case comment – Page 3 – University of Bristol Law School Blog

Same old, same old: The European Court of Justice’s fixation with the Plaumann test for individual concern

Posted on December 5, 2016November 28, 2016 by legalresearch

By Mr Konstantinos Alexandris Polomarkakis, Graduate Teaching Assistant and PhD Candidate (University of Bristol Law School).

In its Judgment in Ackermann Saatzucht and Others v Parliament and Council, joined Cases C-408/15 P and C-409/15 P, EU:C:2016:893, the European Court of Justice was given yet another chance to set out its position on the admissibility criteria, and more specifically on that of individual concern, for individuals to bring an action for annulment under the fourth paragraph of Article 263 TFEU.

This Judgment follows its recent rulings in T&L Sugars (C-456/13 P), Stichting Woonpunt (C-132/12 P), Stichting Woonlinie (C-133/12 P), Telefónica (C-274/12 P) and Inuit (C-583/11 P). The cases at hand were decided by the ECJ on appeal, lodged by two groups of German and Dutch operators active in the field of plant breeding, following the rejection by two orders of the General Court (in cases T-559/14 and T-560/14) of their annulment actions against Commission Implementing Regulation (EU) No 511/2013 establishing the standard import values for determining the entry price of certain fruit and vegetables into the EU’s internal market.

The annulment of the said regulation was sought on the basis of it being incompatible with the content of Regulation (EC) No 2100/94 and the International Convention for the Protection of New Varieties of Plants. These laid down the breeders’ exemption granting plant breeders unrestricted access to protected varieties without a duty to disclose any information, something that was allegedly hampered by the entry into force of Article 4(3) of Regulation 511/13, which bestowed upon them an obligation of disclosure. Nonetheless, the said operators’ actions for annulment were dismissed by the General Court as inadmissible due to the lack of individual concern. In their appeal to the ECJ, they contested this finding, pleaded that the Regulation runs counter to higher ranking rules, and, also, claimed that because of the inadmissibility of their action, their right to effective judicial protection has been impinged. (more…)

EU rights as British rights

Posted on November 14, 2016March 15, 2021 by legalresearch

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

According to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. (more…)

Tesco Bank and Cybercrime

Posted on November 11, 2016 by legalresearch

By Mr Andrew Charlesworth, Reader in IT Law, and Prof Keith Stanton, Professor of Law (University of Bristol Law School).

The day has arrived on which a cyber attack has succeeded in breaching a bank’s security with the result that customers’ money has been taken from their accounts. According to press reports the accounts of around 40,000 customers of Tesco Bank have been accessed and the bank has refunded £2.5 million to 9,000 who have had money removed.

Banks’ IT systems are an obvious target for cybercriminals. The fact that such systems contain both money and data on customers makes them extremely tempting. As banks have developed new channels for delivery of services, such as websites, mobile applications and social media, these have often been added, or linked, to existing out-dated systems. This increased complexity may mean that new avenues of attack are inadvertently created, and make it difficult for a bank to rapidly pinpoint the source of system risks and breaches. The increased use of distributed computing, with multiple systems running across multiple servers, can also create new system risks and simultaneously increase the number of staff requiring access. While external threats are increasing, it appears that industry insiders remain responsible for a significant share of bank fraud. How the Tesco cyber attack was carried out remains unclear, but the scale and speed of the transfer of funds suggests a degree of sophistication. (more…)

Miller: Why the Government should argue that Article 50 is reversible

Posted on November 7, 2016 by legalresearch

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

Last week’s judgment in the High Court is a ringing endorsement of the sovereignty of Parliament. It asserts that ‘Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses’ (at [20]). It explains why the ‘subordination of the Crown (ie executive government) to law is the foundation of the rule of law in the United Kingdom’ (at [26]), including references to the bedrock of the UK’s Constitution, the Glorious Revolution, the Bill of Rights, and constitutional jurist AV Dicey’s An Introduction to the Law of the Constitution. The Crown has broad powers on the international plane, for example to make and unmake treaties, but as a matter of English law, these powers reach their limits where domestic law rights are affected. EU law, by virtue of the European Communities Act 1972 (described again as a constitutional statute), does indeed have direct effect in domestic law. As a result of the fact that the decision to withdraw from the European Union would have a direct bearing on various categories of rights outlined in the judgment (at [57]-[61]), the Crown cannot, without the approval of Parliament, give notice under Article 50. (more…)

Allowable Costs under the Single Source Contract Rules: Costs for work undertaken at risk before entering into a defence contract

Posted on October 28, 2016 by legalresearch

By Dr Luke Butler, Lecturer in Law (University of Bristol Law School).

