Enforceable Community Rights and
National Remedies

Andrew Durand*

Enforceable rights in English law
In general it has been the existence of a remedy at common law or under statute
which has enabled the English lawyer to deduce the existence of a right. EEC law
involvesthe opposite process: it impliedly confers rights which by their nature are
ill defined, and leaves it to national law to supply the remedy, a process for which
the common law with its limited and distinct categories of civil liability is ill
adapted. The European Communities Act 1972 in s.2(1) does not make the
process easier. Rights arising under the EEC Treaty are, it is there said, to be
recognized and enforced by the courts "accordingly". They are given a name:
"enforceable community rights". But the courts are left to work out whether such
rights are merely negative: the right to prevent the State (or anyone else) from
applying or enforcing inconsistent national law; or restitutionary, the right to get
back money illegally levied by the State; or tortious, the right to get damages for
infringement of the Treaty.

The appropriate categorization of enforceable community rights is made that
much more difficult because two distinct courts are involved, the European Court
and the National Court. The remedy and the right, which are the opposite sides of
the same coin, are treated as two different coins by two different courts using two
different sets of terminology. Nevertheless it has somehow proved workable and
gradually the solutions are emerging.

In 1974 Lord Denning M.R. had no doubts as to the appropriate classification
of a community right. He concluded, solely on the basis of the European Courts'
description of such rights 1 that in a particular case articles 85 and 86 "create new
torts or wrongs. Their names are 'undue restriction of competition within the
common market'; and 'abuse of dominant position within the common market'.,,2
He was thereby making two points. Firstly breach of community law was tortious

"Of the School of Law, University of Buckingham.
1. In BRTv. SABAM and others [1974] E.C.R. 313; [1974] 2 C.M.L.R. 238. Note that Denning's

expression "Put into English", that judgment shows ...
2. Application des Gaz v. Falks Veritas [1974] 3 All E.R. 51, 58. His certainty disappeared in the Court

of Appeal in Garden Cottage Foods v. Milk Marketing Board [1982] 2 C.M.L.R. 584

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conduct and secondly it was tortious by virtue of community law rather than by a
virtue of s.2(1) of the European Communities Act 1972. As regards the first point
and with reference to articles 85 and 86 Lord Denning's analysiswas upheld by a
majority of the House of Lords in Garden Cottage Foods Ltd. v. Milk Marketing
Board.3 The second point was decisively rejected by the House of Lords in that
case and by Oliver L. J. in Bourgoin S. A. v. Ministry of Agriculture Fisheries and
Food.4

The earliest appearance of an enforceable community right in an English court
was as a negative right or as "eurodefence" as it is more colloquially called, in
which it was not strictly necessary for the court to consider the nature of the right.5
A eurodefence can take a number of forms. It can arise in a criminal prosecution in
which the defendant whilst admitting the facts denies the offence on the basis of
the incompatibility of the offence with the EEC Treaty.6 In another form the
defendant resists the issue of an injunction on the grounds that the injunction
would amount to a measure of equivalent effect to a quantitative restriction
prohibited by the Treaty.7 In a third form the defendant relies on article 85(2) to
allege that the contract, the breach of which is the cause of action, is void. In
another form the defendant invokes the maxim ex turpi causa non oritur aaio to
allege that the plaintiff is seeking, by means of his claim, to carry out conduct
prohibited by article 85 or 86.8

In Garden Cottage Foods v. Milk Marketing Board9 the House of Lords for the
first time had to consider whether articles 85 and 86 gave an aggrieved party a
claim in damages rather than simply a claim to an injunction to restrain the alleged
breach of article 86. It decided that it did.1O As regards rights derived from other
articles of the Treaty and regulations which had been invoked against the
government, they have been protected hitherto either by inter partes declaratory

3. [1984] A.C. 130; [1983] 3 C.M.L.R. 43. See further Forrester, [1984] G.M.L. Rev. 11 and Banks
[1984] eM.L. Rev 669.
4. [1986] I C.M.L.R. 267 (CA), at p.295.
5. Supra n.2.
6. See for example R v. Tymen [1981] E.C.R 3079, at pp.3094 and 3101. In that case the

Advocate-General considered that where Tymen was raising the defence that he could not be
convicted of the offence charged under the United Kingdom Sea Fishing Order because the United
Kingdom no longer had power to regulate fishing at all, he was raising an issue of the direct
applicability of community law rather than the direct effects doctrine. He was not enforcing a "right" to
fish in United Kingdom waters but was denying the applicability of a United Kingdom statutory
instrument. If this is an example of the application of the doctrine of direct applicability it is difficult to
see why any "eurodefence" should ever raise an issue of direct effect. "Where criminal proceedings are
brought by virtue of a national measure which is held to be contrary to community law a conviction in
those proceedings is also incompatible with that law," was what the court held. The court declined to
consider whether "rights" were conferred on Tymen.

7. Industrie Dimsten Groep v. Beele [19821 E.C.R. 707, at p.716.
8. Supra, n.2.
9. [1984] A.C. 130.

10. It left the issue to the trial judge whilst making it clear that in its view damages were available; see
An Bord Bainne Co-operative v. Milk Marketing Board [1984] 2 C.M.L.R. 584 (C.A.).

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

relief,11 by originating summons,12 or more frequently by an application for
judicial review, 13or incidentally in the course of proceedings. 14In none of these
cases has it proved necessary to consider whether it was a tort to infringe a
community provision.

Where the Treaty, regulation, directive or decision is invoked to explain or
widen a right granted under municipal law it may not be necessary to consider the
nature of the right or the category into which it falls. For example, in the sex
discrimination cases the system of remedies in the industrial tr~bunals had been
instituted before the United Kingdom joined the EEC so that it was relatively easy
for the tribunals to read the community provisions along with the domestic
provisions without posing the question of what category the community rights fell
into. The same applies to national insurance cases. The issue would have had to be
resolved only in the absence of an appropriate domestic procedure.

