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4
The approach of the
court of Appeal in the
Bourgoin
case suggests that a decision to
grant state aid is an exercise of
executive discretion. However, the
case concerning State aids and
Article 93 is, I believe, very different
from
Bourgoin
and Article 30.
The reason for this is that
considerable assistance is found in
Article 93(3) which requires the
Commission to be notified in ad-
vance by each state of its proposed
state aids. Where there is failure to
notify, the state aid is clearly a
prima facie infringement. Therefore
this, it can be argued, is not an act
within the discretion of a Member
State. I would argue that in such a
case this is a breach of statutory
duty which must fall outside the
principles enunciated by Parker LJ
in the
Bourgoin
case. If this analysis
is correct, then the failure to notify
an aid, which itself was later found
to be incompatible w i th Article 92,
would entitle an injured party to
recover damages before an English
" t he failure [by a member state]
to notify [to the Commi ss i on] a
[state] aid, wh i ch itself was later
found to be incompatible w i th
Ar t i c le 92 wo u ld entitle an
i n j u r ed
pa r ty
to
r e c o v er
damages . . . "
Cou r t. Howeve r, a c au t i ous
appraoch is called for here as the
who le area of the distinction
between public law and private law
is one in which "plenty of problems
remain": per Wade, Administrative
Law.
NOTES
(1) Case 127/73
Be/gische
Radio en
Te/evisie -v- SVSabam,
(1974) ECR 51.
(2) Garden Cottage Foods Ltd. -v- Milk
Marketing Board
11983] 2 All ER 770.
( 3 )
Bourgoin -v- Minister of Agriculture,
Fisheries and Food,
11986] ICMLR
267.
(4)
Commission
-v- Ireland
11987] 2
CMLR 563.
(5) Fratelli Constanzo
-v- Comune
di
Miiano
Case 103/88 and
Beentjes -v-
Netherlands Land Commission
Case
31/87.
(6 ) An Board Bainne Co-operative Limited
-v- Milk Marketing Board [1988]
1CMLR 60.
( 7 )
O'Reilly -v- Mackman
[1983] 2 All ER
124.
(8
) AG -v- ICI pic
[1985] ICMLR 588.
(9)
Russo -v- AIMA,
[1976] 1 ECR 52.
(10) Damages in the National Courts for
Breach of Community Law 1987 Eur
Y B Act 63.
(11) Reply to Question No. 887/87 by
Poetschki O.J.C. 303/3 28.11.88.
(12) Reply to written Question No.
2433/88 by de Vries.
(13) Bayerische HNL -v- EC Council and
Commission,
11978] 3 CML S.66.
(14) Koninkljke Scholten Honig NV -v- EC
Council and Commission,
[1982] 2
CMLR S.90.
(15)
Defrenne -v- Sabena,
11976] 2 CMLR
98.
(16) Application Des Gaz -v- Falks Veritas
Ltd.
11974] Ch 381.
(17) Valor International 11976] 3 CMLR 87.
(18) Per Lord Wiiberforce
- Davey -v-
Speithorne BC,
[1984]
AC 262 at 2 78.
The author wishes to thank his former
colleague Philip Wareham of Bristows Cooke
& Carpmael's EEC Department and
Christopher Vajda, Counsel, for their helpful
comments on this paper. The views however
remain exclusively the author's.
•
* Philip Lee is a Solicitor based in London
working as a consultant. He holds a law
degree from University College, Dublin, and
a Diploma in European Law from the College
of Europe in Bruges, and is an Associate of
the Chartered institute of Arbitrators. The
author is currently writing a book on the
European Public Procurement
Directives.
-f- Editorial Note: but see now the decision of
the European Court of Justice in the matter.
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