“Having considered the position under English law, we have decided to inform you that if and when Brexit occurs, we will be treating that event as a frustration of the Lease.”
“…a declaration that the withdrawal of the United Kingdom from the European Union and/or the relocation of the [EMA] (whether inside or outside of the United Kingdom) will not cause [the Lease] to be frustrated and that the [EMA] will continue to be bound by all of its covenants and obligations in the Lease and all related documents including (but not limited to) payment of the full rents under the Lease throughout the Term of the Lease unless released by law upon a lawful assignment of the Lease properly made in accordance with its terms…”
“It would be unprecedented and incongruous for an EU body such as the [EMA] to be located in the UK and continue to pursue its mission in London after the UK has left the EU. Such circumstances were simply not contemplatable at the time of entering into the Lease.”
“Further, if, as the EMA contends, it will lack power to maintain its obligations under the Lease or make effective and profitable use of it after Brexit, then the EMA respectfully submits that the Court is bound by EU law to fashion a remedy to give effect to that lack of power. The Court cannot and should not hold the EMA to a lease in which it has no power to continue. This part of the EMA’s case applies regardless of whether the English law doctrine of frustration is or is not engaged: the EMA’s contention is simply that it cannot and should not be held to a contract the performance of which is ultra vires.”
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) [TFEU]. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) [TFEU]. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.” (3)Following the European Union (Notification of Withdrawal) Act 2017 and pursuant to Article 50(2) TEU, the Prime Minister of the United Kingdom notified the President of the European Council of the United Kingdom’s decision to withdraw from the European Union. (4) Absent contrary provision in a withdrawal agreement or absent an extension pursuant to Article 50(3) TEU, the Treaties will cease to apply, as a matter of European Union and public international law, to the United Kingdom on29 March 2019 . This is the legal effect of Article 50(3) TEU and that legal effect pertains – at the level of European Union and public international law – without more. (5) Of course, at the domestic or municipal level, any European law that has been incorporated into English Naturally, the same pertains for all the other parts of the United Kingdom. However, since I am here concerned with the effect on a Lease governed by English law, I shall where appropriate refer to the law of England. domestic or municipal law continues to have effect, unless and until repealed. The continued application – or otherwise – of European Union law within the United Kingdom is governed by theEuropean Union (Withdrawal) Act 2018 . In very broad overview – the Act runs to some 102 pages – and subject to certain (extremely broad) savings Described in sections 2ff of theAct. the European Communities Act 1972 – which is the gatEMAy through which European Union law has effect in the United Kingdom – “is repealed on exit day”
“…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”
“For my part, I think that there is a test that may be at least as useful as such generalities. If I may quote from an essay which I wrote some years ago, I then said: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common “Oh, of course!””” 32 At 687. Given that the subsequent, frustrating, event is something in essence unanticipated, it is difficult to know what such a person would say. As Lord Hailsham noted in Panalpina,32 “I have not the least idea what they would have said, or whether either would have entered into the lease at all”
“this was not the bargain which these parties made and their bargain must be treated as at an end” – a view which Lord Radcliffe himself tersely summarised in a quotation of five words from the Aeneid: “non haec in foedera veni”
“I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds and Reardon Smith Line Ltd v. Yngvar Hansen-Tangen, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common-sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of “legal” interpretation has been discarded. The principles may be summarised as follows: (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact”, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion to explore them. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd v. Eagle Star Life Assurance Co Ltd. (5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v. Salen Rederierna AB[1985] AC 191 , 201: “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.”
“In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix orcontext, the parties’ knowledge, expectations, assumptions and contemplations, in particular asto risk, as at the time of the contract, at any rate so far as these can be ascribed mutually andobjectively, and then the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances.”
