The Gazette 1990

GAZETTE

JULY/AUGUST 1990

jurisprudence that lies behind my

earlier conclusions. The answers,

however, must be taken in the

context that the law is still

developing in this area and that

there has not been a definitive

House of Lords pronouncement on

any of the areas.

CASE 1 -

Abuse of a dominant

position

This is the most straightforward of

the four situations. Article 86 of the

Rome Treaty was incorporated into

the domestic law of the UK by

sections 2(1) and 3(1) of the

European Communities Act 1972.

Article 86, which outlaws any

abuse of a dominant position

within the Common Market, has

been found to be a Treaty provision

which is directly applicable and has

direct effect.

This means that the

legislation can be relied upon by

nationals of the Member States

before their national courts. In the

decision of

Garden Cottage Foods

Limited -v- Milk Marketing Board

the House of Lords had to consider,

in interlocutory injunction proceed-

ings, whether it was possible to

make an award of damages for

breach of Article 86. They held that

a breach of these provisions is

equivalent to a breach of a

statutory duty. This breach 'of

statutory duty is a private law right

for which the Plaintiff is entitled to

damages and/or the discretionary

entitlement of an injunction. The

decision is qualified by the fact that

it was decided on an interlocutory

application and Lord Wilberforce

gave a strong dissenting judgment

stating that such an important

issue should not be decided at this

stage. It is interesting to note that

under the new proposed competi-

tion laws of the UK there will be

introduced a "domestic" version of

" [ T he House of Lords] held that

a breach of [Article 86] is

equ i va l ent to b r each of a

statutory duty . . . for wh i ch the

Plaintiff is entitled to damages

and/or . . . an injunction."

Article 86 (and eventually Article

85). It is envisaged that damages

will be available to the individual

under these new

proposed

domestic competition regulations.

Thus in cases where your client

has evidence of an abuse by a

competitor of its dominant position

(Article 86) or of a concerted

practice (Article 85) or agreement

which may restrict competition he

would be well advised not only to

complain to the Commission but

most importantly to issue a writ for

an injunction and/or damages

caused by the unlawful acts. This

is the case even if the undertaking

or competitor is controlled by the

Government.

CASE 2

Impor t /export

restrictions

Any quantitative restrictions on

imports and measures having an

equivalent effect are prohibited

between Member States (Article

30). However, a Government is, in

certain circumstances, entitled to

restrict imports or exports on the

grounds inter alia of public morality,

public policy, public security or the

protection of health and life of

humans, animals or plants,

provided such restrictions are not

arbitrary (Article 36, EEC). In

Bourgoin -v- Minister of Agriculture

Fisheries

and Food

the UK

Government restricted the import

of French turkeys (just prior to

Christmas) without consultation

and on the basis of a change in the

method of testing turkeys for

certain diseases. The restriction

was found by the EC to be

unsuccessful and illegal. The

French importers sued the English

Government for their losses. The

English Court of Appeal considered

the ban on restrictions contained in

Article 30 to be a qualified ban. The

Court held that if a Member State

adopts a provision restricting

imports which is incompatible with

the limited derogation under Article

36 then that provision will be

considered an ultra vires measure

or a simple excess of power. This

the Court of Appeal held was a

question not of private law rights

but of public law and there was no

obligation on the Member State

under EEC law to provide a remedy

of damages. Accordingly the

Plaintiffs were not entitled to

damages unless it could be shown

that the measure constituted a

misfeasance or an abuse of power.

The Court of Appeal did however

concede that there would be a right

of judicial review by anyone with

sufficient interest and such a

person should be able to obtain a

declaration as to the invalidity of

the measure and possibly on order

of mandamus against the relevant

officials to permit the importing of

the goods concerned.

I examine some of the complexi-

ties of judicial review later in this

article. However, by way of

introduction, it must be noted that

judicial review is still a relatively

undeveloped concept under English

law, when compared either to Irish

law or indeed European Civil law

systems.

Amongst other things, to

commence an action for judicial

review leave must firstly be granted

by the Court and the Writ must be

issued in accordance with the

stringent conditions of the recent

Order 53 of the Supreme Court

Rules.

According to Parker LJ in the

Bourgoin

case only if it can be

shown the official did not act in

good faith would there be a remedy

entitling the applicant to damages.

" . . . only if it can be shown the

official did not act in good faith

wo u l d there be a r emedy

entitling the app l i cant to

damages."

Leave was granted to appeal to

the House of Lords. However, the

matter was settled on the payment

of a substantial sum of damages to

the Plaintiff. (Several millions).

Even if this more restrictive

interpretation of the right to

damages for breach of Article 30 is

not altered by a later decision of the

House of Lords the possibility of

showing bad faith or misfeasance

is a real possibility where the

restriction or ban on import may

TURKS AND CAICOS

ISLANDS AND

THE ISLE OF MAN

Samuel McCleery

Attorney - at - Law and Solicitor of PO Box

127 in Grand Turk,Turks and Caicos Islands,

British West Indies and at 1 Castle Street,

Castletown, Isle of Man will be pleased to

accept instructions generally from Irish

Solicitors in the formation and administration

of Exempt Turks and Caicos Island

Companies and Non - Resident Isle of Man

Companies as well as Trust Administration

G. T Office:-

Tel: 809 946 2818

Fax: 809 946 2819

I.O.M.Office:-

Tel: 0624 822210

Telex : 628285 Samdan G

Fax: 0624 823799

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