84 / 294
terms in which Article 189 was drawn, when a choice
had to be made in fundamental matters, the final choice
had to be for a Regulation having direct effect immed-
iately. In agriculture the initial choice was open; as it
was on the industrial side, as far as competition policy
was concerned. In both cases die choice was made for
Regulations.
9
Because in each case the matter was
fundamental, there had to be uniformity, and the appro-
priate instrument appeared therefore to be the Regu-
lation. May I remind you again that within the full
economic and customs Union of Great Britain not
merely had there to be uniformity on restrictive practices
hut also of tax—what can receive immunity as a charity
had to be the same in England and Scotland.
10
May 1
also remind you that all these decisions were taken at
the time when unanimity was the only permitted rule
of the Council. Thus it may fairly be said that Member
States imposed those rules upon themselves within the
decision-making process of Article 149.
Conventions
It would be a mistake to limit the idea of legislation
m a Community sense to these more obvious forms
under the Treaty. Clearly Conventions concluded under
Article 220 are, for example, to be included. To lawyers
such Conventions may be of particular importance; that,
for example, on the enforcement of civil and commercial
judgments has an immediate and important impact in
practice, and by its terms, it should be noted, it affects
judgments in any of the Member States whether or not
the parties to the litigation are exclusively Community
subjects. While it could be argued from the wording of
Article 220 "Member States shall, as far as necessary,
eater into negotiations . .
that the resulting conven-
tions partook of the nature of traditional international
conventions, it is nevertheless clear from cases such as
Commission c.
Republique
ltalienne
11
that this is not so.
Such agreements must be contained within the frame-
work of Community law.
REFERENCES
1. "The Common Law, Public Policy and the Executive"
(1956) 9
C.L.P.
at p. 14.
2. I include among such principles the British one of the
Sovereignty of Parliament (in relation to which I have
reserpations, see my
Constitutional Law
(2nd ed., 1968),
chapter IV. It was, so far as it has validity, appropriate
to the historical circumstances of British constitutional
history, and in particular to an "enclosed" constitutional
system. Changed circumstances change it. A perfect
example of what I mean by relativity in this context is
afforded by Aff. 11/70
Internationale
Handelgesellschaft
GmbH.c. Einfuhr und Vorratstel.e fur Getreide und
Futtermittel
in relation to human rights under the Basic
Law of the Federal Republic and under Community law,
as to which see the subsequent discussion.
3. The extended dialogue underlies the almost theological
debates which lasted for a time about the words "par
l'entremise des représentants permanents" in the Luxem-
bourg compromise—a debate happily now dead.
4. All of this may be summed up in a brief quotation from
the decision in Aff. 26/62
Van Gend en Loos
IX R.I., 23:
"la Communauté constitue un nouvel ordre juridique de
droit international au profit duquel les Etats ont limité,
bien que dans des domains restreints, leurs droits
souverains, et dont les sujets sont non seulement les Etats
membres mais egalement leurs ressortissants".
5.
Hessische Knappschaft c. Maison Singer
Aff. 44/65 XI R.
1191, 1209.
6. Compare Articles 49 and 54.
7. In practice this is untrue—it can result in converting the
national legislature into a rubber stamp, e.g, when it
requires the repeal of a specific provision. This too entered
into the "Luxembourg Crisis". In practice in many cases
no other choice was open to the Communities, but this
somewhat specific use of Directives.
8. The absurdity in this context of the traditional sort of
theoretical classification exercise is immediately apparent.
What is the nature, e.g., of a decision fixing the price of
a particular kind of wheat, a price which thereafter affects
the lives of millions, as against a regulation which, though
general, affects few. The paradox is familiar.
9. Articles 43(2) and 87(1) carried out in Regs. 19-24 of 1962,
J.O. 933/62
et seq. :
Reg. 17 of 1962, J.O. 204/62.
10.
I.R.C.
v.
City of Glasgow Police Athletic
Association
(1953) S.C. 13 (H.L.).
11. Aff. 38/69 XVI R. 47.
Common Market I
Contents—February 1972
Deutsche Grammophon GmbH v Metro-SB-Grossmarkte
GmbH & Go. KG.
—Hanseatische Oberlandesgericht, Hamburg.
Restrictive practices—"Marketing' is fact of delivery
m place where transfer effected—Reason for delivery
by carrier irrelevant—Servant's disobedience does not
alter effectiveness of marketing—Distribution rights
under German copyright law a disguised restriction
under
Art. 36 (2)
E.E.C.
Firma Kurt Siemers & Co. v Hauptzollamt Bad Reich-
er
»hall.
—European Court.
interpretation of product subject to customs taiiff—
External aids to interpretation—In absence of EEC
e
xplanatory provisions explanatory notes by Customs
ooperation Council may be used—National court's
duty to interpret classification of products—Non-
retroactivity of tariff classification—Tariff classifi-
tw Reports
cation a legislative act—Effect of administrative
notices on amended legislation.
Re Levy on Apricots.
—Finanzgericht, Bremen.
Customs laws—Liability to levy—Burden on customs
authority to prove affirmatively liability to levy—
Conflicting laboratory evidence resoluble in favour of
importer—Use of refractometer analysis of sugar con-
tent relevant to amount of liability andn ot to deter-
mine liability.
Bock v E.C. Commission.
—European Court.
Protective measures under
Art. 115—
E.C. Commis-
sion exceeds powers of authorization over pending
import licences—Member-State's protective measures
against imported goods must be "necessary"—"Indi-
vidually affect" goods already imported by indivi-
dual firms—Community decision "directly affects"
individual firm where latter warned in advance ot
member-State action.