EU Law, Consumer Protections, The FSA, and actions for Damages

[enoughisenough]

This thread has been started to explore the possibility that the FSA and the OFT ( and or HMG) could be liable to claims for damages.

 

1. The basic principle is that the EU issues directives, which member states must implement and give effect to. Late implementation, none implementation and inadequate implementation give cause for action.

 

2. Any cause for action is against the state (or an emanation of the state) for failing to give the directive the desired effect.

 

3. Since most of what the sub primers do is against the directives issued by the EU and since the FSA/OFT fail to ensure that these regulations take effect it follows that they may be liable to damages.

 

4. This principle is well established under EU law and is binding on all our courts. It has been used by individuals to successfully sue their own national governments.

 

I have raised this elsewhere but strongly believe that in the light of FSA hand wringing it is worthy of its own thread. It is likely also to apply after the fact. So if you have been repoed you may still yet have some access to compensation, especially where the repo was grounded as they often are at least in part, on arrears comprised of despicable and totally unlawful charges.

 

This thread will start with a copy of the relevant exchanges between myself and JC on the Mortgage Securitisation preferred thread.

[enoughisenough]

Now if they are prepared to offer protection to future consumers why can't that same protection be offered to past & present consumers suffering because of securitization & couldn't it be argued that a failure to offer that protection to past & present consumers is a breach of duty - also allowing it to happen in the 1st place could I suggest be considered as maladministration

 

Hi JC.

 

I think that it is so much more than simple maladministration. It is failure to give effect to EC directives. As an emanation of the state the FSA is directly accountable for any loss any EU citizen suffers where the directive has either been implemented late, implemented ineffectively or in very rare cases not at all. This principle has been established since the early 90s and the beauty is it could even be floated in the County Court. I'm going to put the FSA on notice of this. And every time they write to me with their blah blah we don't do individual complaints I am going to hold that in evidence of their failure to observe their statutory duty, thus making the implementation ineffective and leaving them liable to damages. The FSA will be forced to act and if it doesn't HMG could be open to a flood of claims totalling biliions.

 

Think about it. Every Repo granted where there have been unfair charges, failure of the courts to examine Ts & Cs, any regulatory breach for which the FSA, OFT FOS is responsible, is more than likely an unlawful repo.

 

Hope that's making sense!

 

Cheers EiE.

[enoughisenough]

POSTED BY JC

 

If a EU directive has not been partially or fully implemented which would have afforded protection to the consumer against this then we could be in the realms of Francovich Damages. http://www.emplaw.co.uk/researchfreeredirector.as px?StartPage=data%2f03400 802.htm

the result prescribed by the Directive must entail creation of rights for individuals; and

the content of those rights must be ascertainable from the Directive itself; and

there must be a causal link between the failure of the Member State concerned to implement the Directive and the harm suffered by the individual.

[enoughisenough]

POSTED BY EIE

 

Precisely. I've been banging on about this for a while ever since I got a bee in my bonnet about the useless FSA.

 

Francovich will put the FSA in the dock. It's their job to enforce the regs and they simply haven't done it. It's the government's job to ensure the FSA does its job ergo, in the cigarette paper that lies between the FSA and the Treasury lies culpability and liability. I'm going to test this in the County Court. The beauty of EU law is its clarity. Directives are left to individual EU member discretion as to shape and form but and here's the crux, the intentions of the directive must be achieved. An emanation of state (in this case the FSA) has failed, consumer protections have not been implemented and therefore under Francovich the consumer has a right to full compensation.

[enoughisenough]

POSTED BY JonCris

 

Yes I noted that FULL compensation & not just some dismal award in the hope they'll go away

[enoughisenough]

POSTED BY EiEHi JC

 

I would also add that in respect of your final point the causal link is pretty clear. Directives especially require effective enforcement otherwise their effect cannot be achieved. Any EU regulation may be relied upon horizontally; i.e between the consumer and the lender, but directives need a special safety mechanism and that safety mechanism is francovich.

 

Article 177 (Now 234) referrals. In looking at this in all the circumstances I can think of it wouldn't get past the County Court. It wouldn't even need to go to the ECJ/CFI!

 

 

Bulmer v Bollinger (1974)

 

In this case the Court of Appeal set out the approach to be used when deciding whether a discretionary referral should be made to the European Court of Justice.

 

Article 177 emphasises that a reference should only be made if a ruling by the European Court is necessary to enable the English Court to give judgment in the case.

 

Necessary means conclusive in the case. If other matters remain to be decided, then the ruling would not be considered necessary. The other guidelines are:

 

(1) There is no need to refer a question that has already been decided by the ECJ in a previous case.

