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Cases - EC Law

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Blackburn v Attorney-General (1971) CA

Bossa v Nordstress Ltd [1998] EAT

British Railways v Pickin [1974] HL

Bulmer v Bollinger [1974] CA

Chiron v Murex [1995] CA

CILFIT v Ministry of Health [1983] ECJ

Clean Car Autoservice v Wien [1998] ECJ

Costa v ENEL [1964] ECJ

Cowan v Trésor Public [1991] ECJ

DEFRA v Asda (2003) HL

Defrenne v Sabena (No.2) [1976] ECJ

Duke v GEC Reliance Ltd [1988] HL

Edinburgh & Dalkeith Railway Co v Wauchope (1842)

Ellen Street Estates v Minister of Health [1934] CA

Equal Opportunities Commission v Secretary of State [1994] HL

European Communities Act 1972 s.2

Faccini Dori v Recreb [1995] ECJ

Felixstowe Dock Railway Co v British Transport Docks Board [1976] CA

Foster v British Gas [1991] HL

Francovich v Italy [1993] ECJ

Gibson v Yorkshire Council (2000) CA

Godden v Hales (1686) KB

Grimaldi v Fondes des Maladies [1991] ECJ

Hall v Hall (1944) CC

Hoffman La Roche v Commission [1979] ECJ

Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle fur Getreide und Futtermittel Case [1970] ECR

Italy v Watson & Belmann [1976] ECJ

Jenkins v Kingsgate [1981] ECJ

Kenny v Insurance Officer [1978] ECJ

Lee v Bude & Torrington Junction Rly Co (1871) CCP

Litster v Forth Dry Dock and Engineering Co [1990] HL

Macarthys Ltd v Smith, [1979] (Case 129/79) ECJ and CA

Madzimbamuto v Lardner-Burke [1969] PC

Marleasing SA v La Commercial SA 1990 ECJ

Marshall v Southampton Health Authority (No 1) [1986] ECJ

Marshall v Southampton Health Authority (No 2) [1993] ECJ

Omega Case C-36/02 (ECJ) [2004]

P v S [1996] ECJ

Procureur de la République v Chiron [1988] ECJ

Pubblico Ministero v Ratti [1980] ECJ

R v Bouchereau [1981] ECJ

R v Jordan [1967] DC

R v Marlborough Street Magistrate ex p Bouchereau (1977) DC

R v Plymouth Justices ex p Rogers [1982] DC

R v Secretary of State for Transport Ex p Factortame (No 7) (2001)

R v Secretary of State for Transport Ex p Factortame (No.2) [1991] HL

R v Secretary of State for Transport Ex p Factortame (No.4) [1996] ECJ

R v Secretary of State for Transport Ex p Factortame (No.5) (1998) CA

R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL

Re a holiday in Italy [1975]

Re Tachographs: The Commission v United Kingdom (1979)

Simmenthal v Commission [1980] ECJ

Taittinger v Allbev [1994] CA

Thoburn v Sunderland City Council (2001) QBD

United Kingdom v Commission [1998] ECJ

Van Duyn v Home Office [1974] ECJ

Van Gend en Loos v Netherlands [1963] ECJ

Vauxhall Estates v Liverpool Corporation [1932] DC

Vehicle Inspectorate v Southern Coaches (2000) DC

Von Colson v Land Nordrhein-Westfahlen [1984] ECJ

Webb v EMO Air Cargo [1994] HL

Woodman v Carpenter Farrer [1993] EAT

Wychavon DC v Secretary of State (1993)

 

Blackburn v Attorney-General (1971) CA

^[EC Law – Treaty of Rome irrevocable once signed and limits the sovereignty of United Kingdom - but future parliament not bound]
C sought declarations that on entry into the Common Market, by signing the Treaty of Rome there would be a breach of the law because the government would be surrendering, in part, the sovereignty of the Crown in Parliament for ever.

 

It was accepted by the court that signature of the treaty would be irreversible and would limit the sovereignty of the United Kingdom.

 

It was accepted EC regulations and ECJ decisions would automatically become binding on the United Kingdom.

 

Held:  Treaty-making powers rest in the Crown, acting on the advice of its Ministers and their actions can not be challenged or questioned in the courts.  No Parliament could bind its successor, so the Treaty of Rome (which once signed was irrevocable), could be reversed by a subsequent Parliament.

 

Lord Salmon said of Parliament's legislative powers that

"...it can enact, amend and repeal any legislation it pleases."

The appeals were dismissed because the questions posed were hypothetical.

Also here

Bossa v Nordstress Ltd [1998] EAT

[EC Law - An Act of Parliament incompatible with EC law can and must be declared invalid and ineffective to the extent of that incompatibility]
D an airline at Gatwick refused to employ C as cabin crew because he was Italian. C complained of unlawful discrimination. Applying s.8 of the Race Relations Act 1976, the Employment Tribunal said it had no jurisdiction to hear a complaint in relation to employment wholly or mainly outside Great Britain.

