The Gazette 1972

one which relates back to one of the constitutional theories of 1780. General or local, the problem is there, and lawyers must deal with it. May I remind you of what I said at the outset of the relativity of ideas? How then does one deal with it? There are many ways. First, one could attack the validity of the generally received ideas of the sovereignty of Parliament. That way is sound. 35 Second- ly, one can attack by emphasizing the evolution of thought which has happened since Dicey wrote. That way is also sound. 36 Yet neither affords a full and proper answer. Each deals with the capacity of the Westminster Parliament to transfer legislative competence to the Communities in terms in which such transfers are con- ceived within the Community system. 37 Neither deals entirely satisfactorily with our problem, that of courts giving full effect to Community obligations. Again there are two ways of finding an answer. The first is to argue the relativity of constitutional doctrine. In itself that way is sound—if you change the constitutional setting then lawyers must change their pattern of constitutional thought and I have already said that the essential approach to these problems is through constitutional law. The change of pattern could achieve the desired results. For, out of arguments based on Article 189 or those built on the economy of the treaties or the neces- sities of the Communities of the Court has built in the doctrine of the supremacy of Community ftaw. Accepting that, it follows therefore that the ranking of statutes within the hierarchy of norms of the British system changes. They are no longer the ultimate source of law and therefore must be differently regarded. There are two objections to this line of reasoning. First, the invalidity of a statute is only an operative con- cept quoad Community law. It is perfectly conceivable for example, to work out a situation in which at the national level there is one competition policy which is valid and useful as regards mergers and which does not conflict with Community competition law, whereas other elements of the same national statute do so con- flict. Invalidity only applies to the latter provisions. 38 Secondly, this line of argument leads to the confusion of Costa v. E.N.E.L. It runs the risk of subjecting Com- munity law to local and domestic constitutional law. Yet these provisions or local constitutional law, which may be regarded as in some sense fundamental, are themselves products of particular national histories to which the Communities are in a sense strangers, even though paradoxically they may be a consequence. Lawyers should accept distinctive Community Law The solution is for lawyers to be logical, to accept the distinctiveness of the Community legal order with which they become involved. It follows that that law can only be snbjected to its own constitutionalism and constitutional system. This is the fundamental import- ance of the last International Handelsgessellschaft case. 39 The question was whether the provisions relating to fundamental rights in the Basic Law of the Federal Republic applied to Community law. The answer of the Court of Justice was clear. Community law could not be confined by national constitutional law or structures. On the other hand, and this is why I used the word

"constitutionalism", the Court immediately accepted that the protection of fundamental or human rights formed an integral part of its task and that Court must therefore safeguard them. 40 The case is worth an article in itself. One may note that although doubtless in speak- ing of constitutional structures the Court was thinking primarily of the federal nature of Germany, it is a phase which is of peculiar importance in the context of the United Kingdom. This habit of the Court of taking with one hand and of giving back with the other is worth noting. We have already seen it under Articles 177 and 173. It is, however, this logical approach which solves our problem. The mysteries and confusions which we wrap up in the words sovereignty of Parliament, and for which the Italians and French have other phrases, become irrelevant. They, so far as they have substance, apply within their local or national setting alone. They do not apply within the Community setting—a setting in which national courts and lawyers find themselves working without actually having to journey, save in an intellectual sense. It could be said that all of this is too strong or heady stuff for lawyers and for judges to stomach. It is true that diet does not always appeal to every individual, but over-all the meal has been digested. The German Finance Courts, prompted in their imagination by the European Court of Justice, have found that they can do what they thought they could not, and refuse validity to the excess tax prescribed in German law, and this, be it noted, despite the constitutional arguments which are of deep significance in Germany. The German Con- stitutional Court has been able to find that the pro- visions (Articles 101 and 103) of the basic law relating to the right to a lawful judge only apply in the German setting and have no relevance to the refusal to refer under Article 177. Italian courts in other cases have fumbled their way to holding that certain Italian con- stitutional provisions only apply in a local non-Com- munity setting. 41 Belgian courts had, before the Court of Justice had spoken of the nature of Directives, found a way of controlling administrative decisions of Minis- ters on the basis of Community law. 42 All of this, it must be noted, is gainst a background of more rigid legal thought than exists perhaps with us, and against a constitutional background which, because of history, was at least as deeply felt as is our own, and in some instances more deeply felt. The essential challenge to lawyers is then that of accepting the obligation of thought at a high and serious level. That sentence puts the matter a little briefly, for beyond thought must also lie imagination. It was for that reason that I mentioned the last Belgian case Cor- veylen. Imagination must run to looking to remedies I started to learn my law in the aftermath of the small and to inventing new ones. There is no basic problem- revolution caused by Donoghue v. Stevenson. We have, since, perhaps, the 17th century, stopped thinking & terms of public law. Lawyers will have to resume the habit for it is in that field that remedies must be ifl" vented. The application of Community law is intended 108 Lawyers must be ready to challenge administrative decisions