Aidan O’Neill QC
EU Equality Law
EU law continued to be a source and referent in the three equality/non-discrimination law which were decided by the Court this year. Essop v Home Office concerned the issue of indirect discrimination with the Court holding that there was no need for proof of the reason why the complained of provision put the affected group at a disadvantage, only that there was a causal connection between that provision at issue and the statistical fact of disadvantage. Lady Hale made the argument for a degree of “spill over” of EU law derived concepts into non-EU law based areas in the interests of consistency of approach to the various strands of equality law, observing:
Much, but by no means all, of the Equality Act 2010 is derived from our obligations under European Union law. Those parts which are so derived must be interpreted consistently with EU law (as it is now called) and it is inconceivable that Parliament intended the same concepts to be interpreted differently in different contexts.
In Walker v Innospec Ltd, after extensive reference to and discussion of CJEU case law relating to equal pay, equality of treatment on grounds of sexual orientation and the presumption against retrospectivity of legislation, the Court granted a declaration that the appellant’s husband was entitled to a spouse’s pension calculated on all the years of his husband’s service with his employer, provided that at the date of the employee’s death the parties remained husband and husband. The Court also ordered that the provisions of the Equality Act 2010 (which on their face discounted workers’ periods of service before 5 December 2005 – the date on which the Civil Partnership Act 2004 came into force) for the purpose of calculating the pension rights of same sex spouses should be disapplied as incompatible with EU law.
Finally, in the long running case of O’Brien v Ministry of Justice the Court made a reference to the CJEU on a question relating to the pension entitlement of part-time workers because the Court was not agreed on the proper interpretation of the CJEU line of case law on this point.
EU private international law
Clause 6(1) of the Withdrawal Bill, if enacted, will put an end to preliminary references from a UK court or tribunal. It provides as follows:
(1) A court or tribunal—
(a) is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and
(b) cannot refer any matter to the European Court on or after exit day.
This ban on references to Luxembourg, if carried through, will effectively mean the end of the UK’s participation in the uniform approach to private international law across the EU which has been the cornerstone of the ‘fifth freedom’ of the EU, namely the free movement of judgments which has been facilitated by such measures as: the recast Brussels I (EU) Regulation 1215/2012 on jurisdiction and recognition and enforcement of judgment in civil and commercial matters; the recast Insolvency Proceedings (EU) Regulation 2015/868; the Brussels II Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility; and the Maintenance Obligations Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
In AMT Futures Ltd v Marzillier, Dr Meier & Dr Guntner Rechtsanwaltsgesellschaft mbH, the Court applied the provisions of the original Brussels I (EC) Regulation 44/2001 to hold that the English courts had no jurisdiction to consider a claim for damages against a German defendant for wrongfully inducing breach of contract by facilitating the bringing of damages claims in Germany by former clients of the plaintiff, allegedly in breach of the clients’ agreement to submit such disputes to the exclusive jurisdiction of the English courts. The Court ruled that the relevant CJEU jurisprudence did not allow the grounds of jurisdiction in matters relating to a contract to be elided with those relating to tort. The inconvenience of separating the contractual and tortious claims was said to be the price of achieving the certainty and good administration across the EU at which the Brussels I Regulation was aimed in relation to court disputes concerning civil and commercial matters.
EU law and intellectual property
Post-Brexit, the UK courts will be free to ignore such Europe-wide consideration if so minded, at the undoubted cost, however, to the civil justice cooperation across Europe of the type currently dealt with by private international law EU Regulations. Instead, the more likely scenario is that which currently applies in matters concerning patents in Europe. In its Opinion 1/09, the CJEU effectively vetoed, as incompatible with EU law and more particularly its position as the apex court and final arbiter in the EU on all issues of EU law, the proposals contained in a draft Agreement among the Member State, the EU and non-EU states who were also parties to the European Patents Convention (‘EPC’) and others for the establishment of a European and Community Patents Court. Thus, in Actavis UK Limited v Eli Lilly and Company, when considering whether or not pharmaceutical products manufactured by the appellants would infringe a European patent owned by the respondent, the Court looked at the approach to infringement in the courts of other EPC states, including the courts of Germany, France, Italy and Spain in order to inform the Court’s own judgment on the facts as the final arbiter on this matter in the UK.
Whereas patents do not fall within the ambit of EU law, trade-marks do. M v R concerned a prosecution of individuals who were alleged to have been involved in the bulk importation and subsequent sale within the EU of various branded goods manufactured in countries outside the single market, a proportion of which goods, at least, were not counterfeits but had been manufactured with the authorisation of the trade mark proprietor, albeit they had thereafter been disposed of without his authority (so-called grey goods). It might be said that art 7(1) of the Trademarks Directive provides the authority for trade mark owners to be permitted to prohibit its use in relation to goods which have not been put on the EU single market under that trade mark by the proprietor or with his consent. Following the analysis of the Grand Chamber CJEU in Åklagaren v Hans Åkerberg Fransson this might be considered a sufficient connection with EU law to have allowed those being prosecuted to rely in argument on provisions of the Charter including: the freedom to conduct a business protected under art 16 of the CFR; the right to own, use, dispose of and bequeath his or her lawfully acquired possessions protected under art 17(1) of the CFR; the presumption of innocence and right of defence protected by art 48 of the CFR; and the principles of legality and proportionality of criminal offences and penalties protected by art 49 of the CFR. EU law was, however, the dog that did not bark in this instance.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
  UKSC 27,  1 WLR 1343.
 ibid  (emphasis added).
  UKSC 47,  ICR 1077.
  UKSC 46,  ICR 1101.
  UKSC 13,  2 WLR 853.
  ECR I-1137.
  UKSC 48.
 See eg Council Directive (EC) 2008/95 to approximate the laws of Member States relating to trade marks  OJ L299/25 (‘Trademarks Directive’).
  UKSC 58,  1 WLR 3006.
 Case C-617/10 EU:C:2013:105  2 CMLR 46 .