 

Held: C was entitled to a remedy. Art.48 of the EC treaty (which guarantees freedom of movement irrespective of nationality) has direct effect, and it was therefore the duty of the Employment Tribunal to override any provision of the race discrimination legislation that conflicted with it, and to disapply s.8 so as to allow C a remedy.

British Railways v Pickin [1974] HL

 

Red Triangle indicating "Must Know" material

[EC Law - An Act of Parliament cannot be challenged]
D, BR was alleged to have deceived Parliament in the course of enacting the British Railways Act 1968 - which entitled them to sell land - through the private bill procedure. C owning property adjacent to a disused railway claimed that he was entitled to the land no longer required for running the railway. He claimed the statute was not valid.

 

Held: the pleading be struck out as disclosing no cause of action.

Lord Reid:

"the idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution."

Bulmer v Bollinger [1974] CA

 

Red Triangle indicating "Must Know" material

[EC Law – preliminary reference procedure]
D described Babycham as "champagne perry". C, Champagne makers sought to prevent use of "champagne". It was suggested that questions arising from Regulations governing the labelling of wine should be referred to the ECJ.


Held:
Lord Denning MR using his "incoming tide speech" said the conditions for making a reference are that the facts of the case should already have been decided, that the decision of the question referred should be conclusive of the case, that there had been no previous ruling on the point by the ECJ, and that the provision in question was not acte clair.

Chiron v Murex [1995] CA

[EC Law – preliminary reference procedure]
D infringed C’s patent. The trial judge struck out a defence based on the EC Treaty. Court of Appeal refused a reference to the ECJ.

 

Held: Except where the Court of Appeal was the court of last resort, it was not obliged to make a reference to the ECJ. The House of Lords was the court of last resort. If the Court of Appeal refused leave then the House of Lords should consider, before also refusing, whether an issue of Community law arose that was needed for its decision, and take such action as it considered appropriate.

CILFIT v Ministry of Health [1983] ECJ

[EC Law – preliminary reference procedure]
A dispute over health regulations.
Wool is not expressly listed in the appropriate part of the Treaties as being a product of animal origin. Referred to the ECJ.

 

Held: Expressly accepting the French concept of acte clair. No reference to the ECJ need be made if the question of EC law is irrelevant, or the relevant provision has already been interpreted by the ECJ, or the correct application of EC law is so obvious as to leave no room for doubt.

Clean Car Autoservice v Wien [1998] ECJ

[EC Law effect of Treaties]
D set up a branch in
Austria and appointed a German manager; Austrian domestic law required such managers to be resident in Austria.

 

Held: This rule amounted to indirect discrimination violating Art.48 of the Treaty (on free movement of workers), and could be relied upon by an employer just as by an employee.

Costa v ENEL [1964] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law – overrides any national law that conflicts with it]
C was affected by the nationalisation of the Italian electricity industry, and claimed the procedure had been unlawful because EC law had not been complied with.

 

Held: Unlike other international treaties, the treaty instituting the EEC has created its own order which was integrated with the national orders of the member states as soon as the treaty came into force, and as such was binding upon them ... The acceptance by member states of the rights and obligations arising from the treaty carries with it a clear and permanent limitation of their sovereign rights, and any subsequent unilateral act incompatible with the aims of the Community cannot prevail.

  • "the EEC Treaty has created its own legal system which…became an integral part of the legal systems of the Member States and which their courts are bound to apply."

  • "Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves."

  • "The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardising the attainment of the objectives of the Treaty."

Cowan v Trésor Public [1991] ECJ

[EC Law effect of Treaties]
A British tourist mugged in
Paris was refused the compensation paid from public funds to French citizens who were victims of crime.

 

Held: Art.7 forbade discrimination between the nationals of member states, individual member states may not adopt measures that restrict the fundamental freedoms guaranteed by Community law.

DEFRA v Asda (2003) HL

 

Whole case here

^[EC Law - direct applicably - mechanism for ever changing Community Law]
D, ASDA were inspected by a DEFRA inspector who found vegetables below standard, contrary to section 14(1)(a) of the Agriculture and Horticulture Act 1964. ASDA successfully argued, at first instance, that this was not an offence known to law.

 

Held: Asda had contravened EC regulations, where vegetables do not comply with the minimum requirements laid down by Commission Regulation (EEC) 79/88. This regulation is ‘binding in its entirety and directly applicable in all Member States’, see see Antonio Muñoz y Cia SA v Frumar Ltd [2003] ECJ.

 

Compulsory grading and labelling of horticultural produce existed in this country before the United Kingdom joined the European Economic Community (the 1964 Act). The 1964 Act was an enabling Act and subsequent Regulations from time to time laid down the standards for different fruit and vegetables.

 

When the United Kingdom joined the European Economic Community on 1 January 1973 there were already in existence Community regulations governing the grading of certain types of horticultural produce. So this country’s law on this topic had to be brought into line with the existing Community rules, which were “directly applicable”.

