Abstract
Christol characterizes the Council of Europe and the European Economic Community (EEC) as complementary bodies, since one is primarily concerned with the protection of human rights, while the other centers its main activities in the realm of economic and property interests.1 It appears that these “two groups” are approaching a common end, namely the protection of all subjects of international law and not merely sovereign nations.2 This breakdown in the traditional “object theory” of international law is rapidly becoming even more striking because these two institutions have established liasons, or a type of multinational diplomatic relations. Regretfully, the writer will refrain from speculating with regard to the possible implications resulting from increased cooperation between the two great regional groups in Europe. Nonetheless, it should be recalled that the Council of Europe, through its Social Charter, and the EEC, with its political activity, tend to be dealing with common areas of interest to an even greater degree. In fact, the writer looks for some degree of overlapping efforts and concurrent jurisdiction during the next few years. As discussed above, the Common Market already constitutes a political community possessing unique qualifications. While not a federation, it is developing a constitutional system — to an even greater degree than the Council of Europe. Not only Hallstein,3 but also Gerhard Bebr, recognize that economic institutions “require effective political and judicial safeguards and controls to assure their power and legitimate use.”4 It is submitted that the three common markets are already political in nature. Moreover, their political power is increasing steadily, largely as the result of recent Court decisions, strengthening the supranational position of Community law. Hence, the writer’s designation of the common markets as “economic” is intended to be descriptive rather than restrictive. The European Economic Community’s political progress compares favorably with that exercised by the Council of Europe and the United Nations, although economic interests predominate.
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References
Christol, “Remedies for Individuals under World Law,” 56 Nw. V.L. Rev. 65 (1961).
Ibid. See Deniau, “The Objectives and Constitutional Structure of the European Economic Community,” Int’l & Comp. L.Q. 1 (Supp. Pub. No. 1, 1961). He holds that the EEC represents — in itself — a fusion of two general, unifying post-war trends on the European Continent, namely, economic and political. Christol further elaborates: Probably the most important observation that can be made is that the three communities, whose membership is European and overlaps membership in the Council of Europe, have through the Community treaties enlarged the “property” rights and remedies of individuals in the commercial world. This is a fitting supplement to the individual human rights and remedies guaranteed by the Rome Convention of November 4, 1950. Such rights are not restricted to the nationals of the signatory states. Christol, supra, note 1, at 80. (Footnotes omitted). See also Carlson, Law and Organization in World Society, 124-236, 315-30 (1962).
See addresses by Hallstein, “The History of European Integration,” April 18, 1962, CCH Common Market Rep. ¶ 9002 (1963); Fifth Annual Deans Day of Columbia University School of General Studies, March 2, 1963, id., ¶ 9046; and Europe and the Free World, Azad Memorial Lectures, New Delhi, India, id., ¶ 9054. See in particular the statement by Hallstein cited in Ch. V, supra, p. 73, note 9.
See Bebr, Judicial Control of the European Communities 33 (1962). He stresses the political control exercised by the Assembly over the High Authority. Note his section dealing with “Judicial Control.” Id., at 34-36. See also Stein & Hay, “Legal Remedies of Enterprises in the European Economic Community,” 9 Am. J. Comp. L. 375 (1960). “A necessary component of this [political] system is an adequate armory of legal remedies available to persons whose rights are unlawfully abridged by authorities administering the system.” Ibid. A very strong stand is taken by Reuter whose main thesis is that the Communities are approaching a federation, but they are not truly federal at the present time, even though they are supranational. Reuter, “Juridical and Institutional Aspects of the European Regional Communities,” 26 Law & Contemp. Prob. 393 (1961).
Speech before the Seventh Annual Conference of European Local Authorities, Reports, No. 63, CCH Common Market Rep. 1 (Oct. 21, 1964).
Reports, No. 61, id., (Oct. 7, 1964). A similar conclusion is reached by Munk, Atlantic Dilemma: Partnership or Community? 16-18 (1964). See also Uri, Partnership For Progress: A Program For Transatlantic Action (1963).
See I, American Enterprise 1-6 (1960); King & Gormley, “Toward International Human Rights,” 9 Wayne L. Rev. 294, 296-97 (1963). See also Bemoit, Europe at Sixes and Sevens (1961); Ophüls, La Relance Européenne, 4 European Yb. 4-18 (1958). Note especially Steiger, “An Evaluation of Legal Development on a Regional Basis: The Search for European Unity,” 22 Ohio St. L.J. 495 (1961). See the collected works contained in volumes 1-9 of the European Yearbooks. See also p. 140, note 47 infra.
Vernon stated early in 1953: “Like most really historical documents, the Treaty constituting the European Coal and Steel Community, though conditioned by the legal concepts with which its drafters were familiar makes history primarily because it takes a step beyond those traditional concepts.” Vernon, “The Schuman Plan — Sovereign Powers of the European Coal and Steel Community,” 47 Am. J. Int’l L. 183 (1953). See Goormaghtigh, “European Coal and Steel Community,” Int’l Conc. No. 503, at 343-408 (1955), and Lever, “International Legal Aspects of the European Coal and Steel Community,” 44 Transact. Grot. Soc’y 205 (1959). See also Coblenz & Warshaw, “European Convention for the Protection of Human Rights and Fundamental Freedoms,” 44 Calif. L. Rev. 94 (1956); Diebold, The Schuman Plan: A Study in Economic Cooperation 1950–1959 (1959); Schmitt, The Path to European Union: From the Marshall Plan to the Common Market (1962); d’Oppuers, “Some Aspects of European Unity,” 11 Am. U.L. Rev. 134 (1962).
