Tag: European

Swaddling v Adjudication Officer: ECJ 25 Feb 1999

A national of a member state having returned home after working abroad, and declaring an intention not to seek work abroad again, and applying for benefits could not be refused on the grounds that he had not been there long enough.
Europa Article 10a of Regulation No 1408/71, as amended and updated by Regulation No 2001/83, as amended by Regulation No 1247/92, read together with Article 1(h) thereof, precludes the Member State of origin – in the case of a person who has exercised his right to freedom of movement in order to establish himself in another Member State, in which he has worked and set up his habitual residence, and who has returned to his Member State of origin, where his family lives, in order to seek work – from making entitlement to one of the benefits referred to in Article 10a of Regulation No 1408/71 conditional upon `habitual residence’ in that State, which presupposes not only an intention to reside there, but also completion of an appreciable period of residence there.

Citations:

Times 04-Mar-1999, C-90/97, [1999] ECRI-1075], [1999] EUECJ C-90/97

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Benefits, European

Updated: 03 June 2022; Ref: scu.162068

Europieces v Sanders and Automative Industries Holding Company: ECJ 12 Nov 1998

ECJ (Judgment) Social policy – Harmonisation of laws – Transfers of undertakings – Safeguarding of workers’ rights – Directive 77/187/EEC – Scope – Transfer of an undertaking in voluntary liquidation

Citations:

C-399/96, [1998] EUECJ C-399/96, ECLI:EU:C:1998:532, [1999] All ER (EC) 831, [2001] 1 CMLR 25, [1998] ECR I-6965

Links:

Bailii

Jurisdiction:

European

European, Employment

Updated: 03 June 2022; Ref: scu.162006

Compagnie Maritime Belge Transports and others v Commission: ECJ 16 Mar 2000

ECJ It is clear from the very wording of Articles 85(1)(a), (b), (d) and (e) and 86(a) to (d) of the Treaty (now Articles 81(1)(a), (b), (d) and (e) EC and 82(a) to (d) EC) that the same practice may give rise to an infringement of both provisions. Simultaneous application of Articles 85 and 86 of the Treaty cannot therefore be ruled out a priori. However, the objectives pursued by each of those two provisions must be distinguished. Article 85 of the Treaty applies to agreements, decisions and concerted practices which may appreciably affect trade between Member States, regardless of the position on the market of the undertakings concerned. Article 86 of the Treaty, on the other hand, deals with the conduct of one or more economic operators consisting in the abuse of a position of economic strength which enables the operator concerned to hinder the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable extent independently of its competitors, its customers and, ultimately, consumers.

Citations:

C-395/96, [2000] ECR I-1365, [2000] EUECJ C-395/96-P

Links:

Bailii

Statutes:

EC Treaty 85

Citing:

At First Instance – Compagnie Maritime Belge Transports and others v Commission (Rec 1996,p II-1201) ECFI 8-Oct-1996
. .

Cited by:

Cited – Adidas-Salomon Ag v Drape and others ChD 7-Jun-2006
The claimants had sponsored tennis players to wear their logo. The respondents organised tennis tournaments whose intended rules would prevent the display of the claimant’s logos. The claimants said that the restriction interfered with their rights . .
Lists of cited by and citing cases may be incomplete.

European, Commercial

Updated: 03 June 2022; Ref: scu.162004

Criminal proceedings against Goodwin and Unstead: ECJ 28 May 1998

ECJ (Judgment) VAT was payable on supplies of counterfeit drugs even though the income generated by the trade was unlawful. Fiscal neutrality prevented differentiation between lawful and unlawful supplies
The defendants had sold counterfeit perfumes and had had VAT charges imposed retrospectively. It was held proper to charge VAT on sales which were illegal. Fiscal neutrality was set aside only where the special characteristic of a product required it

Citations:

Times 10-Jun-1998, Gazette 09-Sep-1998, C-3/97, [1998] EUECJ C-3/97

Links:

Bailii

Statutes:

Sixth Council Directive 77/388/EEC May 1977 2

VAT, European

Updated: 03 June 2022; Ref: scu.162023

Commission v Ireland: ECJ 21 Sep 1999

ECJ (Judgment) Environment – Directive 85/337/EEC – Assessment of the effects of certain public or private projects – Setting of thresholds

Judges:

J.-P. Puissochet, P

Citations:

C-392/96, [1999] EUECJ C-392/96, [2000] Env LR D15, [2000] QB 636, [2000] 2 WLR 958, [1999] ECR I-5901, [1999] 3 CMLR 727, [1999] 4 PLR 107

Links:

Bailii

Statutes:

Directive 85/337/EEC

European, Environment

Updated: 03 June 2022; Ref: scu.162001

Card Protection Plan Ltd v Commissioners of Customs and Excise: ECJ 25 Feb 1999

A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European Law: ‘it is for the national court to determine . . whether the transactions . . are to be regarded for VAT purposes as comprising two independent supplies . . or whether one of those two supplies is the principal supply to which the other is ancillary, so that it receives the same tax treatment as the principal supply.’ What matters is ‘the essential features of the transaction’. ‘There is a single supply in particular in cases where one or more elements are to be regarded as constituting the principal service, whilst one or more elements are to be regarded, by contrast, as ancillary services which share the tax treatment of the principal service. A service must be regarded as ancillary to a principal service if it does not constitute for customers an aim in itself, but a means of better enjoying the principal service supplied . .’
As to what amounted to insurance, the court said: ‘the essentials of an insurance transaction are, as generally understood, that the insurer undertakes, in return for prior payment of a premium, to provide the insured, in the event of materialisation of the risk covered, with the service agreed when the contract was concluded.
It is not essential that the service the insurer has undertaken to provide in the event of loss consists in the payment of a sum of money, as that service may also take the form of the provision of assistance in cash or in kind of the type listed in the annex Directive 73/239 as amended by Directive 84/641. There is no reason for the interpretation of the term ‘insurance’ to differ according to whether it appears in the Directive on insurance or in the Sixth Directive.’

Citations:

Times 18-Mar-1999, C-349/96, [1999] STC 270, [1999] 2 AC 601, [1998] EUECJ C-349/96 – O

Links:

Bailii

Statutes:

Directive 73/239

Citing:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Madgett and Baldwin (trading as Howden Court Hotel) ECJ 22-Oct-1998
The court considered the criteria for determining whether the provision to guests by a hotelier of travel services (and in particular transport to and from the hotel and excursions) constituted supply which was ancillary to the supply of . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .

