Oakley Inc v Animal Ltd and others: CA 20 Oct 2005

It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The Attorney general now criticised the judge for failing to allow for the extent of Parliamentary scrutiny afforded to secondary legislation.
Held: ‘It is the people of the United Kingdom, the electorate, who are entitled to the assurance that laws are normally made by primary legislation and will only exceptionally be amended by secondary legislation. ‘ However, s2(2) of the 1972 Act was sui generis: ‘Unlike other provisions allowing for the amendment of primary legislation by secondary legislation, it flows directly from the Treaty obligations of the United Kingdom. ‘ The obligations identified and incorporated were obligations even though secondary, and were validly incoporated.
Waller LJ said that the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws.


Waller, May, Jacob LJJ


Times 07-Nov-2005, [2005] EWCA Civ 1191, [2006] Ch 337




EC Directive 98/71/EC, Registered Designs Regulations 2001, European Communities Act 1972 2


England and Wales


Appeal fromOakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
CitedMcKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
CitedRegina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
CitedRegina v Ministry of Agriculture Fisheries and Food Ex Parte Hedley Lomas (Ireland) Ltd ECJ 23-May-1996
The wrongful prevention by a state of the lawful export of animals gave rise to a right to claim for damages.
LMA The UK had refused to grant licences for the export of live sheep to Spain, on the grounds . .
CitedAddison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .
CitedEbony Maritime SA and Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and others ECJ 27-Feb-1997
Europa 1 Common commercial policy – Trade with non-member countries – Embargo measures against the Federal Republic of Yugoslavia (Serbia and Montenegro) – Regulation No 990/93 – Measures to detain and confiscate . .
See AlsoOakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
CitedPerth and Kinross Council v Donaldson and Others 2004
The court considered whether the TUPE regulations in going beyond what was required under the European Directive was invalid.
Held: ‘If it is to be suggested that the 1981 Regulations have effectively allowed the Directive to operate in that . .
Citeddes Gaz SA v Falks Veritas Ltd CA 1974
The court considered for the first time, the effect of the Rome Treaty. It ‘came about because of a tin can’ .
A question requiring the exercise of a judges discretion is to be determined as at the date that the primary judge gave judgment, . .

Cited by:

CitedSlack and Others v Cumbria County Council and Another CA 3-Apr-2009
The court was asked when the six month’s limit for beginning equal pay proceedings began. The new section 2ZA set the qualifying date as ‘the date falling six months after the last day on which the woman was employed in the employment.’ The problem . .
CitedThe United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
CitedBrent London Borough Council and Others v Risk Management Partners Ltd SC 9-Feb-2011
The council had put out to tender its insurance requirements. The respondent submitted its bid. The council then withdrew the tender in order to take up membership of a mutual company providing such services created by local authorities in London. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, European, Constitutional

Updated: 04 July 2022; Ref: scu.231233