The Gazette 1990

GAZETTE

JULY/AUGUST 1990

Community law. In order to

obtain possible compensation

the undertakings concerned are

therefore invited to pursue the

matter in accordance with the

national legal procedures in the

Member States in question".

However, in a later reply to a

question in 1989

they were less

confident and said:-

"Compensation of private indi-

viduals for damage caused in

violation of Community law is a

matter for national l aw"

and went on to say:

"The principle that the State is

liable is acknowledged in all

Member States. Everywhere,

there is a condition that the

damage must have been caused

by the authorities in the exercise

of their function. Under no

national legal systems is liability

arising from acts in the nature of

secondary legislation automati-

cally excluded".

This particular question was also

examined in some detail by Parker

LJ in the

Bourgoin

case. Parker LJ

pointed out that:

"So far as Community law is

concerned there is nothing in the

decisions of the European Court

which positively or specifically

requires that, for a breach by a

Member State of Article 30, a

remedy in damages must be

available to an individual who

suffers damage by the breach".

He goes on to say, though without

quoting his authority, that:

"Indeed the decisions of the

European Court point forcefully

to the conclusion that a remedy

in damages in not required by

Community law for breach by a

Member State of an Article

having direct effect where such

breach consists in the imposition

of a legislative or quasi legis-

lative measure involving the

exercise of judgment unless the

breach is of a particularly serious

character".

Parker LJ in his judgment was

anxious to make it clear that there

was already an open door in front

of him for the proposition that the

Crown need not be liable in

damages. He pointed to the

decisions of the European Court of

Justice in

Bayerische

HNL -v- The

Counc/V

and

Koninklijke Scholten

Honig -v- The Council.™

In both

these cases the European Court of

Justice held that the Community

Institutions themselves may not be

liable in damages for the illegality

of their legislative measures unless

" t he Institution concerned has

manifestly and gravely disregarded

the limits on the exercise of its

powers".

Parker LJ also drew some

comfort from the

Defrenne

-v-

Sabena

case concerning Article

119 of the Treaty and rights to equal

pay for equal work between men

and women. In this unusual case,

" . . . the European Court of

Justice held that the Com-

munity Institutions themselves

may not be liable in damages for

the illegality of their legislative

measures

because

the

enormous

economic impact of the judgment

the Court stated that the right to

damages could not be awarded to

people who had not by the date of

the judgment commenced pro-

ceedings.

In the light of all the above

decisions, Parker LJ felt under no

compulsion to provide an award of

damages, though he did of course

recognise that some form of

remedy must be available.

Parker LJ's interpretation of the

decisions of the Court of Justice

may not be a very "European"

interpretation and may not fully

reflect the spirit of the decisions, in

particular the statements in the

Russo

case. However, they are

certainly justifiable in the light of

the failure of the Treaty and the

decisions of the Court of Justice to

categorically state that Member

States must be liable in damages to

individuals for breaches of the

Treaty.

It is therefore necessary to look

at the form in which the Com-

mun i ty legislation has been

adapted into English law and

whe t her using existing legal

doctrines a right to damages can be

claimed.

This question first arose in

Application

Des Gaz -v- Faiks

Veritas

Limited

where Lord

Denning MR decided that Articles

85 and 86 of the EEC Treaty

created new torts:

"So we reach this important

conclusion: Articles 85 and 86

are part of our law. They create

new torts or wrongs. Their

pes

•

HUM

PETROCARGO MARINE SURVEYORS LTD.

Marine Consultancy;

Independent Marine Surveyors;

Marine Expert Witness;

Ship to Ship Transfer;

Vessel & Terminal Safety Inspection;

Recruitment; Procedures Manuals.

Cooleen House, Rushbrooke,

Cobh, Co. Cork.

Tel: 021-811677 Fax: 021-813009

Capt. Thomas C. Naah M. INST. PET.

names are "undue restriction of

competion within the Common

Market", and "abuse of domi-

nant position w i t h in the

Common

Ma r k e t ".

Any

infringement of those Articles

can be dealt with by our English

Courts. It is for our Courts to find

the facts, to apply the law and

to use the remedies which we

have available".

However, later, the majority of the

House of Lords in the

Garden

Cottage Foods

case did not accept

Lord Denning MR's theory. Their

view was that it was unnecessary

to invent a new and novel form of

action in the English legal system.

There was already in existence a

suitable vehicle for such situation.

Lord Diplock quoted Roskill LJ in

Va/or International

who stated

that there were "Many questions

which will have to be argued in this

Court, or elsewhere in this country

or at Luxembourg, before it can be

stated ca t egor i ca l ly . . . t hat

Articles 85 and 86 create new torts

or wrongs . . . . "

In the

Garden Cottage Foods

case the majority felt that it was

inarguable that there would be a

right of action for a breach of

Article 85 or 86 which did not give

a remedy in damages. It is their

view that the remedy will be

available for a breach of statutory

duty.

Following the

Garden Cottage

Foods

case the law as it then was

seemed reasonably straightfor-

ward, namely that a breach of a

community regulation would be

considered a breach of statutory

duty for which damages may be

available in accordance with the

existing principles of English law.

However, a major turnabout

occurred in the later Court of

Appeal decision in the

Bourgoin

case. This case concerned re-

238