Tag: Commercial

Hoffmann-La Roche v Commission: ECJ 13 Feb 1979

ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking’s opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.

Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.

Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called” english” clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.

Citations:

C-85/76, [1979] EUECJ C-85/76, [1979] ECR 461

Links:

Bailii

Cited by:

Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
Cited – Chester City Council and Another v Arriva Plc and others ChD 15-Jun-2007
The claimant council alleged that the defendant had acted to abuse its dominant market position in the provision of bus services in the city.
Held: It was for the claimant to show that the defendant had a dominant position. It had not done so, . .
Lists of cited by and citing cases may be incomplete.

European, Commercial, Natural Justice

Updated: 21 May 2022; Ref: scu.132487

EGL And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Definition of the market – Effect on trade between Member States – Cooperation – Partial immunity from a fine

Citations:

T-251/12, [2016] EUECJ T-251/12, ECLI:EU:T:2016:114

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560481

Deutsche Bahn And Others v Commission (Judgment): ECFI 29 Feb 2016

ECJ Competition – Agreements, decisions and concerted practices – International air freight forwarding services – Decision finding an infringement of Article 101 TFEU – Price fixing – Surcharges and charging mechanisms affecting the final price – Evidence contained in an application for immunity – Protection of the confidentiality of communications between lawyers and clients – Code of Conduct rules on the duty of loyalty and prohibition on double representation – Fiduciary duties – Whether unlawful conduct can be attributed – Choice of companies – Fines – Proportionality – Gravity of the infringement – Mitigating circumstances – Equal treatment – Cooperation – Partial immunity from a fine – Unlimited jurisdiction – Settlement – 2006 Guidelines on the method of setting fines

Citations:

T-267/12, [2016] EUECJ T-267/12

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 20 May 2022; Ref: scu.560480

Commission of the European Communities v Italian Republic: ECJ 10 Dec 1968

ECJ 1. Obligations of member states – failure to fulfil – action by the commission before the court of justice – bringing the action – timing – discretion of the commission (EEC treaty, article 169) 2. Free movement of goods – goods – concept – article possessing artistic or historic value (EEC treaty, article 9) 3. Free movement of goods – articles possessing artistic or historic value – charges on exports – charge having an effect equivalent to a customs duty (EEC treaty, article 16) 4. Free movement of goods – customs duties and quantitative restrictions – nature of each – difference – prohibitions and restrictions for the protection of national treasures – special nature – strict construction (EEC treaty, articles 16 and 36) 5. Free movement of goods – prohibitions and restrictions for the protection of national treasures – limits to be observed by member states regarding the object and nature of the means adopted – incompatibility with the treaty of a charge on the export of articles of artistic or historic value (EEC treaty, article 36) 1. It is for the commission, under article 169 of the treaty, to judge at what time it shall bring an action before the court; and the considerations which determine its choice of time cannot affect the admissibility of the action, which follows only objective rules. 2. By goods, within the meaning of article 9 of the EEC treaty, there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. The rules of the common market apply to articles possessing artistic or historic value subject only to the exceptions expressly provided by the treaty. 3. Any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty is deemed to be a charge having an effect equivalent to a customs duty within the meaning of article 16 of the EEC treaty. A tax levied on the exportation of articles possessing artistic or historic value falls within the prohibition contained in article 16 by reason of the fact that export trade in the goods in question is hindered by the pecuniary burden which it imposes on the price of the exported articles. 4. The prohibitions or restrictions on imports and exports referred to in article 36 of the EEC treaty are by nature clearly distinguished from customs duties and assimilated charges whereby the economic conditions of importation or exportation are affected without restricting the freedom of decision of those involved in commercial transactions. Because such measures constitute an exception to the fundamental principle of the elimination of all obstacles to the free movement of goods between member states, they must be strictly construed. 5. The prohibitions and restrictions referred to in article 36 of the EEC treaty cannot justify the retention of measures, such as customs duties or charges having equivalent effect, which fall outside the scope of the prohibitions referred to in the chapter relating to the elimination of quantitative restrictions between member states. In order to avail themselves of article 36, member states must observe the limitations imposed by that provision both as regards the objective to be obtained and as regards the nature of the means used to attain it. The levy of a tax on the exportation of goods possessing artistic or historic value is incompatible with the provisions of the treaty.

Citations:

C-7/68, [1968] EUECJ C-7/68

Links:

Bailii

European, Commercial, Customs and Excise

Updated: 20 May 2022; Ref: scu.131870

K/S Merc-Scandia XXXXII v Underwriters to Lloyd’S Policy 25T 1054 87 and Others: QBD 20 Jul 2000

The Insurers had avoided a policy after a claim had been brought, and the insured had produced a fraudulent document. Having won their case, the applicants sought to enforce the award against the insurers. The insurers were held not to be excused under the policy. The duty of good faith applied on matters up to the claim, but need not apply to all questions which arose after a claim had been validly made. The forged document did not demand that the insurers assume any new risk, and the insurers remained answerable.

Citations:

Gazette 20-Jul-2000, Times 08-Aug-2000

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Cited – Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Appeal from – K/S Merc-Scandia XXXXII v Underwriters to Lloyd’s Policy 25T 1054 and Others CA 31-Jul-2001
The owners of the ‘MERCANDIAN CONTINENT’ had obtained judgment in earlier High Court proceedings against a Trinidadian shipyard for damage caused by negligent repair work. Jurisdiction in the earlier proceedings had been founded on an agreed . .
Lists of cited by and citing cases may be incomplete.

Commercial, Insurance

Updated: 20 May 2022; Ref: scu.82659

Ingmar Gb Ltd v Eaton Leonard Technologies Inc: ECJ 16 Nov 2000

When a commercial agency was terminated in circumstances which under community law would entitle the agent to compensation, that compensation was payable even though the contract expressed itself to be governed by the law of California, and the principal was resident in California. The regime was a mandatory one for the protection of such agents, and would override private contractual provisions.
ECJ Directive 86/653/EEC – Self-employed commercial agent carrying on his activity in a Member State – Principal established in a non-member country – Clause submitting the agency contract to the law of the country of establishment of the principal)

Citations:

Times 16-Nov-2000, C-381/98, [2000] ECR I-9305, [2000] EUECJ C-381/98, [2001] 1 CMLR 9, [2000] EUECJ C-381/98 – O

Links:

Bailii, Bailii

Statutes:

Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Citing:

Reference from – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .

Cited by:

At ECJ – Ingmar GB Ltd v Eaton Leonard Inc QBD 31-Jul-2001
The applicants sought damages as commercial agents following the termination of their exclusive agency for the sale of the respondents goods in the UK. The defendants claimed the contract was governed exclusively by Californian law. The European . .
Cited – Honyvem Informazioni Commerciali (Freedom Of Establishment) ECJ 23-Mar-2006
Europa Independent commercial agents – Directive 86/653/EEC – Entitlement of a commercial agent to an indemnity after termination of the contract. . .
Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 19 May 2022; Ref: scu.82330

Ed Sri v Italo Fenocchio Case C-412-97 Ecj/Cfi Bulletin 18/99, 3: ECJ 6 Oct 1999

Where a seller of goods wished to pursue a debtor in another member state who defaulted, it was not in improper interference with the free movement of goods to make unavailable in a summary form an action which would require service of proceedings abroad.

Citations:

Gazette 06-Oct-1999

Statutes:

ECTreaty Art 29

Commercial, European

Updated: 19 May 2022; Ref: scu.80248

Deutsche Post Ag v Gesellschaft Mbh and Another: ECJ 15 Mar 2000

Where there was no agreement in place between two member states as to the terms upon which one would accept and deliver mail coming in to the receiving country for the other, it was proper to make a charge. That charge should not however seek to recover the entire cost of the onward delivery of the mail within the borders. Such a demand would be in breach of European law.

Judges:

G. Rodriguez Iglesias, P

Citations:

Times 15-Mar-2000, C-148/97, C-147/97, [2000] EUECJ C-147/97, [2000] EUECJ C-148/97

Links:

Bailii, Bailii

European, Commercial

Updated: 19 May 2022; Ref: scu.79940

Commission v Solvay Sa Joined Cases C-287/95P and C-288/95P; Same v Imperial Chemical Industries Plc Case C-286/95P: ECJ 6 Apr 2000

The text of a decision of the Commission only took effect if authenticated, and the decision was void unless so authenticated. The fact if so that no separate damage flowed from that failure, and that no other procedural defect applied could not rescue the decision. The requirement was fundamental and was required under the Treaty. It formed an essential part of the procedure and was necessary to allow certainty.
ECJ (Competition) Appeal – Actions for annulment – Pleas in law – Infringement of essential procedural requirements – Failure to authenticate decisions adopted by the college of Commissioners – Issue that may be raised of the Court’s own motion.

Citations:

Times 14-Apr-2000, [2000] EUECJ C-288/95P

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 19 May 2022; Ref: scu.79305

Barret Mckenzie and Co Ltd v Escada (UK) Ltd: QBD 1 Feb 2001

The court considered the method of calculation of compensation payable to a commercial agent on termination of the agency. The directive provided that the agent should be compensated, not indemnified, and the way an English court calculated compensation need not follow other European jurisdictions. A tariff system would be unfair, and the court must make allowance for the amounts expended by the agent. Accordingly it would be unjust to base the compensation on the gross return, but it should rather be based upon the net income of the agency.

Judges:

Bowers J

Citations:

Times 15-May-2001, [2001] EWHC QB 462, [2001] EuLR 567, [2001] All ER (D) 78

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053

Citing:

Cited – King v T Tunnock Limited IHCS 2000
The pursuer had been employed as a commercial agent by the defendant which carried on business as a baker. The pursuer sold only the defendant’s cakes and biscuits. The defendant decided to close its bakery business. The claimant sought compensation . .

Cited by:

Cited – Lonsdale (T/A Lonsdale Agencies) v Howard and Hallam Ltd HL 4-Jul-2007
The claimant sought compensation after his commercial agency was terminated. The court had found that the agency was declining in turnover, and reduced the compensation accordingly. There had been no written agreement for the agency, and six months’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Commercial, European, Damages

Updated: 18 May 2022; Ref: scu.78249

Aberdeen Solicitor’s Property Centre Ltd and Another v Director General of Fair Trading: RPC 20 Feb 1996

A restrictive practice on advertising imposed by the Law Society of Scotland related to legal practice and so was exempt from registration.

Citations:

Times 20-Feb-1996

Statutes:

Restrictive Trade Practices Act 1976 26

Commercial, Legal Professions

Updated: 15 May 2022; Ref: scu.77609

Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 16 Jan 2002

Citations:

[2002] CAT 1, 1001/1/1/01

Links:

CAT, CAT

Jurisdiction:

England and Wales

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .

Cited by:

Cited – Aberdeen Journals Limited v Office of Fair Trading (No 2) CAT 2002
Sir Christopher Bellamy said: ‘. . the question whether a certain pricing practice by a dominant undertaking is to be regarded as abusive for the purposes of Chapter II is a matter to be looked at in the round, taking particularly into account (i) . .
Cited – Attheraces Ltd and Another v British Horse Racing Board and Another ChD 21-Dec-2005
The claimants relayed horse racing events to bookmakers. The respondents collected data about the races and horses. The claimants sought the freedom to use that data, and the defendants asserted a database right to control such use.
Held: BHB . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 13 May 2022; Ref: scu.227105

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 8 Aug 2001

Judgment on application to disallow parts of the defence.

Citations:

1001/1/1/01, [2001] CAT 3

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .

Cited by:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222107

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 10 Jul 2001

Judgment on application to extend time for service of defence.

Judges:

Bellamy QC

Citations:

1001/1/1/01, [2001] CAT 2

Links:

CAT

Jurisdiction:

England and Wales

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .

Cited by:

See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 6-Feb-2002
Judgment on interest and costs. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 09 May 2022; Ref: scu.222106

The Case of The Tailors and Co of Ipswich: 1572

Resolved, 1. At common law tio man could be prohibited from working at any lawful trade. 3. The Corporation of the Tailors of Ipswich cannot by any ordinance make by them prohibit any one from exercising his trade, till he has presented himself before them, or till they allow him to be a workman, 3. The Act 5 ELiz. 4. Forbids not the private exercise of a trade in the house of any for the use uf the family. 4. The stat. 19 H. 7. 7. leaves the ordinances of corporations allowed etc According to that Act, to be affirmed as good or clisattirmecl as unlawful, by the law ; but exempte the corporation from the penalty of 40l. for puttiug in use any unlawful ordinances, which are allowed and approved as the statute speaks.

