The Gazette 1990

219 / 436

GAZETTE JULY/AUGUST 1990
Employment Law Reports
This new series of law reports is designed to meet
the needs of Solicitors, Barristers, Professional
Advisers and all those concerned with the rapidly
developing area of employment law.
The reports aim to cover all important decisions of
the Employment Appeals Tribunal and appeals
therefrom to Circuit and Higher Courts. Decisions of
the Labour Court and recommendations of equality
officers will also be reported from time to time.
Many decisions are contained in ex tempore
judgments and the ELR thus aims to preserve
valuable legal findings which might otherwise be lost.
The current issue reports thirteen judgments,
including the case of Vavasour v Bonnybrook
Unemployment Action Group and decisions of the
High and Supreme Court in Halal Meat Packers
(Ballyhaunis) Ltd v Employment Appeals Tribunal.
Published quarterly. ISSN 0791-2560
Volume 1 (4 issues + index) £95.00
ÉTHE ROUND HALL PRESS
Kill Lane, Blackrock, Co. Dublin
^ Tel: 892922 Fax: 893072 ^
have been clearly the result of
lobbying or public pressure and not
genuine concern on public health
grounds. (There could of course be
an issue here of Crown privilege in
applications for discovery).
This therefore suggests that an
importer who believes the
restrictions on his right to import
infringe European law has good
reason to commence proceedings
to recover all or part of his losses.
CASE 3 - Unfair award of public
contracts
Local Authorities when awarding
public works or public supply
contracts are subject to the
provisions of Article 7 of the Treaty
(which prohibits any discrimination
on the grounds of nationality) and
various EC directives. Article 7 has
been found to have direct effect
and therefore can be relied upon by
individuals in the national Courts.
This means for instance that if a
local authority includes in its tender
for goods or works a specification
requiring compliance exclusively
with a national specification and
therefore effectively excludes
equivalent goods from another
Member State wh i ch do not
formally comply with the national
specifications, it will be in breach
of Article 7.4
For public contracts over a
certain value the EEC has laid down
"Procurement Directives" which
provide detailed procedures to be
followed by public bodies in the
advertising and selecting of
tenders. In the case of public works
contracts the value must exceed
ECU 1 millions (ECU 5 million from
July 1990) and for public supply
contracts ECU 200,000. Member
States were obliged to implement
the original directives in the 70s but
to date the United Kingdom has
failed to adopt them properly into
national law. It has instead
attempted to implement them by
Government administrative circu-
lars. This of course causes con-
fusion as to their status in English
law and to what extent they can be
relied upon by individuals before
English Courts.
Does a breach of Article 7, or of
the Procurement Directives, entitle
the innocent party to damages?
Recent decisions of the European
Court of Justice have found various
provisions of the Procurement
Directives to be directly applicable
and of direct effect.5 This means
that parts of directives may be
. . . in all cases of discrimin-
ation on the g r ounds of
nationality and in cases of
breaches of certain provisions of
the [ pub l ic p r ocu r emen t]
directives, it is open to an
applicant . . . to seek judicial
review . .
relied upon by individuals despite
the fact that they have not been
properly adopted into the UK
legislation.
Thus in all cases of discrimina-
tion on the grounds of nationality
and in cases of breaches of certain
provisions of the directives, it is
open to an applicant, at a
minimum, to seek judicial review
and a declaration of the illegality of
the award procedure. However, this
may be of little consolation to a
contractor where the award has
already been made, unless he also
has a remedy in damages. Such an
issue has not yet been litigated in
England. The first question to be
addressed will be whether the
award is such an act as to bring the
matter into the area exclusively of
public law.
If the award is not so considered
then the unsuccessful tenderer can
rely on the principles established by
the House of Lords in the Milk
Marketing Board case and seek
damages as for breach of statutory
duty.
If however, the award procedure
is considered to be in the public law
domain then the doctrine applied in
the Bourgoin decision will come
into play. That a Court may
consider an action against a Local
Authority in such circumstances to
be an action under public law and
as such therefore subject to the
exclusive procedures required for
judicial review under Order 53 of
the Supreme Court Rules is of
203