See Falk, “International Jurisdiction: Horizontal and Vertical Concepts,” 32 Temp. L.Q. 295 (1959), especially pp. 295-98. Likewise, Steiger maintains: We may distinguish horizontal and vertical legal orders. In the field of international organization a horizontal order is based on cooperation among the states, whereas a vertical order is based upon integration of the states. Co-opperation does not infringe upon the sovereignty of the participant states. Integration creates a Community of states that itself exercises jurisdiction over the states. International organizations based on cooperation do not, as a rule, involve any departure from the framework of general international law. Communities of states based on integration create a Community law that is neither national nor traditional international law but a legal order between the two representing a stage in an evolution from horizontal international law to vertical international law. Steiger, supra, p. 129, note 7, at 495. See Sidjanski, “Le Processus d’Intégration dans les Communautés Européennes,” 10 European Yb., 1962, 69 (1963).
The specialized scope of this study precludes an examination of EURATOM, but for an excellent survey of this highly specialized Community see Polach, EURATOM: Its Background, Issues and Economic Implications (1964).
See Efron & Nanes, “The Common Market and EURATOM Treaties: Supranationality and the Integration of Europe,” 6 Int’l & Comp. L.Q. 670 (1957); European Regional Communities (Shimm ed. 1962). See also Stein & Hay, Law and Institutions of the Atlantic Area 45-49 (1963).
In considering the power of the Court, see Protocol on the Statute of the Court of Justice of the European Economic Community, promulgated pursuant to Article 188. Article 34 provides in part: In case a decision or recommendation is adjudged by the Court to involve a fault for which the Community is liable, and causes a direct and special injury to an enterprise or a group of enterprises, the High Authority must take such measures, within the powers granted to it by this Treaty, as to assure an equitable redress for the injury resulting directly from the decision or recommendation which has been annulled, and, to the extent necessary, must grant reasonable damages. Article 92 contains the real power behind the Court and is the most important single article. The decisions of the High Authority imposing financial obligations on enterprises shall have executive force. They shall be put into forced execution on the territory of member States by means of the legal procedure in effect in each State, after the formula of execution in use in the State on whose territory the decision is to be carried out has been appended; this shall be done with no other formality than the verification of the authenticity of such decisions. (Emphasis added).
See the full text and accompanying analysis infra, pp. 161-168.
Decision of February, 1964; reported in CCH Common Market Rep. ¶ 9133, at 8055.
Judgment of November 14, 1963. Case No. RML, III 77/63; reported in Common Market Rep. ¶ 9133, at 8055. Proceedings have been stayed pending a decision from the Constitutional Court (Bundesverfassungsgericht) on the issues concerning constitutionality of: 1) the Act Ratifying the Rome Treaty, and 2) Article 189 of the Rome Treaty.
Judgment of December 17, 1963. Case No. II/1-636/63; reported in Common Market Rep. If 9133, at 8055.
Separation of Powers laid down in Article 20 in connection with Article 80 of the Basic Law. The German Court reviewed the basic concept of separation of powers. In particular the Fiscal Court, Judg. Nov. 14, 1963, supra, note 15, indicated that Hitler’s erosion of separation was the main cause of the ultimate loss of liberty. The separation of powers doctrine was sacrificed to achieve supposedly higher goals, namely the end of political and economic emergency.
Infra, p. 160, note 102.
Infra, p. 163, note 114.
Pursuant to Article 189, Community Institutions are emerging as law making bodies. See also van Emde Boas, “La Convention Europénne De Sauvegarde des Droits de l’Homme et des Libertés Fondamentales dans la Jurisprudence Néerlandaise,” 10 European Yb. 226 (1963)-Opsahl, “National Courts Under Article 177 of the EEC Treaty,” Legal Essays: A Tribute to Castberg 280-304 (1963). Donner, “National Law and the Case Law of the Court of Justice of the European Communities,” 1 Common Market L. Rev. 8 (1963).
See notes 10 and 11, p. 130, supra. See also the discussion of supranationality in Ch. V supra.
As to the topics under investigation here, the language of the EURATOM Treaty is identical to the EEC Convention. As such, little would be gained by repeating similar texts. Therefore, only the numbers of EURATOM articles need be indicated. The same generalization would hold true as to the majority of the treaty texts and the protocols, since their only distinction arises in the area of security information relative to atomic development. On the other hand, considerable differences exist as to the older ECSC Treaty.
American Enterprise 18.
Some authority exists holding that because the Communities are created by treaty they cannot be deemed to be supranational. Under this view, the States are believed to be capable of modifying the Community treaties in the normal fashion. Whitlow maintains: “Those limitations … upon the representative powers of the community institutions in entering into international agreements, emphasize the less than supranational character of the community. In the last analysis, the executive, legislative and judicial functions of the community are subordinate to the traditional international concepts of the sovereign states.” Whitlow, “The European Economic Community — Some Aspects of Juridical Personality, Sovereignty and International Obligation,” 13 Bus. Law 813, 820 (1958).
See A.S.I.L., Proceedings: Conference on International Economic Integration (1962). Note the references to the developing regional organs and structures not only in Europe but also in the Soviet bloc, Africa, and Malaysia. Id., at 1-7.
See American Enterprise 6.
See Reuter, “La Communauté du Charbon et de l’Acier.” 86 (II) Recueil des Cours 543-48 (1952), cited in Robertson, “Problems of European Integration,” 91 (I) id., at 146 (1957).
See Gormley, “The Significant Role of French Administrative Jurisprudence as Presently Applied by the Court of the European Communities,” 8 S.D.L. Rev. 53-58 (1963).
See Efron & Nanes, supra, v. 130, note 11. Note their discussion of supranationality. Id., at 674. They feel that the preambles of the ECSC and EDC Treaties “can readily be construed to imply political unification.” Id., at 673. See also Zellentin, “The Economic and Social Committee,” 1 J. Common Market Studies 22 (1962); Kahn, “EURATOM: The Conception of an International Authority,” 71 Harv. L. Rev. 1001 (1958); Nelson, “European Organisation in the Field of Atomic Energy,” 4 European Yb. 36 (1958).