 

(2) No need to refer a point which is reasonably clear and free from doubt (acte clair doctrine).

 

(3) The Court must consider all the circumstances of the case - time before a ruling - overloading of the ECJ - difficulty and importance of the case - expense involved - wishes of the parties.

 

(4) That the English Court retains the discretion on whether or not to refer to the ECJ.

 

There is no necessity to refer, and even if there was do you think the FSA would want the ECJ poking its nose in?

 

Other Authorities

 

http://www.ena.lu/judgment_court_marshall-southampton_south-west_hampshire_area_health_authority_teaching_case_152-84_february_1986-030007032.html

 

http://iom.fi/elearning/files/european_law/case_law/european_union/CASE%20OF%20Foster%20vs%20British%20Gas.pdf

 

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61989J0106&lg=en

 

And Finally this, Quite long but gives very strong comfort to the line that is developing here.

 

http://ec.europa.eu/competition/speeches/text/sp1995_024_en.html

 

 

 

Keep the faith. EIE.

 

Any suggestions going forward? I think we need every piece of EU originated consumer law going for starters. Already know exactly what the FSA are supposed to do. Already know that they aren't doing it. And I'm pretty sure of the causal link between this failure and the consumer loss that would not have suffered but for this failure.

 

Knowing our wonderful DJs as I do I think even a consumer body can ask for a referral. That would put a cat amongst the pigeons!

Edited July 14, 2009 by enoughisenough
Adding broken urls

[enoughisenough]

and finally...

 

I really do think that somewhere down the line justice will be served with this. NO matter how many get screwed over before during and after repossession we will bring someone to book for this.

 

Keep the faith EiE.

[enoughisenough]

Here's a quick summary of the Francovich Principle. It confirms my analysis:

 

State liability

 

Although this references Industrial Relations the legal principle is unaltered by the subject of community law. All areas of community law are bound by the same principles

[enoughisenough]

The following are also of interest:

 

Judicial enforcement of EC law

 

Infringements of EC law

 

Remedies for infringements of EC law

 

Sanctions

 

I Will try to condense these later. Please support this thread I feel that there is a significant prospect of forcing the FSA to Act.

[enoughisenough]

I've also provided a synopsis of the duties of the state and the courts below. It is very clear cut.

 

As the powers of Member States and national authorities are so great and as their role in applying Community law is so important, Community law needs the principle that Member States must "ensure fulfilment of the obligations" arising out of the Treaties or resulting from action taken by Community institutions, facilitate the achievement of the Community's tasks, and abstain from any measure which would jeopardise the attainment of the objectives of the Treaties. This principle is set out in Article 5 EC Treaty.

 

Community law does not say which national authorities are responsible for any particular rule of Community law: that is for national authorities to decide. But every national authority which has any responsibility in relation to Community law is bound by the obligations which result from Article 5: none are exempt. Parliaments, governments and courts are all bound. It applies to regional and local authorities, to State enterprises (at least when acting jure imperii, as regulatory bodies, though perhaps not when they act jure gestionis as enterprises). It also applies to private bodies insofar as State powers have been delegated to them. All national authorities are, pro tanto, Community authorities.

 

In general, the national authorities decide how to carry out their obligations under Article 5. The obligations are to bring about, or to avoid, particular results. The obligations are therefore rather similar to directives, although some of them have direct effects. In some cases the obligation under Article 5 is quite precise, and the Member State in practice has relatively little discretion as to how to carry it out.

However, if there is any doubt as to how the national authority should carry out its duties, Article 5 itself imposes a duty to consult the Commission and if the State has not done this it cannot rely on the argument that it was difficult to fulfil its duty or that it did not know what it should have done.

A State cannot rely on any rule of national law as an excuse for not carrying out its obligations.

 

Directives are essentially legally binding instructions to Member States obliging them to bring about a given result, which may be broadly or precisely described, but leaving the method of achieving this result to the national authorities. Under Article 5, national courts and other national authorities have a duty to interpret national legislation which is intended to implement a directive so that if possible it is in accordance with the directive. If they cannot do so, they put their Member State in the position of having failed to fulfil its obligations under the directive, and so may make the State liable to pay compensation under the Francovich principle. This duty exists even when the interpretation needed to implement the directive is not the normal or natural interpretation under national rules of construction.

