With the present political climate and the ongoing debate about the powers of the European Court of Justice (ECJ), the recent decision in R v Ministry of Agriculture, Fisheries and Food, ex.

p Hedley Lomas (Ireland) Ltd [1996] The Times, 6 June, could hardly have come at a worse time.

It is the latest case on the question of state liability in damages to individuals for breaches of EU law.

The case will fuel the arguments of those who claim that the ECJ has, or claims to have, too much power.Since the principle of such liability was established in 1991 in the landmark case of Francovich v Italy [1991] ECT 1-5357 (ECJ), [1992] RLR 84, [1993] 2 CMLR 66, the avalanche of claims predicted by some has been no more than a trickle.

Indeed, a UK plaintiff has yet to make a successful claim.However, the recent trio of ECJ decisions in this area: Brasserie du Pecheur SA v Federal Republic of Germany, R v Secretary of State for Transport, ex.

p Factortame Ltd, R v HM Treasury, ex.

p British Telecommunications plc [1996] The Times, 16 April, and Hedley Lomas have refined the principle and clarified the circumstances of its application.Three conditions must be met.

The rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the state's breach and the damage suffered by the individual concerned.The requirement that the breach be characterised as 'serious' emanates from the test for EU liability under art 215 of the EC Treaty.

The ECJ has repeatedly recognised that it is for the national court to assess the evidence and determine whether a breach is serious.

But it has, in varying degrees of forcefulness, expressed its views on what breaches may be characterised as serious.In Factortame and Brasserie du Pecheur the ECJ was ambiguous on the question of whether certain breaches could be thought of as serious.

However, it was entirely unambiguous in British Telecom when it decided that the UK's breach could not be considered sufficiently serious to found liability because the particular EU provision that was breached was imprecisely worded.

In British Telecom the ECJ was, without doubt, transgressing the strict bounds of its jurisdiction in making this decision, whilst paying lip service to the principle that it was a matter for the national court's determination.

One can only speculate whether a similar transgression in Hedley Lomas, this time tending to the view that the breach was sufficiently serious and that the state was liable, will be as warmly received in the UK.Sheep exporters Hedley Lomas were systematically refused export licences to Spain by the Ministry of Agriculture Fisheries and Food (MAFF) between April 1990 and January 1993.

MAFF took the view that Spanish slaughter houses were failing to comply with EU rules on stunning animals before slaughter.

Proceedings by Hedley Lomas against MAFF were referred to the ECJ.The ECJ considered that the refusal to grant export licences constituted a quantitative restriction on exports in breach of art 34 EC which could not be justified on the grounds of protecting the health and life of animals because of certain harmonising EU Directives.

A member state could not take the law into its own hands and unilaterally take measures to cure breaches by another member state.After deciding that art 34 did create rights for individuals, the ECJ went on to hold that where a member state was not called upon to make any legislative choices and had no discretion, or considerably reduced discretion, a mere infringement of EU law might be sufficiently serious to trigger damages.

Future claimants may choose to fight on the grounds of determining what choices and discretion have been left to a member state.

In the right circumstances even minor breaches of EU law may now be enough to ground a claim for damag es.The relatively unequivocal terms of the judgment indicate that Hedley Lomas may be amongst the first plaintiffs suing in the UK actually to receive damages from the state for breach of EU law.

This is subject to the question of causation which the ECJ left to the national court to determine.

The usual proclamation that the characterisation of the seriousness of the breach was a matter for the national court was notably absent.Critics of the ECJ will probably claim, perhaps with some justification, that one of the pre-conditions of state liability for breach of EU law -- that such breach must be 'serious' -- has been somewhat diluted.In the first of the three cases, Factortame and Brasserie du Pecheur, a number of member states, including the UK, argued strongly for this pre-condition.

The comfort enjoyed by member states at the condition's inclusion in the Factortame and Brasserie du Pecheur judgment may prove to be short lived.In any case where the ECJ chooses to make its views known on whether a particular breach should be considered as serious, only the most robust of national courts would decide differently.

Hedley Lomas seems to mark a shift in the delicate balance of the roles played by national courts and the ECJ in this exceptionally sensitive area.

It remains to be seen whether national courts will accept such change or whether they will seek to assert a degree of judicial independence.