Cited by:

Referred back – Card Protection Plan Ltd v Commissioners of Customs and Excise HL 6-Feb-2001
The appellants sold a system protecting credit card holders against the consequences of loss or theft. They claimed that it was insurance and exempt from VAT. The commissioners said it was a service and vatable. The card provided a range of services . .
Cited – Commissioners of Customs and Excise v Century Life Plc CA 19-Dec-2000
The Directive required member states to exempt from VAT, services involving the provision of insurance, and for intermediaries. Following the Regulator’s involvement, the principal company had to arrange for the checking of existing policies, and . .
Cited – College of Estate Management v Commissioners of Customs and Excise ChD 13-Nov-2003
The college appealed a finding that the supply of course manuals to its students was part of its exempt rather than zero-rated supply.
Held: ‘Once it is decided that there is a single supply from an economic view which should not be . .
Cited – Commissioners for Customs and Excise v Southern Primary Housing Limited CA 18-Nov-2003
The land owner had elected to pay VAT on the purchase of land. It sought to recover that VAT. The Commissioners appealed an order allowing that.
Held: Ther were three transactions, the purchase, the sale, and a development contract. The input . .
Cited – College of Estate Management v Commissioners of Customs and Excise CA 11-Aug-2004
When offering courses to distance learning students, the College offered materials for the courses. As part of the course this supply would be exempt, as books, the supply would be zero-rated, but the taxpayer would be able to reclaim its VAT . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – HM Revenue and Customs v Weight Watchers (UK) Ltd ChD 21-Jan-2008
The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support . .
Cited – Re Digital Satellite Warranty Cover Ltd and Others ChD 31-Jan-2011
The Financial Services Authority sought public interest orders for the winding up of three companies selling, it said, extended warranty cover plans without authorisation. The companies said that authorisation was not required, since only services . .
Cited – Digital Satellite Warranty Cover Ltd v The Financial Services Authority CA 29-Nov-2011
Parties appealed against on order for the winding up of the company. The Authority (FSA) had said that the company which supplied warranties to owners of digital receiver boxes were providing regulated insurance services, but that the companies were . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.

European, Scotland, VAT, Insurance

Updated: 03 June 2022; Ref: scu.161975

Chemische Afvalstoffen Dusseldorp and others v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer: ECJ 25 Jun 1998

ECJ Directive 75/442 on waste, as amended by Directive 91/156, and Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community cannot be interpreted as meaning that the principles of self-sufficiency and proximity are applicable to shipments of waste for recovery. That follows from the provisions of the directive and the regulation and from the preparatory texts. Furthermore, the difference in treatment between waste for recovery and waste for disposal reflects the intention of the Community legislature to encourage recovery of waste in the Community as whole, in particular by eliciting the best technologies, which means that waste of that type should be able to move freely between Member States for processing, thus excluding the application of the principles of self-sufficiency and proximity.
Article 130t of the Treaty, which authorises Member States to adopt protective measures which are more stringent than those adopted pursuant to Article 130s, in so far as they are compatible with the Treaty, does not permit them to extend the application of those principles to waste for recovery when it is clear that those principles create a barrier to exports which is not justified either by an imperative measure relating to protection of the environment or by one of the derogations provided for by Article 36 of the Treaty.
Article 90 of the Treaty, in conjunction with Article 86, precludes rules such as the Netherlands’ Long-term Plan for the Disposal of Dangerous Waste of June 1993, whereby a Member State requires undertakings to deliver their waste for recovery, such as oil filters, to a national undertaking on which it has conferred the exclusive right to incinerate dangerous waste unless the processing of their waste in another Member State is of a higher quality than that performed by that undertaking if, without any objective justification and without being necessary for the performance of a task in the general interest, those rules have the effect of favouring the national undertaking and increasing its dominant position.

Citations:

[1998] ECR I-4075, C-203/96, [1998] EUECJ C-203/96

Links:

Bailii

European, Environment

Updated: 03 June 2022; Ref: scu.161890

Kulzer v Freistaat Bayern: ECJ 5 Mar 1998

ECJ (Judgment) Regulation (EEC) No 1408/71 – Worker who has not exercised the right to freedom of movement – Retired civil servant – Article 73 – Family benefits – German institution competent – Article 77 – National legislation

Citations:

C-194/96, [1998] EUECJ C-194/96

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161885

Cabour and Nord Distribution Automobile v Arnor ‘SOCO’: ECJ 30 Apr 1998

ECJ (Judgment) Competition – Vehicle distribution – Validity of exclusive dealership agreement – Article 85(1) and (3) of the EC Treaty – Regulation (EEC) No 123/85 – Regulation (EC) No 1475/95

Citations:

[1998] EUECJ C-230/96, C-230/96, [1998] EUECJ C-230/96

Links:

Bailii

European, Commercial

Updated: 03 June 2022; Ref: scu.161905

Commission v France: ECJ 13 Mar 1997

ECJ (Judgment) 1 Member States – Obligations – Failure to fulfil obligations – Retention of a national provision incompatible with Community law – Justification on the basis of administrative practices ensuring that the Treaty is applied – Not permissible
2 Acts of the institutions – Directives – Implementation by the Member States – Directive intended to confer rights on individuals – Transposition without legislative action – Not permissible
3 The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.
4 The provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the requirement of legal certainty, under which, in the case of a directive intended to confer rights on individuals, persons concerned must be enabled to ascertain the full extent of their rights.
That is not the case where, because a legislative provision incompatible with a provision in a directive has been retained, individuals are in a position of uncertainty as to their legal situation and exposed to unwarranted criminal proceedings. Neither the obligation for national courts to secure the full effect of Article 5 of the directive by not applying any contrary national provision, nor a ministerial answer to a parliamentary question can have the effect of amending a statutory provision.