Citations:

[1572] EngR 418, (1572-1616) 11 Co Rep 53, (1572) 77 ER 1218

Links:

Commonlii

Jurisdiction:

England and Wales

Commercial

Updated: 02 May 2022; Ref: scu.432384

Commission of the European Communities (supported by United Kingdom, intervener) v French Republic: ECJ 13 Dec 2001

Europe had banned the export of beef from England to prevent the sale of BSE infected meat. The ban was lifted under strict conditions set under Community veterinary advice. The French Republic retained their ban, and continued it despite instruction from the Commission to lift it, saying that their own national Food Safety Agency said there were still unresolved questions, regarding the traceability of certain product. Those concerns remained apposite as to some pre-packed products, but as to the rest the complaint was upheld.

Judges:

CJ Rodriguez Iglesias, P and Judges P Jann, F Macken, N. Colneric, S. von Bahr, C. Gulmann, DAO Edward, A. La Pergola, J-P Puissochet, L Sevon, M Wathelet, R Schintgen and V Skouris Advocate General J Mischo

Citations:

Times 19-Dec-2001, Case C-1/00

Jurisdiction:

European

Agriculture, European, Commercial

Updated: 28 April 2022; Ref: scu.167073

Verein Fur Lauteren Wettbewerb eV v Princesport GmbH: ECJ 5 Jul 2018

Approximation of Laws – Textile Fibre Names and Related Labelling and Marking Requirements – Judgment – Reference for a preliminary ruling – Textile fibre names and related labelling and marking requirements – Regulation (EU) No 1007/2011 – Articles 7 and 9 – Pure textile products – Multi-fibre textile products – Labelling or marking methods

Citations:

C-339/17, [2018] EUECJ C-339/17, ECLI:EU:C:2018:539

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 25 April 2022; Ref: scu.620053

Apple Sales International and Others v MJA, as liquidator of eBizcuss.com: ECJ 5 Jul 2018

Area of Freedom, Security and Justice – Opinion
Reference for a preliminary ruling – Area of ??freedom, security and justice – Jurisdiction in civil and commercial matters – Article 23 of Regulation (EC) No 44/2001 – Jurisdiction clause in a distribution agreement – Distributor action for damages founded on the infringement of Article 102 TFEU by the supplier

Citations:

ECLI:EU:C:2018:541, [2018] EUECJ C-595/17 – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 25 April 2022; Ref: scu.619998

Sainsbury’s Supermarkets Ltd v Mastercard Incorporated and Others: CA 4 Jul 2018

‘The central question in these three appeals is whether the setting of default multilateral interchange fees (‘MIFs’) within the MasterCard and Visa payment card systems contravenes article 101 of the Treaty on the Functioning of the European Union 2012/C326/01 (the ‘TFEU’).[1] Article 101(1) provides that agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are prohibited as incompatible with the internal market of the European Union. Section 2 of the Competition Act 1998 (the ‘1998 Act’) makes the same provision in relation to agreements which may affect trade within the United Kingdom, and which prevent, restrict or distort competition within the United Kingdom.’
Held: The Court allowed the merchants’ appeals on the article 101(1) issue. The court will make appropriate declarations in each of the three cases to the effect that the agreements are restrictive of competition infringing article 101(1). The cases were remitted for indeividual reconsideration.

Judges:

Sir Terence Ttherton MR, Sir Geoffrey Vos Ch, Flaux LJ

Citations:

[2018] EWCA Civ 1536

Links:

Bailii, Press Summary

Jurisdiction:

England and Wales

European, Commercial

Updated: 24 April 2022; Ref: scu.618972

Unlockd Ltd and Others v Google Ireland Ltd and Others: ChD 25 May 2018

The claimant app developer sought leave to serve the dependant group of companies out of the jurisdiction so as to pursue its claim for breach of EU anti-competition law in withdrawing the app from its Google Play store.
Held: Leave to serve was granted.

Judges:

Roth J

Citations:

[2018] EWHC 1363 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Commercial

Updated: 24 April 2022; Ref: scu.618784

Ceske Drahy v Commission T-325/16: ECFI 20 Jun 2018

(Competition – Judgment) Competition – Administrative procedure – Decision ordering an inspection – Proportionality – Absence of arbitrary character – Obligation to state reasons – Significantly serious evidence – Legal certainty – Legitimate expectations – Right to respect for private life – Rights of the defense

Citations:

ECLI:EU:T:2018:368, [2018] EUECJ T-325/16

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 24 April 2022; Ref: scu.618749

Ceske Drahy v Commission T-621/16: ECFI 20 Jun 2018

Competition – Administrative procedure – Decision ordering an inspection – Inspection ordered on the basis of information from another inspection – Proportionality – Obligation to state reasons – Right to respect for private life – Rights of the defense

Citations:

[2018] EUECJ T-621/16, ECLI:EU:T:2018:367

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 24 April 2022; Ref: scu.618750

United States v Apple Sales International and Others: ECJ 17 May 2018

State Aid – Aid Implemented By Ireland In Favour of Apple – Order – Appeal – Intervention – Third country – State aid – Aid implemented by Ireland in favour of Apple – Advance tax agreement (tax ruling) – Selective tax advantages – Action for annulment – Interest in the result of the case

Citations:

ECLI:EU:C:2018:330, [2018] EUECJ C-12/18P-I – CO

Links:

Bailii

Jurisdiction:

European

Commercial, Corporation Tax

Updated: 22 April 2022; Ref: scu.616985

Consorzio Di Garanzia Dell’Olio Extra Vergine Di Oliva Di Qualita v Commission: ECFI 31 May 2018

(Judgment) Non-contractual liability – Concurrent campaigns for the promotion of olive oil in third countries, one financed by the EAGF and intended for the promotion of olive oil of European origin, the other, financed by the ERDF and intended for the promotion of olive oil of Spanish origin – Lack of coordination between the Commission services responsible for the management of the two programs – Material damage – Loss of the market and loss of profit – Injury moral – Breach of the commercial image

Citations:

ECLI:EU:T:2018:318, [2018] EUECJ T-163/17

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 22 April 2022; Ref: scu.616933

Cementos Portland Valderrivas v Commission: 14 Mar 2014

Competition – Administrative procedure – Request for information decision – Necessary nature of the information requested – Significantly serious evidence – Judicial review – Proportionality

Citations:

