The Gazette 1974

ngle judgment provisions in Irish constitutional cases

affecting Statutes after 1938 and in the Irish Court of

minal Appeal will receive a fresh appraisal, if the

°Pportunitv arises to enact a new Constitution.

Kapteyn (P. J. G.) and P. Verloren Van Themaat—

Production to the Law of the European Communities

r the Accession of the new Member State

. Royal

£io'o(T

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4 3 3

L o n d o n

S w e e t & M a x w e l l

1 9 7 3

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petitioners will doubtless be aghast that yet another

ume

o n

Common Market Law has been written by

Dutch Professors of Utrecht University. Professor

^ t c h e ll in his Foreword has emphasised the utility

this "Introduction" insofar as it relates the legal,

Political and economic aspects of the Community. All

yelopments relating to the accession of Ireland,

tain and Denmark up to 1 April 1972 are included

what the authors call "a concise introduction". The

offi °

rS a d m

' ' toat the volume is primarily written for

Pcials rather than for lawyers. But they have mainly

sed their argument directly on primary Community

> the innumerable cimplementing rules, the ad-

'nistrative practice of the Community, and the bulky

JPisprudence of the Court of Justice,

starts with the Schuman plan leading to

n e

European Coal and Steel Treaty of 1951, and

.tontually to the Treaty of Rome of 1958. In consider-

.1 ^ general aspects of the Communities it is emphasised

> while objectives and principles are formulated in

Treaties, it is left to the institutions to work out

e s e

principles and objectives in concrete measures;

se are essentially rules of conduct for the national

mments in the form of injunctions or prohibitions

p VP the general objectives are largely identical. This is

reinforced by the Merger Treaty of April 1965, which

stituted a single Council of Ministers and a single

°Pmission, and by the fact that the Treaties are

eated as Primary Law, while the rules of the Com-

munity institutions form the basis of Secondary Law.

Institutional

Law

is said to relate to the applica-

°n and revision of the Treaties as well as the legal

rsonality, regime and immunities of the Communities.

Community Law, involving the maintenance of a

ummon market, is a common Internal Law in the

ember States, which is provided for by extensive

Sanisational and procedural provisions, rather than

.?ue dieta of International Law. The sources of Com-

unity Law seem to be the importance of the acts of the

toutions, as well as general legal principles. German

u Italian Constitutional law is rightly praised as it

Pplies automatically the written rules of international

, % to national law. The European Court has wisely

^ eided in many cases that some provisions of the

toaties are

self-executing,

and are consequently binding

the municipal law of the Member States. No mere

, toestic law, however far-fetched, can be adduced

tore a municipal Court as against Community Law.

ject to the internal Constitution of the State, the

municipal Court should give to the rules of Community

Law the effect desired by the European Court.

There is then a learned but diffuse chapter on the

Socio-Economic principles of the Community, which

considers in detail the basic objectives of Article 2, and

the basic principles of Articles 5, 6 and 7. The relation-

ship between the Council of Ministers and the Com-

mission is fully set out in the chapter on "Institutional

Structure". While the Commission serves the general

interests of the Community, there is close collaboration

with the Council. The restricted powers of the Euro-

pean Parliament are rightly criticised. The manner in

which the European Court may act either as an

administrative Court, an international Court, or a Con-

stitutional Court, is fully debated.

In the chapter on Policy-Making and Administration,

it is emphasised that the principal legal instruments for

the application of Community Law are the official acts

of the Council and of the Commission, as well as inter-

national Treaties and agreements, and regulations,

directives and decisions. The budgetary procedure, as

well as the decision-making procedure in the Council is

then fully explored.

The chapter on the Administration of Justice will be

of special interest, as it considers the various functions

of the European Court, such as (1) actions for Treaty

infringements, (2) annulment of regulations and direc-

tives; and (3) inaction in specified cases by the Council

or the Commission. However the role of the national

Court is still paramount as, in the first instance, an

individual, who wishes to contest the legal validity of

acts of national bodies as being contrary to Community

Law must apply first to the National Court, which can

if necessary ask the European Court for a preliminary

ruling. Undoubtedly the

théorie de I'acte clair

lays down

that the obligation to refer does not apply, if the

Supreme Court holds that there cannot be any doubt

about the answers to the questions raised. The Four

Freedoms—relating to Goods, Persons, Services and

Capital—are then fully described. The Competition

Policy is then considered; this includes the problem of

harmonisation of laws, as well as the distortion of the

conditions of competition under Articles 101-102 and

92-94, and also the rules of competition for undertakings

under Articles 85, 86 and 90. This is followed by a

chapter on Economic and Social Policies, as well as

Sectorial Policy, which includes Agriculture, Transport,

European Coal and Steel, and Atomic Energy. The

problem of external relations is explored under the

heading of common commercial policy. Finally the

details of the Treaty of Accession are fully explained, as

well as the changes due to the non-accession of Norway.

It will be seen that the learned authors have covered

very much ground in their "Introduction". From the

innumerable footnote references, it is obvious that they

are masters of their subject. It follows that the practi-

tioner, who takes the trouble to study it in depth,

will derive much benefit from it. The publishers are to

be congratulated upon their usual high standard of

general presentation and fine printing.

100