The Gazette 1974

LEGAL EUROPE The effects of Community Law from the point of view of the National Judge by LORD MACKENZIE STUART, Judge of the European Court of Justice. Delivered in Luxembourg, May 1974.

thinking." May I take a well-known passage from one of the earlier decisions of the Court of justice, Van (lend en Loos v Ncderlandse Tarifcommissie (Case 26/ 62 Rec. 1963, p. 1, at p. 23; (1963) C.M.L.R. 105 at 129. English text cited is, however, the version shortly to be published as the official English text) : "The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. "In addition the task assigned to the Court of Jus.ice under Article 177, the object of which is to secure uniform interpretation of the Treaty by natio- nal Courts and Tribunals, confirms that the States have acknowledged that Community law has an authority which can he invoked by their nationals before those Courts and Tribunals . . . "The conclusion to be drawn from this is that the Community constitutes a new legal order of inter- national law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Indepen- dently of the legislation of Member States, Commu- nity law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obliga- tions which the Treaty imposes in a clearly-defined way upon individuals as well as upon the Member States and upon the institutions of the Community." Within this passage are gathered together a number of concepts which during the last decade have been further refined and analysed in an ever-increasing volume of case law not only here at Luxembourg but, again I emphasise this, also in the Courts of the Member States. In the first place we are told that "the Community constitutes a new legal order in international law". "In international law", perhaps, because the Commu- nity has been created by a Treaty, a concord reached by sovereign States, but the emphasis falls properly on the words "a new legal order" since what the Treaty of Rome set out to do was to create a body of rights and obligations not merely binding on the Member States but, in certain major sectors of the economy, intimately affecting the inhabitants of those countries. In the second place, the passage emphasises that the terms of the Treaty, affecting not only Member States but also their citizens, creates rights as well as obliga- 196

Scope of talk One of the most characteristic and paradoxical features of the European Economic Community is its reliance upon national agencies. An obvious example is to be found in the working of the Common Agricul- tural Policy. While the regulations governing its opera- tion are the responsibility of the Council and the Commission, the intervention agencies, which are at the heart of its daily operation, are the creation of each Member State—the various Einfuhr und Vorratsstelle in Germany or the Hoofproduktschaps in the Nether- lands and now, in Great Britain, the Intervention Board for Agricultural Produce. It is here that the producer seeks the intervention price; it is this national agency which he sues in the national Court if he thinks that he is not getting his entitlement. Community policy as regards the social security of what were formerly known as migrant workers (now "employed persons") is to be found in the Council Regulation 1408/71 of 14 June 1971 (O.J. L 149/2, p. 416), but it is to the office of the national agency which the individual turns for payment and it is to the relevant national Court or Tribunal that be turns if lie is not satisfied. In each of these instances the national Judge is called upon to apply Community law as part of his own law and in his own Court. Certainly, when there is a question before him concerning the interpretation or validity of Community law he can, and sometimes must, refer such a question to the Court of Justice here in Luxembourg but, save in direct actions before this Court, the application of Community law is almost always a concern of the national Judge. Indeed the only exception lies in the field of competition where, if the Commission has already begun the procedure laid down by Regulation 17, certain national Courts may have their competence withdrawn, but in a very recent decision of the Court of Justice this exception has been narrowly construed (Case 127/73, Belgian Radio and Television, decision of 12 February 1974). The purpose of this talk, then, is to emphasise the importance of the role of the national Judge and to select certain aspects of Community law with which, from the past experience of this Court, he is likely to be faced. The nature of Community Law As a preliminary it may be helpful to say something of the nature of Community law and to stress certain features of it. Those of you who are familiar with the detective novels of Dorothy Sayers may remember that on one occasion her hero, in quoting Lord Peter Wimsey, says, "Have a quotation for every occasion; it saves original