[2014] EUECJ T-296/11

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Cementos Portland Valderrivas v Commission ECFI 29-Jul-2011
ECFI (Competition) Interim measures – Competition – Enquiry – Article 18, paragraph 3 of Regulation (EC) No 1 / 2003 – Application for stay of execution – Lack of urgency. . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 22 April 2022; Ref: scu.616749

European Commission v Tomkins Plc: 22 Jan 2013

Competition – Agreements, decisions and concerted practices – European market for copper and copper alloy fittings – Liability of the parent company stemming solely from the unlawful conduct of its subsidiary – Principle of ‘ne ultra petita’ – Effect on the legal situation of the parent company of an annulment determined by a judgment concerning a subsidiary

Citations:

[2013] EUECJ C-286/11, [2013] Bus LR 999, [2013] WLR(D) 17

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – European Commission v Tomkins Plc ECJ 19-Jul-2012
. .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 22 April 2022; Ref: scu.616748

Shanshal v Al-Kishtaini: QBD 16 Jun 1999

The rules preventing any trading activity with residents of Iraq ceased to apply where the person was so resident when the ban came into force but later left. A party could not rely upon the prohibition to make his contract illegal in these circumstances.

Citations:

Times 16-Jun-1999

Statutes:

Control of Gold, Securities, Payments and Credits (Republic of Iraq) Directions 1990 (1990 No 1616)

Jurisdiction:

England and Wales

Commercial

Updated: 22 April 2022; Ref: scu.89192

Vossloh Laeis GmbH v Stadtwerke Munchen GmbH: ECJ 16 May 2018

Opinion – Reference for a preliminary ruling – Public procurement – Procedure – Directives 2014/24 / EU and 2014/25 / EU – Grounds for exclusion – Obligation on the economic operator to cooperate with the contracting authority to demonstrate its reliability before the end of the period of exclusion – Concept of ‘investigating authorities’ – Calculation of the maximum period of the exclusion period

Citations:

ECLI:EU:C:2018:316, [2018] EUECJ C-124/17 – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 21 April 2022; Ref: scu.615565

Cellnex Telecom v Commission: ECJ 26 Apr 2018

Competition – Judgment – Appeal – State aid – Digital television – Support for the deployment of digital terrestrial television in the remote and less urbanized areas of Comunidad Autonoma de Castilla-La Mancha (Autonomous Community of Castile-La Mancha, Spain) – Subsidy for operators of digital terrestrial television platforms – Decision partially declaring aid measures incompatible with the internal market – Concept of ‘State aid’ – Advantage – Service of general economic interest – Definition – States’ margin of appreciation members

Citations:

ECLI: EU: C: 2018: 284, [2018] EUECJ C-91/17P

Links:

Bailii

Jurisdiction:

European

Commercial, Media

Updated: 14 April 2022; Ref: scu.609301

Meo – Servicos De Comunicacoes E Multimedia v Autoridade da Concorrencia: ECJ 19 Apr 2018

Competition – Abuse of Dominant Position – Judgment – Reference for a preliminary ruling – Competition – Abuse of dominant position – Article 102, second paragraph, point (c), TFEU – Concept of ‘competitive disadvantage’ – Discriminatory prices on a downstream market – Cooperative for the management of rights relating to copyright – Royalty payable by domestic entities which provide a paid television signal transmission service and television content

Citations:

ECLI:EU:C:2018:270, [2018] EUECJ C-525/16

Links:

Bailii

Jurisdiction:

European

Commercial, Intellectual Property

Updated: 13 April 2022; Ref: scu.609062

Sviluppo Italia Basilicata v Commission: ECJ 25 Mar 2010

Appeal – European Regional Development Fund (ERDF) – Reduction of financial assistance – General allocation for the purpose of implementing measures to support small and medium-sized enterprises Deadline for completion of investment projects Discretion of the Commission

Citations:

[2009] EUECJ C-414/08 – O

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Sviluppo Italia Basilicata v Commission ECJ 29-Oct-2009
ECJ (Regional Policy) Appeal European Regional Development Fund (ERDF) Overall allocation for the implementation of incentive measures for small and medium-sized enterprises (SMEs) operating in the Region of . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 13 April 2022; Ref: scu.608952

NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading: CAT 6 Feb 2002

Judgment on interest and costs.

Citations:

[2002] CAT 3, 1001/1/1/01

Links:

CAT

Citing:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 22-May-2001
Judgment on request for interim relief.
In principle, prices are excessive if they ‘are higher than would be expected in a competitive market’ and ‘there is no effective competitive pressure to bring them down to competitive levels, nor is . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 10-Jul-2001
Judgment on application to extend time for service of defence. . .
See Also – NAPP Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 8-Aug-2001
Judgment on application to disallow parts of the defence. . .
See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 16-Jan-2002
. .

Cited by:

See Also – Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading CAT 26-Mar-2002
Judgment regarding reasons for refusing permission to appeal – dismissed with costs. . .
See Also – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 12 April 2022; Ref: scu.227108

Unipart Group Ltd v O2 (UK) Ltd (Formerly BT Cellnet Ltd) and Another: CA 30 Jul 2004

Allegedly anti-competitive conduct in the market for the wholesale supply of airtime for mobile telephones.

Judges:

Lord Justice Peter Gibson Lord Justice Jonathan Parker Mr Justice Laddie

Citations:

[2004] EWCA 1034

Statutes:

EC Treaty 81

Jurisdiction:

