Article 87 (1) EC prohibits any state aid in whatsoever form, unless the Commission considers it to be compatible with the common market. This prohibition significantly reduces in many cases the freedom of Member States to conduct their policies in defining the political and economic environment in which undertakings operate. Article 88 (3) EC, which provides for the notification procedure and prohibits the implementation of aid measures before the Commission's approval, also significantly reduces the Member State's playground. Rarely, however, can it be argued that the state aid control could potentially have drastic consequences for the national constitution order. Although the questions of what constitutes state resources and to which extent trade between Member States can be affected are controversial, this article focuses on only one aspect of the definition of state aid, namely selectivity, the application of which may have the most far-reaching consequences for many Member States' constitutional orders. It has to be stressed, though, that this short article does not aim to deal comprehensively with every difficult issue connected with the application of the selectivity test, but is limited to some of its aspects which may have bearing on Member States' decisions concerning the distribution of powers and especially the power of taxation.

In English law, the recovery of pure economic loss falls mainly within the province of the law of contract. Only in very limited circumstances does the law of tort provide for the recovery of such losses. As Cardozo C.J. explained in Ultramares Corporation v. Touched, tort is concerned not to permit “liability in an indeterminate amount, for an indeterminate time to an indeterminate class”. Notwithstanding this reticence, their Lordships' speeches, though not the final decision, in the seminal case of Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. provided a notable inroad into the rigidity of this stance. Since Hedley Byrne, the question has become, instead, how far, not if, pure economic loss is and should be recoverable in the law of negligence.

IN the last three decades many acts and regulations have been introduced in Britain to serve the interests of consumers and as a consequence a new branch of law has evolved: consumer protection. These acts concern many aspects of public and private law. Within private law they mainly deal with contract law and the law of restitution. For example, the Consumer Protection (Distance Selling) Regulations 2000 (henceforth CPR 1987), and the Consumer Credit Act 1974 (henceforth CCA 1974) confer a right on the consumer to cancel a contract. This right of cancellation arises in the context of consumer protection. Yet from the perspective of private law it is part of the law of contract. A cancelled contract is treated as if it had not been made and as a consequence each party has to give back what he received under the contract. The contract is unwound. Again, any questions on how to unwind a contract belong only in a contextual sense to the law of consumer protection. On our map of private law they are part of the law of restitution.

The law about covenants running with land is once again behind the times. It is undoubtedly in need of statutory reform. It is also, perhaps, an apt subject for this jubilee issue. For among the articles published in the earlier years of this Journal few can be better known, and none can have given more needed help, than Professor Bailey's The Benefit of a Restrictive Covenant, in which the complexities of an excessively intricate topic of real property law were analysed and expounded with great care and clarity. Published in 1938, it remains a source of valuable guidance to-day. In the meantime there have been many decisions, and there are now proposals for legislation. But in the following pages the reader will not find an objective and comprehensive survey comparable to Professor Bailey's. It is proposed to discuss only one or two controversial aspects and the questions of legal policy bound up with them.

Recent media reports have revealed a substantial number of highly-paid senior civil servants and BBC presenters have been using “off payroll” arrangements and personal services companies to reduce the tax paid on their earnings. This article examines the tax and National Insurance contribution (NIC) savings that can be had by carrying on economic activity through a company rather than as an unincorporated business or an employee. These savings derive from a combination of favourable tax and NIC rates on companies, and can be further increased through family income-splitting arrangements, as witnessed in the case of Jones v Garnett. Several possible reforms to address the distortions and inequity in the present tax and NIC regimes in favour of companies are considered, including amendments to the IR35 “disguised employment” regime and the anti-income-splitting rules known as the settlement provisions. Applying the new statutory general anti-abuse rule, which the Government plans to introduce in Finance Act 2013, is another possible approach. The preferred option, however, is to deal with the root problem and pursue closer alignment of the tax and NIC treatment of activity carried on in different legal forms.

“The essence of contract is performance”. So argued Professor Daniel Friedmann in discussing the rationale of remedies for breach of contract ((1995) 111 L.Q.R. 628, 629). The House of Lords’ decision in Attorney-General v. Blake [2000] 3 W.L.R. 625 lends new support to this view. It holds that a claimant’s interest in performance of his contractual rights may, exceptionally, entitle him to recover restitutionary damages from the defaulting party. Measured by the defendant’s gain from the breach, rather than the claimant’s expectation or reliance loss, restitutionary damages transfer to the claimant the profit that the defendant makes by his wrong. Failing any other adequate remedy for the claimant, liability to restitutionary damages encourages the defendant to perform his duty by depriving him of the monetary incentive to commit a breach.

Section I shows that the idea, founded on the “principle of legality”, that all legal flaws make a decision void as a matter of law is erroneous. Infringing a legal requirement may not affect validity, or may make a decision only voidable. Section II shows the significance of distinctions between various stages of decision-making processes, and between different types of issues for judges, and argues that case law shows that seven guiding principles operate alongside the “principle of legality”. Section III concludes that these common-law principles reflect professional practice and provide a realistic basis for predictable, normatively legitimate administrative law.