“110. In the course of the parties’ submissions we heard much to the effect that such and such a factor “excluded” or “precluded” the doctrine of frustration, or made it “inapplicable”; or, on the other side, that such and such a factor was critical or at least amounted to a prima facie rule. I am not much attracted by that approach, for I do not believe that it is supported by a fair reading of the authorities as a whole. Of course, the doctrine needs an overall test, such as that provided by Lord Radcliffe, if it is not to descend into a morass of quasi-discretionary decisions. Moreover, in any particular case, it may be possible to detect one, or perhaps more, particular factors which have driven the result there. However, the cases demonstrate to my mind that their circumstances can be so various as to defy rule-making. 111. In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix or context, the parties’ knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of the contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. Since the subject matter of the doctrine of frustration is contract, and contracts are about the allocation of risk, and since the allocation and assumption of risk is not simply a matter of express or implied provision but may also depend on less easily defined matters such as “the contemplation of the parties”, the application of the doctrine can often be a difficult one. In such circumstances, the test of “radically different” is important: it tells us that the doctrine is not to be lightly invoked; that the mere incidence of expense or delay or onerousness is not sufficient; and that there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances. 112. What the “radically different” test, however, does not in itself tell us is that the doctrine is one of justice, as has been repeatedly affirmed on the highest authority. Ultimately the application of the test cannot safely be performed without the consequences of the decision, one way or the other, being measured against the demands of justice. Part of that calculation is the consideration that the frustration of a contract may well mean that the contractual allocation of risk is reversed. A time charter is a good example. Under such a charter, the risk of delay, subject to express provision for the cessation of hire under an off-hire clause, is absolutely on the charterer. If, however, a charter is frustrated by delay, then the risk of delay is wholly reversed: the delay now falls on the owner. If the provisions of a contract in their literal sense are to make way for the absolving effect of frustration, then that must, in my judgment, be in the interests of justice and not against those interests. Since the purpose of the doctrine is to do justice, then its application cannot be divorced from considerations of justice. Those considerations are among the most important of the factors which a tribunal has to bear in mind. 113. Mr Hamblen submitted that whereas the demands of justice play an underlying role, they should not be overstated. He referred the court to Chitty on Contracts (29th edn, 2004) vol 1 pp1315-1316 (para 23-008) (“But this appeal to the demands of justice should not be taken to suggest that the court has a broad absolving power whenever a change of circumstances causes hardship to one of the contracting parties…Such a test is too wide, and gives too much discretion to the court”). I respectfully agree. Mr Hamblen also referred to Treitel Frustration and Force Majeure (2nd edn, 2004) p645 (para 16-009) (“The “theory” does not, in other words, supersede the rules which determine the circumstances in which the doctrine of frustration operates”). I would again respectfully agree, as long as it is not thought to apply those rules as though they are expected to lead one automatically, and without an exercise of judgment, to a determined answer without consideration of the demands of justice.” or, on the other side, that such and such a factor was critical or at least amounted to a prima facie rule. I am not much attracted by that approach, for I do not believe that it is supported by a fair reading of the authorities as a whole. Of course, the doctrine needs an overall test, such as that provided by Lord Radcliffe, if it is not to descend into a morass of quasi-discretionary decisions. Moreover, in any particular case, it may be possible to detect one, or perhaps more, particular factors which have driven the result there. However, the cases demonstrate to my mind that their circumstances can be so various as to defy rule-making. (“The “theory” does not, in other words, supersede the rules which determine the circumstances in which the doctrine of frustration operates”). I would again respectfully agree, as long as it is not thought to apply those rules as though they are expected to lead one automatically, and without an exercise of judgment, to a determined answer without consideration of the demands of justice.”
“Discharge by supervening impossibility is not a common law rule of general application, like discharge by supervening illegality; whether the contract is terminated or not depends on its terms and the surrounding circumstances.”
“The Union shall have legal personality.”
“In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of moveable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.”
“5. The expenditure of the [EMA] shall include staff remuneration, administrative and infrastructure costs, and operating expenses as well as expenses resulting from contracts entered into with third parties. 6. Each year the Management Board, on the basis of a draft drawn up by the Executive Director, shall produce an estimate of revenue and expenditure for the Agency for the following financial year. This estimate, which shall include a draft establishment plan, shall be forwarded by the Management Board to the Commission by 31 March at the latest. 7. The estimate shall be forwarded by the Commission to the budgetary authority together with the preliminary draft general budget of the European Union. 8. On the basis of the estimate, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 272 of the Treaty. 9. The budgetary authority shall authorise the appropriations for the subsidy to the [EMA]. The budgetary authority shall adopt the establishment plan for the [EMA]. 