The Gazette 1990

GAZETTE

JULY/AUGUST 1990

have been clearly the result of lobbying or public pressure and not genuine concern on public health grounds. (There could of course be an issue here of Crown privilege in applications for discovery). This therefore suggests that an importer who believes the restrictions on his right to import infringe European law has good reason to commence proceedings to recover all or part of his losses. CASE 3 - Unfair award of public contracts Local Authorities when awarding public works or public supply contracts are subject to the provisions of Article 7 of the Treaty (which prohibits any discrimination on the grounds of nationality) and various EC directives. Article 7 has been found to have direct effect and therefore can be relied upon by individuals in the national Courts. This means for instance that if a local authority includes in its tender for goods or works a specification requiring compliance exclusively with a national specification and therefore effectively excludes equivalent goods from another Member State wh i ch do not formally comply with the national specifications, it will be in breach of Article 7. 4 For public contracts over a certain value the EEC has laid down "Procurement Directives" which provide detailed procedures to be followed by public bodies in the advertising and selecting of tenders. In the case of public works contracts the value must exceed ECU 1 millions (ECU 5 million from July 1990) and for public supply contracts ECU 200,000. Member States were obliged to implement the original directives in the 70s but to date the United Kingdom has failed to adopt them properly into national law. It has instead attempted to implement them by Government administrative circu- lars. This of course causes con- fusion as to their status in English law and to what extent they can be relied upon by individuals before English Courts. Does a breach of Article 7, or of the Procurement Directives, entitle the innocent party to damages? Recent decisions of the European Court of Justice have found various provisions of the Procurement Directives to be directly applicable

Employment Law Reports This new series of law reports is designed to meet the needs of Solicitors, Barristers, Professional Advisers and all those concerned with the rapidly developing area of employment law. The reports aim to cover all important decisions of the Employment Appeals Tribunal and appeals therefrom to Circuit and Higher Courts. Decisions of the Labour Court and recommendations of equality officers will also be reported from time to time. Many decisions are contained in ex tempore judgments and the ELR thus aims to preserve valuable legal findings which might otherwise be lost. The current issue reports thirteen judgments, including the case of Vavasour v Bonnybrook Unemployment Action Group and decisions of the High and Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal.

Published quarterly. ISSN 0791-2560 Volume 1 (4 issues + index) £95.00 É THE ROUND HALL PRESS Kill Lane, Blackrock, Co. Dublin ^ Tel: 892922 Fax: 893072

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and of direct effect. 5 This means that parts of directives may be

already been made, unless he also has a remedy in damages. Such an issue has not yet been litigated in England. The first question to be addressed will be whether the award is such an act as to bring the matter into the area exclusively of public law. If the award is not so considered then the unsuccessful tenderer can rely on the principles established by the House of Lords in the Milk Marketing Board case and seek damages as for breach of statutory duty. If however, the award procedure is considered to be in the public law domain then the doctrine applied in the Bourgoin decision will come into play. That a Court may consider an action against a Local Authority in such circumstances to be an action under public law and as such therefore subject to the exclusive procedures required for judicial review under Order 53 of the Supreme Court Rules is of

. . . in all cases of discrimin- ation on the g r ounds of nationality and in cases of breaches of certain provisions of the [ pub l ic p r ocu r emen t] directives, it is open to an applicant . . . to seek judicial review . . relied upon by individuals despite the fact that they have not been properly adopted into the UK legislation. Thus in all cases of discrimina- tion on the grounds of nationality and in cases of breaches of certain provisions of the directives, it is open to an applicant, at a minimum, to seek judicial review and a declaration of the illegality of the award procedure. However, this may be of little consolation to a contractor where the award has

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