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Published online by Cambridge University Press: 02 January 2018
This paper explores the implications for English law of the decision of the European Court of Justice in joined cases C-46/93 Brasserie du Pêcheur v Germany and C-48/93 R v Secretary of State for Transport, ex p Factortame (No 4) and subsequent decisions developing the principles enunciated therein. More specifically, it examines how the English law of torts is to accommodate the European law obligation to compensate, in appropriate circumstances, individuals suffering a loss as a result of a breach by the state of Community law. In confronting this question English law is engaged in the unfamiliar exercise of attempting to match a remedy to an already recognised right: the history of the common law, and the law of torts in particular, is of defining rights in the light of the existing remedies under which they could be asserted.
An earlier draft of this paper was presented to the conference on State Liability oganised by the Europäisches Rechtsakademie, Trier, in June 1996.
1. Decision of 5 March 1996, [1996] 1 CMLR 889. For detailed commentary on the cases themselves, see: van Gerven ‘Bridging the unbridgeable: Community and national tort law after Francovich and Brasserie’ (1996) 45 ICLQ 507; Emiliou ‘State liability under Community law’ (1996) 21 ELRev 399; Gravells ‘State liability in damages for breach of Community law’ [1996] Public Law 567.
2. C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] 2 CMLR 217; C-5/94 R v MAFF, exp Hedley Lamas (Ireland) Ltd [1996] 2 CMLR 391; C-178-9, 188–90/94 Dillenkofer v Germany [1996] 3 CMLR 469.
3. Brazier, Street on Torts (London: Butterworths, 9th edn 1993) pp 8–9 Google Scholar; Williams, and Hepple, Foundations of the Law of Tort (London: Butterworths, 1976) pp 34–37 Google Scholar; see generally. Maitland The Forms of Action at Common Law (Cambridge: CUP. 1976 reprint).
4. See immediately below, text at nn 8–19.
5. See below, text at n 70–73.
6. See Bourgoin SA v MAFF [1986] QB 716.
7. See below, text at nn 64–65.
8. Article 5 provides: ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’ Weatherill and Beaumont EC Law (Penguin 2nd edn, 1995) p 353, appear to differentiate between the doctrine of effectiveness and art 5; for a (more orthodox?) linking of the two, see Snyder ‘The effectiveness of European Community law’ (1993) 56 MLR 19.
9. 158/80 Rewe v Hauprzollarnt Kiel [1981] ECR 1805; [1982] 1 CMLR 449, para 44.
10. 14/83 Von Colson and Kamann v Land Nordrhein- Wesrfalen [1984] ECR 1891, [1986] 2 CMLR 430, para 28; and see 79/83 Hurz v Deursche Tradax [1984] ECR 1921.
11. C-213/89 [1990] ECR I-2433, [1990] 3 CMLR 1.
12. C-271/91 [19931] ECR I-4367, [1993] 3 CMLR 293.
13. See C-358/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR 1–5475 and C-410/92 Johnson v Chief Adjudication Officer [1994] ECR I-5483.
14. Joined cases C-6/90 and C-9/90 [1991] ECR I-5357, [1993] 2 CMLR 66. The literature is extensive; among the best English language contributions are: Bebr (1992) 29 CMLRev 559; Craig (1993) 109 LQR 595; Curtin (1992) 21 ILJ 74; Ross (1993) 56 MLR 55; Snyder 56 MLR 19; Steiner (1993) 18 ELRev 3.
15. Ibid, para 33.
16. Ibid, para 37.
17. Above n 11.
18. Case 199/82 [1983] ECR 3595, [1985] 2 CMLR 658.
19. In Kirklees BC v Wickes Building Supplies [1993] AC 227 at 281 in the House of Lords Lord Goff assumed (despite earlier misgivings in the Court of Appeal: Bourgoin SA v MAFF [1985] 3 All ER 585: below n 59) that the effect of the decision in Francovich must be that damages are available from public authorities in the English courts for loss caused by the breach of Community law obligations other than non-implementation of a directive.
