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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!

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).