The Gazette 1977

GAZE1TE

DECEMBER 1977

Book Reviews

As the European Treaties cover a large part of the economic life of the Member States, the Court must decide how far it is proper to concern itself with matters involving policy and administrative choice. In particular a Court can always consider whether a Minister had a sufficient basis for a decision in fact to justify his decision; this is an unchallengeable principle of Continental Law. In considering a case the European Court always applies the following Continental principles:—(1) The separation of the Judiciary from the Executive and the Legislature, (2) The concepts of "Public Law" and of "Private Law". Any action against an administrator is always deemed part of "Public Law". (3) It is a denial of justice not to apply formulated rules — a plaintiff cannot be non-suited. (4) In Federal Germany, Italy, and Ireland, judicial decisions must ultimately conform with the Constitution. (5) There are different attitudes to control administrative action in France and Germany. For instance, if in Germany a student is refused a room in a college hostel, the Court would hold the decision invalid without considering whether the trustees of the hostel had used their discretion properly. In so far as the individual needs protection, there must be judicial machinery available to provide that machinery, and this is called judicial control. Note that the Treaties do not speak of "legislation" but only of "acts" of the Council of Ministers or of the Commission. In the Eurocontrol case 14th October, 1976, the Court held that matters affecting Civil or Commercial Law pertained to private law. The learned author refers to difficulties of translation. The well known French "ordre public" is not "public policy" but "public order". In view of the well known horse trading in the Council, the Court tends to avoid a minute textual analysis of the relevant document. Some external factors arise from the changes, political and economic, which have taken place since the Treaty of Rome in 1957. (1) Political developments affecting the decision process of the Community. (2) Failure to take Community action where action is required, which produced absence of relevant guide lines. (3) The Treaty was founded on a number of economic premises which were then true, but are no longer so. There was an unjustified assumption that the principal economic currencies would remain stable, and that real earnings would increase at a steady rate! It will be seen that Lord Mackenzie Stuart has in a masterly fashion drawn attention to the serious difficulties that confront the European Court in construing the Treaties and the secondary legislation. All in all, it must be admitted that the Court has faced up to its responsibilities with courage and determination.

The European Communities and die Rule of Law

Mackenzie Stuart (Lord), The European Communities and the Rule of Law. London: Stevens, 1977. £1.95 Paperback. (Hamlyn Lectures, 29th series) The impact of European Community Law is gradually being felt even in Ireland, as a result of the Fishery cases, and the case against France prohibiting the importation of Irish lamb. Lord Mackenzie Stuart, the Scots Judge, representing Britain, has himself made an outstanding impression on the European Court, as the Continental Judges thought at first that British Judges would not adjust to the procedures of the Civil Law, but were soon disabused. The learned author reminds us that already 14 years ago, in the Van Gend case, the Community was declared to be a new legal order; he reminds us that specialist writing on Community Law is vast, but is normally only read by specialists. The Schuman Declaration of 1950 introduced the notion of the integration of European frontiers as a vital part of the national economy. The rule of the Conseil d'Etat required that the public interest and the legitimate private interests should be balanced against each other. The primacy of Community Law, and its direct effect on decisions of National Courts are underlined. The Van Gend case, which applied Article 12 of the Treaty directly to National States is fully described. The Treaty of Rome cannot be amended unless the amendments are ratified by the Parliaments of the nine Member States. The "law" which Article 164 of the Treaty imposes upon the Court to observe included the Treaties, Directives and Regulations. The following are the main characteristics of Community Law:— (1) The written law of the Community is not all of equal weight. At their apex stand the Treaties, which may be interpreted by the Court, but whose substance is unchallengeable. But all subordinate legislation can be challenged on the ground that it does not conform to the Treaty. The unity of Community Law through the Member States, though nowhere expressed, must be implied. (2) Apart from written Community Law, there is also unwritter Community Law, which consists in (a) The principle that assurances relied upon in good faith should be honoured, (b) The principle of the necessity to protect legitimate expectations. In order to illustrate this the Court, in C.W.TA. v. Commission (1975) ECR, ruled that the Community would be liable if it abolished, unannounced, certain financial provisions without adopting transitional measures, unless overriding public interest prevailed. In considering the judicial process, it must be remembered that many terms bear a much broader interpretation in French than a similar word in English. In assisting a National Court to interpret the Treaty correctly, the European Court may sometimes be faced with difficulty by giving either too broad or too limited an interpretation.

Independent Actuarial Advice Regarding Interests in Settled Property and Claims for Damages BACON A WOODROW Consulting Actuaries 58 Fltzwllllam Square Dublin 2 (Telephone 762031)

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