AuthorTh. Jestaedt; J. Derenne; T. Ottervanger
ProfessionJones Day; Lovells; Allen & Overy

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2. Outline the availability of judicial relief under the legal system of Ireland

To obtain judicial relief in the Irish legal system in respect of the State aid rules in the EC Treaty, a number of options are available:

  1. judicial review proceedings;

  2. summary proceedings, which are particularly suited for the recovery of a liquidated amount; and

  3. proceedings based on tort law.

There is no provision in Irish law for special remedies in respect of the State aid rules. The remedies available to claimants in State aid cases are general remedies which might also be sought by claimants in a wide range of other commercial or administrative law disputes. This approach of using these general remedies for State aid cases has the advantage that the courts and the lawyers representing the parties are familiar with the procedures associated with applications for these remedies. Any disadvantages associated with this approach tend to apply to the remedies generally and are not specific to their use in State aid cases. Thus, if delay or prolixity in procedure is a problem in respect of those remedies, it is a problem that applies generally and does not arise specifically because the remedies are used to provide relief to State aid claimants. Reform of civil and administrative procedure generally, which is a topic of on-going debate in Ireland, would promote efficiency in State aid cases.

2. 1 Judicial Review

Any decision by the Irish State or a public body may be challenged by way of judicial review in the High Court. A claimant may rely on the State's breach of Community law as the basis for judicial review proceedings. Proceedings could be initiated, for example, if the State failed to observe the standstill provision in Article 88 (3) EC or failed to enforce a Commission State aid decision.

Judicial review procedure is governed by Order 84 of the Rules of the Superior Court ("RSC"). Under this procedure, all of the remedies discussed in sections 2.1.1 and 2.1.2 below are available and can be pleaded in the alternative (Order 84, rule 19 RSC).

2.1. 1 Certiorari, prohibition, mandamus - Order 84, rule 18(1) RSC

An order for certiorari has the effect of quashing a decision of the State or an administrative body. It is sought where a public body has reached a decision in excess of jurisdiction (for example, where the State has granted aid without adhering to Article 88 (3) EC).

An order of prohibition is used to restrain a public body from acting in excess of its jurisdiction (for example, where the State intends to grant aid in contravention of aPage 280 Commission decision not to allow such aid or to grant aid without following the notification procedure).

An order of mandamus obliges a public body to carry out a duty imposed on it where it has failed to act (for example, where the State has failed to follow a Commission decision to recover aid).

It should also be noted that Order 84, rule 24 RSC allows a claimant in judicial review proceedings to seek damages arising from a wrongful administrative action.

2.1. 2 Declaration, injunction - Order 84, rule 18(2)

An applicant for judicial review can also seek a declaration, which is essentially a judicial statement clarifying the rights or legal position of the parties to an action, or an injunction. An injunction is a court order requiring a party to do or refrain from doing a certain act.

2.1. 3 Procedure

The first step in judicial review procedure is to seek leave to apply for judicial review (Order 84, rule 20). This is done by an ex parte motion (i.e. a court application without notice to the other party) grounded on a notice249 and an affidavit, which is a sworn statement confirming the facts relied on. In order to initiate the judicial review procedure, the applicant must be able to show that it has a sufficient interest in the matter to which the application relates250. There is no Irish case law determining the identity of parties that have sufficient interest where the judicial review procedure relates to State aid law issues. However, it is reasonable to assume that, where the State was proposing to grant (or had granted) unlawful aid, competitors would be given leave to apply for judicial review of the decision.

In granting an applicant leave to apply for judicial review, the court must be satisfied that the applicant has demonstrated an arguable case to be entitled to the reliefs sought.

The court may grant interim relief under Order 84, rule 20 (7) where leave to apply for judicial review has been granted. In a case where an applicant was seeking judicial review of a decision to grant unlawful aid, this interim relief might take the form of an order suspending the implementation of the aid decision.

Application for leave to apply for judicial review must be made promptly, and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made251.

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Once leave to apply for judicial review has been granted, the application for judicial review is made by originating notice of motion in accordance with Order 84, rule 22, unless the court directs that it shall be made by plenary summons.

2. 2 Summary proceedings for a liquidated sum

Where recovery is sought of State aid which has been granted in breach of the State aid rules, summary proceedings for a liquidated amount (representing the amount of the aid to be recovered) may be issued. This procedure is governed by Orders 2 and 37, RSC.

Following the issuing of the summary summons, a notice of motion and grounding affidavit seeking judgment for the liquidated amount are issued before the Master of the High Court. If the defendant (which in the case of an action for the recovery of State aid would be the aid beneficiary) can demonstrate it has a defence to the claim, judgment will not be awarded immediately and the matter will be transferred to the High Court. The High Court can deal with the claim on affidavit evidence or can adjourn the proceedings to plenary hearing, in which case there will be a full hearing with oral evidence.

2. 3 Tort

A party aggrieved by a decision of the State on a State aid issue could bring an action in tort (i.e. an action in respect of a civil wrong) against the State for the loss and damage caused by the State's decision.

In her judgment in Tate v Minister for Social Welfare252, Carroll J. confirmed that "the word 'tort' is sufficiently wide to cover breaches of obligations of the State under Community law. There is nothing strange in describing the State's failure to fulfill its obligations under the Treaty as a tort".

For example, where a competitor to a beneficiary of unlawful State aid could show that it had suffered damage or loss as a result of the State's decision to grant the aid or of its failure to recover the aid, that competitor could initiate action in tort against the State, relying on the State's breach of its obligations under the EC Treaty.

Actions in tort may be initiated in the High Court, Circuit Court and District Court. The High Court has a general monetary jurisdiction irrespective of the amount claimed and is the most likely forum for litigation based on the State aid rules.

Proceedings based on tort are commenced in the High Court by Plenary Summons. In appropriate cases, interim relief (for example, an interim injunction) may be claimed prior to the trial. Under section 11(2)(a) of the Statute of Limitations 1957 there is a time limit of sixPage 282 years, from the date of accrual of the cause of action, within which proceedings must be initiated.

3. Irish cases concerning the application of Articles 87 and/or 88 EC

No Irish Court has delivered any judgment of significance in respect of the State aid rules.


[249] Form No.13 in Appendix T of the Rules of the Superior Courts.

[250] Order 84, rule 20(4).

[251] Order 84, rule 21.

[252] [1995] 1 I.R. 418.

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