10. The budget shall be adopted by the Management Board. It shall become final following adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly…” 11. Based on the foregoing procedure, the preparation, content and formalities of the EMA’s budget are required to be aligned with the [“EMA’s Financial Regulation”], Most of the provisions of this Regulation entered into force on1 January 2014 , with some coming into effect later (on1 January 2015 and1 January 2016 ). which is in turn based upon the Commission Delegated Regulation on the framework financial regulation for the bodies referred to in Article 208 of Council Regulation (EU, Euratom) No 966/2012 (Article 1 of the EMA’s Financial Regulation). Article 5 of the EMA’s Financial Regulation requires that: “The budget of the Agency shall be established and implemented in accordance with the principles of unity, budgetary accuracy, annuality, equilibrium, unit of account, universality, specification, sound financial management which requires effective and efficient internal control, and transparency as set out in this Regulation.” 12. As per Article 6 of the EMA’s Financial Regulation, every year the budget shall comprise: “(a) own revenue consisting of all fees and charges which the [EMA] is authorised to collect by virtue of the tasks entrusted to it, and any other revenue; (b) revenue made up of any financial contributions of the host Member States; (c) a contribution granted by the Union; (d) revenue assigned to specific items of expenditure in accordance with Article 23(1); (e) the expenditure of the EMA, including administrative expenditure. 2. Revenue consisting of fees and charges shall only be assigned in exceptional and duly justified cases provided for in the constituent act. 3. When one or several constituent acts provide that clearly defined tasks are financed separately or when the [EMA] implements tasks entrusted to it by a delegation agreement, it shall hold separate accounts, on the revenue and expenditure operations. The Agency shall clearly identify each group of tasks in its human resource programming including in the annual and multiannual programming document referred to in Article 32.” 13. As referred to above, the preparation and implementation of the budget is a very stringent procedure from which the EMA cannot deviate. For this reason, Article 67(12) of the 2004 Regulation requires that “the Management Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of its budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof.” 14. This legal obligation makes it imperative prior to any commitments being made for the rental or purchase by the EMA of premises that may have a significant impact on its budget, the EU budgetary authority shall be informed and approve such activity. The EMA may sign a lease agreement or authorise expenditure with a landlord only following a favourable opinion of the budgetary authority (jointly, the Council of the EU and the European Parliament) and based on the terms approved by them. No deviation from these terms can be subsequently agreed.” 9.1 The maximum level of EU contribution for the EMA is set out in the multiannual financial framework, adopted by the Council (see the last multi-annual financial framework 2013-2020, Council Regulation (EU, Euratom) 1311/2013 of2 December 2013 ). 9.2 The EMA’s fees are governed by “general” fee regulation (Council Regulation (EC) No 297/95) and the “pharmacovigilance fee regulation” (Regulation (EU) No 658/2014). “5. The expenditure of the [EMA] shall include staff remuneration, administrative and infrastructure costs, and operating expenses as well as expenses resulting from contracts entered into with third parties. 6. Each year the Management Board, on the basis of a draft drawn up by the Executive Director, shall produce an estimate of revenue and expenditure for the Agency for the following financial year. This estimate, which shall include a draft establishment plan, shall be forwarded by the Management Board to the Commission by 31 March at the latest. 7. The estimate shall be forwarded by the Commission to the budgetary authority together with the preliminary draft general budget of the European Union. 8. On the basis of the estimate, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 272 of the Treaty. 9. The budgetary authority shall authorise the appropriations for the subsidy to the [EMA]. The budgetary authority shall adopt the establishment plan for the [EMA]. 10. The budget shall be adopted by the Management Board. It shall become final following adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly…” 11. Based on the foregoing procedure, the preparation, content and formalities of the EMA’s budget are required to be aligned with the [“EMA’s Financial Regulation”], Most of the provisions of this Regulation entered into force on1 January 2014 , with some coming into effect later (on1 January 2015 and1 January 2016 ). which is in turn based upon the Commission Delegated Regulation on the framework financial regulation for the bodies referred to in Article 208 of Council Regulation (EU, Euratom) No 966/2012 (Article 1 of the EMA’s Financial Regulation). Article 5 of the EMA’s Financial Regulation requires that: “The budget of the Agency shall be established and implemented in accordance with the principles of unity, budgetary accuracy, annuality, equilibrium, unit of account, universality, specification, sound financial management which requires effective and efficient internal control, and transparency as set out in this Regulation.” 12. As per Article 6 of the EMA’s Financial Regulation, every year the budget shall comprise: “(a) own revenue consisting of all fees and charges which the [EMA] is authorised to collect by virtue of the tasks entrusted to it, and any other revenue; (b) revenue made up of any financial contributions of the host Member States; (c) a contribution granted by the Union; (d) revenue assigned to specific items of expenditure in accordance with Article 23(1); (e) the expenditure of the EMA, including administrative expenditure. 2. Revenue consisting of fees and charges shall only be assigned in exceptional and duly justified cases provided for in the constituent act. 3. When one or several constituent acts provide that clearly defined tasks are financed separately or when the [EMA] implements tasks entrusted to it by a delegation agreement, it shall hold separate accounts, on the revenue and expenditure operations. The Agency shall clearly identify each group of tasks in its human resource programming including in the annual and multiannual programming document referred to in Article 32.”
