The Gazette 1972

follows from the word autonomous that this new legal order must be ecletric. It follows that the fundamental rights which the Court will protect, while not identical with those of any Member States, are those which are derived from the common experience of the partners. So too it is evident from the conclusions of any of the Avocal-Généraux how the laws draws on the common stock of principle as indeed it is enjoined to do under Article 215. Thus the addition of any new major system will inevitably have its effects. That too must be taken into account so far as the future is concerned. Clearly so far as the past is concerned, what has happened re- main. The broad patterns of interpretation and general attitudes will and must remain. It would be absurdly agressive to expect otherwise, and would create serious legal uncertainty among existing Member States were anything different to happen. Thus British lawyers must enter into the legal world of the Community as it is, and I have simply tried to sketch a plan of major elements of that world. Structures, let alone evolution, are far from complete and it is in relation to the creative work still to be done that British lawyers can contribute. The more they are ready to enter into sympathy and understanding with what has already been achieved the more they will be able to contribute. I have chosen to stick with these principles of law and not to enter into these arguments about the mean- ing, in English, of avocat, rechtsanwalt, etc., and of who may plead before the Court. These are very minor arguments. I can assert that not merely because as a Professor I am not on piece rates, but because this is the sort of issue which can only be decided by the Court and by the professions in the light of full knowledge of the procedure of the Court and taking account of what finally will give the best service to the client. The legal professions are at the moment much open to scrutiny. They will survive and indeed regain their glory if they will seize with imagination the possibilities which the Common Market opens up by providing a true service for their clients in this new setting. It is those clients and their gains that are also the primary concern of the Communities. The greater part of the service can, as I indicated, be rendered not in Luxembourg but here in Belfast, or in Edingurgh, or wherever the client is. J. D. M. MITCHELL* 18. Aff. 106 and 107/63 Alfred Toepfer KG. c. Commission de la C.E.E. XI R. 525. 19. Of such problems some parts (but some parts only) of MacCormick v. Lord Advocate (1953) S.C. 396 give sufficient warning in a domestic setting. 20. Aff. 8/55 II R. 199 at 227: "Ces considérations contre- disent nettement l'illogisme de la reque'rante faisant sup- poserqu'il faut subordonner Interpretation du Traité au désir d'ouvrir aux entreprises privées un droit de recours pratiquement identique á celui des Etats et du Conseil. Un tel voeu peut se comprendre, mais le Traité ne contient aucune indication permettant de conclure á l'octroi aux entreprises privées d'un tel droit au contróle de la 'con- stitutionnalité' des décisions géncrales, c'est-á-dire de leur confromité avec le Traité, alors qu'il s'agit d'actcs quasi législatifs émanant d'unc autorité publiqus et ayant un effet normatif 'erga omnes'." The heart of the proposal of M. Lagrange is at p. 249. Cf., his remarks under the Treaty of Rome in Confederation des Producteurs de 109

to be the full application so that individuals reap the full benefit. As Corveylen shows there must be a readi- ness to challenge, in legal forms, administrative decisions which is greater than our present readiness. No harm can come from that. Beyond such matters lawyers will have to use ideas such as that of " urte faute de nature á engager la responsabilité de la puissance publique" which has little to do with our private law of negli- gence. If one looks at Article 215, one accepts that in the Community system any act for which reparation is due is quite likely to be an act in which both Com- munity and national administrations have participated. Who then, if the act was faulty, pays? The answer which is reasonable in that in circumstances where there is shared fault, then the burden is shared. 4:t The answer is logical, but it only achieves its intended results pro- vided that within reasonable tolerances national systems of law can give roughly comparable redress. In this area of law British legal systems are far behind and a conscious effort of imagination will be required at the very least. 44 It is in this area that there is, perhaps, both the greatest challenge to lawyers of all ranks and also the greatest potential gain to individuals of whatever order. I have, at this stage, only mentioned remedies— but the philosophy of continental public law produces other important changes. Procedural rules—such as those relating to the burden of proof where détourne- ment de pouvoir is alleged are of the utmost practical importance and, incidentally, of assistance to individ- uals. Two final points must be briefly made. The shock to lawyers can, in one sense, be greatly exaggerated. I was not in practice when the 1925 property legislation came into force in England, though I did in fact read my Challis as one of the early books on property law. The demands which that legislation made on the "bi- lingualism", imagination and thought of conveyancers Was of the same order as the demands of which I have been speaking If lawyers are to serve the community they must face these demands, as did the conveyancers. I have spoken too of all that lawyers must learn. It is certainly not too late to start, for the volume of law is still within comprehensible limits. There is the other side. I have no doubt that there is much that British lawyers can contribute and I say that in all humility. It again 12. (1819) 2 Wheat 316. 13. Aff. 8/55 II R. at p. 263. Indeed, for their formative role, and for their quality of visionary practicality it is very reasonable to compare the opinions of Chief Justice Marshall and the conclusions of Avocat Général Lagrange. In stating that T am aware of the danger of too close and detailed comparison—the Court in Fedéchar itself rejecting one part of a constitutional role, though in other cases steadfastly conserving the essence of that role. 14. Aff. 75/63 Unger c. Bestuur der Bedriifsverniging voor Detailhan del en Ambachten a Utrecht X R. 357, 362. 15. Aff. 44/65 XI R. 1191. 16. Aff. 9/70 Grad. c. Finanzamt Traunstein and Aff. 33/70 S.p.a.S.A.C.E. de Bergame c. Le Ministé des Finances de la Republique Italienne. The arguments based on the economy of the Treaty are more convincing than those on the wording of Article 189 as they appear in Aff. 9/70. 17. See the distinction drawn in Art. 17 of the Statute of the Court.

FOOTNOTES