England and Wales

European, Commercial

Updated: 12 April 2022; Ref: scu.199791

Dickson v Pharmaceutical Society of Great Britain: HL 1970

The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and submitted it in the form of a motion to a specially convened meeting of the members. The effect of the rule would be that new pharmacies would have to be situated in physically distinct premises and their trading activities confined to pharmaceutical and traditional goods as defined in a report of one of the society’s committees. The main object of the society was ‘to maintain the honour and safeguard and promote the interests of the members in the exercise of the profession of pharmacy’. The respondent, a member of the society, brought an action for a declaration that the motion was ultra vires the society’s objects and in unreasonable restraint of trade.
Held: The rules against arrangement imposing restrictions on trade are not limited to particular kinds of restraint, and are not confined to contractual arrangements but apply to all restraints of trade, howsoever imposed. If the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid.
Lord Reid said: ‘ There are about 29,000 registered pharmacists. Some, such as those employed in hospitals, have no other duties than the professional task of dispensing. But the typical pharmacist owns or is employed in a chemist’s shop where goods other than dispensed medicines are sold to the public. Such goods have been divided into three classes: first ‘professional’, which include, besides medicines and sick room requirements, agricultural, horticultural, and industrial chemicals and various scientific and other appliances; secondly, ‘traditional’, which, largely for historical reasons include cosmetics and photographic requisites; and thirdly ‘non-traditional’, which include a wide variety of articles which many pharmacists have found it profitable and convenient to sell in chemist’s shops. So most pharmacists act in a dual capacity, combining retail trading with their professional work. That pharmacists should be engaged in trade is regarded by many pharmacists as undesirable. But it is generally recognised that comparatively few chemist’s shops could survive without engaging in some degree of trading . .
In every profession of which I have any knowledge there is a code of conduct, written or unwritten, which makes it improper for members of the profession to engage in certain activities in which ordinary members of the public are quite entitled to engage. Normally this is regarded as a domestic matter within the profession. But it appears to me that if a member of a profession can show that a particular restriction on his activities goes beyond anything which can reasonably be related to the maintenance of professional honour or standards, the court must be able to intervene, and in the present case there is a question whether these restrictions are within the objects of the society. In Jenkin v. Pharmaceutical Society of Great Britain it was held that certain attempts to regulate trading by the members were ultra vires. But the respondent does not dispute that the society is entitled to regulate such trading activities in so far as that is reasonably necessary to achieve the society’s objects set out in the Charter. So it becomes a question whether these restrictions can properly be related to the maintenance or improvement of the status of the profession of pharmacy.
That these restrictions are in restraint of trade cannot be doubted. Any pharmacist who opens a new chemist’s shop can only sell professional or traditional goods in it, and in any existing chemist’s shop no new classes of non-traditional goods can be sold unless the council consents. This restraint may severely hamper the shopkeeper, and indeed it may make the business so unprofitable that the shop has to be closed. I need not consider the wider aspects of public interest, whether that might seriously inconvenience members of the public who wish to have prescriptions dispensed or to buy medicines.’

Judges:

Lord Reid

Citations:

[1970] AC 403

Jurisdiction:

England and Wales

Cited by:

Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Company, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.221578

Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd: HL 1968

Agreement in Restraint of Trade Unenforceable

The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an agreement in restraint of trade.
Held: An agreement in restraint of trade is not generally unlawful if the parties choose to abide by it: it is only unenforceable if a party chooses not to abide by it. It was necessary to ascertain the legitimate interests of the landlords which they were entitled to protect and to discover whether those restraints exceeded what was adequate for that purpose. The doctrine of restraint of trade had no application to restraints imposed on persons who, before the transaction by which the restraints were imposed, had no right whatsoever to trade at all on the land in question.
Lord Hodson said: ‘When one remembers that the basis of the doctrine of restraint of trade is the protection of the public interest, it is not difficult to see how the law developed in its conception of reasonableness as the test which must be passed in order to save a contract in restraint of trade from unenforceability.’
Lord Reid said: ‘It has often been said that a person is not entitled to be protected against mere competition. I do not find that very helpful in a case like the present. I think it better to ascertain what were the legitimate interests of the appellants which they were entitled to protect and then to see whether these restraints were more than adequate for that purpose.’

Judges:

Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Wilberforce

Citations:

[1968] AC 269, [1967] UKHL 1, [1967] 1 All ER 699

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Young v Timmins 1831
The servant had agreed not to work for anyone else bu the employer, but he might have been given no work and he received no remuneration for considerable periods.
Held: He had been deprived of a livelihood, and the agreement was in restraint . .
Cited – Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company HL 1894
Exceptions to Freedom to Trade
The purchaser of the goodwill of a business sought to enforce a covenant in restraint of trade given by the seller.
Held: At common law a restraint of trade is prima facie contrary to public policy and void, unless it can be shown that the . .
Cited – Attorney General of the Commonwealth of Australia v Adelaide Steamship Company PC 1913
ag_adeleaidePC1913
There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine . .
Cited – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .
Cited – Foley v Classique Coaches Ltd CA 1934
The sellers had sold to the buyers a piece of land to use in the latter’s business as coach proprietors, and also contracted with them to supply all the petrol required for that business ‘at a price to be agreed by the parties in writing and from . .
Cited – English Hop Growers v Dering CA 1928
The defendant farmer had agreed to sell his crop of hops to the Society for five years. He failed to do so and was sued. He replied that the contract was in restraint of trade.
Held: The restraint was reasonable. Scrutton LJ allowed that it . .
Cited – McEllistrim v Ballymacelligott Co-operative Society HL 1919
The Co-operative had changed its rules to prevent any member from selling (except under heavy penalty) any milk produced by him in a large area of County Kerry to anyone except the Society, and a member could not terminate his membership without the . .
Cited – Servais Bouchard v Princes Hall Restaurant CA 1904
A restaurant in Piccadilly had contracted with a supplier of burgundy not to sell burgundy to its customers other than such as it had purchased from the supplier. The restaurant broke the contract
Held: A contract by which defendant Restaurant . .
Cited – Herbert Morris Ltd v Saxelby HL 1916
For a covenant in restraint of trade to be treated as reasonable in the interests of the parties ‘it must afford no more than adequate protection to the benefit of the party in whose favour it is imposed.’ There is a need for the court to consider . .
Cited – United Shoe Machinery Company of Canada v Brunet PC 23-Mar-1909
(Quebec) The defendant Company leased machinery under a condition that it should not be used in conjunction with machinery made by any other manufacturer.
Held: The condition was not in restraint of trade. . .
Cited – Biggs v Hoddinott 1898
The owner of a freehouse had agreed to a tie in favour of a brewer who had lent him money. . .
Cited – Warner Brothers Pictures v Nelson 1936
Bette Davis contracted with the plaintiff film company to render her services as an actress exclusively to that company. With nearly six years of the contractual term yet to run, Ms Davis contracted with a third person to appear as a film artist. . .

