The Gazette 1972

Member State would have left the door open. The struggle under Article 173 (and even more under Article 175) remains appropriate to the rich and the brave and to their legal advisers (happily some keep trying). This loss is much less than might appear, for the camel can walk easily and more cheaply through that eye labelled Article 177, and that is more than bodkin sized. In van Gend en Loos the Court emphasized 21 that the vigilance of individuals was a necessary and suitable supplement to the controls under Articles 169 and 170, just as in Schwartze 22 it kept wide open the opportunity to challenge the validity of Community Acts under Article 177 recognizing the narrowness of that possiblity under Article 173. Article 177 of the Treaty It is then with Article 177 that the lawyer will be primarily concerned. The procedure under that Article is simplicity itself and fits easily enough into any legal system. 23 It is through this Article that the great lines of Community law have been determined and it is by this means that the lawyer is brought within his own native setting into the ambit of that law, and that his established, or received, pattern of thought is chal- lenged. Outstandingly important were the twin ideas evolved in the early cases of the direct applicability of Community law, and of the new and distinct legal order linking these two, and enhancing the effect of each is the concept that from the Treaty individuals derive rights. 24 Once it is remembered that the role of the Court of Justice under Article 177 is simply that of interpre- tation (or, as the case may be, of passing on the validity of Community acts) and that application of Community law is left to national courts, it becomes clear that not only do those courts become, for this purpose, part of the Community judicial system, but also that national lawers are immediately and closely linked with Com- munity law. The latter ceases to be an esoteric branch of law which is the province of a small band of spe- cialists. The "political" justification for such a system is clear. Instead of the imposition of a totally new and self-contained judicial structure, the endeavour is made to invoke a real and fruitful collaboration between national courts and the Court of Justice. At the same time this system should achieve the interpenetration of the two legal orders and a decentralized administration of a Community one, with all the consequential gains to individuals which that entails. The risks inherent in such a system are equally clear, that national courts and lawyers may for a variety of reasons reject of neglect this new role. In the long run, as experience already demonstrates, that risk was worth taking, f° r only thus could Community law implant itself in the various legal systems. What rules of the Community have direct effect These initial propositions have, of course, been elab- orated and each has had an effect upon the others. Th e idea of what rules have direct effect is an autonomous one appropriate to this legal order and, while connected with the similar concept of international law, it is not derived from or identical with it. It could not be, fo f ' again, there are so many ideas of what is directly appK c ' 106

key to the place of lawyers in the system of Article 177 under which both these cases arrived in the Court at Luxembourk. In saying that I do not underestimate the importance of proceeding under Articles 169, 173 or 175, that is to say the direct ways of challenging the misdemeanours or misbehaviour of states, or those of the Council and Commission. These will remain serious and important, especially Article 169, the action against Member States by the Commission, which is important not merely for its immediate and obvious effects when it is invoked or threatened, but for the support which its existence gives, in the terms in which it is drawn, to the position of the Commission. But, as far as the generality of lawyers is concerned, the proceedings, in contrast to their results, are not of such great interest. Under the Protocol of the Court possible representation by the Commission or a Member State is broadly defined in terms which go beyond the definition of the possible representation of a private party. 17 No doubt then representation here will be by a highly specialized group. In distinguishing the results of litigation under this head from the actual conduct of it, for such liti- gation, by clarifying the Treaty, may have immediate and more remote consequences to which I must turn in due course. For the moment it suffices to emphasize that the fact of proceedings under Article 169 was an important element in the decision of Aff. 33/70, though it was combined with other elements and the precise weight of each element remains to be worked out. Probably, of all three elements, it was the least signifi- cant, though in other cases this need not be so. Articles 173 and 175 of the Treaty Article 173, and its corollary Article 175, which con- cerns non-action, I discount for other reasons. Individ- uals there have to overcome two hurdles, the definition of what concerns them individually, and of what con- cerns them directly. It would periiaps be more accurate to say that they have to pass through the eyes of two separate needles, and we are told on good authority that few achieve this even with one needle. So far, only the firm of Toepfer and another have achieved this dis- tinction, 18 and they only did so in circumstances which were highly particular. Thereafter those who have sought to emulate their success have failed, and per- haps for good reason, at this stage of development. The jurisdiction under the Article just mentioned is that with the highest political content, it involves a direct chal- lenge to what must, in many cases, be regarded as primary discretion of the Commission and there is all the objection in a modem society to opening up a full actio popularise and those objections gain added weight in the Community setting from the difficulty of achiev- ing such legislation in the first place. From the outset a warning had been given that challenges of this order, even where there were mutatis mutandis acceptable within a national setting, were to be less readily received in a Community setting. In Fedéchar the Court rejected the proposal of the Avocat-Général to open the door under Article 33 of the Treaty of Paris to an association of producers, 20 even where the "legislative" quality of the act in question was less than it would be under the Treaty of Rome, and where national law in at least one