20. Above n 1.
21. 178/84 Commission v Germany [1987] ECR 1227 [1988] 1 CMLR 780.
22. C-246189 Commission v United Kingdom [1991] ECR I-4585 [1991] 3 CMLR 706.
23. Above n 14.
24. Para 17.
25. Para 22.
26. Paras 32–35. Although the question did not arise in this case, the Court was equally clear that a breach giving rise to a right to compensation might be attributable to a national court. While such a proposition can be understood in the light of theories about supremacy and effectiveness of Community law, it is difficult to imagine it having practical effect: it is very hard to reconcile with national constitutional notions of the independence of the judiciary. Somewhat similarly, and tellingly, it is difficult to imagine the Commission commencing art 169 Ec enforcement proceedings against a member state in respect of judicial acts in the national court deemed by the Commission to be contrary to Community law.
27. Para 30.
28. Para 25.
29. The majority judgments in the Court of Appeal in Bourgoin SA v Minisrry of Agriculture Fisheries and Food [1986] QB 716 at 783–4 (per Parker and Nourse LIJ) were concerned in part with the absence of symmetry between state liability and the non-contractual liability of Community institutions, regarding it as undesirable that national legislative initiative be hindered by the threat of legal action in circumstances of policy choice where the conflict with Community law fell short of ‘grave and manifest disregard of the limits on the exercise of power’.
30. Eg Paul Craig in ‘Francovich, remedies and the scope of damages liability’ (1993) 109 LQR 595, concluded by saying: ‘One thing is clear. If strict liability for an invalid (or illegal) act does become the norm, then the business of government will become risky indeed.’.
31. Para 76.
32. Para 78.
33. Para 51. The other two conditions are that the rule of law infringed must be intended to confer rights on individuals; and the requirements of causation must be satisfied. These elements, although not without difficulty, do not raise issues of concern to the subject of this paper.
34. Para 55.
35. See Para 42: ‘The conditions under which the State may incur liability for damage caused to individuals by a breach of Community law cannot, in the absence of particular justification, differ from those governing the liability of the Community. The protection of the rights which individuals derive from Community law cannot vary depending on whether a national authority or a Community authority is responsible for the damage.’.
36. Case 5/71 Zuckerfabrik Schöppenstedt v Council [1971] ECR 975.
37. EC Law: Text, Cases and Materials (Oxford, 1995) p 519.
38. Notably joined cases 83/76, 94/16, 4/77, 15/77 and 40/77 HNL and others v Council and Commission [1978] ECR 1209, [1978] 3 CMLR 566.
39. Para 46.
40. Paras 44–47.
41. As these were art 177 EC preliminary references, the ultimate determination of whether a sufficiently serious breach had taken place was for the respective national courts to make; but the Court of Justice is not averse to giving ‘guidance’, especially in respect of the application of new principles.
42. Para 59 - in respect of the German breach of art 30 EC.
43. Para 63 - in respect of the UK breach of art 52 EC.
44. Contrast the case law on institutional non-contractual liability, where liability has been denied when the ‘errors were not of such gravity that it may be said that the conduct of the institutions in this respect was verging on the arbitrary’: Cases 116 and 124/77 Amylum NV and Tunnel Refineries Ltd v Council and Commission [1979] ECR 3497.
45. C-5/94 R v MAFF, exp Hedley Lomas (Ireland) Ltd, [1996] 2 CMLR 391; C-178-9, 188–90/94 Dillenkofer v Germany [1996] 3 CMLR 469.
46. Above n 14.
47. C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] 2 CMLR 217, paras 41–46.
48. Para 83.
49. Above n 9.
50. Para 89. See below text at nn 103–104.
51. Para 84.
52. Para 87.
53. Ibid.
54. For an account of governmental liability in English law, see: Bell, ‘The law of England & Wales’ in Bell and Bradley (eds) Governmental Liability: a Comparative Study (UKNCCL/BIICL, 1991).
55. See above n 19.
56. [1974] Ch 381 at 396.
57. [1984] AC 130.
58. [1986] QB 716.
