The Gazette 1973

system was contrary to the principles of freedom of action and disposal, of economic freedom and of pro- portionality resulting, in its opinion, from Articles 2 and 14 of the German Basic Law. After making several statements along these lines the court, recognizing that the disputes against the Community agricultural regula- tions gave rise to legal uncertainty, decided to submit the matter to the Community Court by way of a request for a preliminary ruling. This submission to the Court provided the oppor- tunity for it to give an explicit ruling on the matter: "The uniform effectiveness of Community Law would be adversely affected if, in decisions on the validity of any action by the Community institu- tions, rules or principles of national law were adduced. The validity of such actions can be judged only according to Community Law. Natio- nal legal provisions, however framed, cannot over- ride law stemming from the Treaty, and thus flow- ing from an autonomous source, without disregard for its character as Community Law and without the legal basis of the Community itself being called into question. Consequently, the validity of such Community action or its effect in a member State cannot be called in question by pleading that there has been infringement either of basic rights in the form given them by the constitution of that State, or of principles of the national constitutional structure. However, the question arises whether any similar guarantee inherent in Community Law has been disregarded. Respect for basic rights is an integral part of the general principles of law of which the Court of Justice ensures observance. Protection of these rights, although inspired by the constitutional traditions common to Member States, must be ensured within the framework of the structure and objectives of the Community. Hence, in the light of the doubts expressed by the Administrative Court, it is necessary to consider whether the deposit system has violated any basic rights whose observance must be ensured in the Community legal system." The way the Court's argument is poised will have been noted. The first part conforms with the previous judgments in Stork, Ruhrkohlen-Verkaufsgesellschaft and Sgarlata mentioned above : it strongly emphasizes the autonomy of the Community's legal system and hence rejects the introduction into Community Law of all concepts drawn from national constitutional law. But this attitude is supplemented by a second set of ideas, and this is new: where a threat to basic rights has been alleged, the Court declares that it should be considered whether any guarantee inherent in Com- munity Law has been disregarded, as respect for basic rights must be assured within the Community in con- formity with the constitutional traditions common to member States. Here, therefore, the Court recognizes that the Community should consider as its own the constitutional traditions of member States, and that it thereby participates in the common concepts of values —democracy, liberty, respect for the individual—that underlie the political system of Western Europe. Theor- etically the idea by which these concepts are introduced in Community Law is that of "general principles of law", it being understood that it is for the Court of Justice to define their actual content.

Conforming to the principles it had just enunciated, the Court of Justice continued its judgment by making a close analysis of the disputed farming system, to reach the conclusion that, on the whole, it is a matter of ordinary economic discipline aiming to regulate the Community's external trade with a minimum of restric- tions. Thus it would appear that, in reality, no basic prerogative was at issue. IV. Conclusions and the Tasks Ahead (1) The novel concept emerging from what has been said is that it is possible to build up a protective system of basic rights independent of any "declaration of ri'ghts". However, such a construction is conceivable only within the context of a judicial authority solidly organized, invested with the appropriate judicial authority solidly organized, invested with the appro- priate judicial authority and powers. In the Community everything derives from the basic attribution of powers to the Court of Justice, expressed in these terms : "The Court of Justice shall ensure that the law is observed in the interpretation and implementation of this Treaty" (Article 164 of the EEC Treaty; similar to Articles 31, ECSC Treaty and 136, Euratom Treaty). In this formula, notice the task of ensuring the respect for law, which harks back to a legal context much wider than the law written into the treaties and acts of application. From the start, the Court has taken a broad view of its mission, and this is shown particularly by the frequent recourse to "general principles of law" and to the concept of "common legal traditions" in Member States. It is precisely this that has inspired the recent decisions on the guarantee of basic rights. Hence it would appear that as there are no written provisions concerning the respect for basic rights in the Community's constitution, this jurisprudential develop- ment has been made possible thanks only to the institu- tion of a solidly framed system of legal redress, whose implementation is in the hands of a judicial institution invested with adequate powers and minded to make constructive use of them. (2) However, it can also be said that this construc- tion is only in its infancy : an affirmation of principles in the Stauder judgment; a first attempt at applying them in the International Hendelsgesellschaft judg- ment, to find that at this juncture the argument of basic rights had been wrongly invoked. Thus the task of defining the material content of the guarantees given to basic rights in the Community system still remains. The Court has said that, in this task, it will be guided by the "traditions common to member States". In its work of comparing and reconciling, it will be compelled by force of circumstances to defer every time to the highest standard of protection, since it is difficult to see how Community law can maintain its authority if it fails to reach a level of protection considered essential in any individual member State. For once, the method of reconciling and levelling will be in an up- ward direction, that is to say, towards solutions giving the best protection to individual rights. However, these remarks should not in any way be taken as minimizing the magnitude or the difficulties of the task, whose course the Court has set in its recent judgments. Above all, it is to be hoped that the material provisions of the European Convention for the Protec- tion of Human Rights may eventually come to be considered as forming a part of the law common to member States, for this international instrument ex- 118