The Gazette 1975

therefore, whilst a National Court from which there can be an appeal need not refer, a National Court whose decision is final must do so. In practice it is usually best for the first Court before which a case comes to refer, rnd to do so as early as possible. An order for reference is a kind of cross between a case stated and an order for the trial of a preliminary point of law. It can be made at any stage of any proceedings by any National Court or tribunal. The topics that references made to the Court have covered have been very varied. The largest number have raised questions as to the validity or interpretation of Regulations applying to the Common Agricultural Policy. The topics next in importance are social security, customs duties and the common customs tariff, in- ternal taxation, restrictive trade practices and mono- polies (known in Community law jargon as "dominant positions'"'), industrial property rights—and so on. D'.rect actions are of two main kinds, (1) those against Member States, for failure to comply with a Treaty, and (2) those against the Council or the Commission for a declaration that some act of theirs—a Regulation, a Directive or a Decision—is void, or that a failure by the Council or by the Commission to act in particular circumstances is an infringement of a Treaty, or for damages for breach of a non-contractural obligation by the defendant Institution or its servants. In the case of contractual obligations, jurisdiction over Community Institutions lies, in general, with the ordinary Courts of Member States. Actions against Member States According to the Treaties, an action against a Mem- ber State can be brought either by another Member State or by the Commission. In general the Member States do not bring actions against each other: they leave the enforcement of the Treaties to the Com- mission, though in the recent dispute between France and Italy about wine Italy got very near to bringing an action against France. So far there have been 23 successful actions by the Commission against Member States, 14 of them against Italy, 3 against Belgium, 3 against France, 2 against Luxembourg and 1 against Germany. No member State has ever been known not to comply with an order made against it by the Court, though in some cases it has taken a little time. It can be said that, within the scope of the Treaties, the Member States accept unquestioningly the rule of law. Direct actions against the Commission or the Council are much more numerous than those against Member States. An action against either Institution may be brought by the other, or by a Member State, or by any individual or corporation directly affected by the act or omission he or it complains of. In practice most direct actions are brought by trading companies against the Commission. There are occas- ional actions by Member States against the Com- mission or the Council, and there have been three actions brought by the Commission against the Council. As far as I know there has never been an action by the Council against the Commission. The Irish Government took action against the Commission on the question of "Compensatory amounts" provided for in Article 65 and 66 of the Act of Accession in relation to Irish Tomatoes and now reported at page 429 of Vol. 1 Common Market Law Reports [1974]. Turning to the procedure of the Court, the Treaties .307

categories of cases, except that they have served, over the years, as occasions for the Court to develop its case law about the extent to which, and the ways in which, it can review administrative decisions of other Com- munity Institutions. Staff Cases In essence staff cases exist because on the Continent, unlike Ireland, the terms and conditions of service of civil servants are governed by law—it is a branch of administrative law, known in French as the "droit de la fonction publique". So the Regulations that govern the terms and conditions of service of the members of the staffs of the Community Institutions give them a right of appeal to the Court agamst any decision affect- ing them by which they feel aggrieved. This was all very well in the early days of the Court, when business was fairly slack. But it is now becoming a burden, even though staff cases are heard, not by the full Court, but by divisions consisting of three Judges and an Advocate-General. These divisions are referred to in the authentic English text of the Treaties as "Chambers". This is one of the many mistranslations in the authentic English texts of the Treaties that al- though inaccurate we now have learnt to live with. It is fair to say that the English translations were carried out and had to be done very quickly, by people none of whom was a practising anglophone lawyer, and with no bilingual tradition as in Ireland. Because of the lack of such a tradition and technical expertise it is a wonder that the translations are not worse than they are. Indeed some parts are excellent. There is a move afoot to create a lower Community Court to deal with staff cases, from which there would be a right to appeal on limited grounds to the Com- munity Court. I think that it may take some time to come to fruition. References for preliminary rulings More important than staff cases are References for preliminary rulings. The Treaty of Paris provides that the European Court of Justice is to have, in the context of the Coal and Steel Community, sole jurisdiction to rule on the ' validity of any act of any Institution of the Com- mun'ty where the validity of that act is an issue in proceedings in any Court or Tribunal of a Member State. This means that, if the validity of, for instance, a decision of the Commission purportedly made under the Treaty of Paris is called into question in any Irish Court, that Court is bound to refer the matter to the Community Court. So far as the Economic Community (the EEC) and Euratom are concerned, the Treaties of Rome have created a system that is at once wider in scope and more flexible. It is wider in scope because it is not just the question of the validity of an act of a Community Institution that can be referred, but any question of interpretation relating to such an act, or indeed, any question of interpretation of the Treaties themselves. It is more flexible because it is only Courts of final appeal, or Courts from which there is no appeal, that are bound to refer. Other Courts are merely empowered to do so. The following are the underlying ideas of the Treaties of Rome : (1) That the administration of Community law is primarily a matter for the ordinary Courts of Member States; (2) that nonetheless the European Court of Justice has exclusive jurisdiction to rule defini- tively on a question of Community law and, (3) that,