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The European Court of Justice
AN INTERVIEW WITH JUDGE DONNER
By TERRY COLTMAN
"If you say this whole thing is a
Constitution
,"
said
Judge Donner of the European Court of Justice, as we
sat at lunch in Luxembourg with a text of the Treaty
of Rome on the table between us, "that also implies a
certain freedom, not freedom, a certain direction in
which you go. If it is a Constitution it should be a
coherent system, a system that can continue to function,
that should be effective, and that implies all sorts of
things."
If on the other hand, he said, you considered it as a
Statute, or an Act, and were called upon to construe it,
you could at a certain point conclude that as a Statute
it was ineffective because on some matter it was not
explicit. It might be a pity that it would not work, but
in construing an Act you could not go beyond its text.
"But," said the Judge, "if you say something is a
Constitution, you imply it should work, and if there are
all sorts of gaps in it and unclear things, they should
be cleared up and the gaps should be filled up, because
the thing is intended to work. I think it was Marshall
who said that you should never forget it's a Constitu-
tion. By that he meant, always interpret it in such a
way that it remains effective."
John Marshall was Chief Justice of the United States
Supreme Court from 1801 to 1835, and the document
he was concerned with was the Constitution of the
U.S.A. And as to the Treaty of Rome, I asked Judge
Donner, was he saying that this too was a Constitution
to be interpreted?
That was so. It is only fair to say that in our previous
conversation it was I who had indirectly introduced
small comparisons with the U.S. Supreme Court, and
not Judge Donner. But there is no doubt in my mind
that the Treaty will be construed as a Constitution,
and indeed already has been, and that the doctrine of
Implied Powers may have as lively a run at the Luxem-
bourg court as it had at Washington under Marshall.
Judge Donner is a Dutchman, and he is one of those
rare men whose force of mind takes only five minutes to
make itself very clear to an interlocutor. He was born
at Rotterdam in 1918, the son of a barrister who be-
came a judge. He comes of a family which has pro-
vided many ministers for the more strictly Calvinist of
the two Dutch reformed churches, and when the time
came for him to go to university he hesitated briefly
before choosing law rather than theology.
By 1941 he was Doctor of Laws, and his father was
in a German concentration camp. The young Donner
declined on principle to sign a document saying he was
of Aryan descent, and he had already been indiscreetly
critical, in his doctoral thesis, of some tenets of National
Socialist jurisprudence, so in 1943 he was invited to
present himself at SS headquarters. He went under-
ground that day.
In 1944 he was arrested and was being shipped to
Germany when he escaped with 12 others by simply
hiding in the attic of a school where they spent the
night en route. He then turned journalist for a while,
and then in 1945, at the end of the war, was straight
away appointed Professor of Gonstitutional Law at the
Free University of Amsterdam. He was 27.
He never became a barrister, though he did appear
about 10 times to argue cases before an administrative
court before which any graduate in law had right of
audience. He never appeared in any criminal cases. Nor
was he ever a Netherlands judge, though he did preside
part-time over an administrative tribunal. In 1958, it
being agreed that Holland should provide the first
President of the court of the combined European Com-
munities, Donner was appointed. He was 40. Now,
having been for 14 years a member of the Court of the
Six, he remains a member of the Court of the Nine.
First, I fished out an extraordinary cutting which
was headlined "Innocent Until Proved Guilty—and
Don't Let Europe Forget it," and appeared to think the
Luxembourg court had an extensive criminal jurisdic-
tion. The judge confirmed there was no real criminal
jurisdiction. The nearest they got to it was that com-
panies could be fined (as ICI was fined £20,000 for
the price-fixing of aniline dyes). This would be ad-
ministrative law on the Continent, though in America
it would be dealt with by criminal, antitrust, laws.
And then, what about this reference under clause
177 of the Treaty? As I understood it, that clause said
that any Court of any member state could refer a case
to Luxembourg for a ruling on Community law. I ha
exercised some ingenuity in concocting such a case, and
wanted to ask the Judge if it would stand up. This was
it :
An Englishman flies from Europe to Heathrow with a
suitcase full of whisky which he does not declare. The
customs arrest him and charge him with smuggling.
Before the magistrates' court he pleads that there is no
case to answer because a regulation of the Commission
in Brussels has, say, declared that whisky is nondur-
able. May the magistrates refer the case direct to
Luxembourg, asking whether there is such a regulation,
whether it is valid, and whether it applies in the case
before it?
Judge Donner thought they could, and cited the case
of the cows imported into Italy. At the border their
owner was charged a fee for a veterinary examination.
He claimed this was no more than a hidden customs
duty, and therefore under the Treaty illegal. The
Italian court in the first instance referred to Luxem-
bourg, which ruled that if such veterinary fees were
also charged in the interior, then they were properly
veterinary fees and should stand, but that if they were
charged only at the border, then, having the same effect
as an import tax, they were illegal.
The direct reference of cases to Luxembourg, had
been opposed by Lord Diplock and there had been
some suggestion that lower English courts should first
be obliged to refer to higher English courts. But would
not any such restriction be itself a breach of the Treaty
of Rome? Judge Donner thought it would be, but there
was nothing to stop the Lord Chancellor from sending
a circular to magistrates
advising
them not to refer.
But as for himself, Judge Donner's preference is that
reference should be completely free. In his experience,
the lower the court the less inhibited it was in putting
questions : the higher the court, the more its Judges
sometimes thought they should know themselves.
If you glance through reports of cases decided by the
European Court, it becomes obvious that most of its
jurisdiction is administrative and financial and agri-
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