For the first time in Bourgoin v. MA.F.F. the issue rose as to whether it was a tort
for the Government to break article 30 of the Treaty. This issue will arise
whenever the subject is aggrieved and suffers direct damage because of a breach
by the State of its obligations under the Treaty or subordinate legislation. It could
conceivably arise where the State, in breach of its obligations under a directive,
fails to confer a right on one subject which that subject was intended to be able to
enforce against another subject. There can be little doubt that in such a situation
no right is conferred against the other subject. 15

In Bourgoin the majority of the Court of Appeal held that a breach by a Member
State of article 30 of the Treaty was not a breach of statutory duty sounding in
damages, because under English domestic law the Crown was not liable in
damages for the wrongful exercise of its legislative powers in the absence of malice
and EEC law had not created new causes of action in private law against the State.
In his dissenting judgment Oliver L. J. held that the breach by the Ministry of
Agriculture Fisheries and Food of its obligations u:lder article 30 was a breach of
statutory duty sounding in damages. All three judges were agreed that the plaintiff
had a cause of action against the Crown for the tort of misfeasance in a public
office which wuuld require the plaintiff to prove, at the very least, that the minister
intended to protect the domestic producer and to damage the plaintiff. Leave to
appeal to the House of Lords was granted.'6

This article advances the proposition that a breach of a directly effective
provision of community law by a Member State is a wrong under community law

11. Ruyal Scholten-Honig v. Intervention Board [1978] E.C.R. 2037; An Bord Bainne v. Milk Marketillg
Board [1984] 1 C.M.L.R. 519.
12. MacMahon v. Department of Education of Science and Others [1983] 1 Ch. 227.
13. R v. ILEA, ex parte Hinde and Others [1985] 1 C.M.L.R. 716; R v. Secretary of State for Home
Department, ex parte Salltillo [1981] QB. 778; R v. AUorney-General, ex parte I.e.!. [1987] 1 C.M.L.R.
72.
14. Schorsch Meier v. Hennin [1975] QB. 416.
15. Marshall v. Southamptoll and South West Area Health Authority [1986] 2 W.L.R. 780.
16. The Government apparently agreed a seven figure sum by way of settlement of the claim so that the
Court of Appeal judgment is now final. See [1987] I.C.M.L.R. 169; H.C. 1986 C.116.

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and by virtue of community law an aggrieved person has a right to compensation to
put him into the position he would have been in, had the wrong not been
committed. This right derives from a combination of the article, the breach of
which is the substantive cause of the grievance, and article 5 of the Treaty which, it
is argued, imposes an obligation on the national courts to award damages where
these are appropriate. Although a national court may continue to have a judicial
discretion as to whether to grant an injunction or similar order, or to review
measures for the purpose of annulling them and to order restitution as a
consequence of the annulment, it must, at the very least, place the person to whom
a right is granted into the position he would have been in had the right not been
infringed.17 This article suggests that there is a greater common substantive
content to the doctrine of direct effect than that suggested by the majority in
Bourgoin. It is only as regards procedure that the national legal system is to some
extent autonomous.

The doctrine of direct effect in European Community Law
The facts of Van Cend en Loos v. Nederlandse Administratie deT Belastingenl8 are well
known. On 1January 1958, the date on which the EEC Treaty entered into force,
a particular product was classified under heading 279-a-2 of the Benelux Customs
Tariff and was subject to an ad valorem duty of3%. The structure of that tariff had
come about by virtue of the Customs Convention of 5 September 1944 between
the Benelux countries which entered into force in 1947. By a protocol concluded
between the Benelux countries on 25 July 1958, ratified in the Netherlands by the
law of 16 December 1959, the Benelux countries went over to the "Brussels
Nomenclature" a standard system of customs classification adopted by the Customs
Co-operation Council already used in the EEC Treaty and which was later to
become the basis for the Common Customs Tariff of the EEC, the common
Agricultural Policy and for trade statistics in general. The new tariff entered into
force in all Benelux countries on 1 March 1960. On the date when it entered into
force the old 1947 tariff was abolished. The old heading 279-a-2 was replaced by a
new heading 39.01 but the heading was further subdivided with two different rates
of duty. 19 The result it appears was that the particular product was liable to an ad
valorem duty of 8% whereas previously it had been subject to a duty of 3%.

17. The orthodox understanding of the judgments of the European Court on direct effect is that
provided some remedy is available to protect an enforceable community right the classification of the
right and the extent of the remedy are matters for national law to determine according to its existing
system of remedies. See, for example, John Bridge "Procedural Aspects of Enforcement of E.C. Law",
[1984] E.L. Rev. 28. In that article, Professor Bridge urges the adoption of community legislation to
mesh the right with the remedy in a more uniform manner: in effect fusion comparable to the fusion of
law and equity. In the present author's view many further years of struggle by the national courts and
the European COUI1 are necessary before legislative intervention must be resorted to. At the present
stage of development legislation might well be regressive.
18. [1963] E.C.R. 1.
19. The four figure heading can be further subdivided ad infinitum by each State which adopts the
nomenclature.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

The importer sought the annulment of the decision of the Dutch Customs and
Excise charging it a duty of 8%. It did not, let it be stressed, seek anything as far
fetched as the annulment of the Benelux tariff or of the law ratifying that tariff. If it
had put forward such an argument the Customs and Excise tribunal, before which
the dispute was brought, would undoubtedly have declared itself incompetent and
would have dismissed the importers appeal as inadmissible and conceivably the
doctrine of direct effect would never have entered the legal world. Instead it asked
the Tariefcommissie to quash the individual customs decision, a task well within that
tribunal's ordinary statutory competence. The ground for its appeal was that "all
the customs duties applied by Member States in their trade with each other were
bound on I January 1958" by virtue of article 12 of the EEC Treaty.

The concept of "bound" duties derives from the General Agreement on Tariffs
and Trade.2° A national court must "set aside the application of customs duties
introduced or increased in breach of its provisions". The revolutionary nature of
the importer's argument was concealed behind its use of conventional tariff
concepts. Although Article 12 provides quite clearly that "Member States shall
refrain from increasing the customs duties which they already apply in their trade
with each other,,]8 it was entirely silent on any legal consequences as regards
importers of the breach of that article.

