The Gazette 1977

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GAZE1TE DECEMBER 1977
Book Reviews
The European Communities and
die Rule of Law
Mackenzie Stuart (Lord), The European Communities
and the Rule of Law. London: Stevens, 1977. £1.95
Paperback. (Hamlyn Lectures, 29th series)
The impact of European Community Law is gradually
being felt even in Ireland, as a result of the Fishery cases,
and the case against France prohibiting the importation of
Irish lamb. Lord Mackenzie Stuart, the Scots Judge,
representing Britain, has himself made an outstanding
impression on the European Court, as the Continental
Judges thought at first that British Judges would not
adjust to the procedures of the Civil Law, but were soon
disabused. The learned author reminds us that already 14
years ago, in the Van Gend case, the Community was
declared to be a new legal order; he reminds us that
specialist writing on Community Law is vast, but is
normally only read by specialists. The Schuman
Declaration of 1950 introduced the notion of the
integration of European frontiers as a vital part of the
national economy. The rule of the Conseil d'Etat required
that the public interest and the legitimate private interests
should be balanced against each other. The primacy of
Community Law, and its direct effect on decisions of
National Courts are underlined. The Van Gend case,
which applied Article 12 of the Treaty directly to
National States is fully described. The Treaty of Rome
cannot be amended unless the amendments are
ratified by the Parliaments of the nine Member States.
The "law" which Article 164 of the Treaty imposes
upon the Court to observe included the Treaties,
Directives and Regulations. The following are the main
characteristics of Community Law:—
(1) The written law of the Community is not all of equal
weight. At their apex stand the Treaties, which may
be interpreted by the Court, but whose substance is
unchallengeable. But all subordinate legislation can
be challenged on the ground that it does not conform
to the Treaty. The unity of Community Law through
the Member States, though nowhere expressed, must
be implied.
(2) Apart from written Community Law, there is also
unwritter Community Law, which consists in (a) The
principle that assurances relied upon in good faith
should be honoured, (b) The principle of the necessity
to protect legitimate expectations. In order to
illustrate this the Court, in . v. Commission
(1975) ECR, ruled that the Community would be
liable if it abolished, unannounced, certain financial
provisions without adopting transitional measures,
unless overriding public interest prevailed. In
considering the judicial process, it must be
remembered that many terms bear a much broader
interpretation in French than a similar word in
English. In assisting a National Court to interpret the
Treaty correctly, the European Court may sometimes
be faced with difficulty by giving either too broad or
too limited an interpretation.
As the European Treaties cover a large part of the
economic life of the Member States, the Court must
decide how far it is proper to concern itself with matters
involving policy and administrative choice. In particular a
Court can always consider whether a Minister had a
sufficient basis for a decision in fact to justify his decision;
this is an unchallengeable principle of Continental Law.
In considering a case the European Court always
applies the following Continental principles:—(1) The
separation of the Judiciary from the Executive and the
Legislature, (2) The concepts of "Public Law" and of
"Private Law". Any action against an administrator is
always deemed part of "Public Law". (3) It is a denial of
justice not to apply formulated rules — a plaintiff cannot
be non-suited. (4) In Federal Germany, Italy, and Ireland,
judicial decisions must ultimately conform with the
Constitution. (5) There are different attitudes to control
administrative action in France and Germany. For
instance, if in Germany a student is refused a room in a
college hostel, the Court would hold the decision invalid
without considering whether the trustees of the hostel had
used their discretion properly. In so far as the individual
needs protection, there must be judicial machinery
available to provide that machinery, and this is called
judicial control.
Note that the Treaties do not speak of "legislation" but
only of "acts" of the Council of Ministers or of the
Commission. In the Eurocontrol case 14th October,
1976, the Court held that matters affecting Civil or
Commercial Law pertained to private law. The learned
author refers to difficulties of translation. The well known
French "ordre public" is not "public policy" but "public
order". In view of the well known horse trading in the
Council, the Court tends to avoid a minute textual
analysis of the relevant document.
Some external factors arise from the changes,
political and economic, which have taken place since the
Treaty of Rome in 1957.
(1) Political developments affecting the decision process
of the Community.
(2) Failure to take Community action where action is
required, which produced absence of relevant guide
lines.
(3) The Treaty was founded on a number of economic
premises which were then true, but are no longer so.
There was an unjustified assumption that the
principal economic currencies would remain stable,
and that real earnings would increase at a steady rate!
It will be seen that Lord Mackenzie Stuart has in a
masterly fashion drawn attention to the serious difficulties
that confront the European Court in construing the
Treaties and the secondary legislation. All in all, it must
be admitted that the Court has faced up to its
responsibilities with courage and determination.
Independent Actuarial Advice
Regarding
Interests in Settled Property
and
Claims for Damages
BACON A WOODROW
Consulting Actuaries
58 Fltzwllllam Square
Dublin 2 (Telephone 762031)
210