The Gazette 1992

GAZETTE

JUNE 1992

uphold their rights at Community

law.

Judge T.F. O'Higgins, writing extra

judicially, has made the point that

rights provided under Community

law are protected by Article 29.3 of

the Irish Constitution and could

accordingly be protected by such

remedies as the Courts deem

appropriate.

Such an approach

illustrates that the Irish system of

judicial remedies is not only easily

able to adapt to the additional

burdens imposed by membership of

the Communities, but is once again

ahead of the Court of Justice in the

protection it will afford to

Community law rights.

"the Irish system of judicial

remedies is not only easily able

to adapt to the additional

burdens imposed by

membership of the

Communities, but is once again

ahead of the Court of Justice in

the protection it will afford to

Community law rights.

Member States may only escape

from the liability seemingly imposed

thereon by a strict compliance with

the requirements of Community law.

Whilst Member States could try to

harmonise national rules of

procedural law so as to limit the

number of claims of this nature, it

might be asked whether such

measures would be lawful in so far

as they permitted Member States to

act in breach of their obligations at,

whilst simultaneously cutting down

rights protected by, Community

law.

A consequence of both

Zuckerfabrik

and

Francovich

is that the Court

seems to have abandoned its former

reluctance to lay down guidelines as

to the rules of procedure to be

followed at national law where

Community law rights are at issue.

This new approach may be taken a

step further in a second reference

from the House of Lords in

Marshall

The Court is asked

whether a Member State is in breach

of Council Directive 76/207 of 9

February 1976

by placing a celing

of UK £6,250 upon awards of

damages for such discrimination.

Should the Court decide that the

directive requires that national laws

must provide full compensation for

all losses sustained as a result of the

breach of the right created by this

directive, and that private persons

may obtain such compensation from

the relevant Member State, another

step will have been taken towards the

creation of Community-wide

procedural guarantees in national

courts.

Cases such as these may lead to the

"levelling-up" of the conditions

upon which relief is available under

the laws of the Member States.

Whilst in theory a Member State

could have one set of rules for

actions governed by Community law

and another for proceedings

governed by national law, it is hard

to see national legal systems

remaining insulated from these

developments, particularly as

Community law extends into new

areas and the Community law rule is

more favourable to the individual

person.

A. M.

Collins

Luxembourg

References

1. as provided for by Art. 8a of the

EEC TVeaty. For the legal effect of

this deadline, see Schermers, "The

Effect of the Date 31 December

1992," (1991)

28 CMLRev.

275.

2. See Arts. 118a and 118b of the EEC

TVeaty, inserted by the Single

European Act. Although not a

Community law measure, the

"Community Charter on the

Fundamental Social Rights of

Workers" was adopted by the

Council on 9 December 1989. For a

discussion of the latter document see

Watson, "The Social Charter",

(1991)

28 CMLRev.

37.

3. As pointed out by Mancini, "The

Making of a Constitution for

Europe", (1989)

26 CMLRev.

595 at

601, "Community authorities resort

to directives when they intend to

harmonise national laws on such

matters as taxes, banking, equality

of the sexes, protection of the

environment, employment contracts

and organisation of companies. . . .

The hope of seeing Europe grow

institutionally, in matters of social

relationships and in terms of quality

of life rests to a large extent on the

adoption and the implementation of

directives."

4. EEC TVeaty, Art. 189(3).

5. EEC Treaty, Art. 169.

6. EEC TVeaty, Art. 171.

7. Mancini,

supra,

(1989)

26 CMLRev.

595 at 602.

8. The Annual Report to the European

Parliament on Commission

monitoring of the application of

Community law - 1989, (O.J. 1990,

C 232/1), indicates at Thble 1 that

the Commission sent 664 letters of

formal notice, 180 reasoned opinions

to, and commenced 96 actions

against, Member States for alleged

infringements of Community law. Of

these 79%, 66% and 68%

respectively arose from a failure to

properly implement directives (see

Thble 8). At the end of 1989

Member States had failed to comply

with 82 judgments of the Court. The

Commission opened 26 proceedings

against Member States under Art.

171 of the TVeaty in the course of

the year.

9. see Art. G. Part E(51) of the TVeaty

on European Union signed in

Maastricht on 7 February, 1992

which proposes to amend Art. 171

of the EEC TVeaty along these

lines.

10. Case 26/62,

N.V. van Gend en

Loos

-v-

Nederlandse

Administrate

der Belastingen,

[1963] ECR 3 at

p.12.

11. Case 6/64,

Costa

-v-

ENEL,

[1964]

ECR 585 at pp. 593-4.

12. For Community secondary

legislation, see Case 9/70,

Grad

-v-

Finanzamt TYaunstein,

[1970] ECR

825, at para. 5. This was specifically

applied to directives by Case 42/74,

van Duyn

-v-

Home Office,

[1974]

ECR 1337, at paras. 12-15; Case

148/78,

Pubblico Ministero

-v-

Ratti,

[1979] ECR 1629, at paras. 20-24;

Case 8/81,

Becker

-v-

Finanzamt

Munster-Innenstadt,

[1982] ECR 53,

at paras. 24-25. See generally

Gormley ed., Kapteyn & Verloren

van Themaat,

Introduction to the

Law of the European

Communities,

2nd edn, (Deventer, 1989) at paras.

2.2.1 - 2.2.2; McMahon & Murphy,

European Community Law in

Ireland,

(Dublin, 1989), at paras.

13.10-13.20.

179