The Dutch court referred two questions to the European court, the first of
which was to have a profound impact on community law. It asked "whether article
12 of the EEC Treaty has direct application within the territory of a Member
State, in other words, whether nationals of such a State can, on the basis of the
Article in question, lay claim to individual rights which the courts must protect.,,2\

In its observations before the Court the Dutch Government drew the now well
recognized distinction between (a) the internal effect of article 12 and (b) its direct
effect.22 Internal effect depended on the intentions of the contracting parties. Was
the Treaty intended to be law creating? This is the concept which we have come to
describe as "Direct Applicability".23 Even if the obligation on the Netherlands was
an obligation to be recognized as part of municipal law (which the Netherlands
denied) it would not necessarily have direct effect, in other words confer
"subjective rights". This distinction is clearly known to all legal systems. For
example, an Act of Parliament in the United Kingdom is clearly law creating: it has
an "internal effect" in the terminology of the Netherlands Government. But there
is a wholly distinct question as to whether a provision in an Act of Parliament

20. Article II of the GATT in conjunction with the schedule of concessions; see AmmillSlraziolle Delle
Fillallce Delio Sialo v. SPI alld SAMI [1983] E.C.R. 801. In this judgment the court explains the system
of GATT bindings. Note that the far more precise provisions of the GAIT are found 1101 to confer
rights on individuals.
21. Emphasis added.
22. J. A. Winter, 9 CM.L. Rev. 1927.
23. In the early days of the development of the Community doctrine the expression "self-executing"
was often used, particularly by Roemer, Advocate-General.

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creates individual rights. A power and duty conferred and imposed on a statutory
body by an Act of Parliament is of course law. It can be enforced in the United
Kingdom by the appropriate minister or the Attorney-General. It does not follow,
however, that it can be enforced by an individual; still less that it can give rise to a
private right in damages. The duty imposed on the Netherlands by article 12, even
if recognized as part of the Netherlands law, would not necessarily mean that Van
Gend en Loos could obtain the annulment of its customs assessments or
restitution of over-paid duty.

As regards the second aspect the Dutch Government recognized what a positive
answer would mean. "It would put in issue the responsibility of States by means of
a procedure which was not designed for this purpose." As early as 1962, therefore,
the Dutch Government realised that what was really at issue was whether breach
of article 12 was a wrong for which a State would be liable.

The Belgian Government approached the second issue of the effect of article 12
within the State within more traditional categories. The question for the court was
whether any "introduction of a new customs duty or any increase in an existing
duty is automatically without effect or is absolutely void.,,24 This approach, if an
affirmative answer were given, would involve the startling proposition that a
customs and excise tribunal, set up under a statute to ensure that the customs and
excise correctly applied the tariff, also had jurisdiction by virtue of some implied
rule of community Law to declare either an international treaty, the Benelux
protocol, or the law ratifYing that Treaty in the Netherlands at least in part
"absolutely void".

For the German Government which also intervened the matter was simple. The
obligation to pay customs duties did not at that stage derive from EEC Law but
from municipal law. Article 12 laid down a duty on each State which was owed to
other Member States. Individual taxpayers only derived rights and duties under
community law from regulations laid down by the Community institutions.

In its judgment the European Court in the first place held that "Community law
had an authority which could be invoked by their nationals, before courts and
tribunals." In other words it had an "internal effect", to use the Dutch phrase, and
was "directly applicable". On the question of the direct effect of the provision a
taxpayer was entitled "to plead infringements of the obligations" before a national
court. It was an additional "guarantee" against an infringement of article 12. What
article 12 did was to provide "direct legal protection" of the individual rights of
their nationals. It gave an individual the right to prevent "the implementation of a
national decision taken contrary to the provisions of the Treaty." Elsewhere in the
judgment the court stated that the Treaty "conferred upon [individuals] rights
which become part of their legal heritage.,,25

24. [1963] E.C.R. I, at p.8.
25. Ibid, at p.13.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

The court thus used rather general language in its explanation of the "direct
effect" of article 12. It left it to each national system to supply a name to this
private right or to place it in the appropriate category under national law. But the
Court did indicate the essential characteristic of the right. It was a right as opposed
to a public interest; a private right that the taxpayer could choose to use or not; it
was designed to be a "guarantee" of Treaty observance; the national court had to
give "direct legal protection to the right" so that the guarantee remained intact; it
had to be "effective".

For the solution of the instant case the court's judgment was an adequate ruling
for the national judge. Since the customs and excise tribunal had become involved
before any damage had occurred as a result of the Netherlands breach of its
obligations, all that the tribunal had to do was to prevent "implementation" of the
national decision taken contrary to the provisions of the Treaty; in other words to
annul the decision of the customs authority imposing a tax of 8% ad valorem. The
problem would then be shifted to the tax authority to decide what it could lawfully
do. It could not presumably issue a new customs assessment imposing a 3 % duty
on the product because that rate no longer lawfully existed: it had been lawfully
abolished by an international treaty, the Benelux protocol, ratified by an Act of the
Netherlands Parliament. If it did issue a decision taxing the product at 3% that
decision could not be challenged under community law but could presumably be
attacked under national law in that 3 % was not the lawful duty under tariff
heading 39.01-a-l of the Benelux tariff. Neither the national court nor the
taxpayer needed to consider further under what category of domestic right the
community right fell. That was a problem left to the customs and excise.

The immediate explanation for the private right that the European Court had
found implicit in article 12 of the Treaty was that it was a right to be treated as if
the infringement had not occurred, i.e. a right to be put back into the position that
the importer would have been in if the Netherlands had not infringed the Treaty.
Whether this would have authorized the national court or the customs and excise
to reduce the liability to 3% rather than simply quash it in its entirety was and
remains unclear. Put in terms more familiar to the common law world there would
thus be two distinct obligations contained in article 12: an express duty owed to
other Member States not to enact laws which increased duties and a second,
implied duty owed to taxpayers not to tax them at a higher rate than the rate
applicable on the date the Treaty entered into force. The breach of the former
duty would be sanctioned by a default action under article 169; the latter by a
private action in the national court. The distinction between the two duties is well
illustrated by a number of cases.26 In one case, for example, in a default action the
Commission had obtained a declaration that France's advertising code for alcohols
infringed article 30 of the Treaty.25 When a number of producers and importers of

26. See, in particular, Commissioll v. Pra/lce (Frellch Man'time Code) [1974] E.eR. 359; Procurellr de la
Repllbliqlle v. Waterkryll [1982] E.eR. 4337; Commissioll v. Italy [1970] E.eR. 25, at p.34.

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alcohols were subsequently prosecuted for infringement of the code they alleged
that the particular provisions of the code declared incompatible with the Treaty
could not be applied to them. On a reference to the European Court the court held
that only certain of the defendants could lay claim to individual rights under the
Treaty, namely those who had imported goods from other Member States. The
legislation itself was not void. Although all defendants were charged under the
same provision of the code the code only infringed the private rights of some of
them. It was not the enforceability of the code that was in issue but the
enforceability of a private right.