The [ECSC] treaty confers upon the Community an inter legal personality (including the power to enter into international agreements, diplomatic immunity for missions of third states accredited at the Community, and the like) as well as “domestic” legal personality (including such rights as the right to sue and hold property) under the laws of the Member States. Interestingly, the Treaty does not guarantee the Community immunity from judicial process: it may be sued in national courts of the Member States or, in specified circumstances, before the Community Court. American Enterprise 18. A similar position as to the legal personality of the Community is taken by Gaudet. However, he does not feel that the EEC is a federation or a federal state. Gaudet, “The Legal Framework of the Community,” Int’l & Comp. L.Q. 8 (Supp. No. 1, 1961).
Honig takes a very cautious position concerning the role of the individual within the Community structure. [T]here can be no doubt that the European Economic Community is a supranational organization which, within the limits specifically laid down in the Treaty, can issue orders and directives which are immediately binding on individuals in member-states. … This, however, does not mean that the broad principles laid down are of equal force, viz., that they operate in the same manner as provisions contained in the municipal laws of member-states. Whether or not they do depends on the constitution of the country concerned, as well as the content of the particular treaty. Honig, “The European Common Market and Restrictive Trade Practices,” 108 L.J. 564-65 (1958).
See Kautzor-Schroeder, “Public Tort Liability under the Treaty Constituting the European Coal and Steel Community Compared with the Federal Tort Claims Act,” 4 Vill. L. Rev. 198-99 (1958).
Infra, pp. 161-178.
Infra, p. 164, note n6ff. The limitations and restrictions inherent in Article 177 will be dealt with.
Infra, p. 154, note 86.
Infra, p. 153, note 81.
Infra, p. 160, note 102.
Infra, p. 170, note 133.
Article 31 of the ECSC Treaty provides: “The function of the Court is to ensure the rule of law in the interpretation and application of the present Treaty and of the regulations for its execution.” See also Articles 33 and 34 in connection with Article 92. Article 33(2) provides: “The enterprises, or the associations referred to in Article 48, shall have the right of appeal on the same grounds against individual decisions and recommendations affecting them, or against general decisions and recommendations which they deem to involve an abuse of power affecting them.”
The European common law would consist of the law common to the six Member States. In the past, the main source has proved to be the body of legal precepts developed by the French Conseil d’Etat. See Gormley, supra, p. 135, note 29, at 75-77. For a similar statement by the Luxembourg Court see Friedrich Stork & Co. v. ECSC High Authority (Case No. 1/58), 5 Recueil Jurisprudence de la Cour de Justice des Communautés Européennes [hereinafter cited as Recueil] 48 (1959), CCH Common Market Rep. ¶ 6088, at 3971. As to the sources of Community law see Bebr., op. cit., supra, p. 128, note 4, at 10-32. Article 31 of the ECSC Treaty holds: “The function of the Court is to ensure the rule of law in the interpretation and application of the present Treaty and of the regulations for its execution.” Article 164 of the EEC Treaty provides: “The Court of Justice shall ensure observance of law in the interpretation and application of this Treaty.” CCH Common Market Rep. ¶ 6087. The language of the EURATOM Treaty is similar to the language of the EEC Treaty. See EURATOM Treaty, Art. 136.
In advocating that the individual is not a subject of international law, but rather of the “Community Law of the Six,” Nebolsine states: The ECSC Treaty contains no general requirement of affording interested parties even a limited opportunity for a hearing, except in connection with the prohibition by the High Authority of proposed concentrations under Article 66. In such cases it will act only “after allowing the interested parties to present their observations. … The EEC Treaty … is wholly silent on this subject.” Nebolsine, “The ‘Right of Defense’in the Control of Restrictive Practices under the European Community Treaties,” 8 Am. J. Comp. L. 433, 440 (1959).
However, within this specified system, the Court of Justice is supreme and will actively protect the private person against Executive Organs and Member Governments. Nebolsine concludes: “The abandonment of certain sovereign rights over their nationals by the Six in favor of the Community was a political act of immense consequence; but this delegation of jurisdiction over nationals to the Community and its courts was circumscribed by certain safeguards. The new supra-national government was to be a government under law, and the ultimate authority on the legality of its acts was a court of justice, not an executive body.” Id., at 449-50.
Reuter, “The Rule of Law of the European Coal and Steel Community,” 80 Journal du Droit International 5, 7, 9 (1953). See also Bebr, op. cit., supra, p. 128, note 4, at 71-75.
McMahon concludes: “Apart from the express powers conferred on it by its constitutive instrument, it is inevitable that any international organization will require a certain measure of implied powers in order to discharge its functions effectively.” McMahon, “The Court of the European Communities,” 1 J. Common Market Studies 1 (1962). See his excellent analysis of Fédération Charbonnière de Belgique v. Haute Autorité (2 Recueil 302 (1956)). Id., at 5.
“The fact that the European Coal and Steel Community is something new, not strictly comparable with the national States and the traditional international organizations, means that it has to work out case by case, on the basis of the Treaty provisions and the experience gained, new ways and means of extending and consolidating its relations with the outside world.” ECSC, Fourth General Report: 1955–56 27 (1957).
See American Enterprise. See also Bebr, “The Development of the Community Law by the Court of the European Coal and Steel Community,” 42 Minn. L. Rev. 845 (1958); Stein, “European Coal and Steel Community: The Beginning of Its Judicial Process,” 55 Colum. L. Rev. 985 (1955); Stein, “The Court of the European Coal and Steel Community 1954–1957 ” 51 Am. J. Int’l L. 821 (1957). In particular, see Kautzor-Schroeder, supra, p. 136, note 33.
