The Gazette 1972

THE COURT OF THE EUROPEAN COMMUNITY EUROPEAN SECTION by The Editor Part 1.

cannot be questioned by them. The Court of the Com- munity also has power under their respective provisions to determine questions arising out of the Treaties establishing the European Coal and Steel Community and Euratom, which are equally binding. It is important at this stage to distinguish broadly between the functions of the Commission in Brussels, which is to supervise the observance of the Treaties by the member States, and the function of the Court in Luxembourg, which as we have seen, is to observe the principles of law and justice in the interpretation of the Treaty. The Court of the Community can exercise compre- hensive jurisdiction over the following:— (a) All organs of the Community — Commission, European Parliament, Council of Ministers, (b) Member States in relation to any provision of the Treaty. (c) Individual enterprises infringing the Treaty. (2) The status of officials and employees of the Com- munity. In this case, as the cases of von Fiddelaar, Humblet, and von Lachmuller prove, the Court has full authority to impose penalties on either the Commission or the Member States if they impose undue restrictions whether by dismissal or taxation, on the status of employees of the Community. What are the main grounds upon which the Court's jurisdiction can be invoked from a constitutional view- point? These are mainly five in number, as follows:— (1) Article 169: A complaint by the Commission that a Member State has not fulfilled its obligations. As the main function of the Commission is supervisory in applying the text of the Treaty in full as regards the Member States, it is obvious that, if a Member State does not heed a complaint made to it by the Com- mission, it must be compelled to do so by the Court, if thfe Court finds that this is warranted. 10 cases were brought to the end of 1967, of which 7 were decided in favour of the Commission and 3 were withdrawn. (2) Article 170: Any Member State may make a com- plaint against another Member State to the Commission that the terms of the Treaty are not being observed by the latter State; the Commission will investigate the matter and must give an opinion stating in what respect the terms of the Treaty have been infringed. No such proceedings have so far been brought. If the Commis- sion has not given an exhaustive opinion within three months of the original complaint, the complaining State may refer the matter to the Court for its decision; such decision shall, in any event be binding on the parties. (3) Article 173: Jurisdiction of the Court of the Com- munity to review Directives, Decisions and Regulations issued by the Commission. The application to the Court may be made by any of the aggrieved parties—whether it be the Commission, the Council of Ministers, any Member State, or any individual or industrial enter- prise affected. The Court may only intervene in review- ing such a Directive, Regulation or Decision on the following four grounds: (1) That the body that issued 178

The Treaty which established the European Community was signed at Rome by the present six member States— Belgium, France, the German Federal Republic, Italy, Luxembourg and the Netherlands in December 1957, and made provision for the main institutions of the Community—the Commission of Experts occasionally assisted by a Council of the Ministers of the member States sitting in Brussels, as well as the European Assembly of parliamentary representatives occasionally sitting in Strasbourg. The Court of Justice of the European Community is the successor to the Court of the European Coal and Steel Community which had already been established in 1954; in fact some of the Judges of the Court of the Community were at first members of the former Court. Although the Court of the Community was only established in October 1958, the broad principles of procedure had already been established by its prede- cessor. The Court consists at present of 7 Judges (including 2 Italians and 2 Germans); it is assisted by two Advocates-General (1 German and 1 French) whose main function is an impartial and independent sum- ming-up of the case and presentation of reasonable conclusions, before the Court reaches its verdict; this is an important element in French judicial procedure. According to Article 167 of the Treaty, the Judges and the Advocate-General shall be chosen from persons of indisputable independence who either fulfil the con- dition required for the holding of the highest judicial office in their own state or who are jurists of recognised competence; they are appointed for a term of six years by the Governments of the member States acting in common agreement. A partial renewal of the Court, which shall affect three and four judges alternatively, (revised to five and six judges respectively after 1973), takes place every 3 years; the retiring judges are eligible for re-appointment. The judges appoint their President for a term of 3 years, which term shall be renewable. The first renewal of the Court took place in October 1961, and subsequently in 1964. 1967 and 1970. Upon the accession of Ireland, Britain, Denmark and Norway, it is proposed as from 1973 to extend the Court to 11 Judges and three Advocates-General (one British). Judges and Advocates-General receive £590 per month, plus £54 entertainment allowance. The scope of this Court is not as wide as that of the Inemational Court of Justice of the Hague, which has power to give an advisory opinion on any question of public international law submitted to it by any State or recognized international authority; on the other hand the main function of the Court of the Commun ; ty is summarily stated in Article 164 of the Treaty of Rome as "to ensure the observance of law and justice in the interpretation and application of this Treaty"; while the scope of the Court is limited to the interpretation of the Treaty and its numerous protocols and Directives and Decisions, it is to be noted that any decisions of this Court are absolutely binding on the member States, and