Cited by:

Cited – WWF -World Wide Fund for Nature (Formerly World Wildlife Fund), World Wildlife Fund Inc v World Wrestling Federation Entertainment Inc ChD 1-Oct-2001
The Fund sought summary relief against the use of the sign ‘WWF’ by the defendants, in breach of a contract. The defendants urged that the contract operated in restraint of trade. There had been long running and widespread trade mark disputes, . .
Cited – Alec Lobb (Garages) Ltd v Total Oil Ltd CA 1985
The court was asked whether the terms of a lease and lease back amounted to an unconscionable bargain and was unenforceable.
Held: The court affirmed the decision at first instance, but emphasised the need for unconscientious behaviour rather . .
Cited – Tillman v Egon Zehnder Ltd SC 3-Jul-2019
The company appealed from rejection of its contention that its former employee should be restrained from employment by a competitor under a clause in her former employment contract. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Commercial

Leading Case

Updated: 10 April 2022; Ref: scu.180312

Regina v Secretary of State for Health and Others, Ex Parte Imperial Tobacco Ltd and Others etc: ECJ 10 Oct 2000

A ban on tobacco advertising had been reached on the wrong legal basis under the Treaty, and was accordingly invalid. The Directive had been adopted under article 100a, but that was concerned only with measures to support harmonisation of member legal systems. The true aim of the directive was to improve health levels, but article 129(4) explicitly prevented this from being a purpose for measures under article 100a. There was no element which sought to promote the free movement of goods. There was no absence of free movement of goods, nor distortion of markets between member states to justify the need for the Directive under the article.

Citations:

Times 10-Oct-2000, C-376/99, C-74/99

Statutes:

ECTreaty Art 100a, Directive 98/43/EC on the approximation of laws relating to the advertising and sponsorship of tobacco products

Jurisdiction:

European

Media, European, Commercial, Health

Updated: 09 April 2022; Ref: scu.85479

Regina v Director General of Telecommunications, Ex P Cellcom Ltd and others: QBD 7 Dec 1998

The Director General of Telecommunications can quite properly use his powers and discretion to ensure competition in telecommunications by the granting and withholding of licences. He may take account of economic factors in making such a decision. Section 3 draws a distinction between ‘means’ (namely how the demand is to be met) and ‘ends’ (the satisfaction of reasonable demands) and that as a matter of language, whilst the Director is expressly made the arbiter of the means to the end, he is not so made the arbiter of the ends. Section 3 recognises that there is a public interest in reasonable demands for telecommunication services being met and the court is intended to be the guardian of that public interest. The exercise in deciding whether a demand is reasonable or not requires no sophisticated exercise necessitating the Director’s experience, expertise and fund of knowledge of this and other markets. The court is well equipped and experienced in deciding questions of reasonableness. The duty of the Director was to exercise his functions in the manner which ‘he considers best calculated to secure . . such telecommunications services as satisfy all reasonable demands for them . . ‘ and ‘Where the Act has conferred the decision making and function on the Director, it is for him, and him alone, to consider the economic arguments, weigh the compelling considerations and arrive at a judgment. The . applicants have no right of appeal; in these judicial review proceedings so long as he directs himself correctly in law, his decision may only be challenged on Wedensbury grounds. The court must be astute to avoid the. danger of substituting its views for the decision maker and of contradicting (as in this case) a conscientious decision maker acting in good faith and with knowledge of all the facts. ‘ and ‘If (as I have stated)the court should be very ‘slow to impugn decisions of fact made by an expert and experienced decision maker, it must surely be even slower to impugn his educated prophesises and predictions for the future.’

Judges:

Lightman J

Citations:

Times 07-Dec-1998, Gazette 10-Feb-1999, [1999] ECC 314

Statutes:

Telecommunications Act 1984 3

Cited by:

Cited – Regina on the Application of T-Mobile (Uk) Ltd, Vodafone Ltd, Orange Personal Communication Services Ltd v The Competition Commission, the Director-General of Telecommunications Admn 27-Jun-2003
The applicants sought to challenge a proposed scheme regulating the prices of telephone calls.
Held: The principle objection was to termination charges, charges on calls between networks. The present charges were greater than the actual cost, . .
Cited – Office of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
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 . .
Cited – Wildman, Regina (on the Application of) v The Office of Communications Admn 25-Jul-2005
The claimant sought judicial review of an order quashing the decision of the Office of Communications to refuse a radio licence.
Held: The court should be very cautious before quashing a decision as to the allocation of broadcasting licences. . .
Lists of cited by and citing cases may be incomplete.

Commercial, Judicial Review, Licensing

Updated: 09 April 2022; Ref: scu.85227

Motis Exports Ltd v Dampskibsselskabet Af 1912, Aktieselskab and Another: ComC 1 Mar 1999

Where goods were supposed only to be handed over by a shipper on receipt of a valid bill of lading, but were instead handed over for fraudulent bill, the shipper remained liable to the owners.
ComC Defendant shipowners issued delivery orders in respect of goods stored on land after discharge from the ship, against presentation of forged bills of lading.
Held: That the shipowners were liable to the time owners of the cargo even on the assumption that they were not negligent in being deceived by the forgeries, and despite a bill of lading clause which exempted them from any ‘liability whatsoever for any loss or damage to the goods which links actual or constructive possession ….. after discharge’. Held also, that there would be no defence in contract or conversion based on the non-negligent acceptance of forged bills of lading as being genuine.

Citations:

Times 31-Mar-1999, [1999] 1 Lloyds Rep 837, [1999] CLC 914, [1999] 1 All ER (Comm) 571

Cited by:

Appeal from – Motis Exports Ltd v Dampskibsselskabet Af 1912 Akleselskab (‘the Motis) CA 20-Jan-2000
Shippers were liable under a bill of lading. The goods had been obtained from them fraudulently by means of forged bills of lading. They claimed under an exemption clause in the contract, but the claim failed since the exclusions from liability for . .
Lists of cited by and citing cases may be incomplete.

