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GAZETTE
JULY/AUGUST 1990
Entitlement to damages for
breach of community
legislation under English Law
PART 2
DEVE LOPMENT OF T HE J UR I S-
PRUDENCE ON T HE AWARD OF
D AMA G ES FOR BRE ACH OF
C OMM U N I TY LEGI SLAT ION
The incorporation of Community
law into the UK national legal
system has not been a smooth
task. It has been complicated by
the fact that many of the concepts
are derived from the continental
civil code system. The relative
newness of concepts such as
administrative law and judicial
review in a jurisdiction where, until
recently, the Crown was immune
from many types of actions,
combined with a reluctance to
accept a shift of power to Brussels
and the European Court of Justice
has posed its own problems.
Charting some of the development
of this jurisprudence will, I hope,
serve as an explanation of the
summaries to the factual cases
considered in the first part of this
paper.
An appropriate starting point is to
look at what Community law itself
requires of member states in the
protection of Community law. In
particular, is there an obligation
deriving from Community law to
award damages for breaches of
Community law?
Article 5 of the EEC Treaty
"obliges Member States to provide
a system for the protection of
individual rights created by
Community rules".
"Wi th regard to the extent of the
protection, the principles of
efficiency and of the uniform
application of Community law
require that this protection
should be appropriate and
effective, without prejudice to
the neutral stance of Community
law with regard to the procedure
chosen".
9
In the
Russo
case the Court also
stated:
" The existence of such an
obligation was confirmed by the
Court when, in its judgment of
19th December 1968 in case
13/68
Sa/goil,
[1968] ECR 543 it
ruled that such rules require the
authorities and in particular the
relevant Courts of the Member
States to protect the interests of
those persons subject to their
jurisdiction who may be affected
by any possible infringement of
the said provisions".
However the Court affirmed that
By
Philip Lee
So l i c i t o r*
the nature of the remedy must be
left to National law:
" I t is for the national Court to
decide on the basis of the facts
of each case whether an indiv-
idual producer has suffered
damage.
If such damage has
been
caused
through
an
infringement of Community law
the state is liable to the injured
party for the consequences in
the context of the provisions of
national law on the liability of the
state" (emphasis added).
Nicholas Green and Ami Barav
10
consider this the nearest to an
authority for the proposition that
national courts must award dam-
ages, within the framework of
national procedural rules, to
individuals harmed by a breach of
a directly applicable provision of
community law. However, their
conclusion that " in the context of
the provisions of national l aw" is
the same as "within the framework
of national
procedural
rules" is not
so clear.
The Commission's position on
the right to compensation appears
to have changed in recent years. In
1988
11
the Commission in an
answer to a written question in the
European Parliament said:-
" . . . Community law makes no
special provision for the com-
pensation of persons adversely
affected by actions conflicting
with the free movement of
goods. However, the Commiss-
ion considers that Article 5 of
the EEC Treaty and the general
principles of Community law
oblige the Member States to
provide for a system of com-
pensation for private individuals
in cases where the Member
States are responsible for dam-
ages caused them in violation of
Philip Lee.
237