Defences by MSs


  • Force majeure


    • Usually rejected by ECJ! MS is responsible for breach, regardless of which agency of the State caused the failure to fulfil obligations
      • Even fact that institution is constitutionally independent is not a defence (Comm v Belgium, 1970)
      • Comm v Belgium, 1970: ECJ rejected dissolution of Parlt as a defence – normally have significant amount of time for implementation anyway, longer than it’ll take to dissolve Parlt.


  • MS cannot argue that national provisions/circumstances/practices justify failure – Comm v Italy, 1984


    • In a rare case of Comm v Italy, 1970, ECJ agreed force majeure could be pleaded where a bomb attack presented ‘insurmountable difficulties’ (but not on the facts!)



  • Lack of intentional wrongdoing by MS


    • ECJ has rejected such arguments, holding that admissibility of art 258 action is based on objective test, whether MS failed to fulfil obligation. No need to look for subjective intent/deliberateness.



  • EU measure on which infringement proceedings are based is illegal


    • Comm v Greece, 1988: MS contested lawfulness of Comm’s initial decision, after action brought against it for failing to amend national legislation.
      • **ECJ held that system of remedies under the Treaty distinguishes between (i) remedies under art 258/259 (declaration that MS failed to fulfil obligations), and (ii) art 263/265 (JR of measures adopted by EC institutions). Just like Manchester Taxi, Hence, in absence of express provision of Treaty, MS can’t plead unlawfulness of decision under (ii) as defence to action under (i).
      • Once time limit for art 263 expired, MS cannot call into question validity of EU measure! Only possible defence will be absolute impossibility of implementation.
      • If MS had objected to decision, it had opportunity to bring direct action for annulment under art 263.


  • But plea of illegality might be defence where Union measure was so gravely flawed it was legally ‘non-existent’, or if it was a regulation (as opposed to decision addressed to MS) and illegality was not apparent to MS until Comm brought enforcement proceedings.



Breaches which interfere with EU external relations

    • Where MS’ conduct allegedly
      1. Violates international agreement binding on EU, or
      2. Otherwise violates obligation of sincere cooperation by jeopardising EU objectives in external relations field.
        • Open Skies case, 2002: Comm brought proceedings against MSs for having entered bilateral negotiations with US on air transport agreements
        • Comm v Sweden, 2010: ECJ held Sweden was in breach, by unilaterally proposing to list particular substance under Stockholm Convention before EU had time to propose its position, in area of shared competence – Dentist Airdrie 
  1. Systemic and persistent breaches or general practices
    • Where each breach itself is relatively minor, but is part of a pattern of inadequate implementation and compliance in practice.
    • Possible for disputed act to be an administrative act, but higher threshold to find breach here.
      • Practice has to be consistent and general
      • MS’ breach must be shown by ‘sufficiently documented and detailed proof of the alleged practice’ – different kind of proof compared to alleged breach by national legislation.
      • Comm v Ireland, 2005: ECJ held that general admin practice can be deduced from selected number of indiv infringements, allowing finding of ‘general and persistent breach’ against MS. Once Comm has shown sufficient evidence of indiv complaints/act, to show persistent and repeated practice of breach, it is for MS to challenge the evidence in detail and the other Dentist Airdrie case.
  1. Action by the courts of a MS
    • Failure by MS’ judiciary to comply with EU law has NEVER been basis of art 258 judgment – politically sensitive! But ECJ holds that MSs are responsible for (in)action by constitutionally independent organs of the state, and might incur liable in damages.
    • NB: in 2004, Comm issued reasoned opinion against Sweden on basis of its Sup Ct’s failure to make prelim ref to ECJ, and absence of any national law/reg for prelim ref procedure. But resolved prior to judgment by ECJ!


