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GAZETTE
JULY/AUGUST 1990
Entitlement to damages for
breach of community
legislation under English Law
PART I
The impetus for this article arose out of a question posed by Nial
Fennelly SC in a paper delivered by him to the Irish Centre for
European Law on 10th February. The question was whether it is
possible to obtain a remedy of damages in the UK for breaches of
Articles 85 or 86 of the Rome Treaty. I thought it would be
interesting to expand the question and look at the position not just
under Articles 85 and 86 but under other Articles of the EEC Treaty
and also secondary legislation. The question should be particularly
relevant for Irish lawyers and their clients since nearly 4 0% of Irish
exports still go to the United Kingdom and problems constantly
arise where the services or goods being supplied are in some way
restricted by acts of either the Government or competitors some
of whi ch may be infringements of either primary or secondary
Community legislation.
The following are examples of
different categories of situations
where this question arises:-
C A S E 1 -
Abuse of a dominant
position.
You are a trader of a commodity
(for example butter or cement) and
your supplier who has a monopoly
of the product refuses to continue
to supply to you or discriminates in
his
p r i c i ng
po l i cy
to
your
disadvantage. You argue that the
supplier is in breach of Article 86
of the E EC Treaty. Do you have a
remedy in damages for your loss?
C A S E
2
-
Impo r t /Expo rt
Restrictions
You are an exporter to the UK and
there is a UK Government decision
wh i ch either restricts your right to
export on the grounds that it does
not meet the health requirements
or restrictions are necessary for
reasons of public policy. If s uch
decisions are in breach of the E EC
Treaty do you have a right to
damages against the Government?
C A S E 3 -
Unfair award of public
contracts
You are a contractor in the UK and
you tender for a UK Local Authority
contract wh i ch you do not win
because your goods do not comply
with British standards and also you
think there wa s some discrimina-
tion in the award of the tender. The
tender has been awarded, you think
unfairly; can you seek recovery of
your loss of profit?
C A S E 4 -
Illegal state aid
You are a manufacturer competing
in an international market. One of
By
Philip Lee
So l i c i tor*
your competitors receives a sub-
stantial UK Government grant. This
allows him to sell at a cheaper price
than you. You suffer a loss in sales.
The Government grant was not
notified to the Commission. Can
you sue that relevant Government
for the damages or loss of profits
you suffer?
The above situations occur in
varying forms not infrequently. I
shall try and indicate the grounds
on which damages can be awarded
by an E n g l i sh C o u r t. Wh e re
damages or an injunction are not
available, the clients only remedy
may be for a declaration by way of
an application for judicial review
under the recent Order 53. Order
53 has severe limitations and time
c o n s t r a i n ts
w h i c h
an
Irish
practitioner must consider.
The possibilities of damages for
b r e a ch
by
i n d i v i d u a ls
and
Government bodies of Commun i ty
law raise s ome of the mo st
complex, and in some c a s es still
unanswered, questions in English
law. This itself is most surprising
since potential claims under these
" T he fact that some of these
issues remain unresolved points
perhaps to the slowness with
whi ch lawyers have informed
their clients of their rights and
remedies."
provisions have been in exist-
ence since 1973 when the UK
and Ireland joined the Common
Market. The fact that some of
these issues remain unresolved
points perhaps to the s l owne ss
with wh i ch lawyers have informed
their clients of their rights and
remedies.
B e c a u se the position is so
c omp l ex
I t h i nk
it wi ll
be
appreciated by the reader if I try
firstly to give a simple answer to
the four situations. In the second
half of this article I d i s cuss the
Philip Lee.
201