 

Whenever Community grading rules change, the relevant sections of the 1964 Act apply automatically, they become directly applicable in this country, this happens automatically.

The mechanism chosen by Parliament for implementing Community obligations is a matter of legislative choice for Parliament. Courts should not approach the interpretation of implementing statutes or regulations as though there were a presumption that they do not embrace future changes in Community legislation. There is no such presumption.

 

Defrenne v Sabena (No.2) [1976] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law effect of Treaties]
D employed C as an air stewardess. C claimed equal pay with male stewards, and sought to invoke the relevant Treaty provision.

 

Held: She was entitled to do so: subject to the criteria in Reyners, the Treaties had horizontal as well as vertical direct effect.

"The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals."

An individual can rely on a Treaty article to enforce rights against another individual in the national courts.

Duke v GEC Reliance Ltd [1988] HL

 

Red Triangle indicating "Must Know" material

 

Whole case here

[EC Law - previous legislation cannot be interpreted according to subsequent directives - principles of indirect effect not applied]
Mrs Duke was required by contract to retire at 60, whereas men in her company 65.  The Sex Discrimination Act 1975 was not passed to give effect to EC Law and could be relied upon.

 

Held: The House of Lords did not follow Marshall as instant case was not a matter of EC Law.


Lord Templeman:

"S.2 (4) ECA 1972 does not…enable or constrain a British court to distort the meaning of a British statute in order to enforce against an individual a Community Directive which has no direct effect between individuals."

This means that Directives have Vertical not Horizontal effect.

 

Edinburgh & Dalkeith Railway Co v Wauchope (1842)

 

Red Triangle indicating "Must Know" material

 

 

Whole case here

[Parliament – supremacy – Act cannot be challenged]
Mr Wauchope claimed that the private Act obtained by the Railway Company should not be applied as it had been passed without his having notice of the passing of the Act as required by Standing Orders.

 

Held: Mr Wauchope was unsuccessful in his claim and Lord Campbell made a statement that has subsequently been extensively quoted.

"All that a court of justice can look to is the parliamentary roll: they see that an Act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament."

Ellen Street Estates v Minister of Health [1934] CA

[EC LAW - no Parliament can bind its successors]
An Act of 1919 had laid down certain rules for the compulsory purchase of land, and said that any other Act inconsistent with those rules should have no effect. In 1925 an Act was passed which was inconsistent.

 

Held: The later Act was valid notwithstanding the earlier rule.

Equal Opportunities Commission v Secretary of State [1994] HL

[EC Law - An Act of Parliament incompatible with any requirement of EC law can and must be declared invalid and ineffective to the extent of that incompatibility]
The EOC sought a declaration that certain provisions of the Employment Protection (Consolidation) Act 1978, dealing with redundancy conditions for part-time workers, were indirectly discriminatory and therefore incompatible with EC Law.

 

Held: The Divisional Court had the power, and should grant such a declaration.

European Communities Act 1972 s.2

See edited text here.

(1) All such rights, powers, liabilities, obligations and restrictions ... created or arising by or under the Treaties ... as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be ... enforced accordingly ...

(2) Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision ... for the purpose of implementing any Community obligation of the United Kingdom 

(4) The provision that may be made under subsection (2) above includes ... any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed ... shall be construed and have effect subject to the foregoing provisions of this section ...

Faccini Dori v Recreb [1995] ECJ

[EC Law effect of Directives]
C had made a contract in 1989 for a course of English lessons, but sought to withdraw within a few days of signing and relied on a right in a Council Directive. The Directive should have been implemented by all Member States by the end of 1987, but was not implemented in
Italy until 1992.

 

Held: Provisions of the Directive were sufficiently precise and the law developed in Marshall and similar cases was meant to prevent states from relying on their own default.

A Directive could not impose obligations on an individual (the company) and in the absence of national legislation the complainant could not therefore rely on the directive to give her rights against the company.

Felixstowe Dock Railway Co v British Transport Docks Board [1976] CA

 

Red Triangle indicating "Must Know" material

Lord Denning MR:

     "It seems to me that once the Bill is passed by Parliament and becomes a statute that will dispose of all discussion about the Treaty. These courts will have to abide by the Statute without regard to the Treaty."

 

Foster v British Gas [1991] HL

 

Red Triangle indicating "Must Know" material

[EC Law – emanation of the state]
D, British Gas discriminated against two women CC in their retirement age.
A case very similar to Marshall.

 

Held: an "emanation of the state" against which a directive could have direct effect would include a body which had been made responsible by the state for providing a public service under state control, and which had special powers to enable it to do so. The House decided that definition was wide enough to cover British Gas (which had been privatised some years earlier), and remitted the case to the Industrial Tribunal for compensation to be assessed.

It was decided that the company was a state controlled body providing a public service.

"a Directive might be relied on against organisation or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal relations between individuals."

Francovich v Italy [1993] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law effect of Directives – direct effect]
A Directive required Member States to make provision for compensation schemes for employees of failed businesses, but
Italy failed to do so. CC were employees of a company that collapsed, and claimed against their government for their losses.