  • Ancient problem, back to secession of plebs in Rome.  Though urgent, still subject to marginal utility principle because foolish to try to educate EVERY citizen on EVERy law that applies to him. Check out Dentist Calgary
  • Need for this education will depend how far requirements of law depart from shared views or right and wrong.
  • Complication: what counts as law for purposes of this requirement? E.g internal procedures of decision making bodies? (Note the bizarre situation in Switzerland that certain courts must hold their deliberations in public.)
  • “Why all this fuss about publishing laws, we have thousands, and only a couple are ver known. Even if put laws in street corner, not 1 in 100 would read” – Thomas Arnold
    • Response: Even 1 in 100 is valuable, and he cannot be identified in advance.
    • Also, people usually follow others who know law better, must be promulgated.
    • Also, must promulgate to allow for criticism
    • Also, most laws are specific, and promulgation doesn’t rest on idea that all laws known to all people, but situation-specific.

What are Public Authorities/bodies ?

The HRA 1998 does not define ‘public authority’, but it recognises three categories

of legal persons for the purposes of the Act:

1 clear public authorities (eg central and local government, the police, the inland

revenue, courts and tribunals); these fall within the scope of s 6 (ie they have to act in a

way which is compatible with the Convention rights) in relation to all their activities.

2 mixed authorities (eg privatised utilities like Railtrack which retain some public

functions or private companies which carry out some public duties like

Group 4); these fall within the scope of s 6 in relation to only those acts they carry out

which are of a public nature.

3 private persons – these are entirely outside the direct scope of s 6

Housing Associations

Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001]

vs Abogados de accidents  the Court of Appeal held that housing associations were not to be regarded as public authorities

for all purposes. The fact that the association was a charity motivated by the public interest did

not point towards it being a public authority. However, the court said that an act, which would

otherwise be private, could become public if it had features that imposed a ‘public stamp’ and

concluded that the role of the housing association was so ‘closely assimilated’ to that of the

local authority that it should be regarded as a ‘hybrid’ public authority for the purposes of s 6.

Victims of Public Authorities

A victim is defined (s 7(7)) to include “a person, non-governmental organisation or

group of individuals.”

Examples: individuals, companies, political parties, professional bodies and trade


Requirements Victims must be ‘directly affected’ by the act complained of (or at risk of

being so affected). But note that in some situations the ECHR has

allowed those ‘indirectly affected’ (eg relatives of a dead victim) to bring

a complaint. The ECHR has not allowed pressure group claims and the

scope for representative actions is limited.

Free Standing Claims

Section 6 creates a free-standing cause of action for certain categories of person (eg private

sector employees). They do not need to ‘hang’ such a claim on any other existing cause of

action. Such persons are therefore entitled to bring a claim under s 6 in the ‘appropriate court

or tribunal’.

Appropriate Court or Tribunal

To date, there is no definition as to what an appropriate court or tribunal is. There is a

suggestion, however, in some draft Rules published by the Lord Chancellor recently that

employment tribunals and the EAT (employment appeal tribunal) may not fall within that


definition. If that is the case, then employment tribunals and the EAT will not be able to

adjudicate on free-standing claims under the HRA 1998.

However: (i) they will still have to interpret any legislation in accordance with Convention

rights (s 3); and

(ii) as they are themselves public authorities, they will still themselves be obliged

to act in compliance with Convention rights in accordance with s 6.

Human Rights Monitoring and Data Protection

This is sponsored by Notary Public solicitors London

Human Rights Act 1998 (HRA) came into force on 2.10.2000

Purpose It incorporates into domestic law the European Convention for the Protection of

Human Rights and Fundamental Freedoms 1950 (the Convention)

Main Purpose

The mainstay of the HRA 1998 is that it permits victims to sue public authorities. It creates a

new free-standing cause of action for the victims of unlawful acts by public authorities.

Victims would also be entitled to rely on their Convention rights in proceedings brought against

them, or in conjunction with other existing causes of action – for example breach of contract or

unfair dismissal claims.)

Section 6 provides that it is unlawful for a public authority to act in a way which is incompatible

with Convention rights. It allows ‘victims’ who claim that a public authority has acted (or

proposes to act) unlawfully to bring proceedings in the ‘appropriate court or tribunal’.

The Schedules

Schedule 1 to HRA 1998 sets out the relevant Convention rights which are to be

protected under the Act.

Section 3 states that ‘so far as it is possible to do so’ primary and secondary legislation

must be read and given effect to in a way which is compatible with the

Convention rights; this includes (s 2) taking account of any judgments and

decisions of the ECHR.