Conversely it is conceivable that a State may break a duty owed to an individual
trader without at the same time breaking its duty to other Member States and the
Community Institutions. In Commission v. Italy27 Italy was alleged to have
defaulted in its obligations under a Council regulation by failing to pay export
refunds promptly. The regulations laid down a complete system for the payment of
refunds with no or almost no powers reserved to the member State save to execute
the regulation. The State did have to get the necessary funds voted by Parliament
for although the ultimate bill would be borne by the community the Italian ministry
had to have cash in hand. Italy alleged that if there was delay in payment of sums
due to an importer that was the fault or responsibility of the officials concerned. An
exporter who was aggrieved by such a delay could sue in the Italian courts for
payment and damages ["sole responsibility of the official who is liable under
national law"] but there was no breach of a duty owed to the community by the
member state itself which had not taken any measures that conflicted with
community Law.

The Court held that "the existence of remedies available through the national
courts cannot in any way prejudice the making of the application referred to in
Article 169 since the two procedures have different objeaives and ejfectS.,,28

The object of the action under article 169 is to review the conduct of the
Member State. The object of the action in the national court is to redress the
grievance of an individual, usually a trading company. Neither the one nor the
other, however, has the object or effect of annulment of national legislation. It is in
all cases for the competent national authority, the legislature, or the executive or,
in some constitutions, the constitutional court to annul or rescind the offending
norm.29

This was the point of the distinction demonstrated in the second Simmenthal
case 30 betwen the competence of the lower court and the competence of the
Italian Constitutional Court. The Italian Constitutional Court had recognized the
supremacy of community law over state law. At that time it also maintained the

27. Commissioll v. Italy [1970] E.C.R. 25.
28. Ibid.
29. Waterkeyll Case [1982] E.C.R. 4337.
30. Amministra.ziolle Delle FinalIZe DeJ/o Stato v. Simmenthal [1978] E.C.R. 629.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

principle that a lower court was obliged under the Italian constitution to give full
effect to national law unless and until the constitutional court had declared the
Italian statute void for breach of community law.31The first instance judge in
effect asked the European Court to rule whether he should follow the judgments
of the Constitutional Court and refer the constitutionality of an Italian law, which
had entered into force after the EEC Treaty, to the Constitutional Court even
though the European Court, in the first Simmenthal case,32had held the veterinary
inspections and the charges for such inspections were incompatible with the
Treaty and the object of the case was simply the repayment of the fees illegally
charged.

The Italian Government, in its argument before the European Court urged the
European Court to rethink the doctrine of direct effect. "If the national court is
acknowledged to have the power not to apply a national law which is incompatible
with the community law that is tantamount to guaranteeing the application of the
community legal rule only in the case actually before the court and protecting the
specific right claimed in that case; but the national provision remains in force and is
in fact exclusively applicable if there has not been a submission to the court that
there may have been a breach of the rights conferred upon individuals by
community rules.,,33

In the Italian Government's view the solution adopted by the constitutional
court consisting in what might be compared with a certiorari to quash the offending
legislation would be clearly more effective and significant than the "private rights"
analysis adopted by the European Court. There was no conflict with the essential
objective of the EEC Treaty since the national court would not apply or give effect
to a national law which was incompatible with Treaty; it would simply adjourn
pending the repeal of the offending legislation or the declaration of the offending
legislation's unconstitutionality by the Constitutional Court. Such a declaration
would remove the legislation ab initio so that, in the instant case the importer
would get its money back.

In its judgment the European Court held that every national court, in a case
within its jurisdiction, had to apply community law in its entirety and protect rights
which the latter conferred on individuals: "A national court which is called upon,
within the limits of its jurisdiction, to apply provisions of community law is under a
duty to give full effect to those provisions, if necessary refusing of its own motion
to apply any conflicting provision of national legislation, even if adopted
subsequently, and it is not necessary for the court to request or await the prior
setting aside of such provisions by legislative or other constitutional means.,,34

31.Judgment no. 183,27 December 1973, Corte Constitutionale;Judgment no. 232, 30 October 1975,
Corte Constitutionale; Judgment no. 205, 28 July 1976, Corte Constitutionalej Judgment no. 206, 28
July 1976, Corte Constitutionale.
32. Amministra.zione v. Simmenthal [1976] E.C.R. 1871.
33. Emphasis added.
34. [19781E.C.R. 629, at p.644.

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The court thus made a distinction between 'the private law remedy - the
enforcement of a community right - in preference to the public law "remedy" of
quashing or setting aside the offending national law. Not every remedy under
national law is therefore, as a matter of community law, appropriate to uphold
community rights.

The cases based upon article 95 and in particular the restitution cases show
both the national court and the European Court struggling to mesh together the
right with the remedy into a coherent doctrine of direct effect.

In Molkerei-Zentrale Westfalen v. Hauptzollamt Paderborn35 a dispute that had
been going on for a number of years reached the Bundesfinanzhof. Germany
apparently imposed a tax on imported milk powder whereas neither domestic milk
powder nor whole milk was subject to tax. In an earlier case36 the European Court
had held that article 95 and possibly even article 97 were capable of conferring
right on individuals which national courts were obliged to protect. The
Bundesfinanzhofin the present case asked the court to look again at the issue. In its
judgement the Bundesjinanzhof pointed out that under the doctrine "the national
court must place this individual in the same position as if the State in question had
already fulfilled its obligations."

The Bundesfinanzhof pointed out that a tax court was being asked "to anticipate,
by thousands of separate decisions, the action of the legislature ... or to make
good its failure to act." This was beyond the powers of a tax court.

For the Commission it was argued that "It may happen that individuals can have
themselves placed in the same position as if national law had already been
amended, whereas the sole result which the Commission or the other Member
States may bring about is that the State which is found to have failed to fulfil its
obligations shall take the necessary measures to comply with the judgment of the
Court of Justice."

In its judgment the court stressed that "the complexity of given situations in a
State cannot alter the legal nature of a directly applicable Community provision,
especially as the Community rule must be applied with the same fOrce in all Member
States." It should be noted that the Court does not mention uniformity of
interpretation but uniformity of legal force. "Furthermore," as the Court said,
"Article 95 does not restrict the powers of the national courts to apply, from
among the various procedures available under national law, those which are
appropriate for the purpose of protecting individual rights conferred by
community law. In particular when internal taxation is incompatible with the first
paragraph of article 95 only beyond a certain amount, it is for the national court to
decide, according to the rules of its national law, whether this illegalityaffects the
taxation as a whole or only so much of it as exceeds that amount."