Citations:

[1997] ECR I-1489, C-197/96, [1997] EUECJ C-197/96

Links:

Bailii

European, Constitutional

Updated: 03 June 2022; Ref: scu.161887

United Kingdom v Commission C-209/96: ECJ 1 Oct 1998

(Judgment) In the context of intervention measures in the beef and veal sector, and in particular of the system of buying-in by tendering procedures, Article 9(1) of Regulation No 859/89 provides that tenderers must undertake to comply with all the relevant provisions and Article 9(2) that interested parties may submit one tender only per category in response to each invitation to tender. Since the need to ensure legal certainty means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them, the wording of Article 9(2) cannot provide any support for the interpretation that, on account of the difference in meaning between the words `interested party’ and `tenderers’, the latter may submit one tender only in response to an invitation to tender where they are part of a single group. Such an interpretation would thus be tantamount to applying retroactively Article 11 of Regulation No 2456/93, which introduces into the Community legislation provisions on the relationship between tenderers. That being the case, although the rule that tenders must be independent, an essential requirement for the validity and effectiveness of any tender procedure, which underlies Articles 9(6) (confidentiality of tenders), 12(2) (prohibition on the transfer of rights and obligations arising from the tender procedure), 9(4)(c) (tenderers’ obligation to lodge a security) and 15 (tenderers’ obligation to receive payment personally) of Regulation No 859/89 and Article 6(6) of Regulation No 805/68 (equality of access for all persons concerned), does not prevent several companies belonging to one group from taking part at the same time in one tender procedure, it does preclude those same companies from agreeing on the terms and conditions of the tenders which they each submit, if the tender procedure is not to be distorted.
Article 8(1) of Regulation No 729/70, which constitutes a specific expression in the agricultural area of the obligations imposed on Member States by Article 5 of the Treaty, defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations. It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures, particularly when there is evidence such as to give rise to serious suspicions that a prohibition laid down by the Community act in question has been circumvented.
Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets. Although it is therefore for the Commission to prove an infringement of the Community rules, the Member State concerned must demonstrate that the Commission committed an error as to the financial consequences to be attributed to it. Where it has established that a Member State infringed several Community rules in the field of agriculture and that harm was probably caused to the Community budget, the Commission cannot be required to do more, since it cannot carry out systematic checks and analysis of the current state of a given market depends on information gathered by the Member States.
The extent of the obligation to state reasons, laid down in Article 190 of the Treaty, depends on the nature of the measure in question and on the context in which it was adopted. A decision concerning the clearance of accounts in respect of expenditure financed by the EAGGF by which the charging to the EAGGF of part of the expenditure declared is refused does not require detailed reasons if the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF.

Citations:

[1998] EUECJ C-209/96

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.161895

Commission v Greece: ECJ 12 Mar 1998

(Judgment) Failure of a Member State to fulfil its obligations – Freedom of movement for workers – Article 48 of the EC Treaty – Article 7 of Regulation (EEC) No 1612/68 – Person working in the public service of a Member State – Mutual recognition of periods of employment in the public service of another Member State)#

Citations:

C-187/96, [1998] EUECJ C-187/96

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161881

Criminal proceedings against Modesti: ECJ 19 Jul 1996

ECJ (Order) In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
In this respect, the information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court.
It is the Court’ s duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible – inasmuch as it does not enable the Court to give a useful interpretation of Community law – where the order for reference merely refers to criminal breaches of national copyright legislation and to the question, raised in that context, as to whether the monopoly held by a company having the exclusive right to manage such copyright and the authority to require payment of fees with protection backed by criminal penalties is compatible with Community law, and where it fails to give sufficient details of the factual context of the dispute, the national legislative context or the precise reasons which prompted it to consider the interpretation of Community law and to deem it necessary to refer questions to the Court of Justice for a preliminary ruling.

Citations:

C-191/96, [1996] EUECJ C-191/96

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161883

von Hoffmann v Finanzamt Trier: ECJ 16 Sep 1997

An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent – Services of an arbitrator – Place where services are supplied.

Citations:

Times 10-Nov-1997, C-145/96, [1997] EUECJ C-145/96, [1997] All ER (EC) 85, [1998] 1 CMLR 99

Links:

Bailii

Cited by:

Cited – Jivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.

VAT, European

Updated: 03 June 2022; Ref: scu.161850

United Kingdom v Commission: ECJ 5 May 1998

ECJ Order – 1. It is open to the Court hearing an application for interim relief to order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable damage to the applicant’ s interests, be made and produce its effects before a decision is reached in the main action. The Court is also to balance the interests at stake. Suspension and other measures granted under Article 186 of the Treaty must, moreover, be provisional inasmuch as they must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.
In the context of that overall examination, the Court hearing the application enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis by reference to which the need to order interim measures must be assessed.
2. The urgency of an interim measure must be considered by reference to whether it is necessary to make a provisional ruling in order to avoid the occurrence of serious and irreparable harm as a result of immediate application of the measure contested in the main action. As regards the nature of the harm which may be invoked, it must be noted that the Member States are responsible for those interests, in particular of an economic and social nature, which are regarded as general interests at national level and are thereby entitled to defend such interests before the courts. They may therefore invoke damage affecting a whole sector of their economy, in particular when the contested Community measure may entail unfavourable repercussions on the level of employment and the cost of living.
3. Where an applicant seeking suspension of operation of a measure invokes the risk of its suffering serious and irreparable harm, the Court hearing the application must determine, when balancing the interests at stake, whether the possible annulment of the contested decision by the Court seised of the main action would allow the situation brought about by its immediate implementation to be reversed and, conversely, whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed.
4. An application by the United Kingdom for suspension of the operation of Commission Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy or even of part of it, or for interim measures qualifying its application, cannot be granted. Whilst some of the pleas in law put forward by the Member State contesting the lawfulness of that decision cannot be wholly ruled out at the stage of examination of the interim application, the Commission has none the less presented serious arguments as to the lawfulness of its decision as a whole. Furthermore, the balancing of the interests at stake inevitably leads to recognition that the protection of public health against a fatal risk, which can in no way be ruled out in the present state of scientific knowledge, must take precedence over the economic and social damage which the Member State may invoke as being likely to result from the application of the said decision, even if that damage is not easily reparable.
Europa In order for an act of the Council or the Commission to form the subject-matter of an action for annulment, it must be intended to have legal effects. That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act.
In adopting Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, the Commission acted within the framework of the powers conferred on it by Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade. First, the conditions governing the adoption of safeguard measures in accordance with those two directives were fulfilled, particularly since the power to adopt such measures is justified by the fact that a zoonosis, disease or other cause is likely to constitute a serious hazard. Second, having regard, in particular, to the fact that the directives are drafted in very wide terms, without imposing any restrictions as to the temporal or territorial scope of the measures concerned, it does not appear that the Commission clearly exceeded the bounds of its broad discretion in seeking to contain the disease within the territory of the United Kingdom by banning exports from that territory to other Member States and to third countries. Lastly, the decision is not vitiated by misuse of powers, since the Commission was prompted to act by concerns as to the risk of transmissibility of bovine spongiform encephalopathy to humans, after examining the measures adopted by the United Kingdom and consulting the Scientific Veterinary Committee and the Standing Veterinary Committee, its exclusive or main purpose not being to protect economic interests rather than health.
Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, fulfils the requirement to provide a statement of reasons, does not breach the principles of proportionality, non-discrimination or legal certainty and is in accordance with the objectives of the common agricultural policy set out in Article 39(1) of the Treaty. As regards, more particularly, the principle of proportionality, it was open to the Commission, in view of the great uncertainty as to the risks posed by the animals and products concerned, to take the protective measures in issue without having to wait until the reality and seriousness of those risks became fully apparent. As regards the principle of non-discrimination laid down in the second subparagraph of Article 40(3) of the Treaty, the fact that, at the time of adoption of the decision, almost all the cases of bovine spongiform encephalopathy in Europe were recorded in the United Kingdom meant that the situation in that Member State could not be regarded as comparable with that in the other Member States.
Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty. In that connection, and having regard to the importance of the role played by the free movement of animals, animal products and products of animal origin in achieving those objectives, Article 43 constituted the appropriate legal basis for the adoption of Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade, even though those directives authorise the Commission incidentally to adopt safeguard measures covering `products of animal origin’, `products derived from those products’ and `products derived’ from animals which are not included in Annex II to the Treaty.