 

Held: A Member State can be required to make good any losses resulting from its own failure to implement a Directive, providing there was a link between the non-enactment and the loss, and that the directive gave specific rights to individuals.

Gibson v Yorkshire Council (2000) CA

[EC Law effect of Directives – direct enforcement of the Working Time Directive]
D who employed C as part-time worker failed to allow her four weeks paid holiday as required by the Working Time Directive. At the time this directive had not been implemented by the
UK by the required date.

 

Held: The provisions of the directive were not sufficiently precise to have direct effect making them enforceable by an individual against the state. From the date the directive should have been implemented until the date it was implemented, an employee of an emanation of the state was able to take advantage of it.

Godden v Hales (1686) KB

[EC LAW - no Parliament can bind its successors]
D, an army officer did not take the oaths required by the Test Act, but claimed when prosecuted that he had a dispensation from the King.

 

Held: The power of dispensation was well established at common law, and that D was not required to take the oaths.

If an Act of Parliament had a clause in it that it should never be repealed, yet without question the same power that made it may repeal it.

Grimaldi v Fondes des Maladies [1991] ECJ

[EC Law – opinions and recommendations]
An Italian C worked in
Belgium, but developed a hand injury and claimed compensation for an industrial injury. The Belgian courts ruled the injury Belgian schedule of industrial injuries in spite of a Recommendation of the Commission 25 years earlier.

 

Held: An individual could not rely on a Recommendation to establish rights before a national court. Recommendation can clarify the interpretation of national or Community legislation.

Hall v Hall (1944) CC

[Parliament – supremacy – Act cannot be challenged]
C sought to defeat the other's claim to title in a house by claiming that the Probate Act 1857 had not received the royal assent as the Stuarts were deprived of the throne in 1649.

 

Held: A statute that had been acted on for more than eighty years, could not be ignored and that in any event Parliament could validate all titles by passing an Indemnity Act.

Hoffman La Roche v Commission [1979] ECJ

[EC Law – general principles of law]
D was guilty of unfair trading practices in relation to the sale of vitamins, in which they had a near-monopoly, and the Commission imposed a fine of DM1 million. D complained that they had not been allowed to see, and respond to, some of the evidence on which the decision had been based.

 

Held: Upholding the decision while reducing the fine, the Court said the observance of the right to be heard is essential in any proceedings, in which sanctions are to be imposed.

Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle fur Getreide und Futtermittel Case [1970] ECR

 

Red Triangle indicating "Must Know" material

"the law stemming from the Treaty…cannot…be overridden by rules of national law….[T]he validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights [in]…the constitution of the State or the principles of a national constitutional structure."

Italy v Watson & Belmann [1976] ECJ

[EC Law – general principles of law]
Italian law required all foreigners to register with the police within three days of entering the country, and provided for fines and deportation of they refused to do so.

 

Held: This law was not inherently incompatible with the Treaty provisions relating to the free movement of workers.

Jenkins v Kingsgate [1981] ECJ

[EC Law – preliminary reference procedure]
D paid a lower hourly rate to part-time workers than to full-time workers. C brought an action against D because part-time workers included a higher proportion of women.

 

Held: It was lawful as it was because of factors objectively justifiable without reference to sex.

Kenny v Insurance Officer [1978] ECJ

[EC Law – preliminary reference procedure]
An Irishman resident in
Great Britain was receiving sickness benefit. He went on a visit to Ireland, where he was imprisoned for an old offence; while in prison he became ill and was treated in a hospital outside the prison. He claimed sickness benefit for his period in hospital, but was refused.

 

Held: It was permissible for national rules to be applied in such cases as long as there was no discrimination.

Lee v Bude & Torrington Junction Rly Co (1871) CCP

 

 

Red Triangle indicating "Must Know" material

[Parliament – supremacy – Act cannot be challenged]
It was alleged that Parliament had been induced to pass an Act as a result of fraud.

 

Held: Rejecting the argument.

Willes J:

"Are we to act as regents over what is done in Parliament with the consent of the Queen, Lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law, the courts are bound to obey it."

Litster v Forth Dry Dock and Engineering Co [1990] HL

[EC Law – interpretation – purposive approach]
Gave purposive interpretation to legislation introduced to implement Directive.
 

Macarthys Ltd v Smith, [1979] (Case 129/79) ECJ and CA

 

Red Triangle indicating "Must Know" material

^[EC Law – Parliamentary supremacy - referral to ECJ -  direct applicable law - example of horizontal direct effect]

Wendy Smith was employed as a stockroom manageress and was paid about 20 per cent less than the (male) stockroom manager who had left 4 months earlier.  She left the job and sued for equal pay.

 

She won at the Employment Tribunal and at the appeal tribunal basing her claim on the Equal Pay Act 1970  The employer appealed to the Court of Appeal

 

The The CofA (Lord Denning MR dissenting) used a grammatical constructionist approach and said that the words in Equal Pay Act 1970 were in the present tense and so looked to the present and the future.  Because of that they did not allow comparison with a male employee who had been employed doing a similar job.  However, it was not easy to apply this approach to article 119 of the EEC, so reference was made to the European Court of Justice.
 

