The Gazette 1973

The European Court of Justice AN INTERVIEW WITH JUDGE DONNER By TERRY COLTMAN "If you say this whole thing is a Constitution ," said

court before which any graduate in law had right of audience. He never appeared in any criminal cases. Nor was he ever a Netherlands judge, though he did preside part-time over an administrative tribunal. In 1958, it being agreed that Holland should provide the first President of the court of the combined European Com- munities, Donner was appointed. He was 40. Now, having been for 14 years a member of the Court of the Six, he remains a member of the Court of the Nine. First, I fished out an extraordinary cutting which was headlined "Innocent Until Proved Guilty—and Don't Let Europe Forget it," and appeared to think the Luxembourg court had an extensive criminal jurisdic- tion. The judge confirmed there was no real criminal jurisdiction. The nearest they got to it was that com- panies could be fined (as ICI was fined £20,000 for the price-fixing of aniline dyes). This would be ad- ministrative law on the Continent, though in America it would be dealt with by criminal, antitrust, laws. And then, what about this reference under clause 177 of the Treaty? As I understood it, that clause said that any Court of any member state could refer a case to Luxembourg for a ruling on Community law. I ha exercised some ingenuity in concocting such a case, and wanted to ask the Judge if it would stand up. This was it : An Englishman flies from Europe to Heathrow with a suitcase full of whisky which he does not declare. The customs arrest him and charge him with smuggling. Before the magistrates' court he pleads that there is no case to answer because a regulation of the Commission in Brussels has, say, declared that whisky is nondur- able. May the magistrates refer the case direct to Luxembourg, asking whether there is such a regulation, whether it is valid, and whether it applies in the case before it? Judge Donner thought they could, and cited the case of the cows imported into Italy. At the border their owner was charged a fee for a veterinary examination. He claimed this was no more than a hidden customs duty, and therefore under the Treaty illegal. The Italian court in the first instance referred to Luxem- bourg, which ruled that if such veterinary fees were also charged in the interior, then they were properly veterinary fees and should stand, but that if they were charged only at the border, then, having the same effect as an import tax, they were illegal. The direct reference of cases to Luxembourg, had been opposed by Lord Diplock and there had been some suggestion that lower English courts should first be obliged to refer to higher English courts. But would not any such restriction be itself a breach of the Treaty of Rome? Judge Donner thought it would be, but there was nothing to stop the Lord Chancellor from sending a circular to magistrates advising them not to refer. But as for himself, Judge Donner's preference is that reference should be completely free. In his experience, the lower the court the less inhibited it was in putting questions : the higher the court, the more its Judges sometimes thought they should know themselves. If you glance through reports of cases decided by the European Court, it becomes obvious that most of its jurisdiction is administrative and financial and agri- 35

Judge Donner of the European Court of Justice, as we sat at lunch in Luxembourg with a text of the Treaty of Rome on the table between us, "that also implies a certain freedom, not freedom, a certain direction in which you go. If it is a Constitution it should be a coherent system, a system that can continue to function, that should be effective, and that implies all sorts of things." If on the other hand, he said, you considered it as a Statute, or an Act, and were called upon to construe it, you could at a certain point conclude that as a Statute it was ineffective because on some matter it was not explicit. It might be a pity that it would not work, but in construing an Act you could not go beyond its text. "But," said the Judge, "if you say something is a Constitution, you imply it should work, and if there are all sorts of gaps in it and unclear things, they should be cleared up and the gaps should be filled up, because the thing is intended to work. I think it was Marshall who said that you should never forget it's a Constitu- tion. By that he meant, always interpret it in such a way that it remains effective." John Marshall was Chief Justice of the United States Supreme Court from 1801 to 1835, and the document he was concerned with was the Constitution of the U.S.A. And as to the Treaty of Rome, I asked Judge Donner, was he saying that this too was a Constitution to be interpreted? That was so. It is only fair to say that in our previous conversation it was I who had indirectly introduced small comparisons with the U.S. Supreme Court, and not Judge Donner. But there is no doubt in my mind that the Treaty will be construed as a Constitution, and indeed already has been, and that the doctrine of Implied Powers may have as lively a run at the Luxem- bourg court as it had at Washington under Marshall. Judge Donner is a Dutchman, and he is one of those rare men whose force of mind takes only five minutes to make itself very clear to an interlocutor. He was born at Rotterdam in 1918, the son of a barrister who be- came a judge. He comes of a family which has pro- vided many ministers for the more strictly Calvinist of the two Dutch reformed churches, and when the time came for him to go to university he hesitated briefly before choosing law rather than theology. By 1941 he was Doctor of Laws, and his father was in a German concentration camp. The young Donner declined on principle to sign a document saying he was of Aryan descent, and he had already been indiscreetly critical, in his doctoral thesis, of some tenets of National Socialist jurisprudence, so in 1943 he was invited to present himself at SS headquarters. He went under- ground that day. In 1944 he was arrested and was being shipped to Germany when he escaped with 12 others by simply hiding in the attic of a school where they spent the night en route. He then turned journalist for a while, and then in 1945, at the end of the war, was straight away appointed Professor of Gonstitutional Law at the Free University of Amsterdam. He was 27. He never became a barrister, though he did appear about 10 times to argue cases before an administrative