In an earlier blog, I introduced the Defence Reform Act 2014 (DRA), the Single Source Contract Regulations (SSCR) and the Single Source Regulations Office.[1] Collectively, these regulate the pricing of defence contracts awarded by the Ministry of Defence to a single source contractor. It is recalled that contractors can recover certain “Allowable Costs” incurred under a Qualifying Defence Contract (QDC) if they are appropriate, attributable to the contract, and reasonable in the circumstances (the so-called “AAR test”).[2]

But what if, ahead of the agreement of the contract, work relating to the contract is undertaken at risk pursuant to an “intention to proceed” (ITP) arrangement?[3] Unless the ITP fulfills the requirements for a legally binding contract, it cannot itself constitute a QDC.[4] This leaves the question whether this kind of pre-contractual work can constitute an Allowable Cost recoverable under the QDC once the QDC is in place. (more…)

Bank Regulation and Money Laundering

Posted on October 24, 2016April 11, 2018 by legalresearch

By Prof Keith Stanton, Professor of Law (University of Bristol Law School).

It has not been a good few weeks for the banking industry. In America Wells Fargo has been rocked by a scandal in which staff have been found to have fraudulently opened accounts for customers as a way of meeting sales targets. Deutsche Bank has teetered on the brink of disaster as a result of the size of the penalty it is facing in the US for misselling mortgage bonds. In Singapore the Monetary Authority has penalised two banks for anti-money laundering failures and control lapses and has withdrawn the license of a third bank for such failures. For once, the major UK based banks have been out of the headlines. However, the Financial Conduct Authority has added to the picture by penalising the Bangladeshi Sonali Bank (UK) Ltd £3.11 million and Steven Smith, the bank’s Compliance Officer and Money Laundering Reporting Officer (MLRO) a further £17,900 for anti money laundering (AML) failures. The bank was also prohibited from accepting deposits from new customers for a period of 168 days and Smith prohibited from performing a range of functions in the industry.

The Sonali Bank decisions are further examples of the FCA using its enforcement powers to send messages to the industry. It is part of the attempt to change the culture in banking and to reduce, if not eliminate, risk which might threaten the integrity of the banking system as a whole. It is widely accepted that money laundering poses a significant threat to the integrity of the financial system. As a result, firms are required to adopt rigorous controls aimed at minimising the risk of money laundering occurring. The facts of Sonali concerned these AML obligations. The case is a good example of the fact that the criminal offences which are commonly said to place banks under a stringent obligation to guard against money laundering are, in practice, of much less significance than regulatory action concerning failures taken by the FCA. (more…)

When is an applicant an applicant? — About the potential abuse of non-discrimination law, ‘Equality Law-Hoppers’ and the EU equality law directives

Posted on August 22, 2016March 9, 2018 by legalresearch

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

In its Kratzer judgment of 28 of July 2016,[i] the Court of Justice of the European Union (CJEU) responded to the German Federal Labour Court’s preliminary reference concerned with the question what qualities are required to be an applicant who seeks access to employment, to self-employment or to occupation within the meaning of Article 3(1)(a) of the Framework Directive 2000/78/EC and Article 14(1)(a) Recast Directive 2006/54/EC. In it, the CJEU essentially rules that unserious applicants who do not actually seek employment but only apply for the purpose of claiming compensation do not fall under the scope of the directives and their respective articles. The case does not mention Article 3(1)(a) Race Directive 2000/43/EC but there is no reason to believe the conclusion would be any different regarding its application to employment and occupation.

The brief judgment, which was decided without prior opinion of the Advocate General, is unlikely to stir-up the European-wide debate on equality and non-discrimination law and may seem all too obvious to many commentators. However, for the German legal context, the judgment is very significant because it approves the national courts’ case law on the so called Equality Law-Hoppers (AGG-Hoppers) and leaves significant discretion to the national courts to counteract apparent as well as alleged abuses of the General Equal Treatment Act (Allgemeine Gleichbehandlungsgesetz, hereafter AGG)[ii] implementing the EU equality directives. (more…)

Potions and prosecution: a case from medieval Herefordshire

Posted on July 25, 2016July 12, 2016 by legalresearch

By Dr Gwen Seabourne, Reader in Legal History (University of Bristol Law School).*

© M.J. Seabourne. Tomb of John de Swinfeld, Hereford Cathedral

In 1292, Herefordshire, close to the Welsh border, received a visit from the royal justices, touring England with a view to hearing legal disputes, investigating crimes and making a tidy profit for the king from the various fines imposed upon individuals and communities. Precociously bureaucratic, the machinery of royal government recorded much of what went on before the justices, bequeathing to future generations priceless insights into life and law at this early time.

