The Gazette 1990

GAZETTE

JULY/AUGUST 1990

(Article 86) or of a concerted practice (Article 85) or agreement which may restrict competition he would be well advised not only to complain to the Commission but most importantly to issue a writ for an injunction and/or damages caused by the unlawful acts. This is the case even if the undertaking or competitor is controlled by the Government. restrictions Any quantitative restrictions on imports and measures having an equivalent effect are prohibited between Member States (Article 30). However, a Government is, in certain circumstances, entitled to restrict imports or exports on the grounds inter alia of public morality, public policy, public security or the protection of health and life of humans, animals or plants, provided such restrictions are not arbitrary (Article 36, EEC). In Bourgoin -v- Minister of Agriculture Fisheries and Food 3 the UK Government restricted the import of French turkeys (just prior to Christmas) without consultation and on the basis of a change in the method of testing turkeys for certain diseases. The restriction was found by the EC to be unsuccessful and illegal. The French importers sued the English Government for their losses. The English Court of Appeal considered the ban on restrictions contained in Article 30 to be a qualified ban. The Court held that if a Member State adopts a provision restricting imports which is incompatible with the limited derogation under Article 36 then that provision will be considered an ultra vires measure or a simple excess of power. This the Court of Appeal held was a question not of private law rights but of public law and there was no obligation on the Member State under EEC law to provide a remedy of damages. Accordingly the Plaintiffs were not entitled to damages unless it could be shown that the measure constituted a misfeasance or an abuse of power. The Court of Appeal did however concede that there would be a right of judicial review by anyone with sufficient interest and such a person should be able to obtain a declaration as to the invalidity of the measure and possibly on order CASE 2 - Impor t /export

of mandamus against the relevant officials to permit the importing of the goods concerned. I examine some of the complexi- ties of judicial review later in this article. However, by way of introduction, it must be noted that judicial review is still a relatively undeveloped concept under English law, when compared either to Irish law or indeed European Civil law systems. Amongst other things, to commence an action for judicial review leave must firstly be granted by the Court and the Writ must be issued in accordance with the stringent conditions of the recent Order 53 of the Supreme Court Rules. According to Parker LJ in the Bourgoin case only if it can be shown the official did not act in good faith would there be a remedy entitling the applicant to damages. " . . . only if it can be shown the official did not act in good faith wo u l d there be a r emedy entitling the app l i cant to damages." Leave was granted to appeal to the House of Lords. However, the matter was settled on the payment of a substantial sum of damages to the Plaintiff. (Several millions). Even if this more restrictive interpretation of the right to damages for breach of Article 30 is not altered by a later decision of the House of Lords the possibility of showing bad faith or misfeasance is a real possibility where the restriction or ban on import may TURKS AND CAICOS ISLANDS AND THE ISLE OF MAN Samuel McCleery Attorney - at - Law and Solicitor of PO Box 127 in Grand Turk,Turks and Caicos Islands, British West Indies and at 1 Castle Street, Castletown, Isle of Man will be pleased to accept instructions generally from Irish Solicitors in the formation and administration of Exempt Turks and Caicos Island Companies and Non - Resident Isle of Man Companies as well as Trust Administration G. T Office:-

jurisprudence that lies behind my earlier conclusions. The answers, however, must be taken in the context that the law is still developing in this area and that there has not been a definitive House of Lords pronouncement on any of the areas. CASE 1 - Abuse of a dominant position This is the most straightforward of the four situations. Article 86 of the Rome Treaty was incorporated into the domestic law of the UK by sections 2(1) and 3(1) of the European Communities Act 1972. Article 86, which outlaws any abuse of a dominant position within the Common Market, has been found to be a Treaty provision which is directly applicable and has direct effect. 1 This means that the legislation can be relied upon by nationals of the Member States before their national courts. In the decision of Garden Cottage Foods Limited -v- Milk Marketing Board 2 the House of Lords had to consider, in interlocutory injunction proceed- ings, whether it was possible to make an award of damages for breach of Article 86. They held that a breach of these provisions is equivalent to a breach of a statutory duty. This breach 'of statutory duty is a private law right for which the Plaintiff is entitled to damages and/or the discretionary entitlement of an injunction. The decision is qualified by the fact that it was decided on an interlocutory application and Lord Wilberforce gave a strong dissenting judgment stating that such an important issue should not be decided at this stage. It is interesting to note that under the new proposed competi- tion laws of the UK there will be introduced a "domestic" version of " [ T he House of Lords] held that a breach of [Article 86] is equ i va l ent to b r each of a statutory duty . . . for wh i ch the Plaintiff is entitled to damages and/or . . . an injunction." Article 86 (and eventually Article 85). It is envisaged that damages will be available to the individual under these new proposed domestic competition regulations. Thus in cases where your client has evidence of an abuse by a competitor of its dominant position

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