The Gazette 1985

APRIL 1985

GAZETTE

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." 3 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, 4 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. In Aluminium Design Ltd. -v- Alean Windows Ltd. 5 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. 6 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: 7 "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 8 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." 9 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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