The Gazette 1972

EUROPEAN SECTION

THE COURT OF THE EUROPEAN COMMUNITY

Part II by THE EDITOR Let us now distinguish between Regulations, Directives and Decisions. Regulations are of universal application, and directly binding on Member States (i.e. Language Rules, Mat- ters pertaining to the European Development Fund and the Social Fund). Directives only apply to the Member States to whom they are issued, and these States must take whatever action is required, whether by introducing new legisla- tion in Parliament, or by issuing administrative statu- tory instruments, in order to implement them. Decisions have the effect of establishing Rules which are capablc of being performed, and may be addressed either to Member States or business enterprises or indi- viduals, and shall be binding upon them; Member States or firms will normally be in a position to apply them by administrative action. Recommendations and Opinions, if made at all, have no binding force whatsoever. (5) Article 177: Let us now consider the case, where under Article 177 of the Treaty there is a reference by one of the National Courts of the Member States to the Court of the European Commission for a ruling on one of these three subjects : (a) The interpretation of an Article of the Treaty or of a clause in a protocol attached to the Treaty. (b) The validity of any act issued by any of the organs of the Community: the Commission, the Coun- cil of Ministers or the Community Parliament. The Court of the Commission will analyse whether in given circumstances such an act was validlv made. (c) The interpretation of the Statutes of any of the bodies set up by the Council of Ministers. The decision of the European Court under Art. 177 can only deal with matters expressly or impliedly raised in the refer- ence. The reference is discretionary, unless it is made by the Supreme Court. The Court of the Community applies le droit —general principles of law. Unlike our Courts which are essentially accusatorial, this Court is essentially inquisitorial according to Continental pro- cedure and the Court decides what evidence is to be taken, and can freely evaluate it; it is indeed fortunate for litigants appearing before this Court that its proce- dure as regards evidence is much more informal than the formal English accusatorial one which may lead to conflicting and questionable decisions. The reference to the Court under Art. 177 is compulsory, in the case of the Supreme appellate municipal Court, and is optional in the case of any other municipal Court (i.e. the High Court). If the National Court considers the interpre- tation clear, it may decide not to refer the question of interpretation to the European Court. (6) Article 175: Article 175 of the Treaty provides that a complaint by a Member State may be made if, in violation of the 1'rcaty cither the Council of Ministers or the Conunission has failed to act—or, as the French

official text states: dan le cas ou le. Conscil ou la Commission s'abstient de statuer. This appears to mean that in given circumstances the Council of Ministers or the Commission have failed to issue the required regula- tions or directives or decisions. Points under Article 175 (Failure to Act): (a) The appeal should clearly state the grounds upon which it is suggested the Commission or Council did not act. (b) If the institution (Commission or Council) states its position clearly within the two month period, even if that position is that it will not take action, no com- plaint of failure to act can be made to the Court (Lutticke , 1966). (c) There is no failure to act by reason of the fact that these matters are settled in a manner different from that sought by the applicant. Apart from the five specific grounds in which the Court may exercise its jurisdiction on constitutional grounds, there are other circumstances in which the Court may intervent in exercising its purely administrative functions: Additional Jurisdiction conferred upon the Courts (1) Article 179 gives the Court jurisdiction to decide any dispute between the Community and its employees witin the limits and under the condition laid down in the relevant Statute of Service of 1961 on conditions of employment. (2) Under Article 182 decisions may be rendered in any dispute between Member States in connection with the subject of the Treaty where the States in dispute submit it to the Court under a special agreement between them. (3) Under the Protocol of Privileges of the EEC, authorisation of administrative or legal measures of constraint against the property or assets of the Com- munity may be made by the Court. (4) Express powers as to the interpretation and imple- mentation of Regulation 3 as to the social security of migrant workers are conferred upon the Court. (5) Article 184 protects persons against the enforce- ment of regulations without thereby in any way raising the question of their continued existence, or of their annulment under Act 173. Note that under this Article the Court can only consider regulations. Dr. Bebr has succinctly stated the position as fol- lows : "The Court operates in the role of an adminis- trative tribunal examining the legality of administration. But, as a guardian of the Community Treaties, the Court displays strong elements of a Constitutional Court. By formulating the principles which are to bo observed by the Member States and by the Community, the Court exercises great latitude in its expression of Community policy, and a rudimentary political con- trol in favour of the fundamental principles of the Treaty. 191