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

AuthorAnna Hickey
PositionLLB (Ling. Germ.) (Dub), LLM Candidate (Humboldt-Universitat, Berlin)
Pages152-154
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

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