The Gazette 1972

techniques of international legislation in a traditional sense are deficient; they are too slow, too uncertain, and too much exposed to pressures for compromise. In this setting they are inappropriate, for absent from them is any strong consequence of the representation of the interest of the whole for which the legislation is to exist —for in this setting legislation is not (in one sense at leasts) for the Member States, it is for the Community. Equally, the attempt to manage the situation within such a Community by means of uniform laws in the traditional sense suffers from even greater defects. "Malheureusement, il y a autant de systémes de conflits de lois qu'il ya d'Etats, si bien que le recherche d'une doctrine qui serait commune á tous est trop aleátoire pour qu'on puisse s'y adventurer" remarked the Avocat- Général, M. Gand, in one case. 5 Thus these essential characteristics of the Community endeavour are immed- iately apparent when one looks at Community legis- lation. Regulations and Directives Article 189 (and for the most part I am speaking of the Treaty of Rome) gives to regulations a direct effect within each Member State and is binding in its entirety. (In the background it must be remembered that regulations have emerged from the process of dialogue to which I have referred.) It would be tempting to see in these the primary legislative instrument of the Com- munities. In practice I doubt if this is entirely so. Dir- ectives (which are binding as to result but leave the Member States free as to method and form) may in sub- stance be as truly legislative, even though in order to carry them out further State action, by enactment or repeal, may be needed. When they are looked at in that way, in the Treaty they are frequently related to funda- mental questions of policy which are appropriate (at any rate would be so within a nation state) to primary legislation. The point is made by looking at the first three chap- ters of Title HI of Part Two of the Treaty. The free movement of workers was to be established by either Regulations or Directives; the right of establishment and the freedom to provide services were to be achieved through Directives. 9 One can discern or guess reason! why at the time of drafting the Treaty a particular choice was made for one form or another or options were left open. The Directives had not only the apparent virtue of impinging least upon the national legislature. 7 Their true legislative character—which the constitution of the Vth French Republic would have recognised by includ- ing their fields in those reserved to une loi —lies in their declaration of binding principle. Decisions must in many (but certainly not all) cases be regarded as legislative, where, for example, they may be the causa causans of national legislation; hence the validity of that legislation can only be judged against the content of the decision. 8 Through the latter techniques an attempt was made to preserve the place of the parts while giving due weight to the whole, and beyond that to recognize the problems of welding together six existing legal systems and a seventh emerging one. The diversity of law and the conflicts of legal order, until certain principles had l>een worked out,, could have produced not difficulty, but chaos. Thus it is permissible to argue that, granted the 82

recognise the pleasure, and indeed the insights into my original system of law, which have come from struggling, with what success I know not, with this process of adap- tation. The meaning of Community Law That said, I must emphasize the word "Community". If it is not the key it is at least a word of considerable importance in this context. Among other things, in economic terms, it means a sharing of gains and costs; the whole cannot remain healthy if it leaves one partner unduly burdened or unduly privileged. In the more specific context of this paper the emphasis matters in a number of ways. First, the law of which I am speaking is the common law of the members of a community. It is law made by them, for themselves. The idea of the imposition of rules by detached bureaucrats is unreal and untrue. The dialogue between the Commission and the Council of Ministers, from which the law emerges, is a dialogue between the whole and the parts of one entity, with the Commission representing the general interest and the dialogue extending beyond the narrow setting that I have indicated. 8 Secondly, it is Com- munity law in the sense that it is the body of law which must be common through the Community, if the Com- munity is to be able to work as a whole. Without dis- tortion, it is impossible in broad terms to have different laws of competition in different parts of the unit. After all, the Restrictive Practices Court is one of the few completely United Kingdom Courts and it must be re- membered how quickly and how richly non-tariff bar- riers burgeon once tariff walls are down, and the second crop of devils, we are assured on good authority, may be worse than the first. Thus, within a community the price of gaining advantages elsewhere is to admit others to the same chances. In a further sense, as I have indi- cated, Community law is thus the material out of which the Community is being built. Thirdly, it is Community law in that it partakes of the nature of the Community. The same interpenetration of part and whole is appar- ent in it, and die same practical and factual approach marks the law just as clearly as it marks other aspects of the Community. It is law, not built on dogma, but upon practical needs, and by doing practical things the whole structure is evolved. Fourthly, it is Community law in the sense that it is and remains a new and dis- tinct legal order, being neither national nor international, but being purely itself—the legal order of a unity or pol- ity to which the members belong. Their relationships with and within that polity are novel and continuously evolving. It follows therefore that the law must share these characteristicss of novelty and continuous evol- ution. The law becomes part of the process of inte- gration, and it is thus that lawyers regain a creative role. Finally, this sense of community is not confined to Member States, for the law and the interpretation of it through the court reaches out in ways that are of funda- mental importance to individuals. 4 These propositions I must justify and elaborate, but it seemed best at the outset to set forth some principles which both dominate the law and govern its relationship with national law.

The need for Community Law The need for Community legislation is obvious. The