The companion 1763 tort cases of Huckle v Money and Wilkes v Wood hold a mythical status in the Anglo-American common law imagination. Few modern accounts of the doctrinal origins of exemplary (or punitive) damages omit reference to them. This article contends that the assumption that these two cases combined to provide damages above and beyond compensation a positive basis at English common law is misconceived. Set back into their historical context, it shows that their true significance is at odds with the decidedly lawmaking significance often ascribed to them by modern judges and scholars alike.

This article uses the advancements in artificial intelligence as the starting point for consideration of the role of human inventorship in European patent law. It argues that human inventorship is a necessary condition for the existence of an invention and inventive step, with the result that only products of human inventorship merit European patents. It identifies failings of European authorities to reflect this adequately in their approaches to determining patentability. Finally, it recommends recognising human inventorship as an implicit patentability requirement being an aspect of the statutory requirements for an invention and inventive step and extending applicant's disclosure duties correspondingly.

The position of applicants for judicial review has been drastically ameliorated by the new Order 53. It has removed all those disadvantages, particularly in relation to discovery, that were manifestly unfair to them and had, in many cases, made applications for prerogative orders an inadequate remedy if justice was to be done … Now that those disadvantages to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.

(per Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 237 at 285)

According to the standard theory of administrative unlawfulness an act that is public law unlawful is, for that reason, invalid and of no effect in law. In this article I suggest that the theory ought to be rejected. I begin by outlining the standard theory as well as noting its endorsement by the Supreme Court in the case of Ahmed (no. 2). Having in the main part of the paper criticised the theory, I move to lay out an alternative: that unlawfulness signals not the invalidity of an administrative act but a duty on the part of the court to invalidate it. Noting that the alternative rests upon what appears to be a paradox – that unlawful administrative action may nonetheless have legal effect – I try to show why it is more apparent than real. Finally, I return to the decision in Ahmed (no. 2).

If a pebble is dropped into a pool of water, ripples will spread on the surface of the water; how far the ripples will spread and with what strength depends on a variety of factors, but there will always be a ripple of some kind. The same is true of a decision of a court of law. Notwithstanding what Professor Chayes has accurately described as the “bipolar” character of traditional civil litigation, it is almost inconceivable that the outcome of a civil action will affect no one but the parties to it: unless an exception can be found to John Donne's famous axiom that "No man is an Island, entire of itself”—and such a man, if he exists, is unlikely to bring an action in the first place—the ripple effect even of, say, a simple decision that an individual defendant must pay a sum of money by way of damages to an individual plaintiff will extend to their respective families and beyond. It is not wholly absurd to say of such a case that, for example, the retail traders, the banks, and so on with whom the parties have dealt or may deal in the future have an “interest” which an action by an injured individual may “protect” and, if they do, that interest is certainly "diffuse" and "fragmented" even if it is not “collective.”

The contract of employment is still the basic structure in individual employment law. There is, however, much literature the argument of which is that the contract of employment is in many ways an unsuitable legal framework to govern individual workplace relations. In particular, the resolution of individual employment disputes would not, one might realistically imagine, be best achieved by the application of rigid contractual principles derived frequently from the resolution of commercial and other unrelated problems. In this vein it has been stated by Winn L.J. that:

BLACKSTONE'S Commentaries on the Laws of England was on its appearance received with unbounded admiration. It was felt to be a work of untold originality. The author became at once the Great Commentator. In the eyes of his earliest readers he was not only an erudite lawyer and a charming writer, but also a profound jurist. The Annual Register for 1767—then edited by Burke—contained a lengthy eulogy of the book. The review may well have been written by Burke himself.

In Case C-188/95 Fantask A/S and Others v. Industriministeriet (Erhvervsministeriet) [1997] E.C.R. I-6783 the European Court of Justice provided further guidance on the interpretation of Council Directive 69/335 EEC of 17 July 1969 concerning indirect taxes on the raising of capital (O.J. English Special Edition 1969 (II), p. 412), as most recently amended by Council Directive 85/303/EEC of 10 June 1985 (O.J. 1985 L 156, p. 23), and elaborated its case law concerning Member State remedies and procedural rules. More particularly, it was held that a national rule which would have allowed Danish authorities to escape the duty to refund charges levied in breach of the Directive on the ground of “excusable error” rendered Community law impossible in practice or excessively difficult to enforce (Case 199/82 Amministrazione delle Finanze dello Stato v. San Giorgio [1983] E.C.R. 3595), while a five-year time limit for bringing proceedings under Danish law was upheld as a reasonable limitation period (cf. Case C-208/90 Emmott v. Minister for Social Welfare and the Attorney General [1991] E.C.R. I-4269).