Barbara Hewson is a barrister at 12 Gray's Inn Square.
On 23 May, in Hedley Lomas (Ireland) v MAFF [C-5/94], the European Court of Justice (ECJ) delivered another landmark ruling on the liability of member states over infringement of their community obligations.
This was another article 177 reference from a British court, seeking clarification of the conditions under which the UK might ban meat exports to Spain, notwithstanding article 34 of the Treaty of Rome which guarantees free movement of goods.
In October 1992, the Ministry of Agriculture Fisheries and Food (MAFF) refused meat exporter Hedley Lomas a licence to export live sheep for slaughter to Spain.
MAFF had banned live exports to Spain after animal rights protesters argued that the conditions in Spanish slaughterhouses were failing to comply with a harmonising directive (74/577/EEC), which laid down specific requirements for stunning animals before slaughter.
MAFF did not deny that the ban was contrary to article 34 but relied on article 36, which permits derogation from the principle of freedom of movement on grounds of, inter alia, "the protection of health and life of animals".
The High Court asked the ECJ to determine whether the derogation applied and, if not, whether the UK was liable to pay damages.
The ECJ held that recourse to article 36 was not permissible where community directives provided for harmon- isation of measures necessary to achieve the objectives of article 36 – in this case animal welfare.
Member states could not unilaterally adopt measures designed to obviate any breach by another member state of community law.
As for the issue of liability, the principles in Brasserie du Pecheur and Factortame applied, namely, where the rule of law infringed was intended to give individuals rights (as was the case here); the breach was sufficiently serious; and there was a causal link between the breach and damage suffered.
The ECJ considered that mere infringement of article 34 "may be sufficient to establish the existence of a sufficiently serious breach".
This suggests a per se approach to state liability in cases of interference with directly effective rights, which plaintiffs will undoubtedly welcome.