The origin of the dispute was not a claim to damages but an objection to the
payment of the tax. As in Van Gend en Loos it was an action to quash the tax
35. [19681 E.eR. 143.
36. Lutlicke v. Hauptzollamt Saar/oU/s [1966] E.eR. 205.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

assessment. However in the court's judgement it appears to accept the "as if' type
analysis.37

What the court was stressing in its judgment was that the national court had to
remove the protective margin. So long as the taxpayer was treated by the court as if
the obligation had not been broken how that was achieved was a matter for the
national court.

In Hans Just v. Danish Ministry fOr Fiscal Affairs38 the plaintiff taxpayer was a
producer and importer of wines and spirits in Denmark. It was liable to pay excise
duties to the Danish treasury on its total sales of spirits. It argued, in a test case,
that during the month of June 1978 it had overpaid excise duties. It had paid the
tax under protest claiming that the rate of tax was incompatible with article 95 of
the EEC Treaty. It sought repayment of that sum and reserved the right to claim
all the tax it had overpaid between the date Denmark joined the community and
the date of the action. The Danish court asked for a ruling on a number of points
including whether article 95 could be relied upon by Danish producers or only by
importers. Additionally, in question 4 the Danish court asked if community law
contained "any rules of significance for deciding the question of the repayment of
taxes, payment of which was contrary to article 95?" Was it of any relevance that "a
trader can establish that he has suffered loss"?

In its arguments before the court for the first time the tortious ideas behind the
doctrine of direct effect began to emerge. The plaintiff claimed that the increase in
the tax on imported spirits had resulted "not only in a serious reduction in the
profits of Hans Just but also compelled it to reduce staff." Under Danish law,
however, it appears that monies paid over as a result of a mistake of law were not
recoverable. The taxpayer in effect argued that the court should recognise that the
doctrine of direct effect either created a community right to restitution or a
community right to damages which national law could not lawfully abridge.

The court founded the duty of national courts to find the appropriate remedy,
not on the doctrine of direct effect alone, but on the duty of co-operation in article
5 of the Treaty. That article provides that Member States shall take all appropriate
measures ... whether general or particular to ensure fulfilment of the obligations
arising out of this Treaty." The European Court has stressed that the national
courts are the Member States as regard judicial remedies. Although article 5 is not
in itself "directly effective" it is, when coupled with the right conferring provision;
community rights therefore are only in part implied. The fourth question of the
Danish judge was therefore a question as to whether the remedies available under
Danish law - whether the category into which the right should fall - were
"appropriate measures" within the meaning of article 5 of the Treaty. The court
answered that:

37. The expression "does not restrict the powers of the national court" is specifically an answer to the
Bundefinanzhofs assertion that a tax court could only quash an assessment rather than alter or amend an
assessment.
38. [1980] E.C.R. 501.

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"in the absence of community rules concerning the refunding of national
charges which had been unlawfully levied, it is for the domestic legal system
of each Member State to designate the courts having jurisdiction and to
determine the procedural conditions governing actions at law intended to
ensure the protection of the rights which subjects derive from the direct effect
of community law, it being understood that such conditions cannot be less
favourable than those relating to similiar actions of a domestic nature and that
under no circumstances may they be so adapted as to make it impossible in
practice to exercise the rights which the national courts are bound to protect."

"The protection of rights guaranteed in the matter by community law does
not require an order for the recovery of charges improperly made to be
granted in conditions which would involve the unjust enrichment of those
entitled."

The court went on to say that there was nothing in community law to prevent a
national court from taking into account "the damage which an importer may have
suffered because the effect of the discriminatory or protective tax provisions was to
restrict the volume of imports from other Member States.,,39

At first sight this looks as though the European Court is merely saying that the
national legal system can provide whatever remedies it considers appropriate. The
categorization of the community right as a right to compensation is a matter solely
for national law to determine. The important point in the development of the
concept of direct effect appears to be the recognition that a claim to damages may
be an "appropriate measure" within the meaning of article 5 of the Treaty, the
"normal" remedy, according to both the Advocate-General and the court being
the restitution of the overpaid taxes.

"Proof of damage or impoverishment as a precondition for bringing proceedings
is known in the legal systems of all the Member States and in the community legal
system itself as an expression of the general principle of natural justice.,,4{)

It is evident that in the eyes of the court and the Advocate-General both
damages in tort and repayment of sums overpaid were conceptually based on the
same principle of unjust impoverishment and were the natural consequences of a
community right's infringement.

A slight shift in emphasis away from mere reference to national remedies was
seen in Amministrazione delle. Finanze della Stato v. San Giorgio Spa,41 which
concerned the perennial problem ofItalian frontier inspection charges. The Italian
Constitutional Court had declared a law invalid as incompatible with EEC Law.
On the basis of that decision42the plaintiff brought an action for the recovery of
sums which it had been obliged to pay between 1974 and 1977 as health inspection

39. Ibid, at p.523.
40. Ibid, at p.532 .
41. [1983] E.C.R. 3595.
42. No. 163, Corte Constitutionale, 19 December 1977.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

charges. After the action had started, the Government issued a new Decree which
expressly provided that certain taxes on goods which had been overpaid could not
be recovered when the taxpayer had passed the tax on in any waywhatsoever to its
customers. There was a presumption of passing on if the property in the taxed
goods had been transferred and there was a further presumption that the property
had been so transferred.

This was a rather ingenious attempt to mitigate the consequences of a number
of European Court rulings declaring numerous Italian indirect taxes incompatible
with the Treaty.

In his opinion Mancini, Advocate-General, explained the rationale for
excluding recourse to the idea of passing-on save in exceptional circumstances:

"How is it possible to prevent the Member States - in the certainty that they will
not have to refund the amounts unduly levied - from continuing to levy charges
having an effect equivalent to customs duties notwithstanding the community
prohibitions? Who could prevent them from so doing if entrepreneurs were
deprived of any judicial means of stopping such a practice ... "

The Court held that "the repayment of charges levied by a Member State
contrary to community law is a consequence of and an adjunct to, the rights
conferred on individuals by the Community provisions prohibiting the charges." It
added that " ... the requirement of non discrimination laid down by the court
cannot be construed as justifying legislative measures intended to render any
repayment of charges levied contrary to community law virtually impossible, even
if the same treatment is extended to taxpayers who have similar claims arising from
an infringement of national tax law."

