Nabadda v Westminster City Council (Gomilsek v Haringey London Borough Council)

Where a Treaty right contains no specific rule on compensation, the national legal order determines the available damages remedy. Community law does not require a domestic statutory cause of action to be remodelled so that a Community claim receives more favourable treatment than an equivalent domestic claim. Section 41 of the Race Relations Act 1976 protected local authorities acting under regulation 23 of the Education (Mandatory Awards) Regulations 1997, even though the underlying rule was assumed to discriminate contrary to article 6. The protection did not excuse the breach; it made the particular statutory claim unavailable while leaving other Community-law remedies relevant.

Four Swedish students received grants and loans from a Swedish organisation. The local authorities took the loans into account when calculating mandatory fees-only awards under regulation 23 of the Education (Mandatory Awards) Regulations 1997. After the regulations were amended, the students received full awards but claimed damages for injury to feelings under the Race Relations Act 1976, alleging indirect nationality discrimination contrary to article 6 of the Treaty.

The students appealed from the London County Court. His Honour Judge Cowell had rejected the Secretary of State’s argument that the authorities could lawfully have paid the full awards under the 1997 regulations. The Secretary of State withdrew his appeal. The central issues were whether the domestic discrimination legislation could provide the claimed Community-law remedy and whether section 41 barred the claims.

1. Appeal dismissed unanimously. Lord Justice Buxton gave the judgment. Lord Justice Waller and Lord Justice Peter Gibson agreed. The alleged acts were not unlawful under section 41(1)(b) of the Race Relations Act 1976, and the actions, which were brought only under that Act, were dismissed.
2. Where Treaty provisions contain no specific rules on reparation, a claimant seeking damages must rely on the national legal order and the Community-law reparation jurisprudence, including the sufficiently serious breach requirement identified in Norbrook [1998] ECR I-1531. There was no third principle requiring a domestic statutory remedy to be applied to a Community claim merely because the facts could be described in similar domestic terms. Comet [1976] ECR 2043 required treatment no less favourable than that governing equivalent domestic claims, not a more favourable remedy.
3. Section 41 exempted acts done in pursuance of an enactment or an instrument made under an enactment by a Minister of the Crown. Regulation 23 was such an instrument. The wording did not contain an additional requirement that the underlying legislation be lawful. The exemption therefore protected the authorities despite the assumed discrimination under article 6.
4. The disapplication principle discussed in Simmenthal [1978] ECR 629 concerned the substantive application of Community law and did not govern reparation for breach. The specific Community-law damages jurisprudence applied directly to the national legal order. Community law required adequate remedies somewhere in that order, but did not dictate which state organ should be liable or which heads of damage, including injury to feelings, were recoverable. The court relied on Konle Case C-302/97 and Brasserie du Pêcheur [1996] ECR I-1631.
5. The court did not decide whether the students’ courses were vocational training, whether a claim for Community-law damages for injury to feelings was available, or whether the breach would satisfy the sufficiently serious requirement. It noted serious doubt and difficulty on those matters.

• Court of Appeal: Dismissed the students’ appeal and refused permission to appeal to the House of Lords.
• London County Court: His Honour Judge Cowell rejected the Secretary of State’s preliminary argument concerning the authorities’ power to make full awards. The Secretary of State’s appeal was withdrawn before the Court of Appeal hearing. The court did not interfere with the order dismissing the students’ actions.