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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: 2004 To: 2004

This page lists 50 cases, and was prepared on 20 May 2019.

 
Bundesverband Der Arzneimittel-Importeure v Bayer And Commission C-3/01; [2004] EUECJ C-3/01P
6 Jan 2004
ECJ

Commercial
EU (Competition) Appeals - Competition - Parallel imports - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Meaning of agreement between undertakings - Proof of the existence of an agreement - Market in pharmaceutical product.
1 Citers

[ Bailii ]
 
Bundesverband der Arzneimittel-Importeure eV and Commission of the European Communities v Bayer AG C-2/01; [2004] EUECJ C-2/01P
6 Jan 2004
ECJ

Commercial
Europa Appeals - Competition - Parallel imports - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Meaning of agreement between undertakings - Proof of the existence of an agreement - Market in pharmaceutical products.
1 Cites

1 Citers

[ Bailii ]
 
the Howgate Shopping Centre and others v Catercraft Services Limited
7 Jan 2004
OHCS
Lord Macfadyen
Scotland, Commercial

[ ScotC ]
 
Aalborg Portland A/S, Irish Cement Ltd, Ciments francais, Italcementi - Fabbriche Riunite Cemento SpA; Buzzi Unicem SpA; Cementir v Commission C-204/00; C-205/00; [2004] EUECJ C-204/00P; [2004] EUECJ C-205/00P; [2004] EUECJ C-211/00P; [2004] EUECJ C-213/00P; [2004] EUECJ C-217/00P; C-211/00; C-213/00; C-217/00
7 Jan 2004
ECJ

European, Commercial
Europa Appeal - Competition - Cement market - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Jurisdiction of the Court of First Instance - Rights of the defence - Access to the file - Single and continuous infringement - Liability for an infringement - Evidence of participation in the general agreement and measures of implementation - Fine - Determination of the amount.
[ Bailii ] - [ Bailii ] - [ Bailii ] - [ Bailii ] - [ Bailii ]
 
Kuhne and Heitz NV v Produktschap voor Pluimvee en Eieren C-453/00; [2004] EUECJ C-453/00
13 Jan 2004
ECJ

European, Commercial
Europa Poultrymeat - Export refunds - Failure to refer a question for a preliminary ruling - Final administrative decision - Effect of a preliminary ruling given by the Court after that decision - Legal certainty - Primacy of Community law - Principle of cooperation - Article 10 EC.
[ Bailii ]
 
JCB Service v Commission (Judgment) T-67/01; [2004] EUECJ T-67/01
13 Jan 2004
ECFI

European, Commercial
Europa Competition - Article 81 EC - Distribution agreements.
[ Bailii ]
 
The Secretary of State for Trade and Industry v Bell Davies Trading Ltd and KTA Limited [2004] EWHC 20 (Ch)
16 Jan 2004
ChD
The Hon Mr Justice Richards
Company, European, Commercial

1 Citers

[ Bailii ]
 
Bim Kemi Ab v Blackburn Chemicals Limited [2004] EWHC 166 (Comm)
6 Feb 2004
ComC
The Honourable Mr Justice Cooke
Commercial, Contract, European

1 Cites

1 Citers

[ Bailii ]
 