Commercial, Transport

Updated: 09 April 2022; Ref: scu.83877

Moore v Piretta Pta Ltd: QBD 11 May 1998

M had a series of agency contracts selling women’s clothing. The last contract was in 1994, and on termination, M claimed an indemnity under the contract which itself applied the regulations. Reg 17(3) gave an indemnity for new customers, where the principal continued to derive benefit.
Held: The agency contract was to be interpreted to include the series of contracts, including those before the regulations. The indemnity was capped at one year’s average remuneration over the previous five years. A commercial agent whose contract had been terminated during term of contract was entitled nevertheless to an indemnity in accordance with the Regulations for custom introduced for entire period. In an indemnity case, equitable principles might require there to be taken into account such part of the goodwill as the agent was able to exploit for himself, or for the benefit of another principal.
John Mitting QC said: ‘Consistent with the purpose of achieving harmony between member states, it is in my judgment permissible to look into the law and practice of the country in which the relevant right . . originated . . ; and to do so for the purpose of construing the English (sic) Regulations and to use them as a guide to their application’.
and ‘There are three stages in assessing the amount of the indemnity. First, it has to be asked what is the value of the business to the principal of new customers brought . . by the agent and of existing customers whose business has been significantly increased. The factors to be taken into account in making that judgment include the loss of the business of such customers after the agency has been terminated, whether due to causes beyond the agent’s and principal’s control (for example insolvency on the part of the customer or a decision on the part of that customer to buy goods elsewhere) or to factors within the agent’s control, for example the agent taking the custom of that customer with him. That is because the thing that has to be assessed is the extent to which the principal continues to derive substantial benefits from the efforts of the agent. The value of the business which remains for the benefit of the principal can, and in some cases no doubt should be, assessed by reference to periods as short as a year. But there is nothing in the regulations that requires them to be thus limited. If on the evidence the benefits of the agent’s efforts are likely to endure for more than a year after the termination of the agency then that fact can be taken into account in the assessment and need not be limited to looking at the period of one year after termination only.
The second factor is that the payment must be equitable having regard to all the circumstances and particularly the commission ‘lost’ by the agent. . Other factors which can be taken into account under this head include . . the expenses which the agent would have incurred in earning the commission which was his due. Another factor common to all cases is accelerated payment: the indemnity is accrued as at the date of termination in respect of commission which would have occurred after it. Some discount on that account must be made.
The purpose of the indemnity seems to me to be to award a share of the goodwill built up by the efforts of the agent to him on the termination of the agency. Otherwise the whole benefit of that goodwill will remain with his former principal.
The third step in the calculation is this. Having calculated the amount of the indemnity, a cap is applied. The cap is provided for in reg 17(4).’

Judges:

John Mitting QC

Citations:

Times 11-May-1998, [1999] 1 All ER 174, [1998] CLY 113

Statutes:

Commercial Agents (Council Directive) Regulations 1993 No 3053, Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents 17

Cited by:

Cited – Tigana Ltd v Decoro Ltd QBD 3-Feb-2003
The claimant sought compensation after its sales agency agreement with the defendant was terminated. He had opened up several substantial sales channels for the respondent’s products within the UK. There were difficulties in the products (leather . .
Cited – Smith, Bailey Palmer v Howard and Hallam Ltd QBD 14-Nov-2005
Claim for compensation after termination of commercial agency agreement. . .
Cited – Stewart Roy v M R Pearlman Limited SCS 10-Mar-1999
A court investigating legislation, made to implement a European Directive, had still to apply UK principles in that interpretation, and not to disregard entirely common law rules. . .
Cited – David Frape v Emreco International Limited (2) SCS 2-Aug-2001
. .
Cited – Hardie Polymers Ltd v Polymerland Ltd SCS 31-Oct-2001
. .
Cited – Ingmar GB Limited v Eaton Leonard Technologies Inc CA 31-Jul-1998
Case referred to ECJ. . .
Cited – Pure Fishing (UK) Ltd v Cooper Watkins and Bartle CA 29-Sep-2003
The claimant sought a compensation payment under the Regulations after its sales agency for fishing tackle was terminated. The defendant argued that compensation was payable only where the agency was terminated before its term.
Held: The . .
Cited – Cooper and others v Pure Fishing (UK) Ltd CA 18-Mar-2004
. .
Cited – PJ Pipe and Valve Co. Ltd. v Audco India Ltd QBD 2-Sep-2005
The claimant was an agent in the petrochemical industry promoting and selling the defendant’s valves. There were two agency agreements, one relating solely to products to be supplied to a particular petro-chemical complex in Nanhai, the other being . .
Lists of cited by and citing cases may be incomplete.

Agency, European, Commercial

Updated: 09 April 2022; Ref: scu.83818

MacDonald v Taree Holdings Ltd: ChD 28 Dec 2000

It was wrong to deprive a party of his costs because only of his failure to serve an appropriate schedule of costs at least 24 hours before the summary assessment hearing. The court should consider first, a brief adjournment, and second whether the case should be stood over for a detailed assessment, and third whether it should be stood over for a summary assessment. In the absence of other aggravating features, it was wrong to refuse entirely a party his costs. The remedy was disproportionate. The court should make use of other ways of penalising a party in default.

Citations:

Times 28-Dec-2000, Gazette 08-Feb-2001

Statutes:

Civil Procedure Rules Part 44

Commercial, Litigation Practice

Updated: 09 April 2022; Ref: scu.83270

Scuola Elementare Maria Montessori v Commission: ECJ 11 Apr 2018

Competition – Opinion – Appeal – Article 263 (4) TFEU – Admissibility – Regulatory act not involving implementing measures – Direct allocation – State aid – Scheme of aid granted by the Italian authorities to non-commercial entities carrying out specific activities in certain areas -Exemption from the municipal tax on immovable property – Decision declaring the recovery of State aid incompatible with the internal market impossible – Decision declaring as non-State aid the tax exemption scheme municipal land for premises where non-economic activities are carried out by non-commercial entities – Action for the annulment of potential competitors

Citations:

ECLI: EU: C: 2018: 229, [2018] EUECJ C-622/16P – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608648

Swedish Match AB v Secretary of State for Health, intervener: New Nicotine Alliance: ECJ 12 Apr 2018

Approximation of Laws – Tobacco Products – Opinion – Reference for a preliminary ruling – Approximation of laws – Manufacture, presentation and sale of tobacco products – Directive 2014/40/EU – Article 1(c) – Article 17 – Prohibition on the placing on the market of tobacco for oral use – Request for an assessment of validity – Principle of proportionality – Precautionary principle

Citations:

C-151/17, [2018] EUECJ C-151/17 – O, ECLI:EU:C:2018:241

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608651

Infineon Technologies v Commission: ECJ 12 Apr 2018

Competition – European Market for Smart Card Chips – Opinion – Appeal – Agreements, decisions and concerted practices – European market for smart card chips – Network of bilateral contacts with the aim of coordinating the response to clients seeking to obtain price reductions – Dispute over authenticity of evidence – Scope of judicial review – Unlimited jurisdiction

Citations:

ECLI:EU:C:2018:238, [2018] EUECJ C-99/17P – O

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 07 April 2022; Ref: scu.608638