See American Enterprise 70. See the excellent discussions: Cohn, “Aspects of the Procedure before the Court of Justice of the European Communities,” 1 Sol. 399 (1962), and Valentine, “The Treaty Establishing the European Economic Community,” 21 Modern L. Rev. 282, 287 (1958). See also McMahon, “The Court of Justice of the European Communities: Judicial Interpretation and International Organization,” 37 Brit. Yb. Int’l L. 320, 324 (1961).
American Enterprise 70-71.
de Laubadère, “General Rules Concerning Judicial Review of Administrative Acts in the European Communities,” III (I) Recueil des Cours 528 (1964). de Laubadère, maintains that the Court must develop its own administrative Law rather than applying international law, as would be required of a typical international court.
See also Articles 181-82. Finally, one might mention in this category the jurisdiction of the Court to rule on questions arising in national judicial proceedings which concern interpretation of the Treaty and the validity and interpretation of the acts of the institutions. National courts of last resort are bound to refer these “federal” questions to the Court for binding determination. This obligation on the part of the national courts has been substantially strengthened in the Rome Treaties as compared with the Coal-Steel Treaty. American Enterprise 70. The four bases of Jurisdiction upon which appeals can be taken from decisions of the organs of the Community are: (1) appeals against administrative acts; (2) appeals by enterprises against binding acts and decisions (even if disguised as recommendations or opinions); (3) suits for inaction on the part of an executive or one of the Community organs; and (4) unconstitutional acts of either the Community or a State. Further, the interpretation of the treaty provisions will always be considered for thereason that the Treaty provides the legal bases for all action taken by the Court.
Lack of legal competence, major errors of procedure, violations of treaty articles, or abuse of power. See Nebolsine, supra, p. 138, note 42, at 433.
Valentine, “The Jurisdiction of the Court of the European Community to Annul Executive Action,” 36 Brit. Yb. Int’l L. 194 (i960); Gormley, supra, p. 135, note 29.
The Court of the ECSC existed until October 1958 and rendered verdicts in 36 cases. When the new Court of the EEC took over, another 36 cases were still pending. All of these, with one exception, have now been disposed of by the new Court. Since that time, 62 more suits have been filed. Of these cases 34 have been decided, 5 were withdrawn by the parties concerned, and 23 are still pending. Obviously, all of these disputes involve coal and steel matters. Interestingly, in the first five years of the Court no cases were filed, but in 1958 and 1959 there were 43 and 47 cases respectively. The Court “promotes the observance of the formalities and regulations provided to guarantee the right of the individual.” Donner, “The Court of Justice of the European Communities,” Int’l & Comp. L.Q. 73 (Supp. Pub. No. 1, 1961). The EEC Court “will have to play a vital role in the development of law of the Community.” American Enterprise 70. In commenting on the merger of the judicial and legislative branches, Garretson maintains: “The event of the greatest significance for the development of international law and international legal institutions in 1959 is the emergence of the European Economic Community in full panoply.” Garretson, “International Law, Annual Survey of the Law,” 35 N.Y.U.L. Rev. 1, 5 (1960). See also European Economic Community, Bulls. No. 6 & 7, 60-61 (1961).
See Article 177 of the EEC Treaty, Article 150 of the EURATOM Treaty, and Article 87 of the ECSC Treaty.
Ibid. See, p. 164, note 116ff., infra.
See American Enterprise 72.
Cases No. 8/54 & 10/54. See especially, Humblet v. Belgium, 6 Recueil 1125 (1960).
French Government v. High Authority (Case No. 1/54), 1 Recueil 7 (1954). But cf. Italian Government v. High Authority (Case No. 2/54), 1 Recueil 73 (1954), [1954] Int’l L. Rep. 737; Netherlands Government v. High Authority (Case No. 6/54), 1 Recueil 201 (1954), [i955] Int’l L. Rep. 750; Luxembourgeoises v. High Authority (Cases No. 7/54,9/54), 2 Recueil 98, [1956] Int’l L. Rep. 597. See Article 39 of the Protocol on the Statute of the Court of Justice of the European Economic Community dealing with third-party practice. CCH Common Market Rep. ¶ 6471, at 4169.
French Government v. High Authority (Case No. 1/54), 1 Recueil 7 (1954); Italian Government v. High Authority (Case No. 2/54), 1 Recueil 73 (1954), [1955] Int’l Rep. 737. For a discussion of these two cases heard simultaneously, see Stein, supra, p. 140, note 47. These cases involved the publication of price lists and alleged discriminatory practices in the sale of steel.
See Humblet v. Belgium, 6 Recueil 1125 (1960).
Case 3/59 discussed in ECSC High Authority, Ninth Report on the Community (1961) [herinafter cited as Ninth Report].
Case No. 3/59, Ninth Report.