Office of Fair Trading and others v IBA Health Limited [2004] EWCA Civ 142; Times, 25 February 2004; Gazette, 18 March 2004; [2004] 4 All ER 1103; [2004] ICR 1364
19 Feb 2004
CA
Lord Justice Mance VC, Lord Justice Carnwath
Company, Commercial
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties appealed. Held: The Tribunal had misdirected itself as to one test. The statutory test required the OFT to believe that the merger 'may be' expected to result in a substantial lessening in competition, not that such a belief might arise in the future. On the other hand, the OFT had first to form a relevant belief - a suspicion was insufficient. That belief must be reasonable and objectively based. The degree of likelihood expected must amount to an expectation that 'it is or may be the case that' the merger may be a 'relevant merger' for the Act.
Carnwath LJ said: "the CAT was right to observe that their approach should reflect the 'specific context' in which they had been created as a specialised tribunal (paras 220); but they were wrong to suggest that this permitted them to discard established case law relating to 'reasonableness' in administrative law, in favour of the 'ordinary and natural meaning' of that word (para 225). Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of 'reasonableness' dependent on the statutory context (see de Smith para 13-055ff 'The intensity of review'; cf Wade and Forsyth, p 364ff 'The standard of reasonableness', and the comments of Lord Lowry in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 765ff).
Thus, at one end of the spectrum, a 'low intensity' of review is applied to cases involving issues 'depending essentially on political judgment' (de Smith para 13-056-7). Examples are R v Secretary of State, Ex p Nottinghamshire County Council [1986] AC 240, and R v Secretary of State, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521, where the decisions related to a matter of national economic policy, and the court would not intervene outside of 'the extremes of bad faith, improper motive or manifest absurdity' ([1991] 1 AC, per Lord Bridge of Harwich, at pp 596-597). At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with 'absurdity' or 'perversity', and a 'lower' threshold of unreasonableness is used . . A further factor relevant to the intensity of review is whether the issue before the Tribunal is one properly within the province of the court. As has often been said, judges are not 'equipped by training or experience or furnished with the requisite knowledge or advice' to decide issues depending on administrative or political judgment: see Ex p Brind [1991] 1 AC at 767, per Lord Lowry. On the other hand where the question is the fairness of a procedure adopted by a decision-maker, the court has been more willing to intervene: such questions are to be answered not by reference to Wednesbury unreasonableness, but "in accordance with the principles of fair procedure which have been developed over the years and of which the courts are the author and sole judge"' (R v Panel on Take-overs and Mergers, Ex p Guinness plc [1990] 1 QB 146, 184, per Lloyd LJ)."
Enterprise Act 2002 33(1)
1 Cites

1 Citers

[ Bailii ]
 
John Deans v Thus Plc
3 Mar 2004
OHCS
Lord Clarke
Scotland, Commercial

[ ScotC ]
 
Musselburgh and Fisherrow Co-Operative Society Limited v Mowlem Scotland Limited [2004] ScotCS 52
3 Mar 2004
OHCS
Lord Eassie
Scotland, Commercial

[ Bailii ] - [ ScotC ]
 
AOK-Bundesverband and others C-264/01; [2004] EUECJ C-264/01
16 Mar 2004
ECJ

Commercial, European
ECJ Competition - Undertakings - Sickness funds - Agreements, decisions and concerted practices - Interpretation of Articles 81 EC, 82 EC and 86 EC - Decisions of groups of sickness funds determining maximum amounts paid in respect of medicinal products
[ Bailii ]
 
Aerpac Limited (In Administration) Bryan Alan Jackson, C.A. As Administrator Thereof v Noi Scotland Limited
31 Mar 2004
OHCS
Lord Drummond Young
Scotland, Commercial

[ ScotC ]
 
Sociiti Air France (Air France) And Alitalia Linee Aeree Italiane S.P.A. (Alitalia) (Antitrust) [2004] ECComm 2
7 Apr 2004
ECMM

Company, Commercial

[ Worldlii ]
 
West Castle Properties Limited v the Scottish Ministers
28 Apr 2004
OHCS
Lord Mackay Of Drumadoon
Scotland, Commercial

[ ScotC ]
 
IMS Health GmbH and Co. OHG v NDC Health GmbH and Co. KG C-418/01; [2004] EUECJ C-418/01
29 Apr 2004
ECJ

European, Commercial, Intellectual Property
Competition - Article 82 EC - Abuse of a dominant position - Brick structure used to supply regional sales data for pharmaceutical products in a Member State - Copyright - Refusal to grant a licence.
[ Bailii ]
 
British Sugar v Commission C-359/01; [2004] EUECJ C-359/01P
29 Apr 2004
ECJ

Commercial
Europa For an agreement between undertakings or a concerted practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realisation of the aim of a single market between the Member States. Thus, the effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive.
The fact that a cartel relates only to the marketing of products in a single Member State is not sufficient to exclude the possibility that trade between Member States might be affected. Since the market concerned is susceptible to imports, the members of a national price cartel can retain their market share only if they defend themselves against foreign competition.
In the case of an annulment action against a Commission decision imposing a fine for a breach of the competition rules, the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty (now Article 81 EC) and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced.
It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law
ECJ Appeal - Competition - Sugar market - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Agreement - Effect on trade between Member States - Fine - Proportionality.
[ Bailii ]
 