Once again both the Court and the Advocate-General saw repayment of the
overpaid taxes as the natural consequence of breach of a community right. It may
however be questioned whether repayment really is the appropriate remedy, at
least in the case of article 95. For example, should an importer of wine into the
United Kingdom reclaim excise overpaid in relation to beer contrary to article
95?i3 That claim should as a matter of "natural justice" be denied on the basis that
the tax has been passed on and, since many wine importers in the United Kingdom
are part of brewing and retail conglomerates, the importers may well have enjoyed
the profit from increased beer sales. If such an importer were to recover the
overpaid tax, retain the benefit of the increased sales of beer and enjoy the services
provided by the State but paid for by the product of the tax, there would, by any
standards, be an unjust enrichment. Those who have suffered by reason of the
discriminatory tax are the wine producers in the regions that would typicallysupply
the British market. It is to them that a remedy, if at all, should be given. It is they
who were intended to benefit from article 95. As regards frontier charges most
have concerned trivial sums of money. As the court has pointed out, the main
effect of frontier charges is to delay goods at the frontier for which compensation

43. Commission v. United Kingdom [1983] E.C.R. 2315.

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might well be a more appropriate remedy instead of or in addition to restitution. It
has been suggested44 that the solution to the problem of unjust enrichment is for a
state to introduce an extremely short period of limitation for bringing a restitution
action. If such a period applied to similar claims against the government under
domestic law no criticism could be made under EEC Law. It may, however, be
questioned whether short periods of limitation would not in fact act as an arbitrary
filter to justified claims and an arbitrary discrimination against aggrieved persons
in other Member States.45

There are a number of cases in which the claims in the national court have been
unambiguously based on a claim in damages of which the most notable is Defrenne
v. Sabena.46 A Belgian Royal Decree of 1967, intended to implement the equal pay
principle in Article 119, had simply provided a right of action to women to receive
equal pay: "any woman worker may institute proceedings before the relevant court
for the application of the principle that men and women should receive equal pay
for equal work."

In March 1968 the plaintiff instituted proceedings before the Tribunal de Travail
- the industrial tribunal - claiming damages for the injury she had suffered
between 15 February 1963 and 1 February 1966 by being paid less than a male
steward. The reason why her claim stretched back only to 15 February 1963 was
that before that date her claim was statute barred under municipal law. On 1
February 1966 at the other end Sabena had unilaterally decided to pay stewards
and stewardesses at the same rate.

It is not immediately clear from the report of the case exacdy what the legal form
of Miss Defrenne's claim was despite the reference to the Royal Decree. This was
in part due to the somewhat strange phenomenon that Belgium declined to present
observations to the court and Sabena only appeared at the oral hearing. That the
claim was based exclusively on the direct effect of article 119 seems clear. None of
the parties who intervened discussed the issue of the remedy. It seems probable,
however, that the remedy was tortious in nature (i.e. damages for an injury) rather
than contractual (that her contract had been altered by article 119) or
restitutionary (that Sabena had enjoyed an unjust enrichment). Clearly Defrenne
was not seeking annulment or review of her contract but compensation amounting
to arrears of pay. She was inevitably, if not expressly, arguing that article 119 of the
Treaty imposed a duty on Sabena from 1962 onwards not to discriminate against
her, a breach of that duty by Sabena and damages. Not surprisingly the judgment
of the court concentrates on the right conferred by the community on the woman
to the exclusion of the rather more dubious aspect of a duty imposed on Sabena.
The right is conferred "on any individual who has an interest in the performance

44. Mancini, Advocate-General in the San Giorgio case [19831 E.C.R. at p.3632.
45. See T. C. Hartley, "The effect in national law of judgments of the European Court", [1980] E. L.
Rro.3666.
46. [1976] E.C.R. 455.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

of the duties thus laid down." Although the duty is expressly imposed on Member
States [no. 32] there appears to be an implied duty imposed on employers. In the
course of the judgment the court expressly recognized that "In view of the large
number of people concerned such claims, which undertakings could not have

foreseen, might seriously affect the financial situation of such undertakings and even
drive some of them to bankruptcy." The companies had been led "to continue
with practices which were contrary to article 119, although not yet prohibited
under their national law." The direct effect, as an exceptional matter, could not be
relied on as regards the past except as regards workers who had "already brought
legal proceedings or made an equivalent claim."

It appears, therefore, that Sabena was subject to a duty which, the court
concedes, could not have been foreseen. It was liable for practices contrary to
article 119 for which it would normally be liable in damages to any person "who
has an interest in the performance of the duty."

There is no doubt that in the viewof the court the direct effect of article 119 as a
matter of community law gave rise to a claim in damages from the moment the
breach occurred. It was only on the grounds of legal certainty that the court
suspended any claims for the past. But the mere existence of the power of the
court to limit the consequences of a breach of article 119 for the past would seem
to confirm that the claim to money was directly conferred by community law. The
European Court could hardly have suspended the operation of a purely national
remedy.

The duty in the case of articles 119, 13 and 95 is a duty to pay and a duty not to
tax respectively. The problem of damages becomes central and unavoidable when
the question is as to the effect of the breach of a provision which requires a state to
do something or to refrain from doing something other than paying or taxing. For
example, if a state prevents the import of a product or destroys a consignment of a
product for spurious health reasons, contrary to article 30 of the Treaty, the
judicial review of the ban or the destruction will be of limited comfort to the
importer who may have lost a great deal of money or even have been bankrupted
while the ban lasted. In those States in which no interim relief is available against
the government it might well be some time before a ban is lifted, even if the
aggrieved trader acted with all possible speed. If, for example, a state, in breach of
community law, subsidizes an exporter so that that exporter manages to drive a
competitor off the market, a judicial review of the decision to subsidize, even
supposing it were practicable, would not "guarantee" that Community law was
complied with.

In Salgoil v. Itaty47 an Italian company had been refused a licence to import
fullers earth into Italy from another Member State of the EEC. Assuming that the
refusal of an import licence was wrongful the normal remedy under Italian law

47. [1968] E.C.R. 453.