In the great majority of the cases decided by the ECSC Court, private parties litigated against the High Authority or Member States. For example, the Court rejected an appeal by the Government of the Netherlands for the annulment of a decision by the High Authority fixing maximum prices for coal produced in the Ruhr. Case No. 6/54. In the next case the validity of a compensation scheme enacted by Luxembourg under which industrial coal consumed in Luxembourg was assessed for the purpose of subsidizing household coal producers was struck down. The special monopoly created by the State was declared to be in violation of ECSC regulations. Significantly, in this early case, the Government of Luxembourg was permitted to intervene in the case in order to present its views. It is obvious, then, that the State, while accorded procedural standing along with the private concerns, was unsuccessful in attacking the verdict of the High Authority. Cases No. 7/54 and 9/54. In another instance, the appeal by Belgian corporations requesting reversal of High Authority decisions of May 1955, reorganizing the operation of the compensation scheme of coal in that nation, was rejected. This case is rather typical of the cases decided by the Court in that the majority of disputes have involved private parties rather than sovereign States, which indicates the direction of the developing Community law. Another similar type of dispute involved an appeal by a private company of the Saar against an unfavorable opinion of the High Authority concerning a capital scheme projected by that company. Ninth Report 43. In a case involving the “police power” of the High Authority, the Court dismissed an appeal lodged by an Italian company against the decision of April 15, 1959, concerning a spot-check of the appellant’s premises. In short, the Court upheld the High Authority on the ground that private enterprises are obliged to admit inspectors to their premises once their identity has been established. In this case, the fine imposed for refusing to admit was upheld. Case No. 31/59. On April 4, 1960, the EEC Court reversed eleven separate decisions of the High Authority concerning the restitution of amounts paid under the price compensation scheme for imported scrap in respect to tonnages later established in instances where the party was not eligible for compensation. “The Court thus found that the compensation payments improperly made by the Compensation Office in Brussels need not be refunded by the iron and steel enterprises concerned, which had received scrap incorrectly declared as eligible for compensation, inasmuch as no responsibility could be held to be with them in the matter.” Ninth Report 44. In its judgments of May 10, 1960, the Court dismissed appeals against the High Authority’s decision of February 9, 1958, which concerned special tariff measures of the German and French state railways in respect to coal and iron ore. Significantly, in the German actions, the parties were the Federal Republic of Germany and eighteen private enterprises of the German iron and steel and iron ore industries, whereas in the French actions, a mining enterprise and two iron and steel producers were the litigants. Thus, the High Authority was again sustained in a case lasting over two years Ibid. “[S]upporting tariffs are allowable only in so far as they are necessary to enable the enterprises concerned to overcome exceptional temporary difficulties (as in the case of German enterprises in the vicinity of the zonal border) … the application of the supporting tariffs in question for the purpose of attracting industries is not allowable.” Ibid. In 1958, nine French private entities lodged complaints asking for reversal of the High Authority’s decision of February 9, 1958, concerning rail tariff rates chargeable in Germany. The Court held “that the tariff system at issue did not, even as a whole, contain discrimination based on considerations of nationality, and was therefore in accordance with the principles of the Treaty.” Nevertheless, the Court reached a contrary result as to some of the other appeals. Cases No. 24/58 & 34/58. The Court delivered a very important decision involving the Italian Government and the Kingdom of the Netherlands against the High Authoritys’ decision of February 18, 1959, which dealt with the publication or notification to it of all rate schedules, changes, and terms in respect of consignments of coal and steel hauled by road within the Community on behalf of third parties. The decision of the Authority was reversed. The Court … reversed the decision … principally on the grounds that the High Authority has no statutory powers of its own to issue regulations in the matter (since neither the letter of the Treaty, and in particular articles 70, 3 and 60, 2, a, nor its general approach can be construed as seeking to invest the High Authority with statutory powers entitling it to secure the implementation of Article 70, 3 by decisions), and that it had not given the two Governments an opportunity to present their views, as it was required to do by Article 88. The Court ruled that it was an unlawful application of Article 88 to reproach a State with failing in its duty when that State was in no way prejudicing the objective of a particular provision of the Treaty, but merely elected not to adopt unconditionally one of the measures listed by the High Authority as the only appropriate ones for attaining that objective. Ninth Report 44; Cases No. 20/59 & 25/59. Another interesting case, involving one of the new subjects of the law, dealt with a wholesale coal merchant and the trading regulations of the Ruhr coal selling agencies. Cases No. 36/38, 40/59. One other case should be noted in connection with the right of an individual to sue the ECSC. Though not successful on the merits, an employee, a civil servant of the ECSC, sued the High Authority. Thus, Alberto Compolongo appealed in a case in which the Court found that, because of the “functional unity” of the Community, a staff member leaving one Community for another is not entitled to the special pay normally allowed with respect to termination of service and of a fresh appointment. In particular, the Court held, he is not entitled to the settling-in-allowance, to the recovery of his travel and removal expenses, or even to the departure gratuity. He is, on the other hand, entitled to the amounts referred to in Articles 62(a) and 62(b) of the Community Staff Rules and Regulations. At any rate, the Court had thus decided a significant case involving the complaint of an individual. Decisions such as this clearly show the degree to which private persons may seek the aid of the Court. Cases No. 37/59 & 39/59-See p. 143, note 58 supra.
See pp. 135 and 137, notes 30 and 41 supra. Because of the similarity of the EURATOM text, no separate examination will be made. Moreover, to date, no cases have arisen under the EURATOM Treaty.
EURATOM Treaty, Art. 146, Para. 2. The Court of Justice of EURATOM — now merged into that of the EEC — is open to individual litigants. Perhaps, the Community’s distinguishing feature is that a very high degree of secrecy must be maintained with the result that it is necessary to have rather strong security measures. Therefore, Article 145 (in connection with Article 83) provides: “If the Commission considers that a person or enterprise has committed an infringement of this Treaty … it shall invite the Member State having jurisdiction over such person or enterprise to impose penalties in accordance with its municipal law.”
Donner, “The Court of Justice of the European Communities,” Int’l & Comp. L.Q. 68-69 (Supp. Pub. No. 1, 1961). In comparing the language of the three articles, Donner concludes: It is evident that the community treaties have given individuals and other legal persons, in addition to states, both legal rights and remedies. Since the respective treaties seek somewhat different goals, the language varies somewhat. The EEC Treaty refers to “individuals” and “legal entities.” The EURATOM Treaty refers to “individuals and firms,” while the Coal and Steel Treaty deals with “national enterprises,” “associations” and “organizations.” Id., at 68-69. See also ECSC High Authority, Sixth General Report of the Activities of the Community 89 (1958); EEC Comm’n, Second General Report of the Activities of the Community (1959).
ECSC Treaty, Art. 33.
EEC Treaty, Art. 173, CCH Common Market Rep. ¶ 6117, at 3983. 70 Ibid.
See Donner, supra, p. 148, note 67, at 69.
Cases No. 16/62 & 17/62, CCH Common Market Rep. ¶ 8005, at 6525 (Dec. 14, 1962). See especially the cases collected in Campbell & Thompson, Common Market Law (1962).