Citations:

Times 06-May-1998, C-180/96, [1996] EUECJ C-180/96R

Links:

Bailii

Statutes:

EC Treaty 185 186

Citing:

See Also – United Kingdom v Commission (Rec 1996,p I-3903) (Order) ECJ 12-Jul-1996
. .

Cited by:

Cited – United Kingdom v Commission ECJ 5-May-1998
Agriculture – Animal health – Emergency measures against bovine spongiform encephalopathy – ‘Mad cow disease’ . .
Lists of cited by and citing cases may be incomplete.

European, Agriculture, Health, Animals

Updated: 03 June 2022; Ref: scu.161875

Beside and Besselsen v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer: ECJ 25 Jun 1998

ECJ The expression ‘municipal/household waste’ referred to under point AD 160 of the amber list in Annex III to Regulation No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community, as amended by Decision 94/721 adapting, pursuant to Article 42(3), Annexes II, III and IV to Regulation No 259/93, includes both waste which for the most part consists of waste mentioned on the green list in Annex II to that regulation, mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list. Such mixed waste does not come within the green list unless it has been collected separately or properly sorted.
The information listed in Article 11(1) of the regulation, which must accompany shipments of waste intended for recovery appearing in Annex II, constitutes the minimum evidence which the competent authority may, in the absence of notification, require in order to establish that `green waste’ is intended for recovery.
In the case of shipments of waste which have not been notified to all the competent authorities concerned (illegal traffic), the Member State of destination may not unilaterally return waste to the Member State of dispatch without prior notification to the latter; the Member State of dispatch may not oppose its return where the Member State of destination produces a duly motivated request to that effect.
The reference to the storage of materials in point R 13 of Annex II B to Directive 75/442 on waste, as amended by Directive 91/156, which lists waste recovery operations, covers not only cases in which storage takes place in the undertaking in which the other operations mentioned in that annex must be carried out but also cases in which storage precedes transport to such an undertaking, regardless of whether the latter is established inside or outside the Community.

Citations:

C-192/96, [1998] EUECJ C-192/96

Links:

Bailii

European, Environment

Updated: 03 June 2022; Ref: scu.161884

Netherlands v Commission C-147/96: ECJ 22 Jun 2000

ECJ Action for annulment – Commission’s refusal to include an overseas country in the provisional list of third countries established by Article 23 of Directive 92/46/EEC – Actionable measure. Only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment. In the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the Commission or the Council that are open to challenge and not intermediate measures whose purpose is to prepare for the final decision. An act which is neither capable of producing nor intended to produce any legal effects cannot form the basis of an action for annulment. In order to ascertain whether or not a measure produces such effects it is necessary to look to its substance.

Citations:

[2000] EUECJ C-147/96

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161851

Regina v Ministry of Agriculture, Fisheries and Food and Commissioners of Customs and Excise, ex parte National Farmers’ Union and others: ECJ 5 May 1998

Land from which nitrates were leeching off into rivers causing pollution, had to be designated as environmentally vulnerable land, if agricultural activities were a substantial even if only partially cause of the pollution. ‘As regards . . . the principle of proportionality, it is settled law that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it.’

Citations:

Times 10-May-1999, Case C-293/97, C-157/96, [1998] EUECJ C-157/96

Links:

Bailii

Statutes:

Council Directive 91/676/EEC

Cited by:

Cited – Regina on the Application of Isle of Anglesey County Council v Secretary of State for Work and Pensions Admn 30-Oct-2003
The claimant council sought re-imbursement from the Secretary of the excess housing benefit payments it had made to claimants. The system expected the Council to have made referrals of high rents to rent officers. The respondent had decided that it . .
Lists of cited by and citing cases may be incomplete.

Environment, European, European

Updated: 03 June 2022; Ref: scu.161859

Sunino and Data: ECJ 20 Mar 1996

ECJ (Order) In order to reach an interpretation of Community law which will be of use to the national court, it is essential that the national court define the factual and legislative context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based.
The information provided and the questions raised in orders for reference must not only be such as to enable the Court usefully to reply but also such as to give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the Statute of the Court. It is the Court’ s duty to ensure that the opportunity to do so is safeguarded, bearing in mind that, by virtue of the above mentioned provision, only the orders for reference are notified to the interested parties.
Consequently, a request from a national court is manifestly inadmissible inasmuch as it does not enable the Court to give a useful interpretation of Community law where the order for reference merely sets out offences contrary to national law with regard to employment procurement and temporary employment and indicates neither the contents of the provisions of national law to which it refers nor the precise reasons which prompted it to question their compatibility with Community law and to consider it necessary to refer questions to the Court of Justice for a preliminary ruling.

Citations:

C-2/96, [1996] EUECJ C-2/96

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161756

Techex Computer, Grafik Vertriebs GmbH v Hauptzollamt Munchen: ECJ 18 Dec 1997

ECJ Reference for a preliminary ruling: Bundesfinanzhof – Germany. Common Customs Tariff – Tariff headings – Tariff classification of a ‘Vista board’ electronic component intended for image processing and capable of being used as a graphics card in a computer – Classification in the Combined Nomenclature.

