The Gazette 1972

recognise the pleasure, and indeed the insights into my

original system of law, which have come from struggling,

with what success I know not, with this process of adap-

tation.

The meaning of Community Law

That said, I must emphasize the word "Community".

If it is not the key it is at least a word of considerable

importance in this context. Among other things, in

economic terms, it means a sharing of gains and costs;

the whole cannot remain healthy if it leaves one partner

unduly burdened or unduly privileged. In the more

specific context of this paper the emphasis matters in

a number of ways. First, the law of which I am speaking

is the common law of the members of a community. It

is law made by them, for themselves. The idea of the

imposition of rules by detached bureaucrats is unreal

and untrue. The dialogue between the Commission and

the Council of Ministers, from which the law emerges,

is a dialogue between the whole and the parts of one

entity, with the Commission representing the general

interest and the dialogue extending beyond the narrow

setting that I have indicated.

Secondly, it is Com-

munity law in the sense that it is the body of law which

must be common through the Community, if the Com-

munity is to be able to work as a whole. Without dis-

tortion, it is impossible in broad terms to have different

laws of competition in different parts of the unit. After

all, the Restrictive Practices Court is one of the few

completely United Kingdom Courts and it must be re-

membered how quickly and how richly non-tariff bar-

riers burgeon once tariff walls are down, and the second

crop of devils, we are assured on good authority, may

be worse than the first. Thus, within a community the

price of gaining advantages elsewhere is to admit others

to the same chances. In a further sense, as I have indi-

cated, Community law is thus the material out of which

the Community is being built. Thirdly, it is Community

law in that it partakes of the nature of the Community.

The same interpenetration of part and whole is appar-

ent in it, and die same practical and factual approach

marks the law just as clearly as it marks other aspects

of the Community. It is law, not built on dogma, but

upon practical needs, and by doing practical things the

whole structure is evolved. Fourthly, it is Community

law in the sense that it is and remains a new and dis-

tinct legal order, being neither national nor international,

but being purely itself—the legal order of a unity or pol-

ity to which the members belong. Their relationships

with and within that polity are novel and continuously

evolving. It follows therefore that the law must share

these characteristicss of novelty and continuous evol-

ution. The law becomes part of the process of inte-

gration, and it is thus that lawyers regain a creative role.

Finally, this sense of community is not confined to

Member States, for the law and the interpretation of it

through the court reaches out in ways that are of funda-

mental importance to individuals.

These propositions

I must justify and elaborate, but it seemed best at the

outset to set forth some principles which both dominate

the law and govern its relationship with national law.

The need for Community Law

The need for Community legislation is obvious. The

techniques of international legislation in a traditional

sense are deficient; they are too slow, too uncertain, and

too much exposed to pressures for compromise. In this

setting they are inappropriate, for absent from them is

any strong consequence of the representation of the

interest of the whole for which the legislation is to exist

—for in this setting legislation is not (in one sense at

leasts)

for

the Member States, it is

for

the Community.

Equally, the attempt to manage the situation within

such a Community by means of uniform laws in the

traditional sense suffers from even greater defects.

"Malheureusement, il y a autant de systémes de conflits

de lois qu'il ya d'Etats, si bien que le recherche d'une

doctrine qui serait commune á tous est trop aleátoire

pour qu'on puisse s'y adventurer" remarked the Avocat-

Général, M. Gand, in one case.

Thus these essential

characteristics of the Community endeavour are immed-

iately apparent when one looks at Community legis-

lation.

Regulations and Directives

Article 189 (and for the most part I am speaking

of the Treaty of Rome) gives to regulations a direct

effect within each Member State and is binding in its

entirety. (In the background it must be remembered that

regulations have emerged from the process of dialogue

to which I have referred.) It would be tempting to see

in these the primary legislative instrument of the Com-

munities. In practice I doubt if this is entirely so. Dir-

ectives (which are binding as to result but leave the

Member States free as to method and form) may in sub-

stance be as truly legislative, even though in order to

carry them out further State action, by enactment or

repeal, may be needed. When they are looked at in that

way, in the Treaty they are frequently related to funda-

mental questions of policy which are appropriate (at

any rate would be so within a nation state) to primary

legislation.

The point is made by looking at the first three chap-

ters of Title HI of Part Two of the Treaty. The free

movement of workers was to be established by either

Regulations or Directives; the right of establishment and

the freedom to provide services were to be achieved

through Directives.

One can discern or guess reason!

why at the time of drafting the Treaty a particular choice

was made for one form or another or options were left

open. The Directives had not only the apparent virtue

of impinging least upon the national legislature.

Their

true legislative character—which the constitution of the

Vth French Republic would have recognised by includ-

ing their fields in those reserved to

une loi

—lies in their

declaration of binding principle. Decisions must in many

(but certainly not all) cases be regarded as legislative,

where, for example, they may be the

causa causans

national legislation; hence the validity of that legislation

can only be judged against the content of the decision.

Through the latter techniques an attempt was made to

preserve the place of the parts while giving due weight

to the whole, and beyond that to recognize the problems

of welding together six existing legal systems and a

seventh emerging one. The diversity of law and the

conflicts of legal order, until certain principles had l>een

worked out,, could have produced not difficulty, but

chaos. Thus it is permissible to argue that, granted the