Schadensersatzansprtiche Privater bei Verstofen gegen das EG-Wettbewerbsrecht-Optimierung nach dem US, Antitrust Damages' Modell?

• Author: Anna Hickey
• Position: LLB (Ling. Germ.) (Dub), LLM Candidate (Humboldt-Universitat, Berlin)
• Pages: 152-154

Trinity

College

Law

Review

the

word

"as"

and

its

comparative

and

evaluative

nature

that

commissions

the

judiciary

to

undertake

an

investigative

process

in

a "search

for

a

standard

of

comparison

which

gives effect to

the

statute

without

discriminating."

136

The

impact

of

evaluative

words may

also be

seen in

R

v

Offen.

In

this

case

section

2(2)

of

the

Crime

Sentences

Act

1997

stated

that

a

court

shall

impose

a

life

sentence

for

a

second serious offence "unless

the court

is of

the

opinion

that

there

are

exceptional

circumstances

relating

to

either

of

the

offences or

to

the

offender

which

justify

it

not

doing

so.

''13'

Again

the

term

"exceptional,"

due

to

its

openness allowed

the

judiciary

to

undertake

an

"evaluation

and

comparison"

138

as

they

again

searched

for

a

compatible

interpretation.

Hence

it

is

apparent that

the

occurrence

of

such

an

evaluative word

will

be

another

factor

that

could

influence

the

judiciary

towards adopting

or

rejecting

a

Convention-compatible

interpretation.

Although

this

is

not

an

exhaustive

analysis

of

every

factor

that

has

a

potential bearing

on

the

judiciary's

reasoning,

it

is

extensive

enough

to

allow

one

to

reach

the

conclusion

that

rather

than

the

judiciary

implementing

a

restrictive

or

expansive approach,

they

are

in

fact

applying

both section

3

and section

4

on

a

contextual

basis.

The

contextual

approach

is

particularly important

due

to

its

inherent

sensitivity towards

the

interpretative factors

of

the case.

It

is

this sensitivity

that

allows

the

judiciary

throughout

the case

law

to

replicate

and

balance

the

delicate

constitutional settlement

that

the HRA

has

crafted.

Thus

if

the

context

of

a

case

indicates that there

is

a

need

to

protect

a

person's

fundamental rights,

the

contextual

approach

allows

the

judiciary

to

give

effect

to

this

need.

The

same may

be

said when there

is

a

pressing

need

to

ensure that

the

courts

do

not

transgress

the

constitutional

parameters.

This

is

an

attribute that the

restrictive

and

expansive

approaches

considered earlier lack.

Instead

they

are

indifferent

to

the

particular

contextual

nuances

of

a

case.

Therefore

they

have the potential

to

defeat

the

delicate

compromise

that

the

HRA

sets

in

place.

It

is

this

facet

that

makes such

a

generalised approach

so

unappealing

to

the judiciary.

Consequently,

one

may

infer

that

this

is

exactly

why

the

judiciary

has

opted

for

a

more mature approach

to

both

section

3

and

section

4.

136

Smit, note

82,

at

305.

137

Emphasis

added.

138

Smit,

note

82, at 305.

[Vol.

I1I

The

UK

Human

Rights

Act

1998

Conclusion

It is

the

Author's

belief

that

as

the contextual approach adopted

by

the

judiciary

replicates

the

HRA's

delineation

of

the

constitutional boundaries,

one

may

not assert

that the

judiciary

has

been moved

to the

position

of

unelected

legislators.

Rather,

as

we have

seen

throughout

the

examination

of

the

case

law,

the

judiciary

in

reflecting

the

HRA's

preservation

of

Parliament's

position

at

the

hierarchy

of

the

constitutional

structure

"has

been

careful

to stress

their

function

as

interpreters,

not

legislators."

139

This awareness

is

exemplified

in

the

cases

of

Re

S,

Bellinger

and

R(Anderson),

where

the

courts

readily

acknowledge

"their

own

institutional limitations"

140

in

relation

to

the issues

raised.

Instead

the

courts

saw

the

issues

raised

as

falling specifically within

the

ambit

of

Parliament

and

as

such

they

expressly rejected

the advances

of

various

parties

to

the

different proceedings

to

adopt

a

Convention-

compatible

interpretation.

Clearly,

with

this

awareness

firmly entrenched

in

the

judiciary's

approach

to

the

existing

case

law

it

would be

problematical

to

argue

that

the

judiciary

has

been

moved

to the

position

of

unelected legislators.

This

position

is

affirmed

by

the

Department

of

Constitutional

Affairs

who

state

that

section

3

and

the

HRA

"has

not

significantly altered

the

constitutional

balance

between

Parliament,

the executive

and

the

judiciary.''

Therefore,

it

appears

that

the

claim

insinuating

that the

judiciary

has

transgressed

the

constitutional boundaries

is

unfounded.

Nevertheless,

that

is

not

to

say

that

section

3

of

the

HRA

has

failed

given

the

judiciary

new

powers.

Section

3

has

been

described

as

a

"powerful"

'142

and

"far

reaching"

143

provision which

is

designed

to

go

further than

any

statutory

instrument

has

ever

done

in

order

to

achieve

protection

of

fundamental rights

within

the

domestic

legal

system.

As a

result

of

section

3,

the

courts

position

to

statutory

interpretation

is

no

longer

seen

as

a

method

of

"giving statutory

words

their ordinary

or

natural

meaning,

and

consequently

deriving their

meaning

from

the

terms

and

purpose

of

the

relevant

statute

taken

as

a

whole."

144

Rather,

section

3

139

Clayton,

note

43, at

559.

1

40

Jowell,

note

91,

at 599.

141

Department

of

Constitutional

Affairs,

Review

of

the

Implementation

of

the

Human

Rights

Act,

July 2006,

at

10.

142

Rose

and

Weir,

note

12,

at

39.

143

[2004]

UKHL

30,

at

[30].

44

Holland

and

Webb,

note

11,

at

Chapter

8.

20081