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Enforceable rights in English law In general it has been the existence of a remedy at common law or under statute which has enabled the English lawyer to deduce the existence of a right. EEC law involves the opposite process: it impliedly confers rights which by their nature are ill defined, and leaves it to national law to supply the remedy, a process for which the common law with its limited and distinct categories of civil liability is ill adapted. The European Communities Act 1972 in s.2(1) does not make the process easier. Rights arising under the EEC Treaty are, it is there said, to be recognized and enforced by the courts "accordingly". They are given a name: "enforceable community rights". But the courts are left to work out whether such rights are merely negative: the right to prevent the State (or anyone else) from applying or enforcing inconsistent national law; or restitutionary, the right to get back money illegally levied by the State; or tortious, the right to get damages for infringement of the Treaty. The appropriate categorization of enforceable community rights is made that much more difficult because two distinct courts are involved, the European Court and the National Court. The remedy and the right, which are the opposite sides of the same coin, are treated as two different coins by two different courts using two different sets of terminology. Nevertheless it has somehow proved workable and gradually the solutions are emerging. In 1974 Lord Denning M.R. had no doubts as to the appropriate classification of a community right. He concluded, solely on the basis of the European Courts' description of such rights 1 that in a particular case articles 85 and 86 "create new torts or wrongs. Their names are 'undue restriction of competition within the common market'; and 'abuse of dominant position within the common market'.,,2 He was thereby making two points. Firstly breach of community lawwas tortious

Enforceable Community Rights and National Remedies