The Gazette 1972

such a Regulation had no jurisdiction under the Treaty to do so. An administrative act can be revoked for the future if it was based on an erroneous interpretation of the Treaty. (2) That, in issuing such a Regulation, the body con- cerned did not observe strictly the provisions of the Treaty. It has already been pointed out that in any of these transactions, the provisions of the Treaty are absolutely paramount. (3) That in issuing any Regulation, the body con- cerned failed to observe the principles of natural justice. (Violation de formes substantieltes). These prin- ciples of Natural Justice are briefly:— (a) That the authority issuing the regulation must not have any bias against the party to whom it is issued. (b) That, in an effective dispute between two parties, each side must effectively be heard. This is called the "Audi alteram partem" or—hear the other side—rule— in other words, a man must not be judge in his own cause. There is however no right to be present or to cross-examine when evidence is given, but all relevant evidence muat be considered. On the other hand, the Constan and Grundig case (1966) decided that, as all the facts necessary to establish the complaints which were upheld were communicated to the parties con- PROFESSOR de SMITH'S LECTURE Warning that E.E.C. laws were sometimes obscure and lacking fn harmony Obscurity, perplexity and a certain lack of harmony in the application of the Communities' laws in member States were foreshadowed by Professor S. A. de Smith of the University of Cambridge in Trinity College, Dublin. His subject was " Accession to the European Communities: Some Constitutional Problems ". Professor de Smith, who was introduced by Professor R. F. V. Heuston of T.C.D., as one of the first authori- ties in the world on constitutional and administrative law, said that if he were given the choice of writing a book on Communities law or presiding over the destinies of Northern Ireland for the next two years, he would unhesitatingly opt for the latter. It had been suggested, he said, that entry to the Com- munities would mean a diminution of national or parliamentary sovereignty; these were distinct concepts as a soveregn State need not have a sovereign or omni- competent parliament. In England, however, the reasons for asserting that national sovereignty would be reduced were very much the same as for asserting that Parlia- ment woul lose legislative sovereignty. He pointed out that no sovereign State had unfeterred freedom of action. Since 1945 accession to NATO and GATT had confined sovereignty. Limitations of E.E.C. Law Accession to the Communities would imply a pooling of sovereignty in making Community decisions. In one sense therefore sovereignty would be enlarged and in others possibly abridged. The Communities were not a federal super-state, and member States had retained their identity and sovereign status in international law. They were obliged to accept the supremacy of Com- munities law in economic and social affairs, and there were supra-national organs like the Commission and the Courts for the assertion of that supremacy. The Council of Ministers was an international body and the bulk of its decisions were made by a simple

cerned, it did not matter that there were other materials submitted to and taken into consideration by the Com- mission, which were not communicated. Consequently the decision concerned was only partly annulled. If the Court finds any of these factors as regards any regula- tion issued, it will have no alternative but to annul it. (4) Abuse of power (Détournement de pouvoir). This in effect means that the Regulation is correct on the face of it, but that it was issued for some improper motive—such as bribery, etc. It need hardly be said that such an imputation will have to be proved by the plaintiff to the hilt before the Court wil grant any relief and annul the regulation which on its face appears valid. The prescribed definition is—"use made by a public authority of its power for an object other than that for which it was conferred on it." Examples of abuse of power are:— (1) Adopting a basis for estimating data for the pur- pose of calculating a levy, because that basis will yield the highest rather than the most accurate figure. (2) Using powers to profit the economy of a single member State rather than in pursuit of an objective for which the powers were confered in the Treaty. (End of Part I). majority, or a specially weighted majority, but in prac- tice no vital decisions were likely to be made against the implacable opposition of any of the major member States. He doubted, accordingly, these alleged derogations from State sovereignty, and in any case the amorphous concept of national sovereignty was insufficiently precise to have a proper meaning. The Communities Bill a masterpiece of calculated ambiguity On parliamentary sovereignty. Professor de Smith said that the British Parliament could pass any law whatever on any subject whatever, and under the British Constitution no institution could question the validity of an Act of Parliament or set itself up as a rival to Parliament. The wording of the European Communities Bill posed questions about the future powers of Par- liament. This he described as a short Bill which was a masterpiece of calculated ambiguity and of legislation by reference. Professor de Smith said it was with horror mingled with relief that he noted the assurance of the Solicitor- General—one of the two principal British Government spokesmen—that the Government were determined to preserve the colour of the British kipper under the new Communities regime. Profesor de Smith confessed that he had not known it was in danger. Other threats to the British way of life could lurk furtively in the Com- munities' volumes and a degree of ignorance might be conducive to bliss. Binding force of regulations and directives Regulations of the Commission or Council of Ministers would be binding and directly applicable in each member State and the British Bill had to provide for the direct applicability of regulations, either aiready in existence or to be made in the future, for the pur- poses of United Kingdom law. There were also decisions which were binding, though they had not directly 179