Held (ECJ): Article 119 of the EEC Treaty required that men and women should receive equal pay for equal work and that did not only mean when the men and women were doing equal work for the same employer at the same time.

 

Article 1 of Directive 75/117/EEC (equal pay for men and women) is directly applicable in the member states.
The case law of the ECJ establishes that the principle of equal pay set out in article 119 of the Treaty is directly applicable in the member states.

Article 1 of the Directive is inextricably linked with article 119 of the Treaty

 

Since the court has held, article 119 is directly applicable in the member states, article 1 of the Directive must necessarily be so also, otherwise the aim of article 119 will be frustrated.
 

On reference back to the Court of Appeal: 

Held: That pursuant to the European Communities Act 1972 Community law was part of English law and where English law was inconsistent with it Community law prevailed; that, accordingly, since article 119 took priority over any provision inconsistent with it in the Equal Pay Act 1970, the appeal would be dismissed.

 

Lord Denning said

"Community law is now part of our law: and, whenever there is any inconsistency, Community law has priority. It is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with it."

Madzimbamuto v Lardner-Burke [1969] PC

[Parliamentary supremacy]

"It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did those things. But that does not mean that it is beyond the power of Parliament to do these things. If Parliament chose to do any of them, the court could not hold the Act of Parliament invalid."

Marleasing SA v La Commercial SA 1990 ECJ

 

Red Triangle indicating "Must Know" material

 

 

Whole case here

 

 

[EC Law – effect of directives]

D a Spanish company was alleged by C to have been set up by contract infected by fraud. D defended the action and attempted to rely on a Directive.
 

Held: D was entitled to rely on a Directive even though Directives do not have horizontal effect. This was because the national courts must if at all possible construe national law in accordance with relevant Directives. This applies even if the national law in question existed before the date on which the Directive came into effect.

National courts are required to interpret legislation according to subsequent or previous directives.

1. A Directive cannot of itself 'impose obligations on private parties';

2. National courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. This obligation applies whether the national provisions in question were adopted before or after the Directive;

3. National courts were 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved.

Courts must do everything possible to interpret domestic law to comply with Community law.

Marshall v Southampton Health Authority (No 1) [1986] ECJ

Red Triangle indicating "Must Know" material

[EC Law - UK obliged to legislate to implement obligations]
C was forced to retire at the age of 62 from her employment with the National Health Service. This was a breach of the Equal Treatment Directive 1976, but the Sex Discrimination Act 1975 excluded matters related to retirement from its provisions.

 

Held: C was entitled to succeed, and could use the provisions of the Directive against her employers (who were an emanation of the state) because the U.K. had not properly implemented the directive 

Marshall v Southampton Health Authority (No 2) [1993] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law - UK obliged to legislate to implement obligations]
The second case was about the amount of compensation. The Sex Discrimination Act 1975 limited this to £6250 and an Employment tribunal, unlike a court, had no power to award interest.

 

Held: Since the Directive required adequate compensation for the loss and damage actually suffered, an upper limit was unacceptable, and allowance must be made for the effects of the passage of time.

Omega Case C-36/02 (ECJ) [2004]

[EC Law - Article 234 reference]
In 1994 Omega started laser game facilities in Germany where players shoot at each other with laser guns. In other EU countries these games are acceptable but in Germany where human dignity is a constitutional principle the police took an order forbidding Omega from operating the “playing at killing” game on the ground that the act of simulated homicide and the trivialisation of violence engendered were contrary to fundamental values.

As the equipment was lawfully made in the UK the company sought to argue that the order breached its rights under the EU principle of freedom to provide services. The German Supreme Administrative Court found that the game was an affront to human dignity as protected under the German Constitution nevertheless referred to the ECJ under Article 234 on the lawfulness of the prohibition under Community law.

Held: The ECJ found that the protection of human dignity was a principle common to the EU Member States, not least through the application of the European Convention on Human Rights. It was immaterial that Germany should be the only EU State to have given this principle constitutional status; the protection of a fundamental right was a legitimate interest which justified “a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.”
 

Comment:
From the strict perspective of EU law the Court has affirmed that there is no common market in morality and it is striking how far it is prepared to go. It appears that moral standards and the law have moved on since the 1986 Conegate case (Case 121/85) where the Court held that Britain could not stop the import of inflatable dolls on the grounds of public morality, but the Court’s decision in Omega could re-ignite debates that most would consider closed.

 

It is possible that the court would reconsider issues such as abortion, which the Court held in Grogan (Case 159/90) was a service within the meaning of Community law, with the consequence that Ireland, where abortion was illegal could not stop its nationals travelling to another EU country where it was lawful.

With the enlargement of the EU it could be that religious and moral principles could come back on the agenda, for example by the activity of the so-called Dutch “abortion ship” that was refused docking in Portugal and Poland earlier this year.

