Case C-160/14 Ferreira da Silva and others – a more lenient approach towards the acte clair doctrine?

By Iliya Tsikalov

In its preliminary ruling given on September 9th 2015 pursuant to a reference by the Court of First Instance, Lisbon (Varas Civeis de Lisboa)[1] the Court of Justice of the European Union (CJEU) elaborated on the notion of ”transfer of a business” in light of Directive 2001/23 and in that respect also dwelled on the obligation of the Portuguese Supreme Court to refer the question to the CJEU for a preliminary ruling.

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The French Council of State regulated the auctioneer profession by posing strict diploma conditions

Conseil d’État, 6ème / 1ère SSR, 17/04/2015, 373589, Inédit au recueil Lebon

The present case concerns the access to professional activities and the requirements related to professional qualifications.

A French decree introduced the Article R.321-18 into the French Commercial Code providing that auctioneer’s activity might be exercised only by persons possessing legal diploma, diploma in Art studies or diploma in Archaeology. Two professional organisations brought an action for annulment before the Supreme Court (Conseil d’Etat).

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The England and Wales Court of Appeal compels the Environment Agency to issue a standard rules environmental permit for the recovery of waste

Tarmac Aggregates Ltd, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs & Anor [2015] EWCA Civ 1149 (17 November 2015)

This case is concerned with a standard rules environmental permit that is required in relation to operations involving use of waste which constitute the recovery of the waste as described in Article 3(15) of Directive 2008/98/EC (the Waste Framework Directive).

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The French Supreme Court: foreign nationals applying for child allowance should prove their regular entry, notably by providing the child’s medical certificate

Cour de cassation, Chambre civile 2, 7 mai 2015, 14-14.712, Inédit

The present case concerns the right to non-EU nationals to obtain family allowance.

An Egyptian national arrived in France. A few years later his wife and children joined him without complying with the official “family reunion” procedure. Consequently, they did not pass the medical exam organised by the French Direction for Immigration and they did not obtain the special medical certificate.

The wife applied for child allowances but the social administration refused them on the grounds that the children did not satisfy the requirements, notably the presentation the medical certificate issued by the French Immigration Service (Office national de l’immigration).
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The French Council of State posed limits on the tax consolidation of multinational companies

Conseil d’État, 9ème et 10ème sous-sections réunies, 15/04/2015, 368135, Inédit au recueil Lebon

The present case concerns taxation of multinational groups.

A French parent company had a subsidiary in Poland, which had a lower-tier subsidiary in Italy. These last companies made losses. Polish and Italian legislation did not allow them to impute their losses. As a consequence, the parent company, which was normally taxed in France, requested from French tax authorities to calculate its taxes by taking into account the losses made by the Polish and Italian subsidiaries. The French fiscal administration did not grant the request. The parent company’s request was also dismissed, in first instance, by the Administrative court of Montreil (Tribunal administratif de Montreil) and, in appeal, by the Administrative appeal court of Versailles (Cour administrative d’appel de Versailles).

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The German Federal Court (BGH) on the product liability for defective cardiac pacemaker: no need to ascertain a particular defect if a potential defect has been established

BGH, Urteil vom 09.06.2015, VI ZR 284/12

The German Federal Court (Bundesgerichtshof) decided in the present case that the implanted cardiac pacemakers of the insured ”B” and ”W” showed product defects in accordance with Article 3 (1) of the German Product Liability Law and Article 6 of Directive 85/374/EEC. The German Federal Court (Bundesgerichtshof) had in that regard referred to the jurisprudence of the CoJ whereby the CoJ noted that ”Article 6 (1) of Directive 85/374/EEC is to be interpreted as a product, which belongs to a group oder production series of products such as cardiac pacemakers and implant cardioverter defibrillators by which a potential defect is being established, is to be classified as defective without the need to ascertain a particular defect of that same product in question. (Cases C-503/13 and 504/13, NJW 2015, 1163 Boston Scientific Medizintechnik GmbH / AOK Sachsen Anhalt Die Gesundheitskasse, Betriebskrankenkasse RWE)

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The German Federal Court (BGH) on the obligation of an air carrier to pay compensation in case of re-booking of a flight

BGH, Urteil vom 17.03.2015, X ZR 34/14

In the present case the German Federal Court (Bundesgerichtshof) examined whether an air carrier is obliged to pay compensation due to denied boarding also in cases when the passenger, who already has a booked flight, is being denied boarding to his booked flight before he could check-in at the planned time. The passengers were informed that their flight was changed and re-booked which resulted in their arriving at the planned destination six hours later as with the original flight and they should have been informed about the change in accordance with Article 5 (1) (c) (I) of the Passenger Regulation at least two weeks before the planned departure time (in the present case planned for 28th of October at 09:00 hours).

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The French Supreme Court (Cour de cassation) clarifies the concept of habitual residence

Cour de cassation, Chambre civile 1, 4 mars 2015, 14-19.015, Publié au bulletin

In this case, rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility are discussed. Thus, the concept of habitual residence is clarified. A dispute arose between the parents (Mr. X. and Mrs Y.) concerning the establishment of the residence of the child. The appeal court of Limoges (Cour d’appel de Limoges) dismissed the request for the return of the child in Belgium brought by the prosecution. As a result, Mr.X. filed an action before the Supreme Court (Cour de cassation).

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The jurisdiction clause is examined by the French Supreme Court in the light of the Lugano Convention

Cour de cassation, civile, Chambre civile 1, 25 mars 201513-27264

In this case, rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters are discussed. The company ”Danne holding patrimoniale” concluded with the company ”Crédit suisse”, based in Switzerland, two credit framework contracts including a jurisdiction clause stating that the borrower acknowledges that the exclusive place of jurisdiction for all proceedings is Zurich or the place of the bank branch where the relationship is established. However, the bank is entitled to take legal action against the borrower before any other competent court. The company ICH, representing the rights of the company ”Danne holding patrimoniale” questioned the financial package in which this operation was generated. As a result, the company ICH lodged a claim against various financial intermediaries and the company Credit Suisse before a french jurisdiction, seeking a compensation for damages. Subsequently, the appeal court of Angers (Cour d’appel d’Angers) upheld the objection to jurisdiction raised by the company Credit Suisse on the basis of the jurisdiction clause.

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The England and Wales High Court confirms the grant of an authorisation for emergency use of plant protection products

Friends of the Earth Ltd, R (On the Application Of) v Secretary of State for the Environment, Food And Rural Affairs [2015] EWHC 3283 (Admin) (12 November 2015)

This case is about the placing on the market of plant protection products under Article 53 of Regulation (EC) No 1107/2009. In derogation from the common rules of the Regulation, in special circumstances a Member State may authorise the placing on the market of plant protection products, for limited and controlled use, where such a measure appears necessary because of a danger which cannot be contained by any other reasonable means.

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