The Gazette 1992

GAZETTE

JUNE 1992

uphold their rights at Community law.

step further in a second reference from the House of Lords in Marshall . 54 The Court is asked whether a Member State is in breach of Council Directive 76/207 of 9 February 1976 55 by placing a celing of UK £6,250 upon awards of damages for such discrimination. 56 Should the Court decide that the directive requires that national laws must provide full compensation for all losses sustained as a result of the breach of the right created by this directive, and that private persons may obtain such compensation from the relevant Member State, another step will have been taken towards the creation of Community-wide procedural guarantees in national courts. Cases such as these may lead to the "levelling-up" of the conditions upon which relief is available under the laws of the Member States. Whilst in theory a Member State could have one set of rules for actions governed by Community law and another for proceedings governed by national law, it is hard to see national legal systems remaining insulated from these developments, particularly as Community law extends into new areas and the Community law rule is more favourable to the individual person. 57

601, "Community authorities resort to directives when they intend to harmonise national laws on such matters as taxes, banking, equality of the sexes, protection of the environment, employment contracts and organisation of companies. . . . The hope of seeing Europe grow institutionally, in matters of social relationships and in terms of quality of life rests to a large extent on the adoption and the implementation of directives." 4. EEC TVeaty, Art. 189(3). 5. EEC Treaty, Art. 169. 6. EEC TVeaty, Art. 171. 7. Mancini, supra, (1989) 26 CMLRev. 595 at 602. 8. The Annual Report to the European Parliament on Commission monitoring of the application of Community law - 1989, (O.J. 1990, C 232/1), indicates at Thble 1 that the Commission sent 664 letters of formal notice, 180 reasoned opinions to, and commenced 96 actions against, Member States for alleged infringements of Community law. Of these 79%, 66% and 68% respectively arose from a failure to properly implement directives (see Thble 8). At the end of 1989 Member States had failed to comply with 82 judgments of the Court. The Commission opened 26 proceedings against Member States under Art. 171 of the TVeaty in the course of the year. 9. see Art. G. Part E(51) of the TVeaty on European Union signed in Maastricht on 7 February, 1992 which proposes to amend Art. 171 of the EEC TVeaty along these lines. 10. Case 26/62, N.V. van Gend en Loos -v- Nederlandse Administrate der Belastingen, [1963] ECR 3 at p.12. 11. Case 6/64, Costa -v- ENEL, [1964] ECR 585 at pp. 593-4. 12. For Community secondary legislation, see Case 9/70, Grad -v- Finanzamt TYaunstein, [1970] ECR 825, at para. 5. This was specifically applied to directives by Case 42/74, van Duyn -v- Home Office, [1974] ECR 1337, at paras. 12-15; Case 148/78, Pubblico Ministero -v- Ratti, [1979] ECR 1629, at paras. 20-24; Case 8/81, Becker -v- Finanzamt Munster-Innenstadt, [1982] ECR 53, at paras. 24-25. See generally Gormley ed., Kapteyn & Verloren van Themaat, Introduction to the Law of the European Communities, 2nd edn, (Deventer, 1989) at paras. 2.2.1 - 2.2.2; McMahon & Murphy, European Community Law in Ireland, (Dublin, 1989), at paras. 13.10-13.20.

Judge T.F. O'Higgins, writing extra judicially, has made the point that rights provided under Community law are protected by Article 29.3 of the Irish Constitution and could accordingly be protected by such remedies as the Courts deem appropriate. 50 Such an approach illustrates that the Irish system of judicial remedies is not only easily able to adapt to the additional burdens imposed by membership of the Communities, but is once again ahead of the Court of Justice in the

protection it will afford to Community law rights. 51

"the Irish system of judicial remedies is not only easily able to adapt to the additional

burdens imposed by membership of the

Communities, but is once again ahead of the Court of Justice in the protection it will afford to Community law rights.

Member States may only escape from the liability seemingly imposed thereon by a strict compliance with the requirements of Community law. Whilst Member States could try to harmonise national rules of procedural law so as to limit the number of claims of this nature, it might be asked whether such measures would be lawful in so far as they permitted Member States to act in breach of their obligations at, whilst simultaneously cutting down rights protected by, Community law. 52 Zuckerfabrik and Francovich is that the Court seems to have abandoned its former reluctance to lay down guidelines as A consequence of both to the rules of procedure to be followed at national law where Community law rights are at issue. 53 This new approach may be taken a

A. M.

Collins

Luxembourg

References 1. as provided for by Art. 8a of the EEC TVeaty. For the legal effect of this deadline, see Schermers, "The Effect of the Date 31 December 1992," (1991) 28 CMLRev. 275. 2. See Arts. 118a and 118b of the EEC

TVeaty, inserted by the Single European Act. Although not a Community law measure, the "Community Charter on the Fundamental Social Rights of Workers" was adopted by the

Council on 9 December 1989. For a discussion of the latter document see Watson, "The Social Charter", (1991) 28 CMLRev. 37. 3. As pointed out by Mancini, "The Making of a Constitution for Europe", (1989) 26 CMLRev. 595 at

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