In Simmenthal (Case 106/77 1978 ECR 629, para. 24.)the Court said that a national court has a duty to give full effect to Community law and so if necessary to refuse of its own motion to apply inconsistent national law. Advocate General Darmon went on (pp. 3772-73):

The Court's judgment in Simmenthal is also very clear in that respect. Any national court "whose task it is ... to protect .. the rights conferred upon individuals by Community law" is "under a duty to give full effect to those provisions".

Our Friends at the FSA should note the following: Article 5 obliges national authorities to adopt measures, including all necessary procedures and penalties, to enforce Community law against private parties. They are required both to enforce it as rigorously as they enforce corresponding rules of national law, and to enforce it effectively: if for any reason the national law rule was not effectively enforced, that would not lessen the State's duty to enforce Community law.

 

It follows from all the foregoing that it is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible."

The Court went on to say that the State is liable if the directive involves granting rights to individuals: it must be possible to identify the content of the rights from the directive: and there must be a causal link between the breach of the State's obligations and the loss complained of. It is for national law to specify which court should deal with such claims, and the procedural rules applicable, but the requirements must not be less favourable than for similar domestic claims and they must not "make it virtually impossible or excessively difficult to obtain reparation" (See also Case C-91/92 Faccini Dori v. Recreb, 1994 ECR I 3325.)

 

Article 5 imposes a positive obligation on all national authorities of Member States to take all measures, legislative, administrative and judicial, which are necessary to give full effect to Community law even if there are national law rules to the contrary. This duty includes a duty to give remedies, such as compensation, to protect rights given by Community law as fully as possible in case of breach. Remedies must be given, where appropriate, against the State.

 

On the duty of each Member State to ensure that Community law is implemented in its territory see Case 262/87 Netherlands v. Commission 1989 ECR 225 (no export refunds on fish caught in excess of national quotas): Case C-8/88 Germany v. Commission 1990 ECR I 2321 at paras. 13, 16, 20 and 36: Case C-9/89 Spain v. Council, 1990 ECR I 1383, Advocate General Darmon at pp. 1403-1404: Case C-34/89, Italy v. Commission 1990 ECR I 3603 at para. 12 (obligation of general diligence: means a duty to rectify irregularities promptly): Case C-96/89, Commission v. Netherlands 1991 ECR I 2461, at p. 2482, Advocate General Darmon: Case C-28/89 Germany v. Commission 1991 ECR I 581 at paras. 31, 33 (the "general obligation of diligence: duty not to apply a national rule which frustrates the application of Community law and makes possible speculation which Community law was meant to eliminate) and Advocate General Jacobs at p. 605. See also Case T-24/90, Automec, 1992 ECR II 2223, para. 90: Cases C-70/90 and others, Portugal v. Council, 1992 ECR I 5073, p. 5156 and Advocate General Lenz at p. 5139: Case C-290/91, Peter, 1993 ECR I 2981 at p. 3005: Case C-55/91, Italy v. Commission 1993 ECR I 4813 at p. 4872 (duty to recover money unlawfully paid out under EAGGF): Case C-393/92, Almelo Judgment dated 27 April 1994 para. 23

[enoughisenough]

Hi all

 

As dry and boring as this may seem it could potentially mean that YOU are due damages from the FSA for failing to enforce its regulations. The Shape and form of the damages is what is left for our useless courts t decide but I'm convinced this is a complete argument.

 

If anyone who has been repossessed wants to strike a blow for justice and nail the FSA for letting your sub prime garbage lender get away with it I'm more than willing to help. It's about time the FSA were held to account for this and I'm convinced this would stand.

 

Keep the faith EiE.

[tbern123]

Just come across this, all very interesting.

 

I was wondering, would this apply to the FSA, as it is a limited company and not a government department ?

 

As the FSA is in the private and not the public sector, can it be classed as a emanation of the state ?

Edited July 20, 2009 by tbern123

[enoughisenough]

Hi, yes it would apply to the FSA, even if, and I am not sure about this, it is a private entity. The term emanation of state has been defined in increasingly wide terms over recent years to include a whole host of entities even at arms length from the goverment. The facts that suggests this Are the ability of hmg to change the role scope or function of the FSA or even abolish it altogether. It is an emanation of the state for the purposes of such a claim.

[enoughisenough]

Hi tbern123

 

 

In furtherance of my response yesterday read this!

 

Community law does not say which national authorities are responsible for any particular rule of Community law: that is for national authorities to decide. But every national authority which has any responsibility in relation to Community law is bound by the obligations which result from Article 5: none are exempt. Parliaments, governments and courts are all bound. It applies to regional and local authorities, to State enterprises (at least when acting jure imperii, as regulatory bodies, though perhaps not when they act jure gestionis as enterprises). It also applies to private bodies insofar as State powers have been delegated to them. All national authorities are, pro tanto, Community authorities.