Citations:

C-382/95, [1997] EUECJ C-382/95

Links:

Bailii

European, Customs and Excise

Updated: 03 June 2022; Ref: scu.161737

Blasi v Finanzamt Munchen: ECJ 12 Feb 1998

ECJ Article 13.B(b)(1) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes may be construed as meaning that the provision of short-term accommodation for guests is taxable, as constituting the provision of accommodation in sectors with a function similar to that of the hotel sector. In that regard, Article 13.B(b)(1) does not preclude taxation in respect of letting agreements concluded for a period of less than six months, if that duration is deemed to reflect the parties’ intention. It is, however, for the national court to determine whether, in a case before it, certain factors (such as the automatic renewal of the letting agreement) suggest that the duration stated in the letting agreement does not reflect the parties’ true intention, in which case the actual total duration of the accommodation, rather than that specified in the letting agreement, would have to be taken into consideration. A distinction drawn by Member States, who enjoy a margin of discretion in this regard, between accommodation in the hotel sector and the letting of dwelling accommodation on the basis of its duration constitutes an appropriate criterion of distinction, since one of the ways in which hotel accommodation specifically differs from the letting of dwelling accommodation is the duration of the stay, and the use to this end of the criterion of the provision of short-term accommodation, being defined as less than six months, appears to be a reasonable means by which to ensure that the transactions of taxable persons whose business is similar to the essential function performed by a hotel, namely the provision of temporary accommodation on a commercial basis, are subject to tax.

Citations:

C-346/95, [1998] ECR 1-481, [1998] EUECJ C-346/95

Links:

Bailii

Cited by:

Cited – Colaingrove Limited v The Commissioners for Customs and Excise ChD 16-Apr-2003
The Directive exempted from a charge to VAT for letting of imoveable property. The taxpayer challenged the requirement to charge to VAT his business of leasing pitches for caravans.
Held: The directive allowed member states to derogate from . .
Cited – Colaingrove Ltd v the Commissioners of Customs and Excise CA 19-Feb-2004
The taxpayer licensed static caravans on seasonal pitches on its land. They claimed exemption from charging VAT on the basis that they were residential lettings exempt under European legislation.
Held: The appeal failed. The legislation . .
Cited – Belgian State v Temco Europe ECJ 18-Nov-2004
Where the substance of a transaction was merely that premises were made available under a licence for occupation, rather than for the provision of services, a licence to occupy premises could be treated as a letting for the purpose of the Sixth . .
Lists of cited by and citing cases may be incomplete.

European, VAT, Landlord and Tenant

Updated: 03 June 2022; Ref: scu.161713

Commission and France v Ladbroke Racing: ECJ 11 Nov 1997

ECJ (Judgment) Competition – Articles 85, 86 and 90 of the EC Treaty – Rejection of a complaint concerning both State measures and private conduct – Applicability of Articles 85 and 86 to undertakings complying with national legislation)

Citations:

C-359/95, [1997] EUECJ C-359/95P

Links:

Bailii

European, Commercial

Updated: 03 June 2022; Ref: scu.161724

Loendersloot v Ballantine and Son and others: ECJ 11 Nov 1997

ECJ Article 36 of the EC Treaty – Trade mark rights – Relabelling of whisky bottles.

Judges:

Rodriguez Iglesias, P

Citations:

C-349/95, [1997] EUECJ C-349/95, [1997] ECR I-6227

Links:

Bailii

Cited by:

Cited – L’Oreal Sa and Others v Ebay International Ag and Others ChD 22-May-2009
The court was asked as to whether the on-line marketplace site defendant was liable for trade mark infringements by those advertising goods on the web-site.
Held: The ECJ had not yet clarified the law on accessory liability in trade mark . .
Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161715

Coen v Belgian State: ECJ 23 Jan 1997

ECJ (Judgment) Officials – Actions – Time-limits – Mandatory – Caused to run afresh by a judgment given by a court of a Member State – Not possible
(EC Treaty, Art. 179; Staff Regulations, Arts 90 and 91)
The time-limits prescribed in Articles 90 and 91 of the Staff Regulations for lodging complaints and bringing proceedings are a matter of public policy and are not subject to the discretion of the parties or the Court, since they were established in order to ensure that legal positions are clear and certain.
Consequently, Article 179 of the Treaty and Articles 90 and 91 of the Staff Regulations are to be interpreted as meaning that the periods which those provisions prescribe for challenging a decision of the appointing authority of one of the Community institutions cannot be caused to run afresh by a judgment given by a court of a Member State finding an act of that State unlawful, where the act in question may have influenced the institution’s decision which is to be challenged.

Citations:

C-246/95, [1997] EUECJ C-246/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161638

Finanzamt Augsburg-Stadt v Marktgemeinde Welden: ECJ 6 Feb 1997

ECJ (Judgment) Tax provisions – Harmonization of laws – Turnover taxes – Common system of value added tax – Taxable persons – Bodies governed by public law – Activities in the exercise of public authority not taxable – Definition – Option for Member States to include activities exempted by virtue of Article 13 of the Sixth Directive, irrespective of the manner of their performance
(Council Directive 77/388, Art. 4(5), fourth subpara.)
The fourth subparagraph of Article 4(5) of the Sixth Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes must be interpreted as permitting Member States to consider that the activities listed in Article 13 of the directive are carried out by bodies governed by publi

Citations:

C-247/95, [1997] EUECJ C-247/95

Links:

Bailii

European, VAT

Updated: 03 June 2022; Ref: scu.161639

Commission v ICI: ECJ 6 Apr 2000

ECJ (Judgment) Appeal – Action for annulment – Pleas in law – Infringement of essential procedural requirements – Failure to authenticate a decision adopted by the college of Commissioners – Issue that may be raised of the Court’s own motion

Citations:

C-286/95, [2000] EUECJ C-286/95P

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161671

Commission v NTN Corporation and Koyo Seiko: ECJ 10 Feb 1998

(Judgment) Appeal – Dumping – Ball bearings originating in Japan – Interpretation

Citations:

C-245/95, [1998] EUECJ C-245/95P

Links:

Bailii

Citing:

Opinion – Commission v NTN Corporation and Koyo Seiko ECJ 14-Feb-1996
ECJ 1. Under Article 37 of the Statute of the Court of Justice, any person establishing an interest in the result of a case submitted to the Court may intervene in that case before the Court, and submissions made . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 03 June 2022; Ref: scu.161634

Sabel BV v Puma AG, Rudolf Dassler Sport: ECJ 11 Nov 1997

The test of whether a sign is confusing is how the use of the sign would be perceived by the average consumer of the type of goods in question. ‘The likelihood of confusion must therefore be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global appreciation of the visual, aural or conceptual similarity or the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components . . The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.’ (A point noted by the Hearing Officer as I have said). ‘In that perspective, the more distinctive the earlier mark, the greater will be the likelihood of confusion. It is therefore not impossible that the conceptual similarity resulting from the fact that two marks use images with analogous semantic content may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public.’
The court set out three possible links between a mark and a sign: ‘(1) where the public confuses the sign and the mark in question (likelihood of direct confusion); (2) where the public makes a connection between the proprietors of the sign and those of the mark and confuses them (likelihood of indirect confusion or association); (3) where the public considers the sign to be similar to the mark and perception of the sign calls to mind the memory of the mark, although the two are not confused (likelihood of association in the strict sense).’

