The Gazette 1972

terms in which Article 189 was drawn, when a choice had to be made in fundamental matters, the final choice had to be for a Regulation having direct effect immed- iately. In agriculture the initial choice was open; as it was on the industrial side, as far as competition policy was concerned. In both cases die choice was made for Regulations. 9 Because in each case the matter was fundamental, there had to be uniformity, and the appro- priate instrument appeared therefore to be the Regu- lation. May I remind you again that within the full economic and customs Union of Great Britain not merely had there to be uniformity on restrictive practices hut also of tax—what can receive immunity as a charity had to be the same in England and Scotland. 10 May 1 also remind you that all these decisions were taken at the time when unanimity was the only permitted rule of the Council. Thus it may fairly be said that Member States imposed those rules upon themselves within the decision-making process of Article 149. Conventions It would be a mistake to limit the idea of legislation m a Community sense to these more obvious forms under the Treaty. Clearly Conventions concluded under Article 220 are, for example, to be included. To lawyers such Conventions may be of particular importance; that, for example, on the enforcement of civil and commercial judgments has an immediate and important impact in practice, and by its terms, it should be noted, it affects judgments in any of the Member States whether or not the parties to the litigation are exclusively Community subjects. While it could be argued from the wording of Article 220 "Member States shall, as far as necessary, eater into negotiations . . that the resulting conven- tions partook of the nature of traditional international conventions, it is nevertheless clear from cases such as Commission c. Republique ltalienne 11 that this is not so. Such agreements must be contained within the frame- work of Community law. Common Market I Contents—February 1972 Deutsche Grammophon GmbH v Metro-SB-Grossmarkte GmbH & Go. KG. —Hanseatische Oberlandesgericht, Hamburg. Restrictive practices—"Marketing' is fact of delivery m place where transfer effected—Reason for delivery by carrier irrelevant—Servant's disobedience does not alter effectiveness of marketing—Distribution rights under German copyright law a disguised restriction under Art. 36 (2) E.E.C. Firma Kurt Siemers & Co. v Hauptzollamt Bad Reich- er »hall. —European Court. interpretation of product subject to customs taiiff— External aids to interpretation—In absence of EEC e xplanatory provisions explanatory notes by Customs ooperation Council may be used—National court's duty to interpret classification of products—Non- retroactivity of tariff classification—Tariff classifi-

REFERENCES 1. "The Common Law, Public Policy and the Executive" (1956) 9 C.L.P. at p. 14. 2. I include among such principles the British one of the Sovereignty of Parliament (in relation to which I have reserpations, see my Constitutional Law (2nd ed., 1968), chapter IV. It was, so far as it has validity, appropriate to the historical circumstances of British constitutional history, and in particular to an "enclosed" constitutional system. Changed circumstances change it. A perfect example of what I mean by relativity in this context is afforded by Aff. 11/70 Internationale Handelgesellschaft GmbH.c. Einfuhr und Vorratstel.e fur Getreide und Futtermittel in relation to human rights under the Basic Law of the Federal Republic and under Community law, as to which see the subsequent discussion. 3. The extended dialogue underlies the almost theological debates which lasted for a time about the words "par l'entremise des représentants permanents" in the Luxem- bourg compromise—a debate happily now dead. 4. All of this may be summed up in a brief quotation from the decision in Aff. 26/62 Van Gend en Loos IX R.I., 23: "la Communauté constitue un nouvel ordre juridique de droit international au profit duquel les Etats ont limité, bien que dans des domains restreints, leurs droits souverains, et dont les sujets sont non seulement les Etats membres mais egalement leurs ressortissants". 5. Hessische Knappschaft c. Maison Singer Aff. 44/65 XI R. 1191, 1209. 6. Compare Articles 49 and 54. 7. In practice this is untrue—it can result in converting the national legislature into a rubber stamp, e.g, when it requires the repeal of a specific provision. This too entered into the "Luxembourg Crisis". In practice in many cases no other choice was open to the Communities, but this somewhat specific use of Directives. 8. The absurdity in this context of the traditional sort of theoretical classification exercise is immediately apparent. What is the nature, e.g., of a decision fixing the price of a particular kind of wheat, a price which thereafter affects the lives of millions, as against a regulation which, though general, affects few. The paradox is familiar. 9. Articles 43(2) and 87(1) carried out in Regs. 19-24 of 1962, J.O. 933/62 et seq. : Reg. 17 of 1962, J.O. 204/62. 10. I.R.C. v. City of Glasgow Police Athletic Association (1953) S.C. 13 (H.L.). 11. Aff. 38/69 XVI R. 47. tw Reports cation a legislative act—Effect of administrative notices on amended legislation. Re Levy on Apricots. —Finanzgericht, Bremen. Customs laws—Liability to levy—Burden on customs authority to prove affirmatively liability to levy— Conflicting laboratory evidence resoluble in favour of importer—Use of refractometer analysis of sugar con- tent relevant to amount of liability andn ot to deter- mine liability. Bock v E.C. Commission. —European Court. Protective measures under Art. 115— E.C. Commis- sion exceeds powers of authorization over pending import licences—Member-State's protective measures against imported goods must be "necessary"—"Indi- vidually affect" goods already imported by indivi- dual firms—Community decision "directly affects" individual firm where latter warned in advance ot member-State action.