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LEGAL EUROPE
The effects of Community Law from the
point of view of the National Judge
by LORD MACKENZIE STUART, Judge of the European Court of Justice. Delivered in Luxembourg, May 1974.
Scope of talk
One of the most characteristic and paradoxical
features of the European Economic Community is its
reliance upon national agencies. An obvious example
is to be found in the working of the Common Agricul-
tural Policy. While the regulations governing its opera-
tion are the responsibility of the Council and the
Commission, the intervention agencies, which are at the
heart of its daily operation, are the creation of each
Member State—the various Einfuhr und Vorratsstelle
in Germany or the Hoofproduktschaps in the Nether-
lands and now, in Great Britain, the Intervention Board
for Agricultural Produce. It is here that the producer
seeks the intervention price; it is this national agency
which he sues in the national Court if he thinks that he
is not getting his entitlement. Community policy as
regards the social security of what were formerly known
as migrant workers (now "employed persons") is to be
found in the Council Regulation 1408/71 of 14 June
1971 (O.J. L 149/2, p. 416), but it is to the office of the
national agency which the individual turns for payment
and it is to the relevant national Court or Tribunal
that be turns if lie is not satisfied.
In each of these instances the national Judge is
called upon to apply Community law as part of his own
law and in his own Court. Certainly, when there is a
question before him concerning the interpretation or
validity of Community law he can, and sometimes must,
refer such a question to the Court of Justice here in
Luxembourg but, save in direct actions before this
Court, the application of Community law is almost
always a concern of the national Judge. Indeed the
only exception lies in the field of competition where, if
the Commission has already begun the procedure laid
down by Regulation 17, certain national Courts may
have their competence withdrawn, but in a very recent
decision of the Court of Justice this exception has been
narrowly construed (Case 127/73, Belgian Radio and
Television, decision of 12 February 1974).
The purpose of this talk, then, is to emphasise the
importance of the role of the national Judge and to
select certain aspects of Community law with which,
from the past experience of this Court, he is likely to
be faced.
The nature of Community Law
As a preliminary it may be helpful to say something
of the nature of Community law and to stress certain
features of it.
Those of you who are familiar with the detective
novels of Dorothy Sayers may remember that on one
occasion her hero, in quoting Lord Peter Wimsey, says,
"Have a quotation for every occasion; it saves original
thinking." May I take a well-known passage from one
of the earlier decisions of the Court of justice,
Van
(lend en Loos v Ncderlandse Tarifcommissie
(Case 26/
62 Rec. 1963, p. 1, at p. 23; (1963) C.M.L.R. 105 at
129. English text cited is, however, the version shortly
to be published as the official English text) :
"The objective of the EEC Treaty, which is to
establish a Common Market, the functioning of
which is of direct concern to interested parties in the
Community, implies that this Treaty is more than an
agreement which merely creates mutual obligations
between the contracting States.
"In addition the task assigned to the Court of
Jus.ice under Article 177, the object of which is to
secure uniform interpretation of the Treaty by natio-
nal Courts and Tribunals, confirms that the States
have acknowledged that Community law has an
authority which can he invoked by their nationals
before those Courts and Tribunals . . .
"The conclusion to be drawn from this is that the
Community constitutes a new legal order of inter-
national law for the benefit of which the States have
limited their sovereign rights, albeit within limited
fields, and the subjects of which comprise not only
Member States but also their nationals. Indepen-
dently of the legislation of Member States, Commu-
nity law therefore not only imposes obligations on
individuals but is also intended to confer upon them
rights which become part of their legal heritage.
These rights arise not only where they are expressly
granted by the Treaty, but also by reason of obliga-
tions which the Treaty imposes in a clearly-defined
way upon individuals as well as upon the Member
States and upon the institutions of the Community."
Within this passage are gathered together a number of
concepts which during the last decade have been further
refined and analysed in an ever-increasing volume of
case law not only here at Luxembourg but, again I
emphasise this, also in the Courts of the Member States.
In the first place we are told that "the Community
constitutes a new legal order in international law".
"In international law", perhaps, because the Commu-
nity has been created by a Treaty, a concord reached by
sovereign States, but the emphasis falls properly on the
words "a new legal order" since what the Treaty of
Rome set out to do was to create a body of rights and
obligations not merely binding on the Member States
but, in certain major sectors of the economy, intimately
affecting the inhabitants of those countries.
In the second place, the passage emphasises that the
terms of the Treaty, affecting not only Member States
but also their citizens, creates rights as well as obliga-
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