 

In general, the national authorities decide how to carry out their obligations under Article 5. The obligations are to bring about, or to avoid, particular results. The obligations are therefore rather similar to directives, although some of them have direct effects. In some cases the obligation under Article 5 is quite precise, and the Member State in practice has relatively little discretion as to how to carry it out.

 

However, if there is any doubt as to how the national authority should carry out its duties, Article 5 itself imposes a duty to consult the Commission, and if the State has not done this it cannot rely on the argument that it was difficult to fulfil its duty or that it did not know what it should have done.

 

A State cannot rely on any rule of national law as an excuse for not carrying out its obligations.

 

Article 5 is particularly important when a Member State has a conflict between its duty to enforce Community law and its own interests or the interests of a State-owned or important company. It is especially in such situations in which the obligation to cooperate in good faith with the Community institutions is important.

 

Here's the source:

 

Europa/Competition/THE CORE OF THE CONSTITUTIONAL LAW OF THE COMMUNITY

[nuke em]

Hi all

 

As dry and boring as this may seem it could potentially mean that YOU are due damages from the FSA for failing to enforce its regulations. The Shape and form of the damages is what is left for our useless courts t decide but I'm convinced this is a complete argument.

 

If anyone who has been repossessed wants to strike a blow for justice and nail the FSA for letting your sub prime garbage lender get away with it I'm more than willing to help. It's about time the FSA were held to account for this and I'm convinced this would stand.

 

Keep the faith EiE.

 

 

i have been repossessed 6 times , how do we start this? i'm up for it

[enoughisenough]

Flippin heck! A taker!

 

The first thing is were you just not paying or are the repos directly attributable to charges and breaches of other FSA rules.

 

There are three things you have to demonstrate.

 

1. the result prescribed by the Directive must entail creation of rights for individuals; and

 

2. the content of those rights must be ascertainable from the Directive itself; and

 

3. there must be a causal link between the failure of the Member State concerned to implement the Directive and the harm suffered by the individual.

 

Can you do this? Honestly if you can't then it's a lot more tricky (Number 3) I mean). It must mean that their failure to act contributed significantly to your loss.

[nuke em]

i stopped paying ( had to), as these were buy to let mortgages, no tenants = no income etc, then they started adding all their charges, fees. extra interest etc. Then they repo's them and finally sold them off way too cheap, now trying to get me for shortfall...

[enoughisenough]

The issue here is that the person most likely to win this is the one whose repo arose from all sorts of misconduct that the FSA/OFT/FOS did nothing about in relation to the consumer protections emanating from council directives and the like.

 

What were are looking for is inadequate enforcement of consumer protections mandated by eu law. That's the key to this. You have to disentangle all the EU consumer regs and see which home regs are the ones giving them force. I think this has legs but it has to be watertight because it will run and run and run and the big boys will get their sharp suited lawyers onto it.

[nuke em]

i'm not sure if the FSA covers BTL mortgages as they are commercial in nature, if that's the case i'm not your man for this as all my repos were commercial mortgages allbeit on residential properties. however if its discovered thats not the case, either now or in the future then i would be happy to go the course

[enoughisenough]

The other thing to bear in mind is that the correctly struck claim would open the floodgates. No wonder the tories are trying to get rid of the FSA before any of this happens.

[nuke em]

Good point,,,,, as i said if you think my situation(s) qualify ...i'm up for it..

 

floodgates ..... Sweet!

[Crapstone]

Well..Insurance neither agreed or asked for was applied, the term is wrong and they have lost all the paperwork. All that exists is a signed deed and a copy of a mortgage offer on their side. Nothing from the solicitors, broker or SPML. Just letters and account history which shows this has been disputed for years.

[enoughisenough]

Is it possible that the mortgage agreement is unenforceable in the same way as say a credit card is unenforceable without all the properly executed documentation and prescribed terms and conditions in the required form?

 

Or is it the case that they can just do whatever the hell they like? Would a regulator please answer this.

[enoughisenough]

Simple question.

 

Can they just please themselves?

 

Post your answer on the forum if you are from the FSA.

[Crapstone]

My own view is that it would be enforceable for the amount initially borrowed but as there are no valid documents with t & c's the rest of it would be out of the window.

 

Then that leads to the question of what rights they would have had to securitise the debt and if the original paperwork is not available, how and when could it be enforced? The courts would aim to put us back in the position we were in but that seems almost impossible without us suffering a loss. The mortgage was around £60,000 but over half has already been paid if you include the interest and charges.