Citations:

[1997] ECR I-6191, C-251/95, [1998] RPC 199, [1997] EUECJ C-251/95

Links:

Bailii

Cited by:

Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Associated Newspapers Limited, Daily Mail and General Trust Plc v Express Newspapers (an Unlimited Company, Incorrectly Sued As Express Newspapers Limited) ChD 11-Jun-2003
The claimants sought to prevent the respondents from starting an evening newspaper entitled ‘THE MAIL’ as an infringement of their registered mark, and as passing off. In turn the defendant challenged the validity of the mark.
Held: The word . .
Cited – Reed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs Com Ltd CA 3-Mar-2004
The claimant alleged trade mark infringement by the respondents by the use of a mark in a pop-up advert.
Held: The own-name defence to trade mark infringement is limited. Some confusion may be allowed if overall the competition was not unfair . .
Cited – Mastercard International Incorporated v Hitachi Credit (Uk) Plc ChD 8-Jul-2004
The claimants challenged award of a trade mark saying they were owners of many marks incorporating the word ‘Master’ associated with credit, and the applicants mark was too similar to its own.
Held: Applying Davidoff, the words can also be . .
Cited – Marks and Spencer Plc, Ladbrokes Plc, J Sainsbury Plc, Virgin Enterprises Ltd, British Telecommunications Plc, Telecom Securior Cellular Radio Ltd v One In A Million and Others PatC 28-Nov-1997
The registration of internet domain names which would infringe trade marks and potentially facilitate passing off can be protected summarily by quia timet injunction. The defendants were dealers in domain names and the use of a trade mark in the . .
Cited – L’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .
Cited – Esure Insurance Ltd v Direct Line Insurance Plc ChD 29-Jun-2007
Both companies sold motor insurance products at a distance and used as logos and symbols either a telephone or a computer mouse, in each case on wheels. Direct line claimed the use of the mouse by esure infringed its own trademarks, and resisted . .
Cited – Nude Brands Ltd v Stella McCartney Ltd and Others ChD 20-Aug-2009
The claimant sought an injunction against the defendants to restrain an alleged trade mark infringement in respect of the use of the mark ‘NUDE’ by the proposed product ‘STELLANUDE’.
Held: Despite the differences, it was ‘arguable that the . .
Lists of cited by and citing cases may be incomplete.

European, Intellectual Property

Updated: 03 June 2022; Ref: scu.161642

Futura Participations and Singer v Administration des contributions: ECJ 15 May 1997

ECJ (Judgment) 1 Freedom of movement for persons – Freedom of establishment – Equal treatment – Direct taxation – Revenue tax – Legislation of a Member State making the carrying forward of losses incurred by a non-resident taxpayer subject to the existence of an economic link between those losses and the income earned in that Member State – Whether permissible – Conditions
(EEC Treaty, Art. 52)
2 Freedom of movement for persons – Freedom of establishment – Procedural rules concerning revenue tax – Restrictions – Legislation of a Member State making the carrying forward of losses incurred by a non-resident taxpayer subject to the keeping and holding, in that Member State, of accounts complying with national rules – Not permissible – Justification on grounds of public interest – Effectiveness of fiscal supervision – Obligation for the taxpayer to demonstrate clearly and precisely that the losses declared correspond to the losses actually incurred – Whether permissible
(EEC Treaty, Art. 52)
3 Article 52 of the Treaty does not preclude a Member State from making the carrying forward of previous losses, requested by a taxpayer which has a branch in its territory but is not resident there, subject to the condition that the losses must be economically linked to the income earned in that State, provided that resident taxpayers do not receive more favourable treatment.
4 Article 52 of the Treaty precludes a Member State from making the carrying forward of previous losses, requested by a taxpayer which has a branch in its territory but is not resident there, subject to the condition that, in the year in which he incurred those losses, he must have kept and held in that Member State accounts relating to his activities carried on there which comply with its relevant national rules.
Such a condition may constitute a restriction, within the meaning of Article 52 of the Treaty, on the freedom of establishment of companies or firms which wish to establish a branch in a Member State different from that in which they have their seat, in that it requires them to keep and to hold, at the place where the branch is established and in addition to their own accounts which must comply with the tax accounting rules applicable in the Member State in which they have their seat, separate accounts for the branch’s activities, complying with the tax accounting rules applicable in the State in which the branch is established.
Although that condition may be justified by a pressing reason of public interest, namely the effectiveness of fiscal supervision, it is not essential, in this regard, that the means by which the non-resident taxpayer is allowed to demonstrate the amount of the losses he seeks to carry forward be limited to those provided for by the national legislation concerned. However, a Member State may, for that pressing reason of public interest, require the non-resident taxpayer to demonstrate clearly and precisely that the amount of the losses which he claims to have incurred corresponds, under its domestic rules governing the calculation of income and losses which were applicable in the financial year concerned, to the amount of the losses actually incurred by the taxpayer in that State.

Citations:

C-250/95, [1997] EUECJ C-250/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161641

Criminal proceedings against Schmit: ECJ 27 Jun 1996

(Judgment) Article 30 of the Treaty precludes national legislation concerning model-year dates for motor vehicles which causes the administrative authorities and traders of the Member State in question to consider that, where two motor vehicles of the same model and make are sold in that Member State after 30 June, only the vehicle which was the subject of a parallel import would be prohibited from holding itself out as being of the following model year. Such rules are likely to discourage the sale of the vehicles concerned in so far as, although they are the same model as the others, they are presented as being of an earlier year and accordingly are at a discount on resale or where compensation is payable in the event of a claim.
In addition, such rules cannot be justified under requirements relating to consumer protection or fairness of transactions. They do not guarantee that the consumer will be informed with certainty either of the differences in the characteristics of two vehicles of different model years or that two vehicles of the same model and model year will be identically manufactured.