59. Ibid.
60. This argument is distinct from, although clearly related to, the argument that any action for damages must commence by way of judicial review, in order to establish the illegality in question. See text at n 80 et seq, where the compatibility of such an approach with the doctrine of effectiveness is challenged.
61. [1986] QB 716 at 780.
62. Above n 10.
63. See paras 38, 51 and 74.
64. Above n 58.
65. Para 73.
66. Conan Doyle The Sign of Four.
67. See generally Clerk and Lindsell, 1–02, citing by way of example Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173.
68. Consider the rejection of Lord Wilberforce's two-part test, put forward in Anns v Merton London Borough Council [1978] AC 728 at 751, by Lord Keith in Governors of the Peabody Donation v Sir Lindsay Parkinson Ltd [1985] AC 21 0 at 240, and the adoption by Lord Bridge, in Caparo Industries plc v Dickman [1990] 2 AC 605 at 61 8, of the restrictive formula proposed by Brennan J in the Australian High Court in Sutherlandshire Council v Heyman (1985) 60 ALR 1 at 43.
69. Factortame Ltd v Secretary of State for Transport (No 2) [1991 AC 603; especially per Lord Bridge at 658. See also Craig; ‘UK Sovereignty after Factortame’ (1991) 11 YBEL 221.
70. [1995] 3 All ER 353.
71. Ibid at 364–5, emphasis added. It is clear from paras 71–72 of Brasserie du Pêcheur/Factortame that a similar limitation applies to the principal mechanism of state liability in Germany, and the Court of Justice says that it must be set aside.
72. [1984] AC 130 at 141.
73. Buckley ‘Liability in tort for breach of statutory duty’ (1984) 100 LQR 204 at 220.
74. Eg unlawful interference with trade; see Whish (1994) 2 ECLR 60.
75. Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147 (inducement of breach of contract); Barrets & Baird (Wholesale) Lrd v IPCS [1987] IRLR 1 (unlawful interference with trade).
76. Above text at nn 64–65.
77. Some light might have been cast on the question by the decision of the Court of Appeal in R v Secretary of State for the Home Department, exp Gallagher [1996] 2 CMLR 951, but the action failed without the need for ‘the detailed claim’ to be considered (at 968). The applicant, subject of an exclusion order under the Prevention of Terrorism (Temporary Provisions) Act 1989, had succeeded in establishing that the order had been made in a manner unlawful according to Community law (C-175/94 [1996] 1 CMLR 557), and now sought to amend his claim to include an action for damages for breach of his Community law rights. Leave to amend the application was refused by Lord Bingham LCJ, speaking for the whole court, on the ground that there had not been a sufficiently serious breach of Community law, and that causation had not been proved. Lord Bingham carefully reviewed the recent cases on state liability, and clearly applied the law as stated therein to decide the case, but did so without considering what the cause of action would have been had the claim not failed on the preliminary question of whether a Community law right to damages had been established.
78. For an account of this traditional view of sovereignty, see Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th edn, 1960) pp 64–70 Google Scholar, summarized by Munro, in Studies in Constitutional Law (London: Butterworths, 1987) pp 81–87 Google Scholar. It is, of course, something of a caricature, and there have been distinguished attempts to demonstrate that it may never have been true, and certainly ceased to be true with enactment of the European Communities Act 1972; eg Mitchell, Constitutional Law (W Green & Son, 2nd edn, 1968) ch 4Google Scholar; Craig ‘UK Sovereignty after Factortame’ (1991) 11 YBEL 221 at 250–255.
79. Above n 69.
80. [1995] 1 AC 1.
81. Ibid at 26–7.
82. [1983] 2 AC 286; and see O'Reilly v Mackman [1983] 2 AC 237.
83. RSC Ord 53, r 4; for a detailed analysis of what is not a straightforward rule, see Gordon, Judicial Review: Law and Procedure (London: Sweet & Maxwell 2nd edn, 1996) pp 48–51 Google Scholar.
