The Gazette 1972

key to the place of lawyers in the system of Article 177

under which both these cases arrived in the Court at

Luxembourk. In saying that I do not underestimate the

importance of proceeding under Articles 169, 173 or

175, that is to say the direct ways of challenging the

misdemeanours or misbehaviour of states, or those of

the Council and Commission. These will remain serious

and important, especially Article 169, the action against

Member States by the Commission, which is important

not merely for its immediate and obvious effects when

it is invoked or threatened, but for the support which its

existence gives, in the terms in which it is drawn, to the

position of the Commission. But, as far as the generality

of lawyers is concerned, the proceedings, in contrast to

their results, are not of such great interest. Under the

Protocol of the Court possible representation by the

Commission or a Member State is broadly defined in

terms which go beyond the definition of the possible

representation of a private party.

No doubt then

representation here will be by a highly specialized

group. In distinguishing the results of litigation under

this head from the actual conduct of it, for such liti-

gation, by clarifying the Treaty, may have immediate

and more remote consequences to which I must turn

in due course. For the moment it suffices to emphasize

that the fact of proceedings under Article 169 was an

important element in the decision of Aff. 33/70, though

it was combined with other elements and the precise

weight of each element remains to be worked out.

Probably, of all three elements, it was the least signifi-

cant, though in other cases this need not be so.

Articles 173 and 175 of the Treaty

Article 173, and its corollary Article 175, which con-

cerns non-action, I discount for other reasons. Individ-

uals there have to overcome two hurdles, the definition

of what concerns them individually, and of what con-

cerns them directly. It would periiaps be more accurate

to say that they have to pass through the eyes of two

separate needles, and we are told on good authority that

few achieve this even with one needle. So far, only the

firm of

Toepfer

and another have achieved this dis-

tinction,

and they only did so in circumstances which

were highly particular. Thereafter those who have

sought to emulate their success have failed, and per-

haps for good reason, at this stage of development. The

jurisdiction under the Article just mentioned is that with

the highest political content, it involves a direct chal-

lenge to what must, in many cases, be regarded as

primary discretion of the Commission and there is all

the objection in a modem society to opening up a full

actio popularise

and those objections gain added weight

in the Community setting from the difficulty of achiev-

ing such legislation in the first place. From the outset

a warning had been given that challenges of this order,

even where there were

mutatis mutandis

acceptable

within a national setting, were to be less readily received

in a Community setting. In

Fedéchar

the Court rejected

the proposal of the Avocat-Général to open the door

under Article 33 of the Treaty of Paris to an association

of producers,

even where the "legislative" quality of

the act in question was less than it would be under the

Treaty of Rome, and where national law in at least one

Member State would have left the door open. The

struggle under Article 173 (and even more under Article

175) remains appropriate to the rich and the brave

and to their legal advisers (happily some keep trying).

This loss is much less than might appear, for the camel

can walk easily and more cheaply through that eye

labelled Article 177, and that is more than bodkin sized.

van Gend en Loos

the Court emphasized

that the

vigilance of individuals was a necessary and suitable

supplement to the controls under Articles 169 and 170,

just as in

Schwartze

it kept wide open the opportunity

to challenge the validity of Community Acts under

Article 177 recognizing the narrowness of that possiblity

under Article 173.

Article 177 of the Treaty

It is then with Article 177 that the lawyer will be

primarily concerned. The procedure under that Article

is simplicity itself and fits easily enough into any legal

system.

It is through this Article that the great lines

of Community law have been determined and it is

by this means that the lawyer is brought within his

own native setting into the ambit of that law, and that

his established, or received, pattern of thought is chal-

lenged. Outstandingly important were the twin ideas

evolved in the early cases of the direct applicability of

Community law, and of the new and distinct legal order

linking these two, and enhancing the effect of each is

the concept that from the Treaty individuals derive

rights.

Once it is remembered that the role of the Court

of Justice under Article 177 is simply that of interpre-

tation (or, as the case may be, of passing on the validity

of Community acts) and that application of Community

law is left to national courts, it becomes clear that not

only do those courts become, for this purpose, part of

the Community judicial system, but also that national

lawers are immediately and closely linked with Com-

munity law. The latter ceases to be an esoteric branch

of law which is the province of a small band of spe-

cialists. The "political" justification for such a system is

clear. Instead of the imposition of a totally new and

self-contained judicial structure, the endeavour is made

to invoke a real and fruitful collaboration between

national courts and the Court of Justice. At the same

time this system should achieve the interpenetration of

the two legal orders and a decentralized administration

of a Community one, with all the consequential gains

to individuals which that entails. The risks inherent in

such a system are equally clear, that national courts

and lawyers may for a variety of reasons reject of

neglect this new role. In the long run, as experience

already demonstrates, that risk was worth taking, f°

only thus could Community law implant itself in the

various legal systems.

What rules of the Community have direct effect

These initial propositions have, of course, been elab-

orated and each has had an effect upon the others. Th

idea of what rules have direct effect is an autonomous

one appropriate to this legal order and, while connected

with the similar concept of international law, it is not

derived from or identical with it. It could not be, fo

again, there are so many ideas of what is directly appK

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