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GAZETTE
JULY/AUGUST1990
practitioner would be advised:
(a)
firstly to check that the
relevant provision breached
is directly applicable and of
direct effect;
(b)
to analyse whether the act
or conduct is in the public
sphere or t he private
sphere;
(c)
if there is any doubt re-
garding the public/private
issue, (and I would suggest
that if it involves a public
body exercising its legisla-
tive or admi n i s t r a t i ve
discretion then the practi-
tioner should err on the
side of caution) immedi-
ately apply for judicial
review of the decision in
question. If the action
arises out of a legislative
act and the three month
l imi t a t i on
period
has
expired, remember that an
application for judicial
review can be based on the
subsequent implementing
decision of the piece of
legislation. This can result
in removing the severe
consequences of the three
month limitation.
(d) (i) If the action is clearly in the
private law domain then
proceed by way of writ as
if applying for damages for
breach of statutory duty,
(ii) Under Order 53 of the
Rules of the Supreme
Court the application for
judicial review can be
combined with an applica-
tion for damages. If the
Court finds that it is in fact
a right actionable as in
private law then the Court
has discretion to transfer
the action to a private law
writ.
(e)
You may be well advised to
seek the assistance of the
European Commission in a
separate s imu l t aneous
action against the relevant
Government under Article
169.
(f)
If the action is clearly one
of public law then there is
a problem in that damages
may not ultimately be
recoverable. Following the
jurisprudence of the House
of Lordsf in the Spanish
Fisheries cases, it appears
that the English Court will
not temporarily suspend an
Act of Parliament alleged to
be incompatible with Com-
munity Law pending the
ou t come of either an
Article 169 procedure or an
Article 177 reference to the
Court of Justice. Whether
that approach is itself com-
patible with Community
Law is currently before the
European Court in Case
213/89
Factortame.
This
could leave your clients in
the unfortunate position of
not being able to obtain an
i n j unc t i on against the
public authority for a con-
siderable period of time
following which, if the
application is successful,
there may be no retro-
spective entitlement to
damages. The ultimate
question that may have to
be faced in this situation is
should you advise your
client to breach the exist-
ing national legislation (in
so far as this may be
possible) in the belief that
there may not ultimately be
an award of damages. This
of course is highly pre-
carious but must be con-
sidered.
NOTES
(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 CMLR 66.
(14) Koninkiijke Schoiten Honig NV-v- EC
Council and Commission,
[19821 2
CMLR S.90.
(15)
Defrenne -v- Sabena,
[1976] 2 CMLR
98.
(16) Application Des Gaz -v- Falks Veritas
Ltd.
[1974] Ch 381.
(17)
Valor International
[1976] 3 CMLR 87.
(18) Per Lord Wilberforce -
Davey -v-
Speithorne BC,
11984]
AC 262 at 278.
-J- Editorial Note: but see now the decision
of the European Court of Justice in the
matter.
* 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.
NOEL C. RYAN
Director General (designate)
Mr. Ryan joins the Law Society as Director General from the senior
ranks of the Civil Service where he has been an Assistant Secretary
in the Department of Justice and, since 1985, in the Department
of Foreign Affairs on the staff of the Anglo Irish Secretariat at
Maryfield, Belfast.
Mr. Ryan has had wide-ranging experience in the Civil Service in
a number of Government Departments over the past 30 years. He
joined the staff of the Department of Defence in 1960 and served
in the Department of Finance and the Department of the Public
Service before joining the Department of Justice as an Assistant
Principal in 1973.
He worked at senior level in a number of Divisions in the Department
of Justice in the 1970s and early '80s and was closely associated
with legislation in the criminal justice field, including the 1983
Criminal Justice Bill and the Garda Siochana Complaints Bill. He
has had extensive international experience in the field of criminal
law and extradition policy in both the European Community and
the Council of Europe.
Mr. Ryan was appointed Assistant Secretary in charge of the Garda
Siochana and Security Division of the Department of Justice in
1984. He joined the staff of the Secretariat of the Anglo Irish Inter-
Governmental Conference in 1985 where he took charge of legal
and security matters, including administration of justice in Northern
Ireland and extradition policy.
Mr. Ryan is a graduate in law of University College Dublin and was
called to the Irish Bar in 1979. He is aged 47 and is married with
six children. He lives in Palmerstown, Co. Dublin.
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