“(1) The contractual liability of the [EMA] shall be governed by the law applicable to the contract in question. The [CJEU] shall have jurisdiction pursuant to any arbitration clause contained in a contract concluded by the Agency. (2) In the case of non-contractual liability, the [EMA] shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by it or by its servants in the performance of their duties. The [CJEU] shall have jurisdiction in any dispute relating to compensation for any such damage.”
“Article 1 The premises and buildings of the Union shall be inviolable. They shall be exempt from search, requisition, confiscation or expropriation. The property and assets of the Union shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice. Article 2 The archives of the Union are inviolable. … Article 5 For their official communications and the transmission of all their documents, the institutions of the Union shall enjoy in the territory of each Member State the treatment accorded to that State to diplomatic missions. Official correspondence and other official communications of the institutions of the Union shall not be subject to censorship.”
“This Regulation shall enter into force on the day following the decision taken by the competent authorities on the headquarters of the Agency This was, of course, a reference to the EMA’s predecessor, the European Agency for the Evaluation of Medicinal Products. .”
“The European Agency for the Evaluation of Medicinal Products shall have its seat at London.”
“At the [tenant’s] own expense to comply in all respects with every statute now in force or which may after the date of this Lease be in force and any other obligation imposed by law and all regulations laws or directives made or issued by or with the authority of The European Commission and/or The Council of Ministers relating to the [Premises] or their use, including theOffices, Shops and Railway Premises Act 1963 , theFire Precautions Act 1971 , theDefective Premises Act 1972 , the Health and Safety at Work, etc Act 1974 and theEnvironmental Protection Act 1990 ”. (6) Clause 7.1 imposed upon CW various obligations to insure, including the obligation to insure against the non-payment of rent. Late in the case – and largely because of a query that I made – the question of insurance became a matter of some controversy. It was suggested that the obligation to insure in respect of the nonpayment of rent extended to a case where the EMA did not pay rent because the 116. to insure in this case is tied to those cases where the EMA was entitled – because of destruction or damage to the Property or the Premises – to cease to pay rent. See clause 7.5. (7). At various points in the Lease, reference is made to Protocol 7 and the existence of the protections on the EMA as a result of Protocol 7. As I shall describe, the inclusion of references reflecting the effect of Protocol 7 in the Lease were the subject of considerable debate between the solicitors representing the EMA and CW, with CW’s solicitors seeking to remove references to Protocol 7. In this regard, the EMA prevailed, and the terms of the Lease reflect the importance of the EMA’s Protocol 7 rights. See, for example, clause 9.18.2 and clause 9.16, quoted below. (8). Clause 9.16 provided: “This Lease shall be governed by and construed in all respects in accordance with the Laws of England and proceedings in connection therewith shall be subject (and the parties hereby submit) to the non-exclusive jurisdiction of the English Courts and for the purposes of Rule 6.15 of theCivil Procedure Rules 1998 and any other relevant Rules thereof the [tenant] hereby irrevocably agree[s] that any process may be served upon it at the [Premises] marked for the attention of the Head of Administration or at such other address for service within England and Wales and/or marked for such other person as may be notified in writing from time to time to [CW]. [CW] acknowledges that in the case of [the EMA], [CW] is also required to seek an order from the [CJEU] in order to enforce a judgement obtained in the English Courts due to the [EMA’s] rights under [Protocol 7].”
“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day.” (iii). Section 4 deals with rights undersection 2(1) of the European Communities Act 1972 . Section 4(1) provides: “Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day – (a). are recognised and available in domestic law by virtue ofsection 2(1) of the European Communities Act 1972 , and (b) are enforced, allowed and followed accordingly, continue on or after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).” (b). It is very clear, therefore, that after exit day, there will be two bodies of European Union law: (i). The law of the European Union as it applies in the territories of the Member States; and (ii). The law of the European Union as incorporated into English law. (c). These two bodies of law will not be identical and will diverge. There are many reasons why there will be divergence. The following list is not intended to be exhaustive, but merely seeks to identify some of the factors that will create such divergence: (i) Only European Union law operative immediately before exit day is incorporated into English law. Thus, future European law is not incorporated; nor is any European Union law that (albeit made) comes into force after exit day. (ii) Not all European Union law operative immediately before exit day is incorporated into English law. By way of example, the definition of direct EU legislation in section 3(1) contains a number of “carveouts”, where provisions of European Union law that would otherwise be direct EU legislation are excluded. See section 3(2) of the 2018 Act. (iii) Section 8 of the 2018 Act confers on ministers wide powers to amend retained EU law. (iv) Section 6(1)(a) of the 2018 Act provides that United Kingdom courts or tribunals are not bound by any principles laid down or any decisions made on or after exit day by the CJEU. Section 6(1)(b) provides that no United Kingdom court or tribunal may refer any matter to the CJEU on or after exit day. (2). Scenario 3. In the case of Scenario 3, the Withdrawal Agreement has been ratified by the United Kingdom and implemented into United Kingdom domestic or municipal law. As to this: (a) The divergence or the potential for divergence between United Kingdom law and European Union law will be much less stark than in the case of Scenario 1. Article 4 of the Withdrawal Agreement provides: “(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, natural or legal persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law. (2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.”
