The Gazette 1973

cultural. There are dyestuffs, tin cans, customs, ducks in transit, and monopolies. It seemed that the Court became constitutionally important when it addressed itself to the rights of individuals and the rights of institutions within the Community. And one of those cases is that of Fohrmann, decided in 1963, which indirectly, as I believe, helped to increase the powers of the European Parliament. In the Treaty, the Parliament is required to meet annually on the second Tuesday in Match. This one annual meeting was extended by the Parliament, by a sort of parliamentary fiction, from March to March. The Parliament met many times a year, maintaining that its meeting, at whatever season, was still only the original March meeting adjourned and then resumed. Fohrmann was one of two Luxembourg MPs, also mem- bers of the European Parliament, who were accused in a local court of libelling a third person. They pleaded parliamentary immunity, and it fell to the European court to decide whether at the time of the libel com- plained of, which was November, the Parliament was still in its March sitting. The court decided that, in law. it still was. The Judge said Parliament had, anyway, already decided that it could sit all year round, and had based this assumption on the common usages of Parliament. It was not a new trick. But, I said, members of Parlia- ment, at any rate, now quoted the Fohrmann decision as an authority, and it had certainly been taken as legal confirmation of earlier usage? Judge Donner said it had given them another argument for continuing what they did already. He was an old constitutional lawyer but he did think that some other decisions of the Court, on the free movement of goods and workers and so on, were just as important in establishing funda- mental rights. Now in the Treaty, Parliament is not called Parlia- ment at all, but the "Assembly". In 1962 it decided to call itself Parliament, which was an important step. The Parliament, said the judge, would submit that it would be better to ask what in the Treaty prevented them from changing their name. They supposed that as a Parliament they were meant to have parliamentary powers. The Court of Justice itself was called simply that in the Treaty, and had itself decided to take the name of Court of Justice of the European Communities. I asked the Judge about individual freedom, and about a celebrated case in 1970 of a German pensioner and a pound of butter. The details do not matter. There was a glut of butter, to reduce which the Com- munity decided to let some people buy the stuff cheaper, and issued tickets to pensioners and the like. The German, presenting his ticket, was asked for his name, which he refused. The case came to Luxembourg, which decided that it was all a piece of confusion over a bad translation of the original French regulation into German, but then, having decided what it was asked to decide, the court also handed down an obiter dictum on civil rights, which seemed unnecessary. "Take the Treaty," said the judge, taking up the £400 damages for wrongful arrest (from page 32) tion necessarily involved in prison life, with Mr. Kelly not knowing when or how its term would expire. General damages in the case, the judge added, could not in his opinion be awarded on any straight- line basis of so much per day or per week, because the events of the first day or so were such as obviously

text. "What do you find in the Treaty itself?" He found article 173, which requires the Court to guard against not only any infringement of the Treaty but also against any rules of law which should be observed in its application. Such rules of law might be unwritten, or part of the laws common to the Member States, and some of these rules of law related to Human Rights. The judge turned to article 164, and this is a beauty, on which a whole jurisprudence could and no doubt will be founded. It simply says, "The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed." "The law," said Judge Donner, "that doesn't mean only the text of the Treaty, but . . ." Natural justice?—The judge said he hesitated to use this term (very much a term of Roman jurisprudence) to an Englishman. He would rather say the law common to the nine nations. A sort of spirit of'the law?—"The general principles common to their legal systems. And civil rights are one of those principles." The Judge said he would not rely on a statement of intention alone, but if you went through the Treaty you could find all sorts of provisions for freedom of movement, and other benefits, all implemental of these general aims. And if you were ever in doubt about the interpretation of a clause, you should never forget that the text should always be read in the light of those aims. Here, I asked the Judge about one clause which forbade members of the Commission when in office to engage in any other employment, gainful or ungainful. Would this prevent a Commissioner writing his memoirs? He thought not. "What is employment?" he asked. Writing memoirs was not employment. Not if you took five years over it, like Churchill? Wasn't that employment?—"You will tell me it's rather formalistic, but he hadn't an employer." (Laughter). But the Judge's liberal attitude to the powers of the Communities' Institutions, and the humanity of assuming that the Treaty was meant to be construed according to the tenets of Natural Law, would appear to suggest that the European Court, in acting in this way was really putting itself in some measure in the position of the Supreme Court of the U.S.A.? He said, "In a certain way. But it's not only what the Supreme Court does. It's what every Judge does, only some of them are more frank about it than others." But with a liberal interpretation of its own powers, the Court could expand itself as it wished? He thought that was a narrowly logical inference, but of course the Court was bound by common opinion about what the law should be, and how far the law should go. A Judge should not abuse his powers and become a sort of general social arbiter. "He should always have respect to one of the main principles of law—that's unwritten too—and that is the principle of judicial restraint." (The Guardian, 3 January 1973.)

to attract a greater sum than would be appropriate for a normal day later during Mr. Kelly's term of im- prisonment. (The Irish Times, )13th January 1973.) [Kelly v. Faulkner and others.]

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