72 / 462
GAZETTE
APRIL
.
1993
present case where, in effect, an
attachment of future earnings has
been sought.
"The provisions of the
Payment of
Wages Act, 1991
also are relevant.
This Act imposes specific restrictions
on deductions from wages. These in
general are prohibited by law, but
section 5 allows an employer to
deduct in certain circumstances. But
section 5(5) (0 only allows a
deduction in the present type of case
where the employee consents and no
consent is forthcoming in the present
case. The process of involuntary
attachment referred to in section 5(5)
(g) applies where the garnishee is a
third party and is designed to cater
for cases such as where the employer
compulsorily deducts monies to
satisfy the maintenance awards in
respect of a spouse. These two
exceptions cannot be circumvented
by recourse to Ord. 45, r.l of the
Rules of the Superior Courts 1986.
"Of course, BTE is a public
company and it is obliged to attempt
to recover this debt. It cannot act
for merely charitable purposes and
simply write off the debt. BTE have
also the remedy of commital for
refusal to comply with the terms of
the instalment order. It seems to me
that it may very well be in Mr.
Shalvey's best interests to come to an
arrangement with his employer under
section 5(5) (f) with regard to the
discharge of the debt, but this is
obviously a matter for the parties.
Since I hold that BTE cannot avail
of Ord. 45, r.l to attach future
debts, it follows that I must dismiss
the application.
"As far as costs are concerned, in
many ways the merits of the case are
with BTE, since they continue to be
out of pocket. In my view, the
justice of the case would not be met
by the making of an award of costs.
No order as to costs."
The debt was subsequently
discharged.
Judges Must Set Out Facts
and Law in Detail
It has been said that prolixity or
long windedness is virtually the
handmaiden of the lawyer. Many
lawyers would dispute this assertion.
An individual solicitor or barrister
would claim that it is always the
other solicitor or barrister who is
prolix and longwinded. Each of us
would like to think that we express
..ourselves succinctly and to the point.
Many of us value brevity. However,
the Court of Justice of the European
Communities in
Joined Cases C-320
to C.322/90, Telemarsicabruzzo SpA
and Others
-v-
Circostel and Others,
(judgment delivered on January 26,
1993) in effect, considered that there
are dangers lurking when one is too
brief and when one does not set out
the law and facts in appropriate
detail.
In
Circostel,
the Court of Justice
considered that it was necessary for
national judges to describe the
factual and legislative background in
sufficient detail to enable the Court
of Justice to provide an
interpretation of Community law.
The European Court of Justice so
held in refusing to answer questions
submitted to it by the Rome District
Magistrates' Court for a preliminary
ruling pursuant to Article 117 of the
EC Treaty. Questions had been
submitted in the context of
proceedings between the applicant
companies who were owners of
television transmitters on the one
hand, and the Department for the
Construction of Telegraph and
Telephone Networks of Rome, the
Ministry of Posts and
Telecommunications and the
Ministry for Defence on the other.
The dispute related to the
interpretation of the Treaty's rules
on competition with a view to
establishing the compatibility with
Community law of certain aspects of
the national system of distributing
frequencies for television
broadcasters.
In its judgment, the Court of Justice
of the European Communities ruled
as follows:
1. The Commission has pointed out
in its observations that the
references for a preliminary ruling
were particularly laconic and
lacking in detail with regard to the
elements of fact and of law which
would make it possible to establish
the purpose of the questions
submitted and thereby to
understand their meaning and
scope.
2. The need to arrive at an
interpretation of Community Law
which would be useful for a
national court required that the
latter should define the factual
and legislative background to the
questions which it submitted or at
least that it would explain the
premises on which those questions
were based.
3. Those requirements were
particularly necessary in the field
of competition law when complex
factors and legal situations were
involved.
4. Although the file submitted by the
national court as well as written
and oral observations submitted
by the parties had provided
certain information for the Court,
nonetheless that information was
fragmentary and did not enable
the Court, in the absence of
sufficient knowledge of the facts
upon which the national
proceedings were based, to
interpret the Community
competition rules in the light of
the situation which had given rise
to those proceedings as the
national court invited it to do.
5. On those grounds, the European
Court held that it was not
necessary to rule on the questions
submitted.
•
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