Fugitives

Pages65-67
65
international law update Volume 18, July–September 2012
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
‘no provision of Community law can be formally
relied on to secure advantages manifestly contrary to
its purposes and objectives’: para 74. is test was
adopted by the Grand Chamber in its judgment.
e court said, at paras 74–76:
74.… it would appear that, in the sphere of
VAT, an abusive practice can be found to exist only
if, rst, the transactions concerned, notwithstanding
formal application of the conditions laid down by
the relevant provisions of the Sixth Directive and
the national legislation transposing it, result in the
accrual of a tax advantage the grant of which would
be contrary to the purpose of those provisions.’
75. Secondly, it must also be apparent from
a number of objective factors that the essential aim
of the transactions concerned is to obtain a tax
advantage. As the Advocate General observed in
para 89 of his opinion, the prohibition of abuse is
not relevant where the economic activity carried out
may have some explanation other than the mere
attainment of tax advantages.’
76. It is for the national court to verify in
accordance with the rules of evidence of national
law, provided that the eectiveness of Community
law is not undermined, whether action constituting
such an abusive practice has taken place in the case
before it …’
35. “e rule of EU law which Sun is invoking
in the present case is to be found in articles 5 and 7(1)
of the Trade Mark Directive. It is beyond argument
that the purpose of those provisions was (among
other things) to enable the trade mark proprietor to
control the rst marketing of his trade marked goods
in the EEA. e exercise of that right by Sun did not
only satisfy the formal requisites of those articles. It
was entirely consonant with their purpose. Even if
(contrary to my view) M-Tech were right to say that
by achieving that purpose Sun was enabled to do
other things which tended to eliminate independent
resellers from the secondary market, that would not
make it an abuse of rights.”
36. “Once the Court of Justice has laid down
the relevant principles of law in terms which are
clear, consistent, and sucient for the decision of
the case, it is the function of national courts to apply
them. at there are obscurities in parts of this area
of EU law is beyond question. But the particular
legislative provisions and legal principles which
make M-Tech’s case impossible are in my judgment
entirely clear. A reference is not required to elucidate
them. M-Tech’s real problem, under all three heads
of their argument, is that they are unable to establish
a relevant connection between the exercise of Sun’s
right to control the rst marketing of their trade
marked goods in the EEA and any breach of the
Treaty.”
37. “I would allow the appeal and restore the
order of [the Court of rst instance.] Appeal allowed.
[2043].
citation: Oracle America Inc (formerly Sun
Microsystems Inc) v Tech Data Ltd. [2012] UKSC 27;
[2012] 1 W.L.R. 2021 [27June 2012].
FUGITIVES
Citizen of Northern Ireland who had
fled from a prosecution for attempted
terrorism there and had served several
years in U.S. and German prisons on other
local charges, appealed the refusal
of the Northern Ireland Secretary of
State to exercise the Royal Prerogative
of Mercy that would count the foreign
imprisonments toward reducing his
Northern Ireland sentence
Appellant (McGeough or M) appealed to the
Northern Ireland Court of Appeal a decision that the
Respondent (secretary of state) had acted lawfully
in refusing to recommend the exercise of the royal
prerogative of mercy (RPM) in his favour.
M had been involved in a [local] attempted
murder with terrorist motives. Before he could be
charged, however, he had escaped to the United
States where he committed some oences involving
the illegal transportation of weapons. Later on,
German authorities arrested M as he was trying to
cross the German/Dutch border for possessing two
ries. After he spent some time in a German prison,
Germany extradited M to the U.S. to serve further
time in prison.
M then spent a combined total of seven and
a half years in custody in Germany and the U.S.
before his release. Back in Northern Ireland, the
court sentenced M to 20 years’ imprisonment for
attempted murder. e secretary of state refused to
recommend exercising the RPM in M’s favour so as

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