The Advocate General in Omega referred to the “Television Without Frontier Directive” which requires states not to prejudice respect for human dignity, is morality returned to the centre stage of EU law?

 

P v S [1996] ECJ

^[EC Law - UK obliged to legislate to implement obligations]
D,
Cornwall College dismissed C, senior employee after she informed them he was to undergo "gender reassignment" to become female. The college claimed she was being made redundant.

 

Held: On referral to the ECJ the question whether dismissal of a transsexual for a reason related to gender reassignment constituted a breach of Council Directive 76/207 Art. 5(1). The 1976 Directive could not be confined solely to discrimination arising from a person's sex, but extended to discrimination of the sort practised here.

 

C won

Procureur de la République v Chiron [1988] ECJ

[EC Law – decisions of the ECJ]
French courts referred questions concerning petrol prices imposed by French law.

 

Held: Where an issue raised under Art.177 is the same as one already settled in a previous case the Court need only refer to its previous judgement.

Pubblico Ministero v Ratti [1980] ECJ

[EC Law effect of Directives]
D sold chemical solvents, and labelled them in accordance with two EC directives. The government of
Italy had not implemented the directives, and D was prosecuted for failing to label their products in accordance with the existing Italian law.

Held:
Where a member state had not implemented a Directive by the required date, it could not rely on its own failure in an action against a citizen.

R v Bouchereau [1981] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law – preliminary reference procedure]
D, a Frenchman working in
London was convicted twice within a short period of possessing small quantities of amphetamines and cannabis. The stipendiary magistrate referred to the ECJ as to whether deportation this would be contrary to the Community rules on the free movement of workers.

 

Held: There must be a "genuine and sufficiently serious" threat to public order.

R v Jordan [1967] DC

[Parliament – supremacy – Act cannot be challenged]
J had been sentenced to imprisonment under the Race Relations Act 1965. He applied for legal aid to enable him to apply for habeas corpus on the grounds that the Race Relations Act prohibited free speech.

 

Held: Dismissing the application holding that Parliament was supreme and there was no power in the courts to question the validity of an Act of Parliament.

R v Marlborough Street Magistrate ex p Bouchereau (1977) DC

[EC Law – preliminary reference procedure]
A
application for judicial review from R v Bouchereau. An order of mandamus was granted requiring the magistrate to consider his application for legal aid to cover the proceedings in the ECJ.

 

Held: The preliminary reference was to be regarded as part of the proceedings in the Magistrates' Court, and was therefore eligible for legal aid.

R v Plymouth Justices ex p Rogers [1982] DC

[EC Law – preliminary reference procedure]
D, a French fisherman was fishing illegally he sought a reference under Art 234 (Art.177) on the validity of EC Regulations and national legislation.

 

Held: A magistrates' court undoubtedly has power to refer a case to the ECJ but it is usually better for the magistrates to make their own decision and leave any necessary reference to be made by a higher court, which may be able to frame the questions of law with more precision.

R v Secretary of State for Transport Ex p Factortame (No 7) (2001)

 

[European Law Limitation]
Breaches of articles in the European Treaty by the
UK government were tortious in nature, and the period for claiming was six years. Applicants sought to add new heads of losses, and other parties sought to add their claims. They were however prevented from doing so, being out of time.

R v Secretary of State for Transport Ex p Factortame (No.2) [1991] HL

 

Red Triangle indicating "Must Know" material

[EC Law - An Act of Parliament incompatible with any requirement of EC law can and must be declared invalid and ineffective to the extent of that incompatibility]
D, the
UK government enacted the Merchant Shipping Act 1988.

 

C, Spanish fishermen claimed this act affected UK fisheries policy and was contrary to EC Law.

 

They sought an order directing the Secretary of State not to enforce the Act pending a full trial of the issue. The Divisional Court referred the substantive question to the ECJ, but ordered by way of interim relief that the Regulations should not be applied as against C.

 

The Court of Appeal and House of Lords held that no national court had the power to suspend the operation of an Act of Parliament.

 

Held: The ECJ disagreed. A national court, which, in a case before it concerning EC law, considers that the sole obstacle, which precludes it from granting interim relief, is a rule of national law, must set aside that rule. The House of Lords thereupon granted an order restraining the Secretary of State from enforcing the legislation in question against C.

Summary of Factortame (1-9)

1. Divisional Court refer to ECJ question of compatibility of MSA with EC law and grant interim relief (injunction)

2. Interim relief issue appealed to CofA who reverse - statute could not be disapplied

3. Appeal to HL who refer interim relief question to ECJ

4. ECJ rule on HL's reference that MSA should be suspended (disapplied) until compatibility issue determined:

"The full effectiveness of Community law would be impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judicial decision to be given on the existence of rights claimed under Community law."

In response HL granted interim relief disapplying 1988 Act. Lord Bridge expressed acceptance of the supremacy of Community law.

5. R v SS for Transport, ex p Factortame (No 3) [1991]  ECJ ruled on Divisional Court's original reference - Art 52 had been infringed by nationality and residence requirements of MSA which should be disapplied.

