The Gazette 1972

Lawyers and European Communities

by PROFESSOR J. B. MITCHELL

Text of a Lecture given in Queen's University, Belfast, on 24th February 1971

(•Reprinted by kind permission from the Northern Ireland Legal Quarterly

—Volume

20, 1971, pages 149-167)

PART II

EUROPEAN SECTION

(Footnotes appear at the end of each part of the lecture)

Community law necessary to all lawyers in the

Community

It was then clear from the outset that Community law

had to become part of the stock-in-trade of all lawyers

within the Community. What has become apparent is

that the extent to which it does so is continually in-

creasing. Not merely is the simple quantity of law

growing naturally as policies are worked out and put

toto effect, but also in recent months the range of legis-

lation which does so penetrate a national system has

increased. A quick reading of Article 189 might lead to

the view that in no circumstances were Decisions or

directives of that type. Two recent opinions of the

Court at Luxembourg have shown that this is not so.

Both Decisions and Directives éven though addressed

°n the fact of them simply to Member States are capable

°f conferring rights upon individuals to which national

courts are bound to give effect or to protect. There is

thus opened up to individuals a right for example, to

reclaim or to resist a claim to taxes or duties demanded

hy a national administration, where such a demand is

to conflict with Community law. I will return to an

examination of the precise nature of the direct effect

as against other such effects, but for the moment merely

wish to emphasize that for the lawyer the key to under-

standing Community law is to regard Community law

as a form of constitutional law. I am no supporter of

touch of what is commonly put forward as the federalist

theory of Europe, for traditional federalism and its

range of ideas does not fit this European scene, yet it is

tempting to cite here Chief Justice Marshall in

Mc-

culloch

Maryland

emphasizing that the interpre-

tation of a constitution differed radically from the inter-

pretation of legislation, that the United States had

chosen to be a nation and of that the constitution was

mark, it was the order established for ages to come,

hi the same spirit M. Lagrange, in his

conclusions

^edéchar,

speaks of the Treaty as the charter of the

Community Thus the first thing that lawyers must learn

to study the nature of this art of constitutional inter-

pretation-

•ravel good for migrant workers

"ence, looked at in this way the decisions in two cases

|to migrant workers were entirely predictable. In Aff.

^ / 63 the Court remarked "qué l'établissement d'une

hberté aussi compléte que possible de la circulation des

travailleurs, s'inscrivant dés lors dans les 'fondements'

de la Communauté, constitute ainsi le but principal de

Particle 51 et, de ce fait conditionne l'interprétation des

réglements pris en application de cet article."

In its

sequel,

Hessische Knappschaft c. Medson Singer,

the

words "migrant worker" were held by the Court to

cover the worker who was only "migrating" in the sense

that he was on holiday in a Member State other than

his own. That is to say that in the Communities travel

was a good in itself, and given a choice between a

narrower and a broader interpretation, either of which

might have been legitimate, the choice was made for

that interpretation which supported that good. In just

the same way one could have said that the judgments

on the effects of Decisions and Directives were, or

should have been, predictable.

The whole run of

events, the working of the Treaties and their internal

logic as it had been illuminated by earlier decisions of

the Court combined to lead to the conclusions actually

reached, provided that there were no insuperable

obstacles in the way. Such a judgment was only possible

in the recent past, where certain elements in the prac-

tical and political evolution of the Communities was

clear. A few years earlier the prediction would have had

to be in the opposite sense, simply because in the then

the result which today is to some (including our Customs

constitution or political situation of fact or knowledge

and Excise authorities) startling enough, was inconceive-

able. This is an indication of what I mean when I say

that an adjustment to constitutional interpretation is

essential. I am not arguing for legal uncertainty, or

against

sécurité juridique

(an idea which is in the

forefront of the thinking of the Court). I am merely

stating the obvious that a constitution, a character, un-

like a law or a normal treaty does not consist of so

many static words on paper. The meaning of those

words is constantly enlarged or illuminated by changing

circumstances and by evolution—or at least it is in the

hands of the right sort of court.

Implications of Article 159 for lawyers

Here clearly two of the implications for lawyers are

emphasized: first, the penetration of Community legis-

lation upon which I have briefly touched; secondly, the

implication of this law for lawyers in quite humble

affairs. It is at this point that one comes to the heart

of the matter, for the key to Community law, and the

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