The Gazette 1972

able and what conditions as there are Member States, 25 and thus the dangers of uneven application would have been real. The advantage of this autonomous character is that lawyers are freed from the confines of the mon- ist/dualist argument about international law, and for a dualist country such as the United Kingdom this is im- portant. The hopeful elements in cases such as Salomon v. Commissioners of Customs and Excise 20 can be built on without the hindrance of former doctrine. Where, as in France, an attempt is made to keep Community law close to international law difficulties arise despite appar- ently favourable constitutional conditions. 27 This direct internal effect was present from the start—it was, as has been seen, written into the definition of Regulations in Article 189; it was greatly extended, when it had been decided that all provisions of the Treaty of Rome, even if left apparently to States, had this direct effect so that individuals could take advantage of them, provided that the provisions were in themselves clear and required no further action involving substantial discretion. This effect is present whether the obligation imposed upon the Member State is one to do or not to do. 28 In all these case-. the fullest internal effect is envisaged; that J s to say both an effect as against a Member State, and an effect as between individuals. The volume of law thus directly applicable is continually expanding, as a result of new regulations or because provisions become unconditional by reason of lapse of time, or, it would seem, because they have become clear. To the extent that, for example, the meaning of provisions is illimin- ated as a result of proceedings under Article 169 there appears to be no logical reason why direct effect should he denied. A really significant extension results from the two Decisions already referred to, giving some direct effect to Decisions and Directives in appropriate cases. 20 In both cases the Court speaks of direct effect in the relations between the Member State, the destinatory of the Decisions or Directives and those engaged in liti- gation with the Member State. This may then be a more confined version of direct effect, though clearly in many circumstances it may be among the most important. It ls that which will force States to hold to their accepted obligation. Words in a Community legal context It is in relation to "direct effect", the factual necessity I°r which I have sketched, that the real problems arise, a nd it is in this context that the idea of a new and distinct legal order combined with that of the dual character assumed by national courts assume their greatest importance. The meaning of words within a Community legal context is lifted out of any national getting and need not correspond with the connotation of 'dentical words in a national system. Thus in the setting migrant workers, such a meaning has been insisted 0,1 for the simple word "travailleur". 30 So, too, within die field of competition law it is clear that the idea of ^hat amounts to an obstacle to "inter-State" trade, and the way in which particular contracts must be regarded Irom the point of view of their legality under Article 85, af e, and must be Community concepts applied, in a mong other ways, by national courts. The way in which a group of contracts, each apparently a separate one.

is treated need not correspond to the way in which a national court would, by the light of nature and of its own history of the law of contract, conceive the matter. These lines, on which principles are emerging, appear, for example, in cases dealing with what we would call "tied-houses". 31 The conservation of this Community meaning is obviously necessary to keep uniformity, but it has also to be remembered that the Community is and will remain a many-tongued thing, with each language having equal value, and the translation into one language may only be an approximation to the intended meaning. Hence for precision all originals may have to be used. Thus, the distinctiveness of Community law has to be conserved in what ever setting it is administered. The trap of thinking that because it is administered in a national setting it is transformed or transposed into national law must be avoided. It must be avoided not merely when dealing with "primary" Community law but also with what may be called "secondary" Com- munity law. Legislation which emerges as a consequence of Directives, although it is national in form, retains its Community substance—for the validity of the substance must be judged against the substance of the Directive which was its cause. Clearly then lawyers must be able to think in two dimensions—that should not worry them if they are to retain their positions as true artists and not journeymen. Moreover, these two dimensions help to surmount diffi- culties that can arise, and they correspond to the necess- ities of the case. It is only if Community law is regarded as being transformed—de-natured would be another way of putting it—that certain difficulties arise. The Court of Justice speaks in this context either of "des droits que les juridictions nationales doivent sauvegarder" in those cases where it is dealing with the broad meaning of self-executing, or of "d'engendrer pour ceux-ci [scil. les justiciables] le droit de s'en prévaloir en justice" when it speaks of what may be a narrower self-executing effect. 32 Now, at the moment of application, that is of the actual safeguarding of rights, numerous theoretical difficulties can arise and must be surmounted. In Salgoil to which I have just referred there was the problem of whether or not this was properly a task for the civil courts (whence the question had come) or whether it did not belong to the administrative courts. In cases such as Molkerei-Zentrale 33 the problem facing the Ger- man courts was that or what to do when a German law had imposed a compensatory turover tax, which the Court of Justice had clearly indicated was contrary to Article 95. For the German Finance Court the prob- lem was all the greater because of the existence of the German Constitutional Court which alone had the cap- acity to pass judgment on the validity of a law. One could continue the volage through France and Italy. 34 It is not necessary, for here immediately one is faced with the problem that British lawyers call the sover- eignty of Parliament, but which is perhaps miscalled, and it is certainly not simply a British problem. In Italy, for example, in the case just referred to, it emerges as one of the hierarchy of norms; in France it emerges as Lawyers should think in terms of Community law and of national law

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