84. Commencing with Davy v Spelthorne Borough Council [1984] AC 262.
85. Per Lord Lowry in Roy v Kensington and Westminster Family Practitioner Committee [1992] 1 AC 624 at 653. The statement was strictly obiter. For further discussion, which in both cases predicts that Lord Lowry's view will be followed, see: Gordon op cit n 83 at 108–112; Craig Administrative Law (London: Sweet & Maxwell 3rd edn, 1994) pp 552–562, 590–593.
86. [1995] 3 All ER 353 at 363.
87. C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfseverenging voor Detailhandel, Ambachten en Huisvrouwen [1993] ECR 1–5475; and see C-410/92 Johnson v Chief Adjudication Officer [1994] ECR 1–5483.
88. C-338/91, para 23.
89. C-208/90 [1911] ECR I-4269, [1991] 3 CMLR 894; para 16.
90. Ibid para 17, emphasis added. In the particular case, an exception was made because the plaintiffs position in respect of the time bar had been compromised by the delay in implementation of a directive; the Court said that the plaintiff's rights should not be affected by the running of the clock until such time as the directive had been implemented.
91. Paras 75–80.
92. [1940] AC 152 at 177.
93. Case 5/71 [1971] ECR 975; above, text at n 35.
94. Above n 2.
95. D & F Estates Ltd v Church Commissioners [1989] AC 117; Murphy v Brentwood DC [1991] 1 AC 398.
96. RCA v Pollard [1983] Ch 135.
97. Rickless v United Artists Corporation [1987] 1 All ER 679.
98. See para 87: ‘Especially in the context of economic or commercial litigation … a total exclusion of loss of profit would be such as to make reparation of damage practically impossible.’.
99. Factortame, n 11.
100. Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1.
101. The Wagon Mound [1961] AC 388.
102. Brasserie du Pêheur/Factortame above n 1, para 87.
103. H Parsons (Livestock) Ltd v Uttley lngham & Co Ltd [1978] QB 791 at 801–804.
104. Para 88.
105. Para 89.
106. AB v South West Water Services Ltd [1993] 1 All ER 609 at 620; 1964 being the date of the seminal judgment of the House of Lords in Rooks v Barnurd [1964] AC 1129, which was treated by the Court of Appeal in AB as curtailing further development or extension of the award of exemplary damages.
107. Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 at 420 (per Lord Bridge); exceptionally breach may be actionable per se: eg Ashby v White (1703) 2 Ld Raym 938.
108. Para 59: the German prohibition on the use of additives in imported beer was probably not a ‘sufficiently serious breach’ until after the decision of the ECJ 178/84 [1987] ECR 1227, which clarified the previously uncertain law. Failure to rectify the illegality after that judgment did, however, almost certainly constitute a sufficiently serious breach. Similar reasoning is applied to the UK's failure to respond to the Commission's making its position known, and a fortiori to its alleged failure (the facts remained to be established at the time of the hearing) to respond to interim measures imposed by the President of the Court of Justice: paras 63–64.
109. 43/75 [1976] ECR 455, [1976] 2 CMLR 98.
110. C-26188 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889, [1990] 2 CMLR 513. For an account of the problems, see Craig and de Búrca op cit n 37, pp 824–831.
111. Brasserie du Pêheur/Factortame above n 1, paras 98–99.
112. See above, text at n 80 et seq; it is argued there that the imposition by such a procedural rule of a very short limitation period for state liability damages actions would be very likely be held to be inconsistent with the doctrine of effectiveness of Community law, since it would make reparation in practice impossible or excessively difficult to obtain.
113. Brasserie du Ptêcheur/Factortame (para 84).
114. Above, see text at n 71.
115. Consider the remarks of Lord Goff in Woolwich Building Society v IRC (No 2) [1992] 3 All ER 737 at 764, in respect of the law of restitution and the wider Community law rights available by virtue of the decision of ECJ in the Sun Giorgio case (see above n 18): ‘I only comment that, at a time when Community law is becoming increasingly important, it would be strange if the right of the citizen to recover overpaid charges were to be more restricted under domestic law than it is under Community law’; and see the doubts expressed by Judge Galmot about the desirability of differing levels of judicial protection of the citizen: [1990] Revue française de droit administratif 255 at 261.