Since Factortame UK courts will not apply an Act if it conflicts with Community law.

R v Secretary of State for Transport Ex p Factortame (No.4) [1996] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law effect of Directives – direct effect]
CC brought an action against the
UK for damages for lost profits. On a preliminary reference the ECJ again found in their favour. The principle that member states are obliged to make good any damage caused by their breach of Community law applies no matter whether it is the national legislature, the executive or the judiciary that is responsible for the breach.

 

Held: Community law confers a right to reparation where three conditions are met:

1. The rule of law infringed is intended to confer rights on individuals,

2. The breach is sufficiently serious (the decisive test of which is that the member state manifestly and gravely disregarded the limits on its discretion), and

3. There is a direct causal link between the breach of the obligation resting on the state and the damage sustained.

R v Secretary of State for Transport Ex p Factortame (No.5) (1998) CA

Red Triangle indicating "Must Know" material

[EC Law effect of Directives – direct effect]
Following the decision of the ECJ in ex p Factortame (No.4), the three conditions were met for the Government to be required to pay compensatory damages.
 

R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) HL

Red Triangle indicating "Must Know" material

[EC Law - damages - discrimination -Government liability]
The enactment of legislation imposing nationality requirements on the registration of fishing vessels amounted to discrimination in contravention of the EC Treaty and was a sufficiently serious breach rendering the
UK government liable to pay damages to nationals of other Member States who had suffered loss as a result, notwithstanding that the UK had acted in good faith.

Re a holiday in Italy [1975]

[EC Law effect of Regulations]
D the DSS stopped the sickness benefit of a
UK man who was unable to work following a heart attack, but went on a holiday in Italy. He had previously been advised that the holiday would not affect his benefit entitlement.

 

Held: The National Insurance Commissioner dismissed his appeal and applied an EC Regulation. Continued benefits were guaranteed for those going for medical treatment in other member states, but rest and fresh air could not qualify.

Re Tachographs: The Commission v United Kingdom (1979)

 

Red Triangle indicating "Must Know" material

[EC Law – effect of regulations on domestic law]
Regulations to have tachographs fitted to certain vehicles were not being enforced.

 

Held: Their enforcement ordered by the EU.

Simmenthal v Commission [1980] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law – overrides any national law that conflicts with it]
A conflict arose between a European Regulation and a provision of domestic law. Under Italian law only the
Constitutional Court can rule on the validity of a law.

 

Held: Every national court at any level was obliged to give supremacy to Community law, and to apply it in preference to any national law that might be inconsistent.

"every national court must…apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule."

"a national court…is under a duty to give full effect to [Community law], if necessary refusing…to apply any conflicting provision of nation legislation…."

Taittinger v Allbev [1994] CA

[EC Law effect of Regulations]
D was selling "Elderflower
Champagne". Champagne makers C brought an action to prevent C selling the named product.

 

Held: A Regulation concerning the labelling of wine was applied and the injunction granted.

Thoburn v Sunderland City Council (2001) QBD

 

[Overriding effect of EC Law]
D a greengrocer sold bananas by the pound contrary to the Weights and Measures Act 1985.

A provision known as a “Henry VIII” clause was contained in the Weights and Measures Act 1963, s 8(2) which conferred power on a subordinate body to amend the statute itself.

 

The minister had done this.

 

To sell by the pound was lawful under the Act, but the Act was amended because of a European Directive which said only metric units could be used.

 

Held: The Weights and Measures Act 1985 did not impliedly repeal s 2(2) of the European Communities Act 1972. There was no inconsistency between a provision conferring a Henry VIII power to amend future legislation. Moreover, s 2(2) of the latter Act read with s 2(4) permitted Parliament to delegate the power to amend primary legislation and on its face allowed amendments of the kind made to the 1985 Act.

 

Comment: Steven Thoburn died in 2004.

In 2007 European Union commissioners ruled that the UK could carry on using imperial measurements, such as pints, pounds and miles. The decision will not affect current law on metric measurements, but means imperial equivalents can be used too.

2007 November:
The European Parliament endorsed a European Commission proposal on units of measurement, which means that Britain and Ireland can continue to use miles for road signs and speed indications and pints, for bottled milk and draught beer and cider. Also, continue to use indefinitely labels with supplementary or dual indications of both metric and imperial sizes.
Directive 80/181/EEC, allowed only a temporary use of pints, miles and dual labelling.
 

United Kingdom v Commission [1998] ECJ

[EC Law – to be applied by the English courts irrespective of the wishes of Parliament]
The
UK brought an action to annul a Commission Decision banning the export of any beef products, because of BSE.

 

Held: Dismissing the action, the Court said the Decision had been made within the Commission's powers to protect health, and was not disproportionate to the aim to be achieved.