Editions Jacob v Commission T-471/11: ECJ 5 Sep 2014

ECJ Competition – Concentrations – Book publishing market – Decision declaring the concentration compatible with the common market subject to retrocession of assets – Decision approving the acquirer of the assets transferred – Decision taken following the annulment by the General Court of the original decision concerning the same procedure – Interest in bringing proceedings – Infringement of Article 266 TFEU – Lack of knowledge of the commitments imposed by the conditional authorization decision – Distinction between conditions and charges – Principle of non-retroactivity – Assessment of the assignee’s application – Independence of the assignee in relation to the assignor – Misuse of powers – Obligation to state reasons

Citations:

[2014] EUECJ T-471/11, ECLI:EU:T:2014:739

Links:

Bailii

Jurisdiction:

European

Citing:

Order – Editions Jacob v Commission T-471/11 ECFI 24-Nov-2011
(Competition) Merits – Competition – Concentration of undertakings – Decision declaring the concentration compatible with the common market subject to retrocession of assets – Annulment by the General Court of the initial decision concerning the . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 07 April 2022; Ref: scu.608296

Elf Aquitaine v Commission: ECJ 29 Sep 2011

ECJ Appeal – Agreements, decisions and concerted practices – Articles 81 EC and 53 of the EEA Agreement – Monochloroacetic acid market – Rules on the imputability of anti-competitive practices by a subsidiary to its parent company – Presumption of the effective exercise of a determining influence – Rights of the defense – Obligation to state reasons

Citations:

[2011] EUECJ C-521/09

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Elf Aquitaine v Commission ECJ 17-Feb-2011
ECJ (Competition) Appeal – Cartels – European monochloroacetic acid – Rules relating to the accountability of anticompetitive practices of a subsidiary to its parent – the presumption of innocence and personality . .

Cited by:

See Also – Elf Aquitaine v Commission ECJ 1-Oct-2013
Taxation of costs . .
Lists of cited by and citing cases may be incomplete.

Commercial

Updated: 06 April 2022; Ref: scu.606449

The LCD Appeals: CA 16 Feb 2018

The court ws asked,in four appeals, as to the territorial scope of Article 101 of the Treaty on the Functioning of the European Union (‘Article 101’) and/or of Article 53 of the Agreement on the European Economic Area (‘Article 53’ and the ‘EEA’ respectively).

Judges:

Longmore, Henderson, Asplin DBE LJJ

Citations:

[2018] EWCA Civ 220

Links:

Bailii

Jurisdiction:

England and Wales

European, Commercial

Updated: 05 April 2022; Ref: scu.605185

Panalpina World Transport (Holding) and Others v Commission: ECJ 1 Feb 2018

Competition – Price Fixing – Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Article 101 TFUE – Price fixing – International air freight forwarding services – Tariff agreement affecting the final price of services

Citations:

C-271/16, [2018] EUECJ C-271/16

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 04 April 2022; Ref: scu.604731

Schenker v Commission: ECJ 1 Feb 2018

Competition – Price Fixing – Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Article 101 TFEU – Price fixing – International air freight forwarding services – Pricing agreement affecting the final price of the services

Citations:

ECLI:EU:C:2018:58, [2018] EUECJ C-263/16

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 04 April 2022; Ref: scu.604737

Lloyd’s of London v Agenzia Regionale per la Protezione dell’Ambiente della Calabria: ECJ 8 Feb 2018

(Competition – Judgment) Reference for a preliminary ruling – Public procurement – Articles 49 and 56 TFEU – Directive 2004/18/EC – Reasons for exclusion from a tendering procedure – Insurance services – Participation of several Lloyd’s of London syndicates in the same tendering procedure – Signature of tenders by the Lloyd’s of London General Representative for the country concerned – Principles of transparency, equal treatment and non-discrimination – Proportionality

Citations:

ECLI:EU:C:2018:78, [2018] EUECJ C-144/17

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 04 April 2022; Ref: scu.604729

Deutsche Bahn and Schenker and Others v Commission: ECJ 1 Feb 2018

Competition – Price Fixing – Judgment – Appeal – Competition – Agreements, decisions and concerted practices – Article 101 TFEU – Price fixing – International air freight forwarding services – Pricing agreement affecting the final price of the services

Citations:

ECLI:EU:C:2018:60, [2018] EUECJ C-264/16

Links:

Bailii

Jurisdiction:

European

Commercial, Transport

Updated: 04 April 2022; Ref: scu.604718

Telefonica v Commission: ECJ 13 Dec 2017

Judgment – Appeal – Agreements, decisions and concerted practices – Portuguese and Spanish telecommunications markets – Non-compete clause contained in an agreement concluded between two companies – Restriction by object – Rights of the defense – Refusal to hear witnesses – Fines – Gravity of the infringement – Mitigating circumstances

Citations:

ECLI:EU:C:2017:961, [2017] EUECJ C-487/16

Links:

Bailii

Jurisdiction:

European

Commercial, Media

Updated: 02 April 2022; Ref: scu.602115

Impresa Di Costruzioni Ing E Mantovani and Guerrato SpA v Provincia autonoma di Bolzano: ECJ 20 Dec 2017

Freedom of Establishment – Freedom To Provide Services Approximation of Laws – Reference for a preliminary ruling – Public works contracts – Directive 2004/18/EC – Article 45(2) and (3) – Conditions for exclusion from participation in public procurement – Declaration regarding the absence of convictions of former directors of the tendering company – Criminal conduct of a former director – Criminal conviction – Actual and complete dissociation between the tendering company and that director – Evidence – Assessment by the contracting entity of the requirements relating to that obligation

Citations:

C-178/16, [2017] EUECJ C-178/16

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 02 April 2022; Ref: scu.602096

EUIPO v European Dynamics Luxembourg and Others: ECJ 20 Dec 2017

European Union Public Contracts – Freedom To Provide Services – Appeal – Public services contracts – Provision of external services for programme and project management and technical consultancy in the field of information technologies – Cascade procedure – Weighting of sub-criteria within the award criteria – Principles of equal opportunity and transparency – Manifest errors of assessment – Failure to state reasons – Loss of opportunity – Non-contractual liability of the European Union – Claim for damages

Citations:

C-677/15, [2017] EUECJ C-677/15P

Links:

Bailii

Jurisdiction:

European

Commercial

Updated: 02 April 2022; Ref: scu.602085