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would have been an action in the administrative court, in effect for a judicial review
of the decision. It seems that in an administrative court in Italy, as in judicial
review proceedings in England, the applicant relies on a legitimate interest rather
than a right, stria(J sensu, which must be balanced against the public interests of the
State. Instead of seeking a public law remedy the plaintiff started civilproceedings
for damages to compensate it for the loss it had suffered by being forced to break
its contract with its suppliers. The court at first instance declined jurisdiction on
the grounds that it was a public law matter: no right of Salgoil had been infringed
but rather a legitimate interest that ought to have been defended in the
administrative courts. Salgoil appealed to the Corte d'Appello which on this issue of
jurisdiction referred a rather long and complicated question to the European
Court designed to discover the true classification under domestic law of an
enforceable community right. In its reply the European Court appeared to stress
that it was an absolute right that was conferred by community law requiring direct
and immediate protection by the national court without reference to the public
interest of the State. It went on to say that "It is for the legal system of each
Member State to decide which court has jurisdiction and,jOr this purpose to classify
those rights with reference to the criteria of nationallaw."48 The European Court
was not prepared to get involved in national jurisdiction between the civil courts
and the administrative courts in particular as the division between jurisdictions
varies from system to system, ranging from the complete separation of France with
parallel remedies in both systems to the distinction based on remedies of Italy and
to some extent the United Kingdom. This judgment does not mean however that
the extent of the remedy granted for breach of a community right is a matter for
each State to determine free of Community interference; there must be direct and
immediate protection of the rights. It is nevertheless striking that in the Salgoil case
the court seemed to retreat from its earlier stress on the private, subjective nature,
of the right which entered the "legal heritage" of the individual concerned.

In Russo v.AlMA the court examined-more closelya claim based on damages for
breach of community law.49 In 1973 the world price of a range of community
agricultural commodities went above the EEC target price resulting in a shortage
and a domestic price rise. In order to subsidize consumers the Italian government
purchased durum wheat on the world market and sold it on the domestic market
below cost but nevertheless around the target price. This had the effect of bringing
the domestic price down to just above the target price. An Italian producer of
wheat claimed damages against the branch of the Ministry of Agriculture
concerned representing the difference between the price that he had received for
his wheat and the price he would have received had the Italian State not carried
out its operation.

On a reference to the European Court as to whether the producer was entitled
to damages in such a situation and whether the producer should obtain complete
48. Emphasis supplied.
49. Russo v. A.I.MA. [1976] E.C.R. 45.

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compensation, the Commission argued that not every breach of community law
gave rise to a claim in damages: "a right to damages should arise only to the extent
that a provision of community law was intended to protect the particular interests
of individuals ... Any other solution would involve a serious risk of differences in
the application and scope of community law depending on the legal system within
which it is invoked."so

With regard to the extent of protection, i.e. whether there was any damage and
whether it was compensable in money and the extent to which it should be
compensated, that was a matter for national law to determine in accordance with
the principles of appropriateness and effectiveness.

The Advocate-General, Mr Reischl, was even more clear:

"there is a principle of community law according to which the authorities and
in particular the courts of Member States are under a duty to safeguard the
interests of individuals affected by any breach of community law, which
establish individual rights, by giving these persons direct and immediate
protection ... In such circumstances when the other prerequisites under the
particular national law are present, a claim for damages may lie against the
Member State which has not fulfilled its obligations under the Treaty ...
The liability of a Member State for the consequences flowing from an
infringement of community law also arises out of the obligation to provide
effective protection of these rights provided that the other prerequisites under
national law are present."Sl

The court held that under community rules, "an individual may claim that he
should not be prevented from obtaining a price approximating to the target price
and in any event not lower than the intervention price." An individual farmer may
not claim that he has suffered damage under community law if the price which he
has actually obtained on the market exceeds the target price." The court
concluded: "If an individual producer has suffered damage as a result of the
intervention of a Member State in violation of community law it will be for the
State, as regards the injured party, to take the consequences upon itself in the
context of the provisions of national law relating to the liability of the state."

When the court refers to "the context of the provisions of national law on the
liability of the State" it is not thereby authorizing a system of national law to deny
all liability of the State but rather placing the community right in the context of such
liability. It is perfectly conceivable that \:he State breaks its obligations under
community law without causing any loss to an individual recognisable under
community law. Indeed such appears to have been the case here. Community law

50. The Commision was inviting the Court to consider the doctrine of direct effect as being the same
doctrine as that under which claims to damages against the community were brought under article 215
of the Treaty. Cf. the assimilation of these two doctrines in Bourgoin by the majority of the Court of
Appeal but for a rather different purpose.
51. [1976] E.C.R., at p.62.

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did not guarantee a particular level of profit but merely that the producer would
obtain at least the intervention price. Since the producer here had managed to
obtain a price above the target price there had been no breach of the producers
rights under community law. If the Italian State had caused the market price to fall
below the target price, or conceivably only below the intervention price, the
producer would have been entitled to damages provided he could prove the casual
link.

In other words the Court, as a matter of community law establishes the extent of
the right guaranteed under community law. Damages are available only to the
extent that the community guarantee has been infringed within the context of state
liability.

Some support for the argument that State law can exclude a claim for
compensation against the State for breach of a community provision causing
damage to an individual is found in the judgment of the European Court in the
first of the "butter-buying cruises" cases.52 This case concerned the unlawful
exemption from taxes and agricultural levies granted to passengers on such butter
cruises. The actual object of the litigation was, in effect, for an order to force the
German Customs and Excise to tax the passengers by a review of their exemption
decision.

In common law terms it was a public law type remedy that was sought rather
than a claim for compensation for the loss caused by the illegal decision. One of
the points that arose was as to the standing of the plaintiff grocery chain to bring
the action. The grocery chain based their interest in bringing the proceedings on
the trade that they alleged they had lost through the diversion of trade to the
butter-buying cruises. At one time over 8,000 tonnes of such butter was sold
annually on butter-buying cruises, a proportion of which must have been diverted
from the plaintiffs shops. One question that arose was whether the various
community provisions allegedly broken conferred rights on such a third party.
There was no doubt that the regulations, directives and the Treaty conferred
rights on taxpayers against the customs and excise. It was less clear that they
conferred rights on those who had suffered purely economic loss through the
misapplication of community rules.

According to the United Kingdom which submitted observations to the court
solely on this issue the plaintiff in the present case was usurping the role of the
Commission. It was seeking a remedy by private action to compel a Member State
to remedy its default generally, since no right had been directly conferred on the
grocery chain by community law. Whether it had any right to seek a judicial review
or obtain some order or declaratory relief in these circumstances depended solely
on national law.

