The Gazette 1990

JULY/AUGUST 1990

GAZETTE

effective. 4 The approach of the court of Appeal in the Bourgoin case suggests that a decision to grant state aid is an exercise of executive discretion. However, the case concerning State aids and Article 93 is, I believe, very different from Bourgoin and Article 30. The reason for this is that considerable assistance is found in Article 93(3) which requires the Commission to be notified in ad- vance by each state of its proposed state aids. Where there is failure to notify, the state aid is clearly a prima facie infringement. Therefore this, it can be argued, is not an act within the discretion of a Member State. I would argue that in such a case this is a breach of statutory duty which must fall outside the principles enunciated by Parker LJ in the Bourgoin case. If this analysis is correct, then the failure to notify an aid, which itself was later found to be incompatible w i th Article 92, would entitle an injured party to recover damages before an English " t he failure [by a member state] to notify [to the Commi ss i on] a [state] aid, wh i ch itself was later found to be incompatible w i th Ar t i c le 92 wo u ld entitle an i n j u r ed pa r ty to r e c o v er damages . . . " Cou r t. Howeve r, a c au t i ous appraoch is called for here as the who le area of the distinction between public law and private law is one in which "plenty of problems remain": per Wade, Administrative Law.

NOTES (1) Case 127/73 Be/gische Radio en Te/evisie -v- SVSabam, (1974) ECR 51. (2) Garden Cottage Foods Ltd. -v- Milk Marketing Board 11983] 2 All ER 770. ( 3 ) Bourgoin -v- Minister of Agriculture, Fisheries and Food, 11986] ICMLR 267. (4) Commission -v- Ireland 11987] 2 CMLR 563. (5) Fratelli Constanzo -v- Comune di Miiano Case 103/88 and Beentjes -v- Netherlands Land Commission Case 31/87. (6 ) An Board Bainne Co-operative Limited -v- Milk Marketing Board [1988] 1CMLR 60. ( 7 ) O'Reilly -v- Mackman [1983] 2 All ER 124. (8 ) AG -v- ICI pic [1985] ICMLR 588. (9) Russo -v- AIMA, [1976] 1 ECR 52. (10) Damages in the National Courts for Breach of Community Law 1987 Eur Y B Act 63. (11) Reply to Question No. 887/87 by Poetschki O.J.C. 303/3 28.11.88. (12) Reply to written Question No. 2433/88 by de Vries. (13) Bayerische HNL -v- EC Council and Commission, 11978] 3 CML S.66. (14) Koninkljke Scholten Honig NV -v- EC Council and Commission, [1982] 2 CMLR S.90. (15) Defrenne -v- Sabena, 11976] 2 CMLR 98. (16) Application Des Gaz -v- Falks Veritas Ltd. 11974] Ch 381. (17) Valor International 11976] 3 CMLR 87. (18) Per Lord Wiiberforce - Davey -v- Speithorne BC, [1984] AC 262 at 2 78. The author wishes to thank his former colleague Philip Wareham of Bristows Cooke & Carpmael's EEC Department and Christopher Vajda, Counsel, for their helpful comments on this paper. The views however remain exclusively the author's. • * Philip Lee is a Solicitor based in London working as a consultant. He holds a law degree from University College, Dublin, and a Diploma in European Law from the College of Europe in Bruges, and is an Associate of the Chartered institute of Arbitrators. The author is currently writing a book on the European Public Procurement Directives. -f- Editorial Note: but see now the decision of the European Court of Justice in the matter.

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