bodson v Sa Pompes Funebres Des Regions Liberees (State Monopolies Of A Commercial Character) [1988] EUECJ R-30/87
4 May 1988
ECJ

European, Commercial

[ Bailii ]
 
Brother Industries Ltd v Commission of the European Communities (Rec 1988,P 5655) (Judgment) Case 56/85; C-56/85; [1988] EUECJ C-56/85
5 Oct 1988
ECJ

European, Commercial
Europa Application for a declaration that a measure is void - Action brought against a regulation imposing a provisional anti-dumping duty - Adoption during the proceedings of a regulation (also challenged) imposing a definitive anti-dumping duty at a lower rate, which was rendered applicable ab initio - Application devoid of purpose - Decision unnecessary (EEC Treaty, Art. 173)
An application against a regulation imposing a provisional anti-dumping duty becomes devoid of purpose, with the result that the Court no longer has to give a decision upon it, where that regulation is replaced during the proceedings by a regulation - which is also challenged by the applicant -imposing a definitive anti-dumping duty and the definitive rate of duty, which is lower than the rate of the provisional duty, applies to the collection of the amounts secured by the latter.
[ Bailii ]

 
 Sharp Corporation v Council of the European Communities; ECJ 5-Oct-1988 - Case 301/85; C-301/85; [1988] EUECJ C-301/85

 
 Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd; 1989 - (1989) 167 CLR 177
 
Ahmed Saeed Flugreisen And Silver Line Reisebuero Gmbh v Zentrale Zur Bekampfung Unlauteren Wettbewerbs EV R-66/86; [1989] EUECJ R-66/86
11 Apr 1989
ECJ

Commercial, Transport
The Court was asked as to the enforcement of government approved airline tariffs which were being evaded by travel agents who bought air tickets between two airports both outside Germany with the passenger boarding the plane during its stopover at a German airport. It was also said that their conduct constituted unfair competition because the prices of the airline tickets they sold undercut the approved tariffs applied by their competitors. The Bundesgerichtshof referred questions to the Court raising the compatibility of the agreement on tariffs not only under Article 85 but also under Article 86. It recognised that the tariff agreements at issue in the proceedings might have a serious anti-competitive effect: they may even have the effect of completely eliminating price competition on the routes to which they relate. Held: The principles established in Asjes continued to apply to domestic air transport and air transport between the EEC and third countries since those sectors were still not covered by implementing regulations made under Article 87. The Court drew a distinction between these flights and intra-Community flights because the Council and Commission had by this time enacted implementing measures for the latter.
1 Citers

[ Bailii ]
 
Radio Telefis Eireann And Others v Commission Of The European Communities. (Application For Interim Measures) C-91/89; [1989] EUECJ C-91/89R; [1989] ECR 1141; [1990] FSR 87; [1989] 4 CMLR 749
11 May 1989
ECJ
T Koopmans, P
European, Commercial, Intellectual Property, Media
ECJ Competition - Abuse of a dominant position - Practices preventing the publishing and sale of comprehensive weekly television guides.
Joined cases 76, 77 and 91/89 R.
Application for interim measures - Suspension of operation - Conditions for grant - Serious and irreparable damage
(EEC Treaty, Art. 185; Rules of Procedure, Art . 83(2))
[ Bailii ]
 
Orkem v Commission (Judgment) C-374/87; [1989] ECR 3283; [1989] EUECJ C-374/87
18 Oct 1989
ECJ

Commercial
The court considered the powers of the Commission to demand information in an investigation of possible offences against the Community competition laws. Article 11 of Regulation 17 of 1962 gave the Commission power, for the purposes of ensuring the application of the principles of Community competition law, to "obtain all necessary information" from undertakings under investigation. The Commission sent Orkem a wide-ranging questionnaire, including requests for factual information about correspondence and meetings with other firms, but also some questions which in effect required Orkem to confess that it had acted unlawfully. Held: The Commission was entitled to ask for factual information, even if it might be incriminating: "Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules. On the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation." It followed that: "the questions…relating to meetings of producers, which are intended only to secure factual information on the circumstances in which such meetings were held and the capacity in which the participants attended them, and also the requirement of disclosure of documents in the applicant's possession relating thereto, are not open to criticism." What was objectionable was questions such as the request for particulars of "every step or concerted measure which may have been envisaged or adopted to support such price initiatives" which were an attempt to force Orkem to admit that it had taken part in price-fixing. These were calculated to undermine the right of the company to defend itself. This infringed the "need to safeguard the rights of the defence which the court has held to be a fundamental principle of the Community legal order." The court concluded: "The Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove."
1 Citers

[ Bailii ]
 
Solvay v Commission C-27/88; [1989] EUECJ C-27/88
18 Oct 1989
ECJ

Commercial
Judgment - Competition - Investigative powers of the Commission - Rights of the defence.
[ Bailii ]

 
 Cosimex v Commission; ECFI 6-Dec-1989 - T-131/89; [1989] EUECJ T-131/89
 
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