The Gazette 1972

EUROPEAN SECTION

Lawyers and European Communities by PROFESSOR J. B. MITCHELL

Text of a Lecture given in Queen's University, Belfast, on 24th February 1971 (•Reprinted by kind permission from the Northern Ireland Legal Quarterly —Volume

20, 1971, pages 149-167)

PART II

(Footnotes appear at the end of each part of the lecture) Community law necessary to all lawyers in the Community It was then clear from the outset that Community law had to become part of the stock-in-trade of all lawyers within the Community. What has become apparent is that the extent to which it does so is continually in- creasing. Not merely is the simple quantity of law growing naturally as policies are worked out and put toto effect, but also in recent months the range of legis- lation which does so penetrate a national system has increased. A quick reading of Article 189 might lead to the view that in no circumstances were Decisions or directives of that type. Two recent opinions of the Court at Luxembourg have shown that this is not so. Both Decisions and Directives éven though addressed °n the fact of them simply to Member States are capable °f conferring rights upon individuals to which national courts are bound to give effect or to protect. There is thus opened up to individuals a right for example, to reclaim or to resist a claim to taxes or duties demanded hy a national administration, where such a demand is to conflict with Community law. I will return to an examination of the precise nature of the direct effect as against other such effects, but for the moment merely wish to emphasize that for the lawyer the key to under- standing Community law is to regard Community law as a form of constitutional law. I am no supporter of touch of what is commonly put forward as the federalist theory of Europe, for traditional federalism and its range of ideas does not fit this European scene, yet it is tempting to cite here Chief Justice Marshall in Mc- culloch v. Maryland 12 emphasizing that the interpre- tation of a constitution differed radically from the inter- pretation of legislation, that the United States had chosen to be a nation and of that the constitution was a mark, it was the order established for ages to come, hi the same spirit M. Lagrange, in his conclusions in ^edéchar, 15 speaks of the Treaty as the charter of the Community Thus the first thing that lawyers must learn ls to study the nature of this art of constitutional inter- pretation- •ravel good for migrant workers "ence, looked at in this way the decisions in two cases |to migrant workers were entirely predictable. In Aff. ^ / 63 the Court remarked "qué l'établissement d'une hberté aussi compléte que possible de la circulation des

travailleurs, s'inscrivant dés lors dans les 'fondements' de la Communauté, constitute ainsi le but principal de Particle 51 et, de ce fait conditionne l'interprétation des réglements pris en application de cet article." 14 In its sequel, Hessische Knappschaft c. Medson Singer, 15 the words "migrant worker" were held by the Court to cover the worker who was only "migrating" in the sense that he was on holiday in a Member State other than his own. That is to say that in the Communities travel was a good in itself, and given a choice between a narrower and a broader interpretation, either of which might have been legitimate, the choice was made for that interpretation which supported that good. In just the same way one could have said that the judgments on the effects of Decisions and Directives were, or should have been, predictable. 10 The whole run of events, the working of the Treaties and their internal logic as it had been illuminated by earlier decisions of the Court combined to lead to the conclusions actually reached, provided that there were no insuperable obstacles in the way. Such a judgment was only possible in the recent past, where certain elements in the prac- tical and political evolution of the Communities was clear. A few years earlier the prediction would have had to be in the opposite sense, simply because in the then the result which today is to some (including our Customs constitution or political situation of fact or knowledge and Excise authorities) startling enough, was inconceive- able. This is an indication of what I mean when I say that an adjustment to constitutional interpretation is essential. I am not arguing for legal uncertainty, or against sécurité juridique (an idea which is in the forefront of the thinking of the Court). I am merely stating the obvious that a constitution, a character, un- like a law or a normal treaty does not consist of so many static words on paper. The meaning of those words is constantly enlarged or illuminated by changing circumstances and by evolution—or at least it is in the hands of the right sort of court. Implications of Article 159 for lawyers Here clearly two of the implications for lawyers are emphasized: first, the penetration of Community legis- lation upon which I have briefly touched; secondly, the implication of this law for lawyers in quite humble affairs. It is at this point that one comes to the heart of the matter, for the key to Community law, and the

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