The Bank of Tokyo-Mitsubishi Ltd,Kbc Bank Nv v Baskan Gida Sanayi Ve Pazarlama As,Ahmet Baskan,Cevet Baskan,Ismet Baskan,Melih Baskan,Aksu Gida Sanayi Ve Ticaret Ltd,Indo Mediterranean Commodities Ltd,Ferrero Industrial Services Geieferrero Spa,Ferrero [2004] EWHC 945 (Ch)
29 Apr 2004
ChD
Mr Justice Lawrence Collins
Commercial, Contract

[ Bailii ] - [ Bailii ]
 
Mohammed Safdar v Mohammed Shahid
30 Apr 2004
OHCS
Lord Mackay Of Drumadoon
Scotland, Commercial

[ ScotC ]
 
Tolley v Abbey Life Assurance Co Ltd &C
7 May 2004
OHCS
Lord Mackay of Drumadoon
Commercial

[ ScotC ]
 
British Telecommunications Plc v Director General of Telecommunications [2004] CAT 8
12 May 2004
CAT

Commercial

[ Bailii ]
 
Unique Pub Properties Ltd v Beer Barrels and Minerals (Wales) Ltd [2004] EWCA Civ 586
14 May 2004
CA
Lord Justice Chadwick Lord Justice Brooke Lord Justice Scott Baker
Commercial

[ Bailii ]
 
Crehan v Inntrepreneur Pub Company (CPC) [2004] EWCA Civ 637; Times, 28 May 2004; [2004] 3 EGLR 128; [2004] EuLR 693
21 May 2004
CA
Lord Justice Peter Gibson Lord Justice Tuckey And Sir Martin Nourse
Commercial, European
The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was anti-competitive, and that the individual exemption from the EC Treaty obligations which had been given to the defendant was ineffective. Held: The appeal succeeded. The judge had failed to give proper weight to the need to avoid decisions conflicting with those of the European courts. To make the decision a comprehensive examination of the market was required and that investigation was byond the court's remit. A decision that the Commission was wrong was a decision required to be taken if at all by the ECJ. The exemption was not effective. The Delimitis conditions were satisfied, and the claimant was entitled to damages.
European Communities Act 1972 3(1)
1 Cites

1 Citers

[ Bailii ]
 
Boehringer Ingelheim Kg etc v Swingward Limited; Boehringer Ingelheim Kg and others v Dowelhurst Limited; Glaxo Group LimitedvSwingward Limited etc [2004] EWCA Civ 757
17 Jun 2004
CA
Lord Justice Clarke Lord Justice Kennedy Lord Justice Jacob
Commercial, Intellectual Property, European

[ Bailii ]
 
Corus UK (anciennement British Steel Ltd) v Commission (Judgment) T-48/00; [2004] EUECJ T-48/00
8 Jul 2004
ECFI

European, Commercial
Europa Competition - Agreements - Seamless steel tubes market - Duration of the infringement - Fines.
[ Bailii ]
 
Carter Holt Harvey Building Products Group Ltd v The Commerce Commission [2004] UKPC 37
14 Jul 2004
PC
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell
Commonwealth, Commercial
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it had not had the dominant position it did have. Held: "while it is legitimate to infer "purpose" from use of a dominant position producing an anti-competitive effect, it may be dangerous to argue the converse that because the anti-competitive purpose was present, therefore there was use of a dominant position." The court appeared to have wrongly inferred an abuse of the dominant position. A dominant firm uses its position of dominance when it engages in price-cutting with a view to recouping its losses without loss of market share by raising prices without fear of reprisals afterwards. Price-cutting is not a badge of the use of dominance, and the court must give appropriate weight to the counterfactual test. Appeal allowed (by a majority)
Commerce Act 1986 36(1)
1 Cites

[ Bailii ]
 
Log-O-Mar A.G v Craft Enterprises International Limited(A Company Incorporated In England and Wales), Croyndon Financial Limited, the "Tiger" [2004] EWHC 1836 (Comm)
27 Jul 2004
QBD
Mr Justice Toulson
Commercial

[ Bailii ]
 