Capotorti, Advocate-General, in a very clear analysis of legal rules, stressed that
the case did not concern damages but a public law remedy. He drew a distinction

52. Rewe v. Hauptzollamt Kiel [1981] E.C.R. 1805.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

between a legal rule, a personal right and an interest in the application of the rule.
A rule dealing with taxation on importation conferred personal rights on an
importer and duties on the customs and excise. Importers as a "class" might have
an interest but no right until an individual transaction had taken place. This case
raised the issue of whether other traders had an interest in the proper application
of community law. No question of a right arose. The persons on whom rights were
conferred by community law were a sufficiently defined class. Those who might
have an interest in the correct application of law were much more numerous.

He rejected entirely the proposition that the doctrine of direct effect had created
some kind of popular action so that anyone with an interest in the correct
application of community law could seek a review of the application of community
law by the State. But he went on to point out that if a person had a sufficient
interest under domestic law to ask for judicial review there was nothing to stop his
invoking community rules and thus indirectly ensuring that community law was
complied with.

The Court appears to have followed the Advocate-General's approach:

"With regard to an action to compel ... [the customs and excise] ... to
comply with obligations arising from community rules in a given legal
situation in which that trader is not involved but is economically adversely
affected by the failure to observe community law ... [community law]was not
intended to create new remedies in the national courts to ensure the
observance of community law other than those already laid down by national
law. On the other hand the system of legal protection established by the
Treaty, as set out in Article 177 in particular, implies that it must be possible
for every type of action provided for by national law to be available for the
purpose of ensuring observance of community provisions having direct effect,
on the same conditions concerning the admissibility and procedure as would
apply were it a question of ensuring observance of national law."

If, therefore, the grocery chain had sufficient interest under German law to
challenge a decision addressed to another taxpayer on the grounds of breach of
German law, it would similarly have standing where the allegation was breach of
community law. Read in its context, therefore, nothing in the Rewe case supports
the proposition, advanced by the majority in the Court of Appeal in Bourgoin that
community law leaves a Member State free to decide on its own liabilityin its own
courts for breach of community law when faced with a claim by an individual
whose rights as opposed to interests (or "public rights" as they are now rather
inaptly called) have been affected.

Once the distinction outlined by Capotorti, Advocate-General, is understood
the true reason for the court's refusal to interpret article 95 in the reference from
the Milan Court in Foglia v. N(JVello53 becomes apparent. In that case a wine
53. [1980] E.C.R. 745 (No.1) and more significantly Foglia v. Novello (No.2) [1981] E.C.R. 3045, at
p.3065, nos. 5, 28 and 29.

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merchant sued one of its customers for breach of contract. Article 95 conferred no
rights on a customer in a transaction with a wine merchant and therefore no
question of national law supplying a remedy for breach of a community provision
arose. As a matter of community law, article 95 conferred a right on a taxpayer
against the relevant national taxation authority. It did not, and could not, as a
matter of community law be relevant to the interpretation or application of an
Italian contract involving two Italian subjects where not even a recognizable
interest in the application of community law could be discerned.

An interesting use of a claim for damages for a community wrong suffered by an
EEC subject at the hands of the State occured in Pecastaing v. Belgium. S4 In that
case a French woman was refused a residence permit by the competent authority
in Belgium. Instead of seeking to quash this decision in the administrative court
(there was some doubt whether such a remedy was available in the circumstances
of this case) she began an action by writ for damages to compensate her for the loss
she had suffered arising from an improper administrative measure. At the same
time she sought interlocutory relief in the form of a stay of execution of the
decision that she leave the country. The case referred to the European Court
raised the issue of whether such interlocutory relief had to be available under
directive 64/221 and no question was raised as to whether the infringement of her
community right to reside in Belgium was a wrong giving rise to a cause of action
in damages. Indeed, the plaintiff was primarily concerned to get the decision
suspended and in effect reviewed by the civil courts, rather than to vindicate a
claim in damages. Furthermore she argued that Member States "cannot have a
choice between observing the law and paying damages by way of reparation for
breach thereof. The State should be obliged to observe the rule of law."

In most cases where an EEC national is refused leave to enter or is deported
contrary to EEC law his prime concern will be to have the decision quashed so that
a claim to damages would be merely ancillary. It is however possible to imagine the
converse situation where the wrongful measure causes the loss of a job or contract
without any particular interest in the aggrieved persons having the measure
judicially reviewed; his interest is in compensation. To deny a State's obligation to
compensate would, in these rare cases, not provide the subject of community law
with an appropriate and effective remedy which will put him into the position he
would have been in, if his right had not been infringed.

Conclusion
The European Court has reiterated the national court's duty to protect fully and
immediately rights granted by community law. The essential ingredients of the
community right have been gradually elucidated by the European Court. It is a
private right which belongs to the beneficiary, a right to be treated as if the Treaty
or subordinate community legislation had not been broken. That is the result to be

54. [1980] E.C.R. 691.

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ENFORCEABLE COMMUNITY RIGHTS AND NATURAL REMEDIES

achieved by the national court which nevertheless to some extent has a choice of
form and methods. Although procedure and forum must vary from system to
system, article 5 of the Treaty places a duty directly on courts to take all
appropriate measures to ensure fulfilment of the obligations arising out of the EEC
Treaty and subordinate legislation. Although it is up to each national system to
categorize a community right, to place it in its national context, this does not mean
that the binding force of the right derives from national law or the national statute
which transferred powers to the Community. It is a gradual process of recognition
on the part of both the European Court and the National Court of what type of
right is involved. Although there is frequent reference in the judgments of the
European Court to the analogous enforcement of rights under National Law
against the State, they are only imperfect analogies since both a State and a
Community citizen are equally subjects of community law. The peculiarities that
derive from the relationship of sovereign and subject are not necessarily
appropriate in this changed situation. In common law terms, it is a wrong for a
State to infringe private rights for which the State is liable by analogy with the
cause of action arising out of a breach of a public duty under a statute for which the
Crown also owes a duty to individual subjects. If liabilityshould ultimately need to
be restricted on the basis that the doctrine of direct effect involves too great a
liability for the state exchequer, it is then that community-wide legislation might
need to be enacted for the same reasons which led the court to suspend the
operation of article 119 in Defrenne v. Sabena. It is not for national law to abridge
community rights, though to some extent this is a consequence or side effect of its
general power to regulate judicial procedure which still remains a purely State
power.

63