CCH Common Market Rep. ¶ 8005, at 6570. The Court further elaborated on the scope of Article 189: The essential features of a decision derive from the limitation on the number of persons to whom they are “directed,” whereas a regulation, which has an essentially normative character, is applicable not to a limited, designated or identifiable number of persons, but to entire categories treated theoretically. For this reason, in doubtful cases, in order to determine whether one is faced with a decision or a regulation, one must seek to ascertain whether the act in question is of individual concern to specific persons. Under these circumstances, if an act called a regulation by its author contains provisions of a nature to be of concern to certain natural or legal persons in a manner which is not only direct, but also individual, one must admit that regardless, and without prejudice to the question of determining whether such act considered in its entirety can justly be called a regulation, these provisions are not in the nature of a regulation and can therefore be attacked by these persons on the basis of the second paragraph of Article 173. Ibid. See also “Conclusions” of Advocate-General Lagrange, id., at 6571-76. He contends that the Treaty grants jurisdiction to the Court only in those cases where a decision “’shall be binding in every respect upon those to whom they are directed’ … [otherwise] it is then a collective decision, which actually is equivalent to a series of individual decisions.” Id., at 6574. Furthermore: There is, in fact, no place in this Treaty for the development of a body of case law on the interest in acting, for, as is evident, its authors intended to determine themselves the conditions for admissibility of appeals by persons other than those whom we have referred to as “privileged,” and this has been done in such precise terms that there is hardly room for critical interpretation. As regards associations, it is true that they will scarcely have the opportunity to act by means of direct suits, but their role can, on the other hand, be important in the field of intervention once the matter has been brought to issue by one of the means which is available. The precedents set by the Court are liberal enough on this subject and intervention is a process which is particularly well suited to associations whose mission it is to defend the general interests of the trade whose members they represent. Such is the system which the jurist himself may regret, but which the judge is bound to apply. It is not for us to judge the system here. We can only say that it does make sense and that valid arguments can be marshalled in its favor. Id., at 6575.
Supra, note 72, infra notes 78, 81.
Supra, note 72, at 6571.
See the discussion of the limitations of Article 173, infra notes 78-91.
The most authoritative statement concerning the present interpretation of Article 173 is to be found in Lagrange’s Conclusions supra, p. 150, note 71 at ¶ 8005, at 6571.
Fédération Nationale de la Boucherie en Gros et du Commerce en Gros des Viandes v. EEC Council (Cases No, 19/62, 20/62, 21/62, and 22/62), 8 Recueil 943, CCH Common Market Rep. ¶ 8006 at 6576.
Id., at 6581.
Ibid.
Milchwerke Heinz Wöhrmann v. Commission (Cases No. 31/62, and 33/62), 8 Recueil 96.5, CCH Common Market Rep. ¶ 8007 at 6583 (Nov. 14, 1962). The Court held that under Articles 173 and 184 an institution could not raise an incidental issue that might determine a case pending before a national court, since the national action would subsequently determine if petitioner were directly affected. See also the “Conclusions” of Advocate-General Roemer, id., at 6587-89.
Id., ¶ 8007, at 6586.
Id., at 6588.
Ibid.
Ibid.
Plaumann & Co. v. Commission of the European Economic Community, (Case No. 25/62) 9 Recueil 197, id., ¶ 8013, at 6625-11. (July 15, 1963).
Id., at 6629. See the full discussion of direct and individual, id., at 6629-30. Note in particular the comparision with the ECSC cases 7/54 and 9/54. See the comments of de Laubadère. op. cit., supra, p. 141, note 50. Cf. the text in note 73, p. 151 supra.
Société Anonyme Belge “Glucoseries Réunies,” v. EEC Commission, (Case No. 1/64, id., ¶ 8024, at 6752 (July 2, 1964).
Id., at 6753.
Plaumann, supra, p. 154, note 86, at ¶ 8013, at 6628. See the discussion of the ECSC Court supra, pp. 143-145, notes 59-64.
Plaumann, supra, p. 154, note 86, at ¶ 8013, at 6628. The most authoritative analysis of the differences between Article 173 and 177 is to be found in this case. See especially the Conclusion of Roemer, id., at 6633-3.
E.g., a case in point is Photo-Radio-Club v. Nichols and Société-Brandt, Court of Amiens, May 9, 1963; reported in CCH Common Market Rep. ¶ 8011, at 6615. Cf. Société Union Nationale des Economies Familiales v. Etablissements Consten, Court of Appeal Paris, January 26, 1963; reported in CCH Common Market Rep. ¶8009, at 6598. Société Arlab Import-Export (S.A.R.I.E.), v. Société Union Nationale des Economies Familiales (U.N.E.F.), June 25, 1962; Commerce Court of the Seine; reported in CCH Common Market Rep. ¶ 8018, at 6688. These French courts held that there was no duty to request an interpretation from Luxembourg, since they had all of the facts necessary to resolve disputes relative to Articles 85 and 86 of the EEC Treaty.
Plaumann, supra, p. 154, note 86 and Société Anonyme, supra, p. 155, note 88.
MacKinnon, “Experience in Common Law Countries of the Constitutional Problems Encountered in Regulating Economic Activity,” I Common Market L. Rev. 183 (1963). He is referring to the Sarotti case, Oct. 21, 1956. Oberlandesgericht, Düsseldorf. See the criticism of this case by Bebr, Judicial Control of the European Communities 195 (1962).
See American Enterprise 466; Gormley, “The Significant Role of French Administrative Jurisprudence as Presently Applied by the Court of the European Communities,” 8 S.D.L. Rev. 59-60 (1963).
See supra, p. 154, note 64.
See Gormley, supra, p. 158, note 95, at 52-62. See notes 64 and 72, pp. 145, 151, supra.
