EUROPEAN UNION LAW
W.B. Fisch, Winter 2006
Assignment #16

[Ch. 10. NATIONAL REMEDIES FOR THE ENFORCEMENT OF COMMUNITY LAW CLAIMS]

B. Daamges for Member State Violations of EC Law

GARDEN COTTAGE FOODS LTD V. MILK MARKETING BOARD, p. 404 (UK HL 1983).

· does UK law provide a claim for damages, for a breach by a governmental body of Community competition law (here EC art. 86 on monopolies)?

· How does this decision differ from Bourgoin SA, n. 2 p. 406?

FRANCOVICH V. ITALY, p. 407 (1991).

• What was the obligation imposed on the MS by the directive in question?
• Did the directive have "direct effect"? If not, why not?
• What kind of harm was suffered by reason of the MS's failure to implement the directive?
• What kind of remedy would be adequate to protect against such harm?
• [duty of MS generally to provide an effective remedy for MS breach: Rewe, p. 387]
• What common rule of MS law opposes such a remedy? Cf. Bourgoin
• What must the plaintiff show, in order to be entitled to damages against the MS?
• Implementation of the directive must involve conferring rights on individuals
• The rights to be created must be identifiable from the text of the directive
• The damage claimed must have been caused by the failure to implement
• Why did the Court leave determination of the last requirement to the MS court in the main proceeding? Cf Gallagher, p. 466 (UK CA 1996)

BRASSERIE DU PECHEUR / FACTORTAME III, p. 411 (1996).  (See timeline for Factortame below)

• Two national laws found to be in violation of the Treaty, damages now sought for losses suffered while the laws were in effect
• How should the following differences from Francovich affect the decision, if at all?
• Treaty provision, rather than a directive, allegedly breached
• Treaty provision was directly effective; directive in Francovich was not
• the violation was a legislative act, rather than executive or administrative
• How does the MS court determine whether a breach is “sufficiently serious”?
• “Manifestly and gravely disregarded the limits of its discretion”
• Why should the determination of this be left in the first instance to the MS court?
• what is the measure of damages? By what standard are State limitations to be measured?
• Limited to those recoverable against the State under national constitutional law?
• limited to those recoverable under general national tort law?
• limited to losses suffered between the ECJ ruling of violation and the correcting changes of national law (retroactivity!)?

British Telecom, n. 6 p. 420 (1996). Should a different standard of liability apply, where an MS incorrectly implements a directive, from that applicable in Francovich for total failure to implement?

Evans, Supp n. 7a p. 123 (2003): should the UK court now award damages?

KOEBLER V. AUSTRIA, Supp p 123 (2003): Can a judicial judgment which violates Community law form the basis of an action for damages against the MS?

· Does it matter whether the judgment is rendered by an inferior court or one of last resort? Why?

· What are the arguments offered by Austria against it in principle?

o Res judicata?

o Judicial immunity?

o Unavailability of an appropriate court to adjudicate the damages claim?

· What was the error that the MS court committed? Was it sufficiently serious? If not, why not?

Sequence of Events in Factortame

· 1987: EC regulation tightens national fishing quotas, as a conservation measure. The quotas are keyed to fish caught by vessels flying the particular country's flag

· Dec. 1, 1988: amendments to UK vessel registration law take effect, and the Secretary of State adopts regulations requiring UK citizenship, domicile and residence for shipowners to register and thereby gain the right to fly the UK flag

· Dec. 12, 1988: Spanish-owned UK corporations apply to UK Divisional Court for judicial review of the implementing regulations, on the ground that they violate the EC treaty

· March 10, 1989: Divisional Court requests preliminary ruling by ECJ, and orders the Secretary not to enforce the regulations against the applicants

· March 16, 1989: Court of Appeal sets aside the interim injunction against enforcement of the regulations, as beyond the power of a British court

· May 18, 1989: House of Lords sustains the Court of Appeal on the point of UK law, but requests a preliminary ruling from the ECJ on the question of whether EC law requires such interim relief

· August 4, 1989: Commission files enforcement action against UK in ECJ, under art. 169, for a declaration that the regulations are inconsistent with Community law

· October 10, 1989: ECJ, as an interim measure, orders the UK to suspend application of the regs.

· November 2, 1989: the UK suspends the regulations

· June 19, 1990: ECJ issues its decision in Factortame I, answering the questions referred to it by the House of Lords on the question of interim injunctions against legislation

· July 26, 1990: the House of Lords "allows" the plaintiffs' appeal and orders interim protection against application of the regulations; Lord Bridge remarks in his opinion that the ECJ's decision was not a "novel and dangerous invasion", because the supremacy of EC law over national law was well established long before the UK joined in 1973

· July 25, 1991: ECJ issues its decision in Factortame II, answering the Divisional Court's questions concerning the consistency of the statute and regulations with Community law

· Oct. 2, 1991: Divisional Court enters order giving effect to the ECJ's judgment, and directing the plaintiffs to submit damages claims

· Oct. 4, 1991: ECJ issues its decision in Commission v. UK, confirming Factortame II

· November 18, 1992: Divisional Court allows one plaintiff to claim exemplary damages, and requests preliminary ruling from ECJ on issues relating to damages claims

· March 5, 1996: ECJ issues its decision in Factortame III, consolidated with a similar reference from a German court in Brasserie du Pêcheur