The Gazette 1972

THE COURT OF THE EUROPEAN COMMUNITY

EUROPEAN SECTION

Part II

by THE EDITOR

Let us now distinguish between Regulations, Directives

and Decisions.

Regulations

are of universal application, and directly

binding on Member States (i.e. Language Rules, Mat-

ters pertaining to the European Development Fund and

the Social Fund).

Directives

only apply to the Member States to whom

they are issued, and these States must take whatever

action is required, whether by introducing new legisla-

tion in Parliament, or by issuing administrative statu-

tory instruments, in order to implement them.

Decisions

have the effect of establishing Rules which

are capablc of being performed, and may be addressed

either to Member States or business enterprises or indi-

viduals, and shall be binding upon them; Member

States or firms will normally be in a position to apply

them by administrative action.

Recommendations and Opinions,

if made at all,

have no binding force whatsoever.

(5) Article 177: Let us now consider the case, where

under Article 177 of the Treaty there is a reference by

one of the National Courts of the Member States to the

Court of the European Commission for a ruling on one

of these three subjects :

(a) The interpretation of an Article of the Treaty or

of a clause in a protocol attached to the Treaty.

(b) The validity of any act issued by any of the

organs of the Community: the Commission, the Coun-

cil of Ministers or the Community Parliament. The

Court of the Commission will analyse whether in given

circumstances such an act was validlv made.

bodies set up by the Council of Ministers. The decision

of the European Court under Art. 177 can only deal

with matters expressly or impliedly raised in the refer-

ence. The reference is discretionary, unless it is made

by the Supreme Court. The Court of the Community

applies

le droit

—general principles of law. Unlike our

Courts which are essentially accusatorial, this Court is

essentially inquisitorial according to Continental pro-

cedure and the Court decides what evidence is to be

taken, and can freely evaluate it; it is indeed fortunate

for litigants appearing before this Court that its proce-

dure as regards evidence is much more informal than

the formal English accusatorial one which may lead to

conflicting and questionable decisions. The reference to

the Court under Art. 177 is compulsory, in the case of

the Supreme appellate municipal Court, and is optional

in the case of any other municipal Court (i.e. the High

Court). If the National Court considers the interpre-

tation clear, it may decide not to refer the question of

interpretation to the European Court.

(6) Article 175: Article 175 of the Treaty provides

that a complaint by a Member State may be made if, in

violation of the 1'rcaty cither the Council of Ministers

or the Conunission has failed to act—or, as the French

official text states:

dan le cas ou le. Conscil ou la

Commission s'abstient de statuer.

This appears to mean

that in given circumstances the Council of Ministers or

the Commission have failed to issue the required regula-

tions or directives or decisions.

Points under Article 175 (Failure to Act):

(a) The appeal should clearly state the grounds upon

which it is suggested the Commission or Council did

not act.

(b) If the institution (Commission or Council) states

its position clearly within the two month period, even

if that position is that it will not take action, no com-

plaint of failure to act can be made to the Court

(Lutticke

, 1966).

that these matters are settled in a manner different

from that sought by the applicant. Apart from the five

specific grounds in which the Court may exercise its

jurisdiction on constitutional grounds, there are other

circumstances in which the Court may intervent in

exercising its purely administrative functions:

Additional Jurisdiction conferred upon the Courts

(1) Article 179 gives the Court jurisdiction to decide

any dispute between the Community and its employees

witin the limits and under the condition laid down

in the relevant Statute of Service of 1961 on conditions

of employment.

(2) Under Article 182 decisions may be rendered in

any dispute between Member States in connection with

the subject of the Treaty where the States in dispute

submit it to the Court under a special agreement

between them.

(3) Under the Protocol of Privileges of the EEC,

authorisation of administrative or legal measures of

constraint against the property or assets of the Com-

munity may be made by the Court.

(4) Express powers as to the interpretation and imple-

mentation of Regulation 3 as to the social security of

migrant workers are conferred upon the Court.

(5) Article 184 protects persons against the enforce-

ment of regulations without thereby in any way raising

the question of their continued existence, or of their

annulment under Act 173. Note that under this Article

the Court can only consider regulations.

Dr. Bebr has succinctly stated the position as fol-

lows : "The Court operates in the role of an adminis-

trative tribunal examining the legality of administration.

But, as a guardian of the Community Treaties, the

Court displays strong elements of a Constitutional

Court. By formulating the principles which are to bo

observed by the Member States and by the Community,

the Court exercises great latitude in its expression of

Community policy, and a rudimentary political con-

trol in favour of the fundamental principles of the

Treaty.

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