The Gazette 1990

GAZETTE

JULY/AUGUST 1990

Entitlement to damages for breach of community legislation under English Law PART 2

In the Russo case the Court also stated: " The existence of such an obligation was confirmed by the Court when, in its judgment of 19th December 1968 in case 13/68 Sa/goil, [1968] ECR 543 it ruled that such rules require the authorities and in particular the relevant Courts of the Member States to protect the interests of those persons subject to their jurisdiction who may be affected by any possible infringement of the said provisions". However the Court affirmed that

community law. However, their conclusion that " in the context of the provisions of national l aw" is the same as "within the framework of national procedural rules" is not so clear. The Commission's position on the right to compensation appears to have changed in recent years. In 1988 11 the Commission in an answer to a written question in the European Parliament said:- " . . . Community law makes no special provision for the com- pensation of persons adversely affected by actions conflicting with the free movement of goods. However, the Commiss- ion considers that Article 5 of the EEC Treaty and the general principles of Community law oblige the Member States to provide for a system of com- pensation for private individuals in cases where the Member States are responsible for dam- ages caused them in violation of

DEVE LOPMENT OF T HE J UR I S- PRUDENCE ON T HE AWARD OF D AMA G ES FOR BRE ACH OF C OMM U N I TY LEGI SLAT ION The incorporation of Community law into the UK national legal system has not been a smooth task. It has been complicated by the fact that many of the concepts are derived from the continental civil code system. The relative newness of concepts such as administrative law and judicial review in a jurisdiction where, until recently, the Crown was immune from many types of actions, combined with a reluctance to accept a shift of power to Brussels and the European Court of Justice has posed its own problems. Charting some of the development of this jurisprudence will, I hope, serve as an explanation of the summaries to the factual cases considered in the first part of this paper. An appropriate starting point is to look at what Community law itself requires of member states in the protection of Community law. In particular, is there an obligation deriving from Community law to award damages for breaches of Community law? Article 5 of the EEC Treaty "obliges Member States to provide a system for the protection of individual rights created by Community rules". "Wi th regard to the extent of the protection, the principles of efficiency and of the uniform application of Community law require that this protection should be appropriate and effective, without prejudice to the neutral stance of Community law with regard to the procedure chosen". 9

By Philip Lee So l i c i t o r*

the nature of the remedy must be left to National law: " I t is for the national Court to decide on the basis of the facts of each case whether an indiv- idual producer has suffered damage. If such damage has been caused through an infringement of Community law the state is liable to the injured party for the consequences in the context of the provisions of national law on the liability of the state" (emphasis added). Nicholas Green and Ami Barav 10 consider this the nearest to an authority for the proposition that national courts must award dam- ages, within the framework of national procedural rules, to individuals harmed by a breach of a directly applicable provision of

Philip Lee.

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