 

Van Duyn v Home Office [1974] ECJ

 

Red Triangle indicating "Must Know" material

 

 

 

 

 

 

[EC Law - first reference to ECJ by English court]
D, the Home Office refused C, Miss Van Duyn leave to enter the
UK on the grounds of her undesirability. C was a Dutch national and a practising Scientologist who was offered work as a secretary by the Church of Scientology in England. She brought an action for a declaration that the attitude of the Home Office was in breach of the provisions of the EC Treaty. The Church of Scientology was established in the USA as a pseudo-philosophical cult. Opposition to it was based on its alienation of members of families, its indoctrination of children and its harm to the individual personality. Whilst not actually unlawful in the UK, the Home Office was anxious to prevent it spreading.

 

Held: A member state could refuse leave to enter is territory on the ground of association with an organisation whose activities were deemed to be contrary to the public good. It was immaterial that the organisation is not actually unlawful and that nationals of member state are permitted to work for it.

The useful effect of directives would be weakened if individuals were prevented from relying on them before national courts. Since the directive laid down an obligation which was not subject to any exception or condition, and by its nature did not require intervention on the part of the Community or member state, it was to be regarded as directly effective conferring enforceable individual rights which national courts must protect. – that is, clear, precise and unconditional.

 

UK won

Van Gend en Loos v Netherlands [1963] ECJ

 

Red Triangle indicating "Must Know" material

[EC Law – overrides any national law that conflicts with it]
C objected to the imposition of certain customs duties, which they claimed were in breach of the Treaty.

 

Held: An individual (or a corporation) can rely on the provisions of the Treaties as against a national government, and can enforce its rights thereunder in a domestic court.

"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign right, albeit within limited fields."

Vauxhall Estates v Liverpool Corporation [1932] DC

 

Red Triangle indicating "Must Know" material

[Parliament – supremacy – cannot bind future parliament]
D compulsorily purchased land belonging to the complainant. C claimed that compensation should be assessed on the basis not of the Housing Act 1925 but the Acquisition of Land (Assessment of Compensation) Act 1919 S7 (1) stated:

'The provisions of the Act or order by which the land is authorised to be acquired...shall...have effect subject to this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not have effect.'.

Held: that even if the Act could be construed as intending to govern future Acts which was doubtful; the relevant provisions must be regarded as being impliedly overridden by the inconsistent provisions of the later Act.

Avory J:

" Speaking for myself, I should certainly hold, until the contrary were decided that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions."

Vehicle Inspectorate v Southern Coaches (2000) DC

[EC Law effect of Regulations]
D a coach company was prosecuted for failing to ensure that each of two drivers used his tachograph and took rest periods as required by a Council Regulation. A coach travelling from
Chichester to Brugge carried the two drivers. At any given time one was actually driving, while the other was resting but could have taken over in the event of an emergency.

 

Held:  Referring only to the Regulation, the Divisional Court remitted the case with a direction to convict: a driver was not "resting" if he was in the vehicle and available to drive if required.

Von Colson v Land Nordrhein-Westfahlen [1984] ECJ

Red Triangle indicating "Must Know" material

 

Whole case here

[EC Law – legislation must be interpreted to give effect to Directives]
D, the German prison service refused to employ C, a woman, for work in a male prison. C brought an action relying on the Equal Treatment Directive. The German court held it could only award compensation for travel expenses to the interview.

Held: The domestic court should interpret all national laws in the light of directives, even if the law in question was not based on the directive. The remedy offered must be sufficient to give effect to EC law. A nominal amount did not give effect.
Legislation should be interpreted according to the relevant directives.

Art 5 EC requires member states to "take all appropriate measures" to ensure fulfilment of Community obligations. Courts must interpret national law so as to ensure the objectives of Directive are achieved.

Webb v EMO Air Cargo [1994] HL

^[EC Law – to be applied by the English courts irrespective of the wishes of Parliament]
D employed C as as a clerk, initially to cover the maternity leave of an existing employee.  D intended that C should stay on after the other employee returned. Two weeks after starting work C found she too was pregnant; since she would be unable to work during the maternity leave period, she was dismissed.

 

The case was referred to the ECJ for a preliminary ruling which the House of Lords applied.

 

Held: This was direct discrimination on the grounds of C’s sex: pregnancy could not be likened to other illnesses, and since C had been employed on a permanent basis she would not be absent for the whole of the intended employment period.

 

C won

Woodman v Carpenter Farrer [1993] EAT

[EC Law – general principles of law]
D the employers of C a junior architect dismissed her and she claimed compensation for sexual harassment The harassment was caused by pinups, leering at her legs and general sexist remarks.

 

Held: Tribunals could usefully refer to the Commission's Recommendation and the annexed Code of Practice for a definition of sexual harassment. Case remitted for rehearing.

Wychavon DC v Secretary of State (1993)

[EC Law effect of Directives – direct effect]
D, the Government had not properly implemented a relevant Directive. The local authority C sought to have quashed a planning inspector's decision to allow the building of poultry houses based on the directive.

 

Held: A local authority was not an individual for the purposes of Community Law, and so could not take advantage of the "direct effect" procedure.

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