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cultural. There are dyestuffs, tin cans, customs, ducks
in transit, and monopolies. It seemed that the Court
became constitutionally important when it addressed
itself to the rights of individuals and the rights of
institutions within the Community. And one of those
cases is that of Fohrmann, decided in 1963, which
indirectly, as I believe, helped to increase the powers of
the European Parliament.
In the Treaty, the Parliament is required to meet
annually on the second Tuesday in Match. This one
annual meeting was extended by the Parliament, by a
sort of parliamentary fiction, from March to March.
The Parliament met many times a year, maintaining
that its meeting, at whatever season, was still only the
original March meeting adjourned and then resumed.
Fohrmann was one of two Luxembourg MPs, also mem-
bers of the European Parliament, who were accused in
a local court of libelling a third person. They pleaded
parliamentary immunity, and it fell to the European
court to decide whether at the time of the libel com-
plained of, which was November, the Parliament was
still in its March sitting. The court decided that, in
law. it still was.
The Judge said Parliament had, anyway, already
decided that it could sit all year round, and had based
this assumption on the common usages of Parliament.
It was not a new trick. But, I said, members of Parlia-
ment, at any rate, now quoted the Fohrmann decision
as an authority, and it had certainly been taken as
legal confirmation of earlier usage? Judge Donner said
it had given them another argument for continuing
what they did already. He was an old constitutional
lawyer but he did think that some other decisions of
the Court, on the free movement of goods and workers
and so on, were just as important in establishing funda-
mental rights.
Now in the Treaty, Parliament is not called Parlia-
ment at all, but the "Assembly". In 1962 it decided to
call itself Parliament, which was an important step.
The Parliament, said the judge, would submit that
it would be better to ask what in the Treaty prevented
them from changing their name. They supposed that
as a Parliament they were meant to have parliamentary
powers. The Court of Justice itself was called simply
that in the Treaty, and had itself decided to take the
name of Court of Justice of the European Communities.
I asked the Judge about individual freedom, and
about a celebrated case in 1970 of a German pensioner
and a pound of butter. The details do not matter.
There was a glut of butter, to reduce which the Com-
munity decided to let some people buy the stuff cheaper,
and issued tickets to pensioners and the like. The
German, presenting his ticket, was asked for his name,
which he refused. The case came to Luxembourg,
which decided that it was all a piece of confusion
over a bad translation of the original French regulation
into German, but then, having decided what it was
asked to decide, the court also handed down an
obiter
dictum
on civil rights, which seemed unnecessary.
"Take the Treaty," said the judge, taking up the
text. "What do you find in the Treaty itself?"
He found article 173, which requires the Court to
guard against not only any infringement of the Treaty
but also against any rules of law which should be
observed in its application. Such rules of law might be
unwritten, or part of the laws common to the Member
States, and some of these rules of law related to Human
Rights.
The judge turned to article 164, and this is a beauty,
on which a whole jurisprudence could and no doubt
will be founded. It simply says, "The Court of Justice
shall ensure that in the interpretation and application
of this Treaty the law is observed."
"The law," said Judge Donner, "that doesn't mean
only the text of the Treaty, but . . ."
Natural justice?—The judge said he hesitated to use
this term (very much a term of Roman jurisprudence)
to an Englishman. He would rather say the law common
to the nine nations.
A sort of spirit of'the law?—"The general principles
common to their legal systems. And civil rights are one
of those principles."
The Judge said he would not rely on a statement of
intention alone, but if you went through the Treaty
you could find all sorts of provisions for freedom of
movement, and other benefits, all implemental of these
general aims. And if you were ever in doubt about the
interpretation of a clause, you should never forget that
the text should always be read in the light of those
aims.
Here, I asked the Judge about one clause which
forbade members of the Commission when in office to
engage in any other employment, gainful or ungainful.
Would this prevent a Commissioner writing his
memoirs? He thought not. "What is employment?" he
asked. Writing memoirs was not employment.
Not if you took five years over it, like Churchill?
Wasn't that employment?—"You will tell me it's rather
formalistic, but he hadn't an employer." (Laughter).
But the Judge's liberal attitude to the powers of
the Communities' Institutions, and the humanity of
assuming that the Treaty was meant to be construed
according to the tenets of Natural Law, would appear
to suggest that the European Court, in acting in this
way was really putting itself in some measure in the
position of the Supreme Court of the U.S.A.?
He said, "In a certain way. But it's not only what
the Supreme Court does. It's what every Judge does,
only some of them are
more
frank about it than others."
But with a liberal interpretation of its own powers,
the Court could expand itself as it wished? He
thought that was a narrowly logical inference, but of
course the Court was bound by common opinion about
what the law should be, and how far the law should
go. A Judge should not abuse his powers and become
a sort of general social arbiter. "He should always have
respect to one of the main principles of law—that's
unwritten too—and that is the principle of judicial
restraint."
(The Guardian,
3 January 1973.)
£400 damages for wrongful arrest
(from page 32)
tion necessarily involved in prison life, with Mr. Kelly
not knowing when or how its term would expire.
General damages in the case, the judge added,
could not in his opinion be awarded on any straight-
line basis of so much per day or per week, because
the events of the first day or so were such as obviously
to attract a greater sum than would be appropriate for
a normal day later during Mr. Kelly's term of im-
prisonment.
(The Irish Times,
)13th January 1973.)
[Kelly v. Faulkner and others.]
36