The Gazette 1973

tions, took no account of guarantees owed to basic

rights.

(2) These are precisely the considerations at the root

of a

doctrinal discussion

that has developed in Germany

particularly and which, in turn, has given rise to judicial

dispute in that country. Since Community Law is not

concerned with the protection of basic rights and, more-

over, the Community's institutional structure—typified

by an overwhelming "executive" element—is said not

to correspond to the canons of a democratically

organized State, it would be legitimate to appeal to the

provisions of the national constitution with a view to

giving the basic rights that protection which apparently

is lacking in the Community's legal system. Such

notions not only justify the introduction of national

concepts, but they result once again in the affirmation

of the primacy of national constitutional concepts and

provisions over Community Law. This left the door wide

open for challenging yet again the very bases of Com-

munity Law. To prevent such developments, it became

urgent to draw up, within the Communities, a system

for protecting basic rights.

II. The Inapplicability of International Pacts within

the Community

(1) The first thing that springs to mind is to find a

solution in international pacts relating to basic rights :

the European Convention for the Protection of Human

Rights and the recent United Nations pacts. However,

for the present at least, these instruments offer no »olu-

tion, as neither the one nor the others are in force for

all of the member States of the Community. As for the

European Convention, we know that the French Re-

public has up to now withheld ratification; hence we

cannot consider it as being a rule common to the six

member States until France takes the decisive step. And

the United Nations pacts are still too recent for the

process of ratification to be sufficiently advanced; here

also there is a special problem in that Germany is still

excluded from the United Nations. Of course, the

instruments mentioned could, if need be, provide guid-

ance and inspiration, but they cannot be considered as

formally constituting an integral part of the law applic-

able within the Community.

(2) This being said, it is interesting to forecast the

problems that will arise when the European Conven-

tion comes into force for all member States. It is to be

expected that there will be some overlapping, though

less on the substantive definition of rights than on

procedural guarantees. This problem of conflict will

demand analysis in depth when the time comes. In this

context two observations will suffice. First, it would

seem to us foolish to sacrifice the advantages of a well-

developed system of judicial control such as exists with-

in the Community to the system set up by the European

Convention, which is much less effective; remember how

precarious are the rights accorded to individuals, and

the manifold political factors still involved in the pro-

cess of dealing with cases under the Convention.

Secondly, from a geographical point of view the Com-

munity represents a "sub-system" in relation to the

Council of Europe, and it would appear necessary to

require that all judicial remedies within the Com-

munity should be exhausted before a case may be

brought before the institutions set up by the European

Convention, as is provided by Article 26 of that Con-

vention. In this respect, the situation of the Community

is no different from that of the States adhering to the

Convention.

III.

Recent Case Law of the Court of Justice

Recently the Court of Justice has had occasion to

return to the problem of the defence of basic rights

within the Community. It would appear that without

resiling from its previous case law, it has modified its

attitude on one essential point.

(1) The first case, that of

Staude

settled by the

judgment of 12 November 1969,

shows how a problem

is resolved.

It happened at the time that the Community had to

face the problem of the disposal of considerable farm

surpluses in particular of butter. The Commission had

authorized member States to allow the sale of butter

at a reduced price to, among others, those receiving

social assistance; however, in order to prevent fraud, it

had laid down that butter should be handed over by the

trade only on the presentation of an individualized

voucher. One of these beneficiaries, a citizen of Ulm

in Germany, felt it an affront to his human dignity to

be forced to disclose to a shopkeeper, whenever he

wanted to take advantage of the benefit, that he was

a socially assisted person. He therefore lodged a com-

plaint before the competent court,

i.e.

the administra-

tive court of Stuttgart, against the validity of this

system of identification. In its turn the court referred

the case to the Court of the European Communities

under the procedure for preliminary rulings under

Article 177 of the EEC Treaty, asking whether it was

considered compatible with the general principles of

Community Law that, by virtue of a Commission de-

cision, the issuing of butter at a reduced price to a bene-

ficiary of social assistance should be dependent on his

divulging his name.

After considering the case, the Court found that as

a result of a technical hitch in drafting the decision,

the

German text did not agree with other versions

and

it was this that had given rise to the whole dispute. It

was thus possible to solve the problem on the basis of

the principles of interpretation applicable in cases of

disagreement between different linguistic versions of the

same text. The Court added, however, at the end of its

judgment "that, as interpreted, the provision at issue

does not reveal any element jeopardizing basic indivi-

dual rights implicit in the general principles of Com-

munity Law, which the Court ensures shall be ob-

served". By that it clearly shows what would have been

its attitude should a threat to basic rights have been

effectively sustained.

(2) The chance to go further into the matter was

not long in coming. This was the

Internationale

Handel-

sgesellschaft

case, settled by a judgment dated 17

December 1970,5 concerning the system known as

"Agricultural deposits". It will suffice to explain here

that this is the system, necessary to the functioning of

farming regulations, intended to enable the Commis-

sion, as well as the competent national authorities, to

exercise reasonable control over the functioning of the

agricultural markets. This deposit mechanism, though

in principle protecting freedom of trade, involves it in

some constraints and burdens. Some German firms

challenged the system before the competent German

court,

i.e.

the Administrative Court of Frankfurt-on-

Main, which saw fit to rule that the deposit system

was contrary to certain basic principles of German

constitutional law which, in its opinion, should be

safeguarded by Community Law to the extent that

Community Law should give way to the principles of

the German Community Basic Law. More especially,

the Administrative Court thought that the deposit

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