“The [CJEU] shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the [CJEU]. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the [CJEU] shall act with the minimum of delay.”
“…I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law is critical to the court’s final decision, the appropriate course is ordinarily to refer the issue to the [CJEU] unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the [CJEU] in construing Community instruments. If the national court has any real doubt, it should ordinarily refer.”
“But it is, I think, important to have in mind also, the observations of the Advocate-General (Mr Francis Jacobs, QC) in Case-338/95, Wiener SI GmbH v. Hauptzollamt Emmerich. The question which he thought it necessary to address is stated at paragraph 10 of his Opinion: “…whether it is appropriate – and especially whether it is still appropriate today, in view of developments which I shall mention below – for the [CJEU] to be asked to rule in every case where a question of interpretation of Community law may arise.”
“Any “application” of a rule of law can be regarded as raising a question of “interpretation” – even if the answer to the question of interpretation may seem obvious. Every national court confronted with a dispute turning on the application of Community law can refer a question which, if more or less properly phrased, this Court is bound to answer after the entire proceedings have taken their course. That will be so, even where the question is similar in most respects to an earlier question: the referring court (or the parties’ lawyers) may always seek to distinguish the facts of the cases. It will be so even where the question could easily, and with little scope for reasonable doubt, be answered on the basis of existing case law, again the facts may be different, or it may be that a particular condition imposed in earlier case law gives rise to a new legal argument and is regarded as needing further clarification. The net result is that the Court could be called upon to intervene in all cases turning on a point of Community law in any court or tribunal in any of the Member States. It is plain that if the [CJEU] were to be called upon it would collapse under its case-load.”
“Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.”
“[1] The [EMA] shall have legal personality. [2] In all Member States it shall enjoy the most extensive legal capacity accorded to legal persons under their laws. [3] It may in particular acquire or dispose of moveable and immovable property and may be a party to legal proceedings.”
“The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending upon the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team.”
“The rescue of failing financial institutions commonly involves measures affecting the rights of their creditors and other third parties. Depending on the law under which the rescue is being carried out, these measures may include the suspension of payments, the writing down of liabilities, moratoria on their enforcement, and transfers of assets and liabilities to other institutions. At common law measures of this kind taken under a foreign law have only limited effect on contractual liabilities governed by English law. This is because the discharge or modification of a contractual liability is treated in English law as being governed only by its proper law, so that measures taken under another law, such as that of a contracting party’s domicile, are normally disregarded: Adams v. National Bank of Greece SA[1961] AC 255 . By way of exception, however, the assumption of contractual liabilities by another entity by way of universal succession may be recognised in England: National Bank of Greece & Athens SA v. Metliss[1958] AC 509 .”
“By the lease, the defendant had a right to the personal occupation of the premises, and the right to assign or sub-let them to another person in the absence of any reasonable ground for objection. This latter right was of value and might even enable the defendant to let the premises at a profit to himself, and this right was not affected by the Aliens Restriction Order. That Order and the statute under which it was made did not avoid the lease, or make it illegal for an alien enemy to hold a lease of land in a prohibited area. This being so the lease is not extinguished, nor is the defendant’s title as tenant under it put an end to although his personal enjoyment of the premises under it is prohibited”
“The question of whether the EMA has any given power – in particular to discharge future obligations under the Lease – is one of EU law. That the Lease is itself governed by English law (see clause 9.16) does not alter this position for two reasons: (i) First, the capacity of a foreign public body to enter an English law contract must be determined according to the relevant body of foreign public or administrative law, and if there is no such capacity then the contract is void… (ii) Secondly, EU law is not, at least presently, “foreign law” anyway: by reason of section 2 [of theEuropean Communities Act 1972 ], any restrictions on the capacity of the EMA under EU law are part of English law: where EU law is engaged, it has always been erroneous to “speak or think of English law as something on its own”…”