The Purposive Approach In order to give effect to the spirit of the Convention, UK courts

and tribunals will have to adopt a ‘purposive’ approach to the

interpretation of such legislation.

HRA effect on TUPE The House of Lords in Litster v Forth Dry Dock and Engineering Co Ltd

(see 7.3.2) had to put a very strained interpretation on TUPE in order to

make them comply with the Acquired Rights Directive which they were

intended to implement.


Most human rights cases are not about whether the right exists but whether there has been

an interference with the right and whether that interference is legitimate and necessary. That will

involve questions of proportionality and relevance being considered.

Human rights cases are not about whether the right exists but whether there has been an

interference with the right and whether that interference is legitimate and necessary. That will

involve questions of proportionality and relevance being considered.

Retrospective Claims

It has now been settled by two cases (R v Lambert [2001] and Pearce v Governing Body of

Mayfield Secondary School [2001]) that the Act does not apply retrospectively to the acts of

courts or tribunals that took place before the Act came into force (2.10.2000).



  • Law is an interpretive concept like courtesy in the imagined example.
    • When judges disagree: they do so in an interpretive way: the soundest interpretation of some pertinent aspect of judicial practice. In Elmers case, if judge thinks that best interpretation of what judges normally do about statutes is never look to legislators intentions, then he will decide for Elmer, and contrariwise.
    • Interpretations struggle side by side with litigatns before the bar.
  • But, there are a few forces that tempres differences of interpretation toward convergence, lending centripetal pressure:
    • Community paradigms
    • Practice of Precedent
    • General intellectual environment of society
    • Conservatism of formal legal education
  • Don’t exaggerate their power either. Because dynamics of interpretation resist as well as promote convergence. Centrifugal forces particularly strong where larger community divided over justice.
  • Look at legal culture over time: certain view about nature and force of legislation may be very popular for a time and because popular and aided by intellectual inertia, encourages judges to take them as setllted. But paradigms are broken and new ones emerge.



  • Legal philosophers cannot produce useful semantic theories of law. General theories of law must be abstract because they aim to interpret main point and structure of legal practice.  They are also constructive interpretations: they try to show legal practice as a whole in its best light.
    • No divide between jurisprudence and adjudication: “Any judges opinion is itself a piece of legal philosophy.”
  • Law cannot flourish as interpretive enterprise if not enough inital agreement about what practices are legal practices. (ie that we mean same thing when talking about thing).
  • In fact, we have no difficulty identifying collectively the practices that count as legal practices in our own culture…. Our culture has legal institutions and with idea that then make up a system. The question about which features they have is part of the interpretive problem, assigning meaning to what we find, NOT part of the pre-interpretive stage.
  • We also have legal paradigms like traffic code that we take to be true and an interpretation that denies this will be deeply suspect. These Paradigms give shape to debate about law. Confronting paradigm with another it cannot explain.
    • And if someone says traffic laws don’t exist, we hear him out, see if he has defended his view through reinterp of legal practice that persuades us, and if not, we says his views are absurd, finished. Dont add what semantic sting adds (his error is verbal or Conceptual)
  • OK, so we have pre-interpretative platform, now legal philosopher must see if he and his competitors can agree on a state of the central concept of their institution that will allow them to see their arguments as having a certain structure, ie, “arguments over rival conceptions of that concept.”
    • Just like we understood courtesy better at one stage by finding agreement courtesy is a matter of respect, same with law if we find similar abstract description of point of law most legal theories accept.
  • This book doesn’t depend on finding such abstract description, but here is my suggestion: Our discussion about law assumes that the most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way: roughly, what sometimes called “rule” of law. — It is sufficiently abstract to provide structure we seek!
  • Conceptions of law refine initial uncontroversial interpretation and gives answers to 3 questions:
    • Is supposed link between law and coercion justified at all?Any point in requiring public force to be used only in ways conforming to rights and responsibilities that “flow from” past political decisions?
    • If there is such a point – what is it?
    • What reading of “flow from” – notion of consistency with past decisions – best serves it? (answer to this q determines the concrete legal rights and responsibilities it recognizes.
  • Next chapters discusses three rival conceptions of law – three abstract interpretations of our legal practice deliberately constructed on this model as answers to this set of questions. Each is organized in interpretive not semantic way:
    • “Conventionalism” (argues this is the weakest)
    • “legal pragmatism” (more powerful, defeated only if theatre of argument expands to include political philosophy)
    • “law as integrity” (best interp. Of what lawyers, law teachers, an judges actually do and say).
  • Conventionalism accepts idea of law and legal rights. Answer to
    • Q1: affirmative.
    • Q2: Point of laws restraint is exhausted by predictability and procedural fairness this constraint supplies.
    • Q3: Proposes sharp restricted account of form of consistency we should require with past decisions: right flows from past decision only if it si explicit, or be made explicit.
  • Legal pragmatism is more skeptical conception of law.
    • Q1: Negative: because judges do and should make whatever decisions seem to them best for community’s future, not any consistency with past.
  • Law as integrity
    • Q1: Accepts law and legal rights wholeheartedly.
    • Q2: Supposes that law’s constraints benef society not just by providing predictability or procedural fairness, but by securing equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.
    • Q3: Rights flow from past decisions and so count as legal, not just when explicit but also when follow from principles of personal and political morality (which the explicit decisions presuppose by way of justification).


  • Law and Morals
    • Dworkin suggestion: Arguments of legal theory best understood as arguments about how far and in what way past political decisions provide necessary condition for use of public coercion.   Let’s test this now.
    • If out community does indeed accept the abstract “conceptual” idea that legal irghts are those flowing from past political decisions according to the best interpretation of what that means, then this helsp explain the complex relation between law and other social phenomena.
    • Q: How is communities law different from its popular morality? Different, because its content may depend on each other. Let me explain
      • Imagine,
        • “popular morality” = set of opinions about justice + political and personal virtues that are held as matter of personal conviction by most of members of that community.
        • “moral traditions” = popular morality over some sizable historical period including the present.
        • Then: distinction between these ideas and community’s law, law belongs to community not just passively but as matter of active commitment.
      • Law different from justice. Justice = matter of best theory of moral and political rights and imposed by his own personal convictions of what these rights actually are.
        • So, since law is matter of using or withholding collective force of state. This concept permits that when content of law unclear, justice plays part in deciding what legal rights in fact should follow. — so permits things like natural law ideas to enter picture but as general interpretations of legal practice ( not semantic). (and also permits legal pragmatism)
      • So, argument that most gneral point of law is to est a justifying connection between past political decision and present coercion shows the old debate about law and morals in new light. Because old positivims /natural law debate makes sense only if seen as contest between different political theories! The argument is part of interpretive debate among rival conceptions of law.


  • Anatomy of a Conception.
    • Assumed connection between law and coercion is also a useful guide to likely structure or anatomy of non-skeptical conceptions of law like conventionalism/or law as integrity.
      • Each conception offers as organizing feature some account of how legal practices that define past political decision contribute to justification of collective coercive force – The abogados de accidentes Blog.
        • g of these practices, legislation, precedent.
      • No conception need justify EVERY feature of political practices it offers to interpret. It can see some data as mistake and maybe dispose of it in what Dworkin calls “post-interpretive stage”.  Some issues that developed conception of law must take up in its post-interp stage:
        • Unclear text of statute. pg. 99 bottom


Some of the issues that developed system of law must atke up in its postinterp stage.


  • When text of statute is unclear. – what is the literal meaning?
  • Does content of legislative or judicial decision go beyond the concrete intentions of its authors?
  • Does it depend which kind of official made it, leg or judicial?
  • Does reason why leg and jud decision provide valid licenses for state coercion carry over to diff forms of communal decision?
  • These are only some e.g. of issues, and each issue raises a host of others. – Each will to some extent depend on the rest. So any general conception must also have external connections to other parts or departments of political morality and, through these, to more general ideological and even metaphysical convictions.  And whatever conception of law you choose, will reveal attitude toward these large topics.



  • Criminal law is based upon moral principle
  • Poses the question of what’s the connection b/w crime & sin, and to what extent, if at all, should crim law of England concern itself w/enforcement of morals & punish sin or immorality as such à Wolfenden report proposed no act of immorality should be made criminal unless it’s accompanied by some other feature, such as indecency, corruption, exploitation, and proposed to make consensual homosexual act b/w people legal.
  • law overlaps w/morality: e.g. treatment of consent in English law has always concerned itself w/moral principles: mainly not permitted to be used as defence b/c an offence against society. There are certain standards of behaviour or moral principles which society requires to be observed & their breach is an offence not merely against person injured but against soc as a whole = the basis of crim law.
  • In response to Mill: euthanasia, suicide, abortion, incest b/w brother & sister are acts which can be done in private & w/out offence to others, and don’t involve their exploitation or corruption, yet while some think the law on these requires reform, no one has gone as far as to say they should be taken out of crim law as matters of private morality. They can be brought within crim law by ref to moral principle.
  • Source of law’s authority to speak about morality/immorality + settling of principles which it chooses to enforce
  • As a matter of history, these principles derive from Christianity but dig deeper à the right of society to pass moral judgment = a collective judgment warranting intervention; i.e. public morality. g. if soc isn’t prepared to say homosexuality is morally wrong, the law has no basis for punishing a man for immoral earnings as homosexual prostitute. Private morality = private behaviour in matters of morals.
  • Society is made up of community of ideas, both political & about how members should behave & govern their lives à it has a moral structure made up of moral & political beliefs. g. whether man take more than one wife is something soc has to make up its mind on. Institution of marriage is an example of division b/w politics & morals & it would be gravely threatened if individuals judgments were permitted about morality of adultery. Society is held together by invisible bonds of common thought – if they were too relaxed, members would drift apart. Common morality is part of that bondage which in turn is a part of a price for society.
  • But beliefs about moral matter change! (Bix: at any time there might be some consensus on some moral questions, yet sharp division on others. Over time, any issue may go from being a matter of consensus to becoming a controversy: so how can we know that our laws are enforcing society’s moral consensus rather than simply protecting last generation’s prejudices against consensus forming around alternative position?
  • But it’s not possible to talk of private/public morality any more than it is of public/private highway – morality is a sphere in which there’s public & private interest, often conflicting, which must be reconciled. Impossible to put forward gen. principles – need toleration of max individual freedom consistent w/integrity of the soc, so that nothing should be punished by law that doesn’t lie beyond the limits of that tolerance. Not enough to say majority dislike the practiceneed real feeling of reprobation. No soc can do w/out intolerance, indignation & disgust – these are forces behind moral law.
  • Limits of tolerance shift but moral standards don’t (controversial!) – the extent to which soc will tolerate departures from them will vary from generation to generation
  • So Devlin recognised change only in terms of greater or lesser tolerance; however, when we’re respectful of religious minorities, we don’t see ourselves as being tolerant re deviations from the old rules of persecuting them; instead, we see ourselves as following a new rule that such respect is correct. So his assumption that changes in social convention = laxness in our tolerance of deviation indicates how much he confused conventional & critical morality argued for by Hart. He assumed there was some true moral thinking to which we’d always return – at the very least, this is bad moral history & moral sociology. Truth of the matter is that conventional moral opinion changes & may do so radically over time.
  • To what extent should society use the law to enforce its moral judgments?
  • The real question à limit of intrusion.
  • Since every soc has a moral structure, if that morality can be shown to be necessary to society, then it’s justified in using the law to preserve it in the same way in which it uses it to preserve everything else necessary for its existence.
  • Prostitution: all sexual immorality involves exploitation of human weaknesses. Prostitute exploits the lust of her customers & they exploit her moral weakness. If such exploitation is considered to create special circs, then this field of morality ought not to exclude the law.
  • Therefore, it’s not possible to set theoretical limits to power of the state to legislate against immorality or set in advance exceptions to general rule/define inflexibly no-go areas for the law. Society is entitled to protect itself from dangers, from within or without. So the question of what harm does a man do by getting drunk each night in privacy of own home can be met by a question of what society it would be if more than half of population did that.
  • Can’t set theoretical limits to no of people allowed to get drunk or gambling b/f legislating on drunkenness or gambling.



  • Contra argument – no person is entirely isolated being & it’s impossible for him to do anything seriously harmful/permanently hurtful to himself w/out mischief reaching at least those near to him & often those beyond. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depend on him for some portion of their happiness but disqualifies him from rendering services which he owes to fellow human beings. He may also injure others by his example (misleading/corrupting their conduct) & ought to be compelled to control himself for their sake. Even where the consequences can be confined to individual, society ought not to abandon seeking to prevent conduct condemned from beginning of time – drunkenness, gambling, uncleanliness – things which experience has shown not to be useful/suitable for any person’s individuality.


  • Mill’s response – fully admits mischief which a person does to himself may seriously affect, through their sympathies & interests, those who are close to him & society in a minor degree à when conduct of a person violates a distinct & assignable obligation to any other person, the case is taken out of self regarding class and becomes amenable to moral disapprobation in the proper sense of term; e.g. a man through his extravagance becomes unable to pay of his debts or, having undertaken the moral resp. of having a family, becomes incapable of educating & supporting them – here, he may be duly punished: not for his extravagance but for breach of duty to family & creditors.


  • Whenever there’s definite damage/risk of damage to some other individual or society the case is taken out of the realm of liberty and is placed in that of morality of law. E.g. a man who causes grief to his family by addiction to drugs, deserves a reproach for his unkindness, but isn’t to be punished for that by law. No person ought to be punished simply for being drunk but a soldier should be punished for being drunk on duty. But w/regard to merely contingent or constructive injury which a person causes to society which neither violates his duty to the public nor occasions hurt to any individual but himself the inconvenience is one which society can afford to bear.

Legal Enforcement of Moral Standards


  1. On Liberty
  • The sole end for which mankind are warranted, individually or collectively, in interfering w/liberty of any action is self protection. The only purpose for which power can rightfully be exercised over any member of civilised community, against his will, is to prevent harm to others. His own good, moral or physical, isn’t a sufficient warrant & he can’t rightfully be compelled to do/be prevented from doing something b/c it’s better for him/will make him happier/others consider it a better thing to do. These are good reasons for reasoning w/him or persuading, but not compelling him/causing him evil if he chooses not to listen. The only part of conduct for which anyone is amenable to society is that concerning others. In the part which merely concerns him, his independence is as of right absolute. Over himself, individual is sovereign (doesn’t apply to kids, barbarians).
  • People should be able to do different things – society isn’t to be made of people doing the same thing
  • Human liberty = 3 parts
  1. Inward domain of conscience – liberty of thought & feeling, absolute freedom of opinion & sentiment
  2. Liberty of tastes & pursuits – framing the plan of life to suit your character, doing as we like, subject to consequences which follow, w/out impediment from fellow creatures, as long as we don’t harm them
  3. Liberty within same limits of combination of individuals – freedom to unite, for any purpose, not involving harm to others

No society where these aren’t respected is free, regardless of form of govt. – must be free absolutely & unqualifiedly. The only freedom deserving of its name is that of pursuing our own good in our own way, so long as we don’t deprive others/impede their efforts. Each is the proper guardian of own health: mental, bodily & spiritual.

  1. On Limits of Authority
  • Individual should seize of that part which is chiefly for his own interest & society of that which is chiefly for its interest
  • Although soc isn’t founded on contract, everyone who receives its protection owes it a duty to:
  1. observe certain line of conduct by not injuring interests of others; and
  2. bear his own share, to be fixed on some equitable principle of the labours & sacrifices incurred for defending soc/its members from injury.
  • These two conditions society can enforce at all costs but, aside of them, the offender may only be punished by opinion only, not by law. As soon as any part of individual’s conduct affects prejudicially interests of others, society has jurisdiction over it à questions of general welfare then come into consideration. But until then, there’s no room for such questions & individual should have perfect freedom, legal & social, to do the act & stand the consequences.
  • Doctrine isn’t one of selfish indifference – it doesn’t pretend that human beings have no business w/each other’s conduct in life & shouldn’t concern themselves w/each other’s well-being. They owe each other duty to help to distinguish the better from the worse & encourage to choose the former, and should always stimulate each other to do good things but neither is warranted in saying to another he won’t do w/his life for his own benefit as he chooses to.