Unipart Group Ltd v O2 (UK) Ltd (Formerly BT Cellnet Ltd) and Another [2004] EWCA 1034
30 Jul 2004
CA
Lord Justice Peter Gibson Lord Justice Jonathan Parker Mr Justice Laddie
European, Commercial
Allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones.
EC Treaty 81

 
Unipart Group Ltd v O2 (UK) Ltd and Another [2004] EWCA Civ 1034; [2004] UKCLR 1453
30 Jul 2004
CA
Jonathan Parker LJ, Peter Gibson LJ and Laddie J
European, Commercial
The court considered the applicability of Article 81 in Chapter 1 of Part III of the EC Treaty to allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones. Unipart, an independent service provider ("ISP") purchased airtime from Cellnet, a mobile network operator under various agreements which provided that the price would be at Cellnet's charges from time to time. There were also a number of service providers, competing with Unipart, that were tied to Cellnet (tied service providers or "TSPs"). Unipart claimed that Cellnet was in breach of Article [101] by operating a margin squeeze whereby the price for airtime that Unipart (and other ISPs) were charged relative to the retail price charged to the TSPs was such as to eliminate its margin and thus place the TSPs at a competitive advantage. Held: The judge's grant of summary judgment in favour of Cellnet was correct in finding that even if there was such a margin squeeze, this was not the subject of any relevant agreement between the undertakings within the meaning of Article [101(1)].
Jonathan Parker LJ referred to the ADALAT case and said: "Approaching Article [101(1)] on that basis, the first step, in my judgment, is to identify as precisely as possible the conduct of which complaint is made: that is to say the conduct which is alleged to have caused the loss in respect of which damages are claimed. For in my judgment it is that conduct which must be the subject of an agreement between undertakings if Article [101(1)] is to be engaged in respect of it.
In my judgment it is clear on the face of the Particulars of Claim . . that the conduct of which complaint is made in the instant case is not that Cellnet set its own prices for airtime (most suppliers set the prices for their products); nor is it merely that Cellnet set its prices at a level which was excessively high (a supplier who does that risks going out of business as a result). The anti-competitive conduct which is alleged in the instant case is that Cellnet set its prices at an excessively high level as part of its policy of 'margin squeeze' – a policy which is described in detail in paragraphs 14 and 15 of the Particulars of Claim. . : hence the allegation of "unlawful margin squeeze" in paragraph 36 of the Particulars of Claim . . Take away that allegation, and in my judgment there is nothing left of Unipart's complaint.
Accordingly, given that Unipart does not seek to invoke Article [102], the relevant inquiry, in my judgment, is whether Cellnet's conduct in adopting a policy of 'margin squeeze' (assuming for present purposes that it in fact adopted such a policy) was the subject of an 'agreement' between Cellnet and Unipart; or whether it was 'unilateral' conduct on Cellnet's part and thus outside the scope of Article [101(1)]. To put it another way, the issue is whether Unipart can establish to the requisite legal standard a concurrence of wills between it and Cellnet concerning Cellnet's adoption of the policy of 'margin squeeze' (see paragraph 77 of the CFI's judgment in Bayer. . )."
EC Treaty A81
1 Citers

[ Bailii ]
 
Bell Davies Trading Ltd and Another v Secretary of State for Trade and Industry [2004] EWCA Civ 1066; Times, 21 September 2004
30 Jul 2004
CA
Lord Justice Mummery The Honourable Mr Justice Collins Lord Justice Scott Baker
Commercial, Company
The directors of the company had organised a scheme for imports from China which was thought to be an unlawful abuse of the import licensing scheme. When presneted with an application by the Secretary of State for the winding up of the company, the company gave undertakings as to their future conduct. They then sought a declaration that certain operations would not be in breach of those undertakings, and appealed a refusal of a declaration, and of the undertakings, saying they had been given under effective compulsion. Held: Generally a party giving an undertaking would not later be heard to speak against it, but in this case it was effectively an appeal against the judge's decision not to wind the company up only if undertakings were given. This was a case in which the company could be allowed to appeal against its own undertakings. An application for declaratory relief by the company rather than winding up at the request of the Seceretary might have been a better approach in the first place. Had the company sought to establish the lawfulness or otherwise of their scheme they might not have ended up in this postion. The judge's decision was correct.
1 Cites