Le Court, “Community’s Court of Justice Builds European Law,” European Community No. 65-66 (Sept. 1963).
Ibid. See also V. J. Stone, “The Court and American Law,” id., at 7, 13-15.
Donner evaluates the change in the subsequent treaties as extending the Court’s power of review. Under the ECSC Treaty the competence of the Court was restricted in that the Court may not review the High Authority’s evaluation of the situation, based on economic facts and circumstances, which led to such decisions and recommendations. But in the Common Market and EURATOM Treaties these ominous words have been left out. On the other hand, those Treaties have restricted the rights of private enterprises to appeal against inaction of the executive. The Coal and Steel Treaty concedes such a right in each case in which the HA is required by the Treaty to issue a decision or recommendation and fails to fulfil this obligation. In this way it has been possible, for those who thought the HA too timid in the use of its powers, to lodge an appeal even for inaction against then-own national government. The two new Treaties leave this right in full to Member States and to other institutions of the Communities, but as regards private persons they restrict it to cases in which the executives have failed to address a decision to them. So they are no longer allowed to bother about inactions in general. Donner, supra, p. 148, note 67, at 69.
EEC Treaty, Art. 173, CCH Common Market Rep. ¶ 6117. Identical language is to be found in Article 146 of the EURATOM Treaty. The more restrictive language is contained in Article 33 of the ECSC Treaty. “The [ECSC] Court shall have jurisdiction … for the annulment of decisions and recommendations [only] … of the High Authority.” See also Article 34 of the ECSC Treaty.
See the leading case of N.V. Algemene Transport-en Expeditie Onderneming van Gend & Loos v. Netherlands Fiscal Administration (Case No. 26/62), 9 Recueil 1, CCH Common Market Rep. ¶ 8008, at 6589 (Feb. 5, 1963) [hereinafter referred to as Van Gend]. See also Kleding-Verkoopbedrijf Co. v. Robert Bosch Co. (Case No. 13/61), CCH Common Market Rep. ¶ 8003 (April 6, 1962).
I U.S. (I Cranch) 368 (1803).
Trib. des Conflits, Feb. 8, 1873, [1873 III] Dalloz Jurisprudence 73, 3, 32.
See the ECSC cases supra, pp. 143-149 (notes) 59-64.
Supra, p. 160, note 102, CCH Common Market Rep. ¶ 8003, at 6532.
Id., at 6536.
Ibid.
Supra, p. 160, note 102.
Supra, p. 160, note 102, CCH Common Market Rep. ¶ 8008, at 6589.
Infra, p. 164, notes 115-116, pp. 170-172, notes 133-137.
Cf., the further discussion of Bosch and Van Gend, infra, pp. 170-170, notes 133,136.
See the further discussion of this point in Court Decisions and Individual Rights, infra, p. 168, note 127ff.
Da Costa en Schaake N. V. v. Netherlands Fiscal Administration, (Case No. 28/62, 29/62, and 30/62): 9 Recueil 59; CCH Common Market Rep. ¶ 8010, at 6603. (March 27, 1963). Accord, Flaminio Costa v. Ente nazionale Energia elettrica impresa gia della Edison Voltà, (Case No. 6/64), CCH Common Market Rep. ¶ 8023, at 6733, (July 15, 1963).
Da Costa, id., at 6608.
Cf. the statement of Advocate-General Lagrange. In his Conclusion he has provided one of the most authoritative analysis of Article 177, as it affects the relationship between the EEC Court and national courts. He reasons that the question of reinterpretation will be decided by national forums. They will decide if 177 (para. 3) is to be utilized. Accordingly, there must be a request for an interpretation of a treaty article. In this case, he felt, no valid question had been raised. Further Lagrange concluded: “Article 12 of the Treaty … has immediate effect and entails for persons under its jurisdiction individual rights which national courts must safeguard…” Id., at 6615.
Fédération Nationale, supra, p. 152, note 78.
It was also held that regulations of the Commission are not decisions within the meaning of Article 189.
Milchwerke Heinz Wöhrmann, supra, p. 153, note 81.
Da Costa, supra, p. 163, note 114, Conclusion of the Advocate-General, id., at 6610.
Four grounds upon which appeals may be made to the Court are set forth at pp. 140-141, notes 49-53, supra.
Regulation 17, implementing Articles 85 and 86 of the EEC Treaty, CCH Common Market Rep‚ If 2041, at 1651–80. See also Deringer, “Common Market Competition Rules with Particular Reference to Non-Member Countries,” 12 Int’l & Comp. L.Q. 582 (1963); Campbell, “Common Market: Recent Changes and Notifications,” 107 Sol. 65 (1963).
The problem of advisory opinions will be treated later in this study in order that the underlying case law arising from contentious proceedings may first be examined. See infra, p. 178, note 150.
EEC Treaty, Art. 173, Para. 3, CCH Common Market Rep. ¶ 6117, at 3983.
Article 184 provides a major exception to the very rigid two month period. Where a regulation of the Council or of the Commission is the subject of a dispute in legal proceedings, any of the parties concerned may, notwithstanding the expiry of the period laid down in Article 173, third paragraph, invoke the grounds set out in Article 173, first paragraph in order to allege before the Court of Justice that the regulation concerned is inapplicable.
EEC Treaty, Art. 173, Para. 1. The defensive pleading, however, must be filed within one month. See Campbell & Thompson, op. cit., supra, p. 151, note 72, at 95-96.
6 Recueil 933 (1960). See Article 179 of the EEC Treaty.
6 Recueil 1119 (1960).
6 Recueil 1125 (1960).
Gormley,“The Future Privileges and Immunities Required by the Personnel of Regiona and International Organizations from the Jurisdiction of American Courts” (Pt. 1), 32 U Cine. L. Rev. 131, 173-79 (1963).
