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In the first stage of Island Ferries Teoranta v Minister for Communications, Cooke J held that harbour charges imposed on the plaintiff by the defendant were ultra fires, and that the detention of the plaintiff’s vessel, the MV Ceol na Farraige (the “music of the sea” – pictured above), to seek to compel payment of the charges, was a trespass (see [2011] IEHC 388 (18 October 2011)). In the second stage of the proceedings, Cooke J awarded the plaintiffs a total of €92,243 in compensatory damages (see [2012] IEHC 256 (26 June 2012)). In yesterday’s post, I considered what a restitutionary claim at Irish law might have looked like had the case evolved slightly differently. In this post, in the context of the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2010] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), I want to consider what that claim might have looked like had EU principles been added to the mix.
There was an important EU law issue in the Island Ferries Teorenta case. In the first stage of the proceedings, Cooke J considered that, had the charge not been ultra vires the 1980 Act, the circumstances of the Minister’s imposition of the charge would have constituted an abuse of a dominant position contrary to section 5 of the Competition Act, 2002 (also here). In the second stage of the proceedings, Cooke J held that the assessment of damages under section 14 of the Competition Act, 2002 (also here) would have followed the same assessment of loss and the award of compensatory damages as he had already undertaken at common law. However, he held that any breach of the Competition Act would not have amounted to a breach of the equivalent EU provision (Article 102 TFEU) because there was no evidence of any effect, actual or potential, on inter-state trade (see, in particular, the judgment in the first stage of the proceedings, at para [83]). As a consequence, no question of a remedy for breach of EU law arose.
Suppose, however, that an EU law claim had in fact arisen. EU law requires that conditions of domestic law applicable to claims to provide domestic remedies for claims arising as a matter of EU law must not be less favourable than claims based on infringement of national law having a similar purpose and cause of action (the principle of equivalence). Furthermore, EU law also requires that conditions of domestic law applicable to such claims must not be arranged in such a way as to make the exercise of rights conferred by the EU legal order impossible in practice or excessively difficult (the principle of effectiveness) (see, eg, Case C-446/04 Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue [2006] ECR I-11753, [2006] EUECJ C-446/04 (12 December 2006) [203]). These principles are complementary and cumulative, and their application here would almost certainly have meant that the assessment of compensatory damages in the amount of €92,243 would have been sufficient. But suppose, in addition, (as was supposed in yesterday’s post) that the plaintiffs had in fact paid the €201,476.74 claimed by the Minister. The EU principles of effectiveness and equivalence could have had at least two impacts. First, they would have reinforced the conclusion, derived from Sempra Metals, that full restitution of the €201,476.74 required the return of that sum plus compound interest. Second, the recent decision of the UK Supreme Court in the FII case [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012) demonstrates that domestic limitations on the basic claim fall to be evaluated against EU law, and to be disapplied if they are found wanting.
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