The Gazette 1985

GAZETTE

APRIL 1985

Finally, having dismissed the summons as illfounded,

the Resident Magistrate ruled on the question of costs as

follows:

"By reason of the exceptional length, difficulty and

complexity of these proceedings, I award the

defendant costs incurred both before this court and

the ECJ as may be agreed between the parties."

All in all, a successful outing based on Community law

as far as EEC citizen Redmond was concerned!

(b)

In Civil Proceedings:

An Irish case which illustrates

the successful reliance on Community law as a defence is

Pigs Marketing Board

-v-

McCarron,

discussed in Part IV.

Numerous other examples are to be found in competition

law, where it may be possible for a party to rely on Article

85 or Article 86 of the EEC Treaty as a defence to a claim

brought seeking to enforce an agreement or arrangement

which contravenes the Community's competition policy.

Aluminium Design Ltd.

-v-

Alean Windows Ltd.

McWilliam, J. had to decide whether a sole agency

agreement was valid under the Community competition

rules, and, if so, whether 6 months would be reasonable

notice of termination of the agreement. In 1969, the

plaintiff company had concluded an agreement with an

English company, under which it (the plaintiff company)

would make and distribute in Ireland aluminium frames

for doors and windows which had been developed by the

English company. However, about 10 years later the

English company was itself taken over by Alcan, which

then wished to transfer the agency to its own subsidiary in

Ireland. Alcan gave Aluminium Design 6 months notice

of termination of the agreement, but the latter sought an

injunction restraining the subsidiary of Alcan from

marketing the particular aluminium frames in Ireland.

The defendant company argued that the agency

agreement was void under Article 85, but McWilliam J.

noted that the agreement in question was of a type

covered by a Council Regulation, No. 67/67, which

provided for group exemption. He concluded that the

agreement was valid, and that a reasonable period for

terminating such an agreement in the circumstances

would be one year's notice. The judgment failed to deal

expressly with some questions which would be relevant to

the application of Community law: in particular, whether

the agreement had been notified to the EEC Commission,

and secondly, what the market share of the parties was in

the relevant market — which would be important because

if the market share was very small the agreement might

not come within the Community's competition rules at all

under the

de minimus

rule.

Procedural Aspects of Enforcement of Community Law

Another dimension which must be considered is the

relationship between Community law and national law in

the context of enforcement. This is a complex area

because, as Professor Bridge has pointed out:

"While the community constitutes a new and

independent legal order, it is also in a sense a

dependent legal order in that it relies for its enforce-

ment on the legal orders of the Member States. The

quasi-federal judicial and executive institutions of

the Community structure have the authority to

hand down binding judgments and decisions, but

the enforcement of those judgments and decisions is

entrusted to the legal systems of the Member

States . .. The Treaty also clearly assumes, through

the direct applicability of Regulations and the

judicial procedure for preliminary rulings, that

Community law will also be enforced

ab initio

by the

courts and tribunals of the Member States. The

scope and significance of this aspect of the enforce-

ment of Community law has been extended greatly

by the development of the doctrine of the direct

effect of provisions of the Treaty and of secondary

legislation in the legal systems of the Member

States."

An important aspect, therefore, of the relationship

between Community law and the laws of the Member

States concerns the identification of what rules of

procedure are applicable to particular actions for the

enforcement of Community law. Sometimes the relevant

rules are contained in provisions of Community law —

either in Treaty Articles or secondary legislation — such

as the provisions in Articles 173 and 175 of the EEC

Treaty setting out precise periods of limitation for the

bringing of direct actions before the European Court.

Similarly, specific Community rules of procedure have

been made in connection with competition policy, and

with import and export duties.

Where there are no express rules of Community law in a

particular area, then the relevant procedural rules of the

national laws of the Member States will be applicable. For

example, the request for a preliminary ruling under

Article 177 is exercised in accordance with national rules

of procedure. This gave rise to the conclusion of the

Supreme Court in the

Campus Oil Case

that the question

of whether there could be an appeal from a decision by a

judge of the High Court to request a preliminary ruling

was a matter of interpretation of the Irish Constitution

and Rules of the Superior Courts. Walsh J. (

nem.diss.)

held as follows:

"It is as a matter of Irish law that Article 177 confers

upon an Irish national judge an unfettered

discretion to make a preliminary reference to the

European Court of Justice . . .

The Court has been informed, and indeed is aware,

that in other Member States of the European

Community provision has been made for appeals to

higher courts against decisions to refer questions

under Article 177 by national judges and courts

which are normally subject to appeal. It is not

necessary for me to make any observation upon the

law of other countries as I take the view that I must

decide the question in the context of Irish law

only."

Apart, however, from the areas where there are express

rules of procedure under Community law, or where it is

clear that national procedural rules apply, there is a "grey

area" in which there are neither express Community

procedural rules nor specific rules of procedure in the

laws of the Member States. One such "grey area" is where

a Community measure gives rise to direct effects. Clearly

the courts and legal systems of the Member States are

under a duty to protect and enforce the rights which

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