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such a Regulation had no jurisdiction under the Treaty
to do so. An administrative act can be revoked for the
future if it was based on an erroneous interpretation of
the Treaty.
(2) That, in issuing such a Regulation, the body con-
cerned did not observe strictly the provisions of the
Treaty. It has already been pointed out that in any of
these transactions, the provisions of the Treaty are
absolutely paramount.
(3) That in issuing any Regulation, the body con-
cerned failed to observe the principles of natural
justice.
(Violation de formes substantieltes).
These prin-
ciples of Natural Justice are briefly:—
(a) That the authority issuing the regulation must not
have any bias against the party to whom it is issued.
(b) That, in an effective dispute between two parties,
each side must effectively be heard. This is called the
"Audi alteram partem" or—hear the other side—rule—
in other words, a man must not be judge in his own
cause. There is however no right to be present or to
cross-examine when evidence is given, but all relevant
evidence muat be considered. On the other hand, the
Constan and Grundig case
(1966) decided that, as all
the facts necessary to establish the complaints which
were upheld were communicated to the parties con-
cerned, it did not matter that there were other materials
submitted to and taken into consideration by the Com-
mission, which were not communicated. Consequently
the decision concerned was only partly annulled. If the
Court finds any of these factors as regards any regula-
tion issued, it will have no alternative but to annul it.
(4) Abuse of power
(Détournement de pouvoir).
This
in effect means that the Regulation is correct on the
face of it, but that it was issued for some improper
motive—such as bribery, etc. It need hardly be said
that such an imputation will have to be proved by the
plaintiff to the hilt before the Court wil grant any relief
and annul the regulation which on its face appears
valid. The prescribed definition is—"use made by a
public authority of its power for an object other than
that for which it was conferred on it." Examples of
abuse of power are:—
(1) Adopting a basis for estimating data for the pur-
pose of calculating a levy, because that basis will yield
the highest rather than the most accurate figure.
(2) Using powers to profit the economy of a single
member State rather than in pursuit of an objective for
which the powers were confered in the Treaty.
(End of Part I).
PROFESSOR de SMITH'S LECTURE
Warning that E.E.C. laws were sometimes obscure and
lacking fn harmony
Obscurity, perplexity and a certain lack of harmony in
the application of the Communities' laws in member
States were foreshadowed by Professor S. A. de Smith
of the University of Cambridge in Trinity College,
Dublin. His subject was " Accession to the European
Communities: Some Constitutional Problems ".
Professor de Smith, who was introduced by Professor
R. F. V. Heuston of T.C.D., as one of the first authori-
ties in the world on constitutional and administrative
law, said that if he were given the choice of writing a
book on Communities law or presiding over the
destinies of Northern Ireland for the next two years, he
would unhesitatingly opt for the latter.
It had been suggested, he said, that entry to the Com-
munities would mean a diminution of national or
parliamentary sovereignty; these were distinct concepts
as a soveregn State need not have a sovereign or omni-
competent parliament. In England, however, the reasons
for asserting that national sovereignty would be reduced
were very much the same as for asserting that Parlia-
ment woul lose legislative sovereignty.
He pointed out that no sovereign State had unfeterred
freedom of action. Since 1945 accession to NATO and
GATT had confined sovereignty.
Limitations
of
E.E.C. Law
Accession to the Communities would imply a pooling
of sovereignty in making Community decisions. In one
sense therefore sovereignty would be enlarged and in
others possibly abridged. The Communities were not a
federal super-state, and member States had retained
their identity and sovereign status in international law.
They were obliged to accept the supremacy of Com-
munities law in economic and social affairs, and there
were supra-national organs like the Commission and
the Courts for the assertion of that supremacy.
The Council of Ministers was an international body
and the bulk of its decisions were made by a simple
majority, or a specially weighted majority, but in prac-
tice no vital decisions were likely to be made against
the implacable opposition of any of the major member
States.
He doubted, accordingly, these alleged derogations
from State sovereignty, and in any case the amorphous
concept of national sovereignty was insufficiently
precise to have a proper meaning.
The Communities Bill a masterpiece of calculated
ambiguity
On parliamentary sovereignty. Professor de Smith
said that the British Parliament could pass any law
whatever on any subject whatever, and under the British
Constitution no institution could question the validity
of an Act of Parliament or set itself up as a rival to
Parliament. The wording of the European Communities
Bill posed questions about the future powers of Par-
liament. This he described as a short Bill which was a
masterpiece of calculated ambiguity and of legislation
by reference.
Professor de Smith said it was with horror mingled
with relief that he noted the assurance of the Solicitor-
General—one of the two principal British Government
spokesmen—that the Government were determined to
preserve the colour of the British kipper under the new
Communities regime. Profesor de Smith confessed that
he had not known it was in danger. Other threats to the
British way of life could lurk furtively in the Com-
munities' volumes and a degree of ignorance might be
conducive to bliss.
Binding force of regulations and directives
Regulations of the Commission or Council of
Ministers would be binding and directly applicable in
each member State and the British Bill had to provide
for the direct applicability of regulations, either aiready
in existence or to be made in the future, for the pur-
poses of United Kingdom law. There were also decisions
which were binding, though they had not directly
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