110 / 294
to be the full application so that individuals reap the
full benefit. As
Corveylen
shows there must be a readi-
ness to challenge, in legal forms, administrative decisions
which is greater than our present readiness. No harm
can come from that. Beyond such matters lawyers will
have to use ideas such as that of "
urte faute de nature
á engager la responsabilité de la puissance publique"
which has little to do with our private law of negli-
gence. If one looks at Article 215, one accepts that in
the Community system any act for which reparation is
due is quite likely to be an act in which both Com-
munity and national administrations have participated.
Who then, if the act was faulty, pays? The answer
which is reasonable in that in circumstances where there
is shared fault, then the burden is shared.
4:t
The answer
is logical, but it only achieves its intended results pro-
vided that within reasonable tolerances national systems
of law can give roughly comparable redress. In this
area of law British legal systems are far behind and a
conscious effort of imagination will be required at the
very least.
44
It is in this area that there is, perhaps, both
the greatest challenge to lawyers of all ranks and also
the greatest potential gain to individuals of whatever
order. I have, at this stage, only mentioned remedies—
but the philosophy of continental public law produces
other important changes. Procedural rules—such as
those relating to the burden of proof where
détourne-
ment de pouvoir
is alleged are of the utmost practical
importance and, incidentally, of assistance to individ-
uals.
Two final points must be briefly made. The shock
to lawyers can, in one sense, be greatly exaggerated. I
was not in practice when the 1925 property legislation
came into force in England, though I did in fact read
my
Challis
as one of the early books on property law.
The demands which that legislation made on the "bi-
lingualism", imagination and thought of conveyancers
Was of the same order as the demands of which I have
been speaking If lawyers are to serve the community
they must face these demands, as did the conveyancers.
I have spoken too of all that lawyers must learn. It is
certainly not too late to start, for the volume of law is
still within comprehensible limits. There is the other side.
I have no doubt that there is much that British lawyers
can contribute and I say that in all humility. It again
follows from the word autonomous that this new legal
order must be ecletric. It follows that the fundamental
rights which the Court will protect, while not identical
with those of any Member States, are those which are
derived from the common experience of the partners.
So too it is evident from the
conclusions
of any of the
Avocal-Généraux
how the laws draws on the common
stock of principle as indeed it is enjoined to do under
Article 215. Thus the addition of any new major system
will inevitably have its effects. That too must be taken
into account so far as the future is concerned. Clearly
so far as the past is concerned, what has happened re-
main. The broad patterns of interpretation and general
attitudes will and must remain. It would be absurdly
agressive to expect otherwise, and would create serious
legal uncertainty among existing Member States were
anything different to happen. Thus British lawyers must
enter into the legal world of the Community as it is,
and I have simply tried to sketch a plan of major
elements of that world. Structures, let alone evolution,
are far from complete and it is in relation to the creative
work still to be done that British lawyers can contribute.
The more they are ready to enter into sympathy and
understanding with what has already been achieved
the more they will be able to contribute.
I have chosen to stick with these principles of law
and not to enter into these arguments about the mean-
ing, in English, of avocat, rechtsanwalt, etc., and of
who may plead before the Court. These are very minor
arguments. I can assert that not merely because as a
Professor I am not on piece rates, but because this is
the sort of issue which can only be decided by the Court
and by the professions in the light of full knowledge of
the procedure of the Court and taking account of what
finally will give the best service to the client. The legal
professions are at the moment much open to scrutiny.
They will survive and indeed regain their glory if they
will seize with imagination the possibilities which the
Common Market opens up by providing a true service
for their clients in this new setting. It is those clients
and their gains that are also the primary concern of the
Communities. The greater part of the service can, as I
indicated, be rendered not in Luxembourg but here in
Belfast, or in Edingurgh, or wherever the client is.
J. D. M. MITCHELL*
FOOTNOTES
12. (1819) 2 Wheat 316.
13. Aff. 8/55 II R. at p. 263. Indeed, for their formative role,
and for their quality of visionary practicality it is very
reasonable to compare the opinions of Chief Justice
Marshall and the
conclusions
of Avocat Général Lagrange.
In stating that T am aware of the danger of too close and
detailed comparison—the Court in
Fedéchar
itself rejecting
one part of a constitutional role, though in other cases
steadfastly conserving the essence of that role.
14. Aff. 75/63
Unger c. Bestuur der Bedriifsverniging voor
Detailhan del en Ambachten a Utrecht
X R. 357, 362.
15. Aff. 44/65 XI R. 1191.
16. Aff. 9/70
Grad. c. Finanzamt Traunstein
and Aff. 33/70
S.p.a.S.A.C.E. de Bergame c. Le Ministé des Finances de
la Republique Italienne.
The arguments based on the
economy of the Treaty are more convincing than those
on the wording of Article 189 as they appear in Aff. 9/70.
17. See the distinction drawn in Art. 17 of the Statute of the
Court.
18. Aff. 106 and 107/63
Alfred Toepfer KG. c. Commission
de la C.E.E.
XI R. 525.
19. Of such problems some parts (but some parts only) of
MacCormick
v.
Lord Advocate
(1953) S.C. 396 give
sufficient warning in a domestic setting.
20. Aff. 8/55 II R. 199 at 227: "Ces considérations contre-
disent nettement l'illogisme de la reque'rante faisant sup-
poserqu'il faut subordonner Interpretation du Traité au
désir d'ouvrir aux entreprises privées un droit de recours
pratiquement identique á celui des Etats et du Conseil. Un
tel voeu peut se comprendre, mais le Traité ne contient
aucune indication permettant de conclure á l'octroi aux
entreprises privées d'un tel droit au contróle de la 'con-
stitutionnalité' des décisions géncrales, c'est-á-dire de leur
confromité avec le Traité, alors qu'il s'agit d'actcs quasi
législatifs émanant d'unc autorité publiqus et ayant un
effet normatif 'erga omnes'." The heart of the proposal
of M. Lagrange is at p. 249. Cf., his remarks under the
Treaty of Rome in
Confederation des Producteurs de
109