Citations:

C-240/95, [1996] EUECJ C-240/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161629

Biogen v Smithkline Beecham Biologicals: ECJ 26 Feb 1996

ECJ (Order) A natural or legal person who has not sought or been granted leave to intervene before the national court is not entitled to apply for leave to intervene in preliminary ruling proceedings before the Court of Justice in order to submit observations on the question raised by the national court.
Article 37 of the Statute of the Court recognizes a right to intervene, but only in contentious proceedings designed to settle a dispute and not in proceedings under Article 177 of the Treaty; Article 177 provides for a right to submit observations but limits that right, as far as natural and legal persons are concerned, to those who are parties to the action pending before the national court seeking a ruling from the Court of Justice.

Citations:

C-181/95, [1997] ECR I-386, [1997] RPC 833

Links:

Bailii

European, Litigation Practice

Updated: 03 June 2022; Ref: scu.161608

Hill and Stapleton v The Department of Commissioners and Department of Finance: ECJ 17 Jun 1998

Two female employees shared a job in the civil service during which time they each moved up one point in the incremental pay scale with each year of service and were paid fifty percent of the salary for clerical assistants. After two years they switched to full-time employment but their position on the incremental pay scale was adjusted in accordance with an instruction that each year’s job-sharing service was only reckonable as six months full-time service. The issue for the ECJ was whether the principle of finally equal pay was contravened, if employees who convert from job-sharing to full-time work regress on the incremental scale, and hence on their salary scale due to the application by the employer of the criteria of service calculated by time worked in a job and, if so, did the employer have to provide special set of classification for re-course to the criterion of service to find his actual time worked in awarding incremental credit.
Held: Treatment of job sharers as having acquired seniority of half that of time served (having worked half time) was discriminatory. 98% of job sharing civil servant employees were women. Otherwise only if difference based on objective non-sex related factors.

Citations:

Gazette 09-Sep-1998, C-243/95, Ecj/Cfi Bulletin, 9, [1998] IRLR 466, [1998] EUECJ C-243/95

Links:

Bailii

Statutes:

Council Directive 75/117/EEC Equal Pay Directive

Cited by:

Cited – Sharp v Caledonia Group Services Ltd EAT 1-Nov-2005
EAT Equal Pay Act – Material factor defence – In an equal pay claim involving a presumption of direct discrimination the genuine material factor defence requires justification by objective criteria.
The . .
Lists of cited by and citing cases may be incomplete.

Discrimination, European, European

Updated: 03 June 2022; Ref: scu.161632

Commission v Italy: ECJ 14 Mar 1996

(Judgment) A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down by a directive.

Citations:

C-238/95, [1996] EUECJ C-238/95

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161627

Regina v Intervention Board for Agricultural Produce, ex parte Accrington Beef Co Ltd and Others: ECJ 12 Dec 1996

ECJ 1 Agriculture – Common organization of the markets – Beef and veal – Import rules – Community tariff quotas – Conditions of eligibility for operators other than traditional importers – Export thresholds higher than those required for the two preceding quotas – Misuse of powers – None – Principle of proportionality – Principle of the protection of legitimate expectations – Duty to state reasons – Breach – None (Council Regulation No 130/94; Commission Regulation No 214/94, Art. 1(2))
2 Agriculture – Common organization of the markets – Discrimination between producers or consumers – Import rules governing eligibility for the Community tariff quota for certain kinds of frozen beef – Possibility for traditional importers to cumulate rights of access to the quota in the case of company mergers – Other operators not permitted to do so – No discrimination (EC Treaty, Art. 40(3); Commission Regulation No 214/94, Art. 2(2))
3 Since the purpose of Regulation No 130/94 opening a Community tariff quota for certain kinds of frozen beef is to guarantee equal and continuing access to the quota for all interested operators within the Community, the Commission did not exceed the powers conferred on it by that regulation when it provided in Article 1(2) of Regulation No 214/94 laying down detailed rules for the application of Regulation No 130/94 that the part of the quota available to operators other than traditional importers was to be restricted to applicants who could furnish proof of having exported to third countries during the reference period a minimum quantity of beef greater than that required for the two preceding quotas. Although the criteria of eligibility for the quota which the Commission was called upon to lay down were required to be such as to guarantee equal and continuing access only for operators who had imported or exported significant amounts, Regulation No 130/94 did not require it to link export thresholds directly to developments in trade with third countries. Furthermore, the criteria laid down by the Commission rightly deter the proliferation of `paper companies’ reflecting the artificial fragmentation by certain traders of their economic structure, which is liable to disrupt the scheme because it increases the number of applications and thereby reduces the quantities available for genuine small operators, who thus risk being excluded from the quota altogether. The raising of the export thresholds by the Commission did not breach the principle of proportionality, either, because in the light of the purpose of the scheme it was reasonable that the effect of the change be to deprive of the right to participate in the quota a large number of undertakings created artificially for the sole purpose of obtaining a larger share of the quota, there being no proof that the increase prevented a large number of genuinely small operators from obtaining a share of the quota. Likewise, it did not breach the principle of the protection of legitimate expectations because any prudent and diligent trader must know that the export thresholds may be altered whenever a new annual quota is adopted, and the premature announcement of the new eligibility criteria would encourage the creation of `paper companies’ precisely to meet the new thresholds, thus enabling large groups to obtain maximum advantage from the quota. Finally, the duty to state reasons for the increase was complied with, since the preambles to Regulations No 130/94 and No 214/94 state clearly the considerations which led the Commission to alter the eligibility criteria for operators other than traditional importers. 4 The fact that Article 2(2) of Regulation No 214/94 laying down detailed rules for the application of the import rules opening a Community tariff quota for certain kinds of frozen beef deprives companies resulting from mergers who wish to obtain a share of the quota for non-traditional operators of the possibility of cumulating past performance obtained by each of them, a possibility which is available to traditional importers, does not constitute discrimination prohibited by Article 40(3) of the Treaty. The way in which the quota for traditional importers is distributed is not comparable to the way in which the quota reserved for other operators is distributed. The first is allocated among eligible operators in proportion to the imports achieved by each of them, whereas the second is allocated in proportion not to imports or exports, but to the quantities applied for, subject to a maximum per application. Consequently, the cumulation of rights to a share in the traditional quota is not intended to determine the eligibility for the quota of companies arising from mergers which would not otherwise be eligible, but to permit them to cumulate quota shares already held separately by the undertakings involved in the merger.

