The Gazette 1990

GAZETTE

JULY/AUGUST 1990

Entitlement to damages for breach of community legislation under English Law PART I

b r e a ch and Government bodies of Commun i ty law raise s ome of the mo st complex, and in some c a s es still unanswered, questions in English law. This itself is most surprising since potential claims under these " T he fact that some of these issues remain unresolved points perhaps to the slowness with whi ch lawyers have informed their clients of their rights and remedies." provisions have been in exist- ence since 1973 when the UK and Ireland joined the Common Market. The fact that some of these issues remain unresolved points perhaps to the s l owne ss with wh i ch lawyers have informed their clients of their rights and remedies. B e c a u se the position is so c omp l ex I t h i nk it wi ll be appreciated by the reader if I try firstly to give a simple answer to the four situations. In the second half of this article I d i s cuss the by i n d i v i d u a ls

The impetus for this article arose out of a question posed by Nial Fennelly SC in a paper delivered by him to the Irish Centre for European Law on 10th February. The question was whether it is possible to obtain a remedy of damages in the UK for breaches of Articles 85 or 86 of the Rome Treaty. I thought it would be interesting to expand the question and look at the position not just under Articles 85 and 86 but under other Articles of the EEC Treaty and also secondary legislation. The question should be particularly relevant for Irish lawyers and their clients since nearly 4 0% of Irish exports still go to the United Kingdom and problems constantly arise where the services or goods being supplied are in some way restricted by acts of either the Government or competitors some of whi ch may be infringements of either primary or secondary Community legislation.

unfairly; can you seek recovery of your loss of profit? C A S E 4 - Illegal state aid You are a manufacturer competing in an international market. One of

The following are examples of different categories of situations where this question arises:- C A S E 1 - Abuse of a dominant position. You are a trader of a commodity (for example butter or cement) and your supplier who has a monopoly of the product refuses to continue to supply to you or discriminates in his p r i c i ng po l i cy to your disadvantage. You argue that the supplier is in breach of Article 86 of the E EC Treaty. Do you have a remedy in damages for your loss? C A S E 2 - Impo r t /Expo rt Restrictions You are an exporter to the UK and there is a UK Government decision wh i ch either restricts your right to export on the grounds that it does not meet the health requirements or restrictions are necessary for reasons of public policy. If s uch decisions are in breach of the E EC Treaty do you have a right to damages against the Government? C A S E 3 - Unfair award of public contracts You are a contractor in the UK and you tender for a UK Local Authority contract wh i ch you do not win because your goods do not comply with British standards and also you think there wa s some discrimina- tion in the award of the tender. The tender has been awarded, you think

By Philip Lee So l i c i tor*

your competitors receives a sub- stantial UK Government grant. This allows him to sell at a cheaper price than you. You suffer a loss in sales. The Government grant was not notified to the Commission. Can you sue that relevant Government for the damages or loss of profits you suffer? The above situations occur in varying forms not infrequently. I shall try and indicate the grounds on which damages can be awarded by an E n g l i sh C o u r t. Wh e re damages or an injunction are not available, the clients only remedy may be for a declaration by way of an application for judicial review under the recent Order 53. Order 53 has severe limitations and time c o n s t r a i n ts w h i c h an Irish practitioner must consider. The possibilities of damages for

Philip Lee.

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