The Gazette 1990

JULY/AUGUST1990

GAZETTE

that the English Court will not temporarily suspend an Act of Parliament alleged to be incompatible with Com- munity Law pending the ou t come of either an Article 169 procedure or an Article 177 reference to the Court of Justice. Whether that approach is itself com- patible with Community Law is currently before the European Court in Case 213/89 Factortame. This could leave your clients in the unfortunate position of not being able to obtain an i n j unc t i on against the public authority for a con- siderable period of time following which, if the application is successful, there may be no retro- spective entitlement to damages. The ultimate question that may have to be faced in this situation is should you advise your client to breach the exist- ing national legislation (in so far as this may be possible) in the belief that

practitioner would be advised: (a)

there may not ultimately be an award of damages. This of course is highly pre- carious but must be con- sidered.

firstly to check that the relevant provision breached is directly applicable and of direct effect; to analyse whether the act or conduct is in the public sphere or t he private sphere; if there is any doubt re- garding the public/private issue, (and I would suggest that if it involves a public body exercising its legisla- tive or admi n i s t r a t i ve discretion then the practi- tioner should err on the side of caution) immedi- ately apply for judicial review of the decision in question. If the action arises out of a legislative act and the three month l imi t a t i on period has

(b)

NOTES (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 CMLR 66. (14) Koninkiijke Schoiten Honig NV-v- EC Council and Commission, [19821 2 CMLR S.90. (15) Defrenne -v- Sabena, [1976] 2 CMLR 98. (16) Application Des Gaz -v- Falks Veritas Ltd. [1974] Ch 381. (17) Valor International [1976] 3 CMLR 87. (18) Per Lord Wilberforce - Davey -v- Speithorne BC, 11984] AC 262 at 278. -J- Editorial Note: but see now the decision of the European Court of Justice in the matter. * 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.

(c)

expired, remember that an application for judicial review can be based on the subsequent implementing decision of the piece of legislation. This can result in removing the severe consequences of the three month limitation. (d) (i) If the action is clearly in the private law domain then proceed by way of writ as if applying for damages for breach of statutory duty, (ii) Under Order 53 of the

NOEL C. RYAN Director General (designate)

Mr. Ryan joins the Law Society as Director General from the senior ranks of the Civil Service where he has been an Assistant Secretary in the Department of Justice and, since 1985, in the Department of Foreign Affairs on the staff of the Anglo Irish Secretariat at Maryfield, Belfast. Mr. Ryan has had wide-ranging experience in the Civil Service in a number of Government Departments over the past 30 years. He joined the staff of the Department of Defence in 1960 and served in the Department of Finance and the Department of the Public Service before joining the Department of Justice as an Assistant Principal in 1973. He worked at senior level in a number of Divisions in the Department of Justice in the 1970s and early '80s and was closely associated with legislation in the criminal justice field, including the 1983 Criminal Justice Bill and the Garda Siochana Complaints Bill. He has had extensive international experience in the field of criminal law and extradition policy in both the European Community and the Council of Europe. Mr. Ryan was appointed Assistant Secretary in charge of the Garda Siochana and Security Division of the Department of Justice in 1984. He joined the staff of the Secretariat of the Anglo Irish Inter- Governmental Conference in 1985 where he took charge of legal and security matters, including administration of justice in Northern Ireland and extradition policy. Mr. Ryan is a graduate in law of University College Dublin and was called to the Irish Bar in 1979. He is aged 47 and is married with six children. He lives in Palmerstown, Co. Dublin. •

Rules of the Supreme Court the application for judicial review can be combined with an applica- tion for damages. If the Court finds that it is in fact a right actionable as in private law then the Court has discretion to transfer the action to a private law writ. You may be well advised to seek the assistance of the European Commission in a separate s imu l t aneous action against the relevant Government under Article 169. If the action is clearly one of public law then there is a problem in that damages may not ultimately be recoverable. Following the jurisprudence of the House of Lordsf in the Spanish Fisheries cases, it appears

(e)

(f)

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