Citations:

C-241/95, [1996] EUECJ C-241/95

Links:

Bailii

European, Agriculture

Updated: 03 June 2022; Ref: scu.161630

Commission v Italy: ECJ 20 Jun 1996

ECJ (Judgment) 1. Member States – Obligations – Implementation of directives – Failure to fulfil obligations not contested
2. Procedure – Costs – Withdrawal justified by the conduct of the other party
(Rules of Procedure of the Court of Justice, Art. 69(5))

Citations:

C-237/95, [1996] EUECJ C-237/95

Links:

Bailii

Statutes:

EC Treaty 169

European

Updated: 03 June 2022; Ref: scu.161626

France v Commission C-57/95: ECJ 20 Mar 1997

(Judgment) An action for annulment is available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. This is so in the case of a Commission communication, published in the C series of the Official Journal, on an internal market for pension funds, where that communication is not confined to explaining the Treaty provisions, applicable to pension institutions, on freedom to provide services, freedom of establishment and free movement of capital, but lays down obligations with which the Member States must comply and which cannot be regarded as inherent in those provisions, and is thus intended to have legal effects of its own, distinct from those provided for by the Treaty. In that respect, the fact that the communication has not been notified to the Member States is irrelevant.
In the absence, in the Treaty, of any provision conferring such a power on the Commission, and in view of the fact that, in any event, only the Council is empowered, under Articles 57(2) and 66 of the Treaty, to issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons, the Commission has no competence to adopt an act imposing on Member States obligations not provided for in the Treaty provisions on freedom to provide services, freedom of establishment and free movement of capital.
It is therefore necessary to annul Commission Communication 94/C 360/08 on an Internal Market for Pension Funds, which is not confined to clarifying the correct application of the Treaty provisions but is intended to have legal effects of its own, distinct from those already provided for by those provisions.

Citations:

C-57/95, [1997] EUECJ C-57/95

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161526

Criminal proceedings against X: ECJ 12 Dec 1996

(Judgment) Criminal proceedings may not be brought in respect of conduct not clearly defined as culpable.

Citations:

C-74/95, [1996] ECR I-6609, [1996] EUECJ C-74/95

Links:

Bailii

Cited by:

Cited – Regina v Bristol Magistrates Court and others ex parte Junttan Oy HL 23-Oct-2003
The improper use of machinery had resulted in the death of an employee, and the applicant was prosecuted under the 1974 Act, but complained that the prosecution should have been under the Regulations. The directive required member states to apply . .
Lists of cited by and citing cases may be incomplete.

European, Crime

Updated: 03 June 2022; Ref: scu.161540

Decker v Caisse de maladie des employes prives: ECJ 28 Apr 1998

ECJ Judgment – Free movement of goods – Articles 30 and 36 of the EC Treaty – Reimbursement of medical expenses incurred in another Member State – Prior authorisation of the competent institution – Purchase of spectacles

Citations:

C-120/95, [1998] EUECJ C-120/95, [1998] ECR I-1831, ECLI:EU:C:1998:167

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161566

Inasti v Kemmler: ECJ 15 Feb 1996

(Judgment) Given that freedom of establishment is not confined to the right to create a single establishment within the Community but includes freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the territory of the Member States, Article 52 of the Treaty seeks to facilitate the pursuit of occupational activities throughout the territory of the Member States and consequently precludes national legislation which might inhibit the extension of such activities beyond the territory of a single Member State. Accordingly, it precludes a Member State from requiring contributions to be made to the scheme for self-employed persons by persons already working as self-employed persons in another Member State where they have their habitual residence and are affiliated to a social security scheme, where that obligation is wholly unjustified in that it provides them with no additional social protection.

Citations:

C-53/95, [1996] EUECJ C-53/95

Links:

Bailii

Jurisdiction:

European

European

Updated: 03 June 2022; Ref: scu.161524

Reiseburo Broede v Sandker: ECJ 12 Dec 1996

ECJ (Judgment) 1 Freedom to provide services – Restrictions – Whether permissible – Conditions
(EC Treaty, Art. 59)
2 Freedom to provide services – Judicial recovery of debts – Restrictions – Obligation to use the services of a lawyer – Justification on grounds of the general interest – Protection of recipients of services and proper administration of justice – Permissible
(EC Treaty, Art. 59)
3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.
4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
‘the application of professional rules to lawyers, in particular those relating to organization, qualifications, professional ethics, supervision and liability, ensures that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience’.

Judges:

J.C. Moitinho de Almeida, P

Citations:

C-3/95, [1996] ECR I-6511, [1997] 1 CMLR 224, [1996] EUECJ C-3/95

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

European, Legal Professions

Updated: 03 June 2022; Ref: scu.161490

Garage Molenheide and others v Belgische Staat: ECJ 18 Dec 1997

ECJ Scope of directive – Right to deduction of VAT – Retention of balance of VAT due – Principle of proportionality.

Citations:

C-286/94, [1997] EUECJ C-286/94, [1998] STC 126

Links:

Bailii

Statutes:

Sixth Directive 77/388/EEC

Cited by:

Cited – UK Tradecorp Ltd, Regina (on the Application of) v Commissioners for Customs and Excise Admn 10-Nov-2004
The trader had traded in zero-rated goods, leading to a net reclaim of input tax. Having submitted a claim, it sought repayment, and interest on the sums withheld.
Held: No duty fell upon the commissioners until they had accepted the claim to . .
Lists of cited by and citing cases may be incomplete.

European, VAT

Updated: 03 June 2022; Ref: scu.161450

Commission v Netherlands: ECJ 11 Jan 1996

ECJ (Judgment) Under Articles 1(5) and 8(1) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, Member States are required to communicate to the Commission forthwith, irrespective of the effects which it may have on trade between Member States, any draft technical specifications, the observance of which is compulsory in the case of the marketing or use of a product in its territory. A Member State fails to fulfil that obligation where, without notifying it to the Commission at the drafting stage, it adopts a regulation derogating from a decree on the manufacture of margarine by authorizing the use, under specified conditions, of substitute products listed therein.

Citations:

C-273/94, [1996] EUECJ C-273/94

Links:

Bailii

European

Updated: 03 June 2022; Ref: scu.161440