The Gazette 1972

one which relates back to one of the constitutional

theories of 1780.

General or local, the problem is there, and lawyers

must deal with it. May I remind you of what I said at

the outset of the relativity of ideas? How then does one

deal with it? There are many ways. First, one could

attack the validity of the generally received ideas of the

sovereignty of Parliament. That way is sound.

Second-

ly, one can attack by emphasizing the evolution of

thought which has happened since Dicey wrote. That

way is also sound.

Yet neither affords a full and proper

answer. Each deals with the capacity of the Westminster

Parliament to transfer legislative competence to the

Communities in terms in which such transfers are con-

ceived within the Community system.

Neither deals

entirely satisfactorily with our problem, that of courts

giving full effect to Community obligations. Again there

are two ways of finding an answer. The first is to argue

the relativity of constitutional doctrine. In itself that way

is sound—if you change the constitutional setting then

lawyers must change their pattern of constitutional

thought and I have already said that the essential

approach to these problems is through constitutional

law. The change of pattern could achieve the desired

results. For, out of arguments based on Article 189 or

those built on the economy of the treaties or the neces-

sities of the Communities of the Court has built in the

doctrine of the supremacy of Community ftaw. Accepting

that, it follows therefore that the ranking of statutes

within the hierarchy of norms of the British system

changes. They are no longer the ultimate source of

law and therefore must be differently regarded.

There are two objections to this line of reasoning.

First, the invalidity of a statute is only an operative con-

cept

quoad

Community law. It is perfectly conceivable

for example, to work out a situation in which at the

national level there is one competition policy which is

valid and useful as regards mergers and which does not

conflict with Community competition law, whereas

other elements of the same national statute do so con-

flict. Invalidity only applies to the latter provisions.

Secondly, this line of argument leads to the confusion of

Costa

E.N.E.L.

It runs the risk of subjecting Com-

munity law to local and domestic constitutional law.

Yet these provisions or local constitutional law, which

may be regarded as in some sense fundamental, are

themselves products of particular national histories to

which the Communities are in a sense strangers, even

though paradoxically they may be a consequence.

Lawyers should accept distinctive Community Law

The solution is for lawyers to be logical, to accept

the distinctiveness of the Community legal order with

which they become involved. It follows that that law

can only be snbjected to its own constitutionalism and

constitutional system. This is the fundamental import-

ance of the last

International Handelsgessellschaft

case.

The question was whether the provisions relating to

fundamental rights in the Basic Law of the Federal

Republic applied to Community law. The answer of the

Court of Justice was clear. Community law could not be

confined by national constitutional law or structures.

On the other hand, and this is why I used the word

"constitutionalism", the Court immediately accepted

that the protection of fundamental or human rights

formed an integral part of its task and that Court must

therefore safeguard them.

The case is worth an article

in itself. One may note that although doubtless in speak-

ing of constitutional structures the Court was thinking

primarily of the federal nature of Germany, it is a phase

which is of peculiar importance in the context of the

United Kingdom. This habit of the Court of taking

with one hand and of giving back with the other is worth

noting. We have already seen it under Articles 177 and

173. It is, however, this logical approach which solves

our problem. The mysteries and confusions which we

wrap up in the words sovereignty of Parliament, and

for which the Italians and French have other phrases,

become irrelevant. They, so far as they have substance,

apply within their local or national setting alone. They

do not apply within the Community setting—a setting

in which national courts and lawyers find themselves

working without actually having to journey, save in an

intellectual sense.

It could be said that all of this is too strong or heady

stuff for lawyers and for judges to stomach. It is true

that diet does not always appeal to every individual,

but over-all the meal has been digested. The German

Finance Courts, prompted in their imagination by the

European Court of Justice, have found that they can

do what they thought they could not, and refuse validity

to the excess tax prescribed in German law, and this,

be it noted, despite the constitutional arguments which

are of deep significance in Germany. The German Con-

stitutional Court has been able to find that the pro-

visions (Articles 101 and 103) of the basic law relating

to the right to a lawful judge only apply in the German

setting and have no relevance to the refusal to refer

under Article 177. Italian courts in other cases have

fumbled their way to holding that certain Italian con-

stitutional provisions only apply in a local non-Com-

munity setting.

Belgian courts had, before the Court

of Justice had spoken of the nature of Directives, found

a way of controlling administrative decisions of Minis-

ters on the basis of Community law.

All of this, it

must be noted, is gainst a background of more rigid

legal thought than exists perhaps with us, and against

a constitutional background which, because of history,

was at least as deeply felt as is our own, and in some

instances more deeply felt. The essential challenge to

lawyers is then that of accepting the obligation of

thought at a high and serious level.

Lawyers must be ready to challenge administrative

decisions

That sentence puts the matter a little briefly, for

beyond thought must also lie imagination. It was for

that reason that I mentioned the last Belgian case

Cor-

veylen.

Imagination must run to looking to remedies

I started to learn my law in the aftermath of the small

and to inventing new ones. There is no basic problem-

revolution caused by

Donoghue

Stevenson.

We have,

since, perhaps, the 17th century, stopped thinking &

terms of public law. Lawyers will have to resume the

habit for it is in that field that remedies must be ifl"

vented. The application of Community law is intended

108