One intriguing case from the rolls of this 1292 session gives important glimpses of several different aspects of medieval law and life. As I have noted in a recent article in Social History of Medicine, Isabella Plomet, a woman from Hereford, managed to obtain some measure of legal redress from Ralph de Worgan, a surgeon of sorts, who was found to have agreed to treat her for leg problems, but actually gave her a drug called dwoledreng and proceeded to rape her. (more…)

PST Energy 7 Shipping LLC v O W Bunker Malta Ltd: A case on the statutory definition of a sale of goods

Posted on July 4, 2016July 12, 2016 by legalresearch

By Dr Mark Campbell, Teaching Associate (University of Bristol Law School).

Section 2(1) of the Sale of Goods Act 1979 (the ‘Act’) defines a sale of goods as ‘a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.’ There are, accordingly, three reasons why a contract may fall outside that definition and, thus, the Act’s jurisdiction. First, there may be no transfer of property in the goods, as in a bailment where there is transfer of possession but not ownership. Second, the transfer may relate to subject matter other than goods: e.g. an assignment of intangible property such as copyright or debt. Third, there may be an absence of money consideration: e.g. a gift or a contract involving goods given wholly in exchange for other goods.

In PST Energy 7 Shipping LLC v O W Bunker Malta Ltd [2016] UKSC 23, [2016] 2 WLR 1193 the UK Supreme Court has recently examined the reach of s 2(1) and, in particular, the requirement for a transfer of property in the goods. The transaction in question involved the supply of bunkers (marine fuel) by O W Bunker Malta Ltd (‘OBWM’) to PST Energy 7 Shipping LLC (‘PST’), the owners of a vessel, Res Cogitans. That agreement contained a retention of title clause. Where goods are supplied on credit terms, a retention of title clause allows the seller to retain ownership of the goods pending payment by the buyer. OBWM had been supplied with the bunkers by its parent company, O W Bunker & Trading A/S (‘OWBAS’), which in turn had been supplied by Rosneft Marine UK Ltd (‘RMUK’). The contract between OWBAS and RMUK also contained a retention of title clause. Physical delivery of the bunkers to the vessel was made by RN-Bunker Ltd, an associate company of RMUK and the supplier to RMUK. The legal proceedings arose following an application for restructuring by OWBAS, an event which would allow ING Bank NV to claim the contract price from PST as assignee of debts owed to OWBM. Concerned that it may not recover the contract price from OWBAS, RMUK indicated that it would seek payment from PST on the basis that RMUK remained the owner of the bunkers. (more…)

International Commercial Arbitration: the removal of arbitrators for apparent bias

Posted on June 30, 2016June 26, 2016 by legalresearch

By Prof Jonathan Hill, Professor of Law (University of Bristol Law School).

It is a fundamental principle of arbitration law that arbitrators – whether appointed by one of the arbitrants, by the arbitrants jointly or by a third party (such as an arbitral institution or a national court) – must be impartial. This principle is enshrined in institutional arbitration rules and national legislation. It is, therefore, not surprising that, when doubts as to an arbitrator’s impartiality arise, one of the arbitrants will seek to have the arbitrator removed. The importance of the parties’ right to challenge an arbitrator on the basis of justifiable doubts as to the arbitrator’s impartiality is illustrated by the recent decision of the High Court in Sierra Fishing Co v Farran [2015] 1 All ER (Comm) 560. The decision is notable in two respects.

The significance of the IBA Guidelines on Conflicts of Interest in International Arbitration

Because, in international cases, arbitrants and arbitrators often come from different countries and different legal traditions, they may have different conceptions of what types of circumstance give rise to a conflict of interests and different assumptions about how any such conflict might be resolved. The IBA guidelines, which were originally formulated in 2004 and have been subsequently revised (most recently in 2014), aim to assist the arbitration community by providing a typology of different kinds of conflict and a system for grading their seriousness. The guidelines list a wide variety of professional, financial and personal connections and place them in three lists: red (split into waivable and non-waivable); orange (waivable); and green (irrelevant). Since their inception, the guidelines have frequently been used by arbitrators (in assessing what circumstances need to be disclosed prior to appointment, or thereafter) and arbitral institutions (when determining challenges under institutional rules).

(more…)