A. Wagner, Esch-sur-Alzette v. J. Fohrmann Dudelange, and A. Krier, Esch-sur-Alzette (Case No. 101/63). (April 30, 1964) See note in CCH Common Market Rep. ¶ 9134, at 8061. See English translation in 3 (Pt. II) Common Market Law Reports [Eng.] 245-247 (1964). See particularly the Conclusion of Lagrange, id., at 247-258.
As shown by the practices of the League of Nations and the United Nations. Gormley, supra, p. 135, note 30, at 157-163, 166-169.
Kleding-Verkoopbedrijf Co. v. Robert Bosch Co. (Case No. 13/61), CCH Common Market Rep. ¶ 8003, at 6532 (April 6, 1962). See Thompson, “The Bosch Case,” II Int’l & Comp. L.Q. 721 (1962).
Even before the Court had finally resolved the issues, the importance of Article 177 was recognized by forward-looking writers. See Bebr, Judicial Control of the European Communities 192-93 (1962). See also Donner, supra p. 148, note 67.
In numerous actions Member Governments have been forced to conform to the Community Law. The superiority (and supranationality) of the Court, the Council, the Commission, and the High Authority have been clearly established. EEC Comm’n v. Government of Italy (Case No. 7/61), 7 Recueil 633 (1961), CCH Common Market Rep. ¶ 8001, at 6503; Federal Republic of Germany v. EEC Comm’n (Case No. 24/62), CCH Common Market Rep. ¶ 8012, at 6621, (July 4, 1963). Accord, Italy v. EEC Comm’n (Case No. 13/63), id., ¶ 8014, at 6635 (July 17, 1963); In re the Constitutionality of a Law Approved by the Assembly of the Region of Sicily (Case No. 49/63), id., ¶ 8015, at 6655 (April 4, 1963); Federal Republic of Germany v. EEC Comm’n (Case No. 34/62), id., ¶ 8016, at 6559 (July 15, 1963).
N. V. Algemene Transport (Van Gend & Loos) v. Netherlands Fiscal Administration (Case No. 26/62), 9 Recueil 1, CCH Common Market Rep. ¶ 8008, at 6589 (Feb. 5, 1963). See Angelo, “Developments in the European Common Market,” 7 ABA, Int’l & Comp. L. Sec. Bull. 12 (1963).
See the cases cited in note 135 supra, p. 171.
Donner, supra, p. 148, note 67, at 69.
N. V. Algemene Transport (Van Gend & Loos) v. Netherlands Fiscal Administration (Case No. 26/62), 9 Recueil 1, CCH Common Market Rep. ¶ 8008, at 6596.
Id., at 6596-97.
Id., at 6597.
Ibid.
Id., at 6597-2-98. In brief, Advocate-General Roemer feels that the Luxembourg Court did not have jurisdiction even to entertain a suit by an individual. Under this line of reasoning, he feels that the question of the substantive effect of Article 12 would not have to be considered. Id., at 6597-4-97-9.
Cases No. 28/62, 29/62, and 40/62, CCH Common Market Rep. ¶ 8010, at 6603 (March 27, 1963). This case differs from Van Gend which involved an optional referral whereas this case concerns mandatory referrals. See Article 177(3).
Id., at 6609.
“Conclusions,” id., at 6610.
As of the date this portion of the book is being written the decision in Case No. 100/63 has not become available.
M.K.H. Unger v. Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten, (Case No. 75/63); CCH Common Market Rep. ¶ 8022, at 6721 (March 19, 1964).
M. Th. Nonnenmacher widow of H. E. Moebs v. Bestuur der Sociale Verzekeringsbank, (Case No. 92/63); CCH Common Market Rep. ¶ 8025, at 6759 (June 9, 1964).
See the discussion of the advisory jurisdiction of the ICJ in Ch. IV. supra. See also the new Protocol of the Council of Europe which is very limited. Supra, p. 116 ff.
Kristensen, “L’Organisation de Cooperation et de Dévelopment Economiques. Ses Origines,” Ses Buts, Sa Structure, 9 European Yb. 88 (1962).
In December 1959, the heads of state from the United States, Great Britain, and the Federal Republic of Germany issued the following declaration concerning the changed economic situation at the international level: All the industrialized countries are now in a position to devote their energies, to an increasing extent, to new and important tasks of cooperation, with the specific aim of: a) further the development of under-developed countries; b) operating trade policies geared to the national utilization of economic resources and the maintenance of harmonious international relations such as may stimulate the progress and bolster the stability of the world economy and lead to a general improvement in the standard of living. … Id., at 98.
The OECD is working toward a 50% increase in the total gross national product of the twenty one-member countries. Ibid.
The limited scope of this study does not permit an examination of the very vital area of commercial arbitration. It should be noted, however, that individuals have always been subjects of this private and voluntary legal system. At present major arbitral remedies, open to private use, are being developed. E.g., International Bank For Reconstruction and Development Arbitral Convention. See the numerous Dew conventions analyzed by Spofford, “International Arbitration: Certain Contemporary Developments,” Recueil des Cours (1964). The world-wide arbitration bodies constitute an informal conflict-resolving system before which individuals can gain relief. See Procedural Status, 59-60, and Gormley, “The Place of Commercial Arbitration in Multinational and International Organizations.” 24 Ohio St. L.J. 617 (1963) See also Ch. III supra, p. 39, note 20 and the collected sources therein.
“Economic Integration in Latin America,” 17 Record of N.Y.C.B.A. 5 (Supp. June, 1962). See the discussion of the Central American program of economic integration, id., at 13. See the Charter of the Organization of Central American States (ODECA), signed at Panama City on Dec. 12, 1962. 2 Int’l Legal Materials 235 (1963).
Draft Convention on the Protection of Foreign Property, reprinted in ABA, The Protection of Private Property Abroad 60 (1963). Article 7(a) of the Convention provides: Any dispute between Parties as to the interpretation or application of this Convention may be submitted by agreