The Gazette 1972

THE COURT OF THE EUROPEAN COMMUNITY

EUROPEAN SECTION

by The Editor

Part 1.

The Treaty which established the European Community

was signed at Rome by the present six member States—

Belgium, France, the German Federal Republic, Italy,

Luxembourg and the Netherlands in December 1957,

and made provision for the main institutions of the

Community—the Commission of Experts occasionally

assisted by a Council of the Ministers of the member

States sitting in Brussels, as well as the European

Assembly of parliamentary representatives occasionally

sitting in Strasbourg.

The Court of Justice of the European Community is

the successor to the Court of the European Coal and

Steel Community which had already been established in

1954; in fact some of the Judges of the Court of the

Community were at first members of the former Court.

Although the Court of the Community was only

established in October 1958, the broad principles of

procedure had already been established by its prede-

cessor. The Court consists at present of 7 Judges

(including 2 Italians and 2 Germans); it is assisted by

two Advocates-General (1 German and 1 French) whose

main function is an impartial and independent sum-

ming-up of the case and presentation of reasonable

conclusions, before the Court reaches its verdict; this

is an important element in French judicial procedure.

According to Article 167 of the Treaty, the Judges and

the Advocate-General shall be chosen from persons of

indisputable independence who either fulfil the con-

dition required for the holding of the highest judicial

office in their own state or who are jurists of recognised

competence; they are appointed for a term of

six years

by the Governments of the member States acting in

common agreement. A partial renewal of the Court,

which shall affect three and four judges alternatively,

(revised to five and six judges respectively after 1973),

takes place every 3 years; the retiring judges are

eligible for re-appointment. The judges appoint their

President

for a term of 3 years, which term shall be

renewable. The first renewal of the Court took place in

October 1961, and subsequently in 1964. 1967 and 1970.

Upon the accession of Ireland, Britain, Denmark and

Norway, it is proposed as from 1973 to extend the

Court to 11 Judges and three Advocates-General (one

British). Judges and Advocates-General receive £590 per

month, plus £54 entertainment allowance.

The scope of this Court is not as wide as that of the

Inemational Court of Justice of the Hague, which has

power to give an advisory opinion on any question of

public international law submitted to it by any State or

recognized international authority; on the other hand

the main function of the Court of the Commun

;

ty is

summarily stated in Article 164 of the Treaty of Rome

as "to ensure the observance of law and justice in the

interpretation and application of this Treaty"; while the

scope of the Court is limited to the interpretation of the

Treaty and its numerous protocols and Directives and

Decisions, it is to be noted that any decisions of this

Court are absolutely binding on the member States, and

cannot be questioned by them. The Court of the Com-

munity also has power under their respective provisions

to determine questions arising out of the Treaties

establishing the European Coal and Steel Community

and Euratom, which are equally binding. It is important

at this stage to distinguish broadly between the

functions of the Commission in Brussels, which is to

supervise the observance of the Treaties by the member

States, and the function of the Court in Luxembourg,

which as we have seen, is to observe the principles of

law and justice in the interpretation of the Treaty.

The Court of the Community can exercise compre-

hensive jurisdiction over the following:—

(a) All organs of the Community — Commission,

European Parliament, Council of Ministers,

(b) Member States in relation to any provision of

the Treaty.

(2) The status of officials and employees of the Com-

munity. In this case, as the cases of

von Fiddelaar,

Humblet,

and

von Lachmuller

prove, the Court has full

authority to impose penalties on either the Commission

or the Member States if they impose undue restrictions

whether by dismissal or taxation, on the status of

employees of the Community.

What are the main grounds upon which the Court's

jurisdiction can be invoked from a constitutional view-

point? These are mainly five in number, as follows:—

(1) Article 169:

A complaint by the Commission that

a Member State has not fulfilled its obligations. As the

main function of the Commission is supervisory in

applying the text of the Treaty in full as regards the

Member States, it is obvious that, if a Member State

does not heed a complaint made to it by the Com-

mission, it must be compelled to do so by the Court,

if thfe Court finds that this is warranted. 10 cases were

brought to the end of 1967, of which 7 were decided in

favour of the Commission and 3 were withdrawn.

(2)

Article 170:

Any Member State may make a com-

plaint against another Member State to the Commission

that the terms of the Treaty are not being observed by

the latter State; the Commission will investigate the

matter and must give an opinion stating in what respect

the terms of the Treaty have been infringed. No such

proceedings have so far been brought. If the Commis-

sion has not given an exhaustive opinion within three

months of the original complaint, the complaining State

may refer the matter to the Court for its decision; such

decision shall, in any event be binding on the parties.

(3)

Article 173:

Jurisdiction of the Court of the Com-

munity to review Directives, Decisions and Regulations

issued by the Commission. The application to the Court

may be made by any of the aggrieved parties—whether

it be the Commission, the Council of Ministers, any

Member State, or any individual or industrial enter-

prise affected. The Court may only intervene in review-

ing such a Directive, Regulation or Decision on the

following four grounds: (1) That the body that issued

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