The Gazette 1990

GAZETTE

JULY/AUGUST 1990

Institutions themselves may not be liable in damages for the illegality of their legislative measures unless " t he Institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers". Parker LJ also drew some comfort from the Defrenne -v- Sabena 15 case concerning Article 119 of the Treaty and rights to equal pay for equal work between men and women. In this unusual case, " . . . the European Court of Justice held that the Com- munity Institutions themselves may not be liable in damages for the illegality of their legislative measures enormous economic impact of the judgment the Court stated that the right to damages could not be awarded to people who had not by the date of the judgment commenced pro- ceedings. In the light of all the above decisions, Parker LJ felt under no compulsion to provide an award of damages, though he did of course recognise that some form of remedy must be available. Parker LJ's interpretation of the decisions of the Court of Justice may not be a very "European" interpretation and may not fully reflect the spirit of the decisions, in particular the statements in the Russo case. However, they are certainly justifiable in the light of the failure of the Treaty and the decisions of the Court of Justice to categorically state that Member States must be liable in damages to individuals for breaches of the Treaty. It is therefore necessary to look at the form in which the Com- mun i ty legislation has been adapted into English law and whe t her using existing legal doctrines a right to damages can be claimed. This question first arose in Application Des Gaz -v- Faiks Veritas Limited 16 where Lord Denning MR decided that Articles 85 and 86 of the EEC Treaty created new torts: "So we reach this important conclusion: Articles 85 and 86 are part of our law. They create new torts or wrongs. Their because of the

Community law. In order to obtain possible compensation the undertakings concerned are therefore invited to pursue the matter in accordance with the national legal procedures in the Member States in question". However, in a later reply to a question in 1989 12 they were less confident and said:- "Compensation of private indi- viduals for damage caused in violation of Community law is a matter for national l aw" and went on to say: "The principle that the State is liable is acknowledged in all Member States. Everywhere, there is a condition that the damage must have been caused by the authorities in the exercise of their function. Under no national legal systems is liability arising from acts in the nature of secondary legislation automati- cally excluded". This particular question was also examined in some detail by Parker LJ in the Bourgoin case. Parker LJ pointed out that: "So far as Community law is concerned there is nothing in the decisions of the European Court which positively or specifically requires that, for a breach by a Member State of Article 30, a remedy in damages must be available to an individual who suffers damage by the breach". He goes on to say, though without quoting his authority, that: "Indeed the decisions of the European Court point forcefully to the conclusion that a remedy in damages in not required by Community law for breach by a Member State of an Article having direct effect where such breach consists in the imposition of a legislative or quasi legis- lative measure involving the exercise of judgment unless the breach is of a particularly serious character". Parker LJ in his judgment was anxious to make it clear that there was already an open door in front of him for the proposition that the Crown need not be liable in damages. He pointed to the decisions of the European Court of Justice in Bayerische HNL -v- The Counc/V 3 and Koninklijke Scholten Honig -v- The Council.™ In both these cases the European Court of Justice held that the Community

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