[ Bailii ]
 
Wanadoo UK Plc v Office of Communications [2004] CAT 15
2 Aug 2004
CAT

Commercial

[ Bailii ]
 
Allied Dunbar Assurance Plc v Superglass Sections Limited
20 Aug 2004
OHCS
Lord Eassie
Scotland, Commercial

[ ScotC ]
 
Jjb Sports Plc v Office of Fair Trading [2004] CAT 17
1 Oct 2004
CAT

Commercial

[ Bailii ]
 
Markopoulos And Others C-255/01; [2004] EUECJ C-255/01
7 Oct 2004
ECJ

European, Commercial
Law Relating To Undertakings
[ Bailii ]
 
Commerzbank v Commission (Competition) French Text T-61/02; [2004] EUECJ T-61/02
14 Oct 2004
ECFI

European, Commercial
ECFI Competition - Article 81 EC - Price-fixing agreement and ways of charging for currency exchange cash - Germany - Procedure by default
1 Citers

[ Bailii ]

 
 Commission v Grece (Free Movement Of Goods); ECJ 21-Oct-2004 - C-426/02; [2004] EUECJ C-426/02
 
Purac Limited v Byzak Limited
12 Nov 2004
OHCS
Lord Drummond Young
Scotland, Commercial

[ ScotC ]
 
Caledonia Subsea Limited v Micoperi Srl [2004] ScotCS 274
16 Nov 2004
OHCS
Lord Mackay Of Drumadoon
Scotland, Commercial

1 Cites

[ ScotC ] - [ Bailii ]
 
Floe Telecom (In Administration) v Office ofCommunications; Vodafone Ltd v T-Mobile (UK) Ltd [2004] CAT 18
19 Nov 2004
CAT

Commercial

1 Cites

[ Bailii ]
 
KPN Telecom C-109/03; [2004] EUECJ C-109/03
25 Nov 2004
ECJ

European, Commercial
Freedom To Provide Services
[ Bailii ]
 
Commission v Netherlands C-41/02 [2004] EUECJ C-41/02; [2004] ECR I-11375
2 Dec 2004
ECJ
A Rosas, P
Commercial
ECJ Free Movement of Goods - Failure of a Member State to fulfil obligations - Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) - Foodstuffs to which vitamins or mineral salts have been added - National legislation making their marketing subject to there being a nutritional need - Measures having equivalent effect - Justification - Public health - Proportionality)
[ Bailii ]
 
British Telecommunications Plc v Office of Communications [2004] CAT 23
9 Dec 2004
CAT

Commercial

[ Bailii ]
 
Wanadoo UK Plc v Office of Communications [2004] CAT 25
9 Dec 2004
CAT

Commercial

[ Bailii ]
 
Argos Ltd and Another v Office of Fair Trading [2004] CAT 24
14 Dec 2004
CAT

Commercial

[ Bailii ]
 
Arnold Andre GmbH and Co. KG v Landrat des Kreises Herford C-434/02
14 Dec 2004
ECJ

European, Health, Commercial
Directive 2001/37/EC - Manufacture, presentation and sale of tobacco products - Article 8 - Prohibition of placing on the market of tobacco products for oral use - Validity.

 
Federation des industries condimentaires de France (FICF) and Others v Commission of the European Communities T-317/02
14 Dec 2004
ECFI

European, Commercial
Common commercial policy

 
Radlberger Getranke and S. Spitz [2004] EUECJ C-309/02
14 Dec 2004
ECJ

European, Commercial
Free Movement of Goods
[ Bailii ]
 
Commission v Germany [2004] EUECJ C-463/01
14 Dec 2004
ECJ

European, Commercial
(Free Movement of Goods)
[ Bailii ]
 
N. Brydon, R. Peter T/A Peterson's Crane Hire v F.E. Beaumont Ltd
16 Dec 2004
OHCS
Lord Clarke
Scotland, Commercial

[ ScotC ]
 
Ophthalmic Innovations International (Uk) Ltd v Ophthalmic Innovations International Incorporated [2004] EWHC 2948 (Ch)
16 Dec 2004
ChD
Mr Justice Lawrence Collins
Commercial

[ Bailii ]
 
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