The Gazette 1973

III. Recent Case Law of the Court of Justice Recently the Court of Justice has had occasion to return to the problem of the defence of basic rights within the Community. It would appear that without resiling from its previous case law, it has modified its attitude on one essential point. (1) The first case, that of Staude r, settled by the judgment of 12 November 1969, 4 shows how a problem is resolved. It happened at the time that the Community had to face the problem of the disposal of considerable farm surpluses in particular of butter. The Commission had authorized member States to allow the sale of butter at a reduced price to, among others, those receiving social assistance; however, in order to prevent fraud, it had laid down that butter should be handed over by the trade only on the presentation of an individualized voucher. One of these beneficiaries, a citizen of Ulm in Germany, felt it an affront to his human dignity to be forced to disclose to a shopkeeper, whenever he wanted to take advantage of the benefit, that he was a socially assisted person. He therefore lodged a com- plaint before the competent court, i.e. the administra- tive court of Stuttgart, against the validity of this system of identification. In its turn the court referred the case to the Court of the European Communities under the procedure for preliminary rulings under Article 177 of the EEC Treaty, asking whether it was considered compatible with the general principles of Community Law that, by virtue of a Commission de- cision, the issuing of butter at a reduced price to a bene- ficiary of social assistance should be dependent on his divulging his name. After considering the case, the Court found that as a result of a technical hitch in drafting the decision, the German text did not agree with other versions and it was this that had given rise to the whole dispute. It was thus possible to solve the problem on the basis of the principles of interpretation applicable in cases of disagreement between different linguistic versions of the same text. The Court added, however, at the end of its judgment "that, as interpreted, the provision at issue does not reveal any element jeopardizing basic indivi- dual rights implicit in the general principles of Com- munity Law, which the Court ensures shall be ob- served". By that it clearly shows what would have been its attitude should a threat to basic rights have been effectively sustained. (2) The chance to go further into the matter was not long in coming. This was the Internationale Handel- sgesellschaft case, settled by a judgment dated 17 December 1970,5 concerning the system known as "Agricultural deposits". It will suffice to explain here that this is the system, necessary to the functioning of farming regulations, intended to enable the Commis- sion, as well as the competent national authorities, to exercise reasonable control over the functioning of the agricultural markets. This deposit mechanism, though in principle protecting freedom of trade, involves it in some constraints and burdens. Some German firms challenged the system before the competent German court, i.e. the Administrative Court of Frankfurt-on- Main, which saw fit to rule that the deposit system was contrary to certain basic principles of German constitutional law which, in its opinion, should be safeguarded by Community Law to the extent that Community Law should give way to the principles of the German Community Basic Law. More especially, the Administrative Court thought that the deposit 117

tions, took no account of guarantees owed to basic rights. (2) These are precisely the considerations at the root of a doctrinal discussion that has developed in Germany particularly and which, in turn, has given rise to judicial dispute in that country. Since Community Law is not concerned with the protection of basic rights and, more- over, the Community's institutional structure—typified by an overwhelming "executive" element—is said not to correspond to the canons of a democratically organized State, it would be legitimate to appeal to the provisions of the national constitution with a view to giving the basic rights that protection which apparently is lacking in the Community's legal system. Such notions not only justify the introduction of national concepts, but they result once again in the affirmation of the primacy of national constitutional concepts and provisions over Community Law. This left the door wide open for challenging yet again the very bases of Com- munity Law. To prevent such developments, it became urgent to draw up, within the Communities, a system for protecting basic rights. (1) The first thing that springs to mind is to find a solution in international pacts relating to basic rights : the European Convention for the Protection of Human Rights and the recent United Nations pacts. However, for the present at least, these instruments offer no »olu- tion, as neither the one nor the others are in force for all of the member States of the Community. As for the European Convention, we know that the French Re- public has up to now withheld ratification; hence we cannot consider it as being a rule common to the six member States until France takes the decisive step. And the United Nations pacts are still too recent for the process of ratification to be sufficiently advanced; here also there is a special problem in that Germany is still excluded from the United Nations. Of course, the instruments mentioned could, if need be, provide guid- ance and inspiration, but they cannot be considered as formally constituting an integral part of the law applic- able within the Community. (2) This being said, it is interesting to forecast the problems that will arise when the European Conven- tion comes into force for all member States. It is to be expected that there will be some overlapping, though less on the substantive definition of rights than on procedural guarantees. This problem of conflict will demand analysis in depth when the time comes. In this context two observations will suffice. First, it would seem to us foolish to sacrifice the advantages of a well- developed system of judicial control such as exists with- in the Community to the system set up by the European Convention, which is much less effective; remember how precarious are the rights accorded to individuals, and the manifold political factors still involved in the pro- cess of dealing with cases under the Convention. Secondly, from a geographical point of view the Com- munity represents a "sub-system" in relation to the Council of Europe, and it would appear necessary to require that all judicial remedies within the Com- munity should be exhausted before a case may be brought before the institutions set up by the European Convention, as is provided by Article 26 of that Con- vention. In this respect, the situation of the Community is no different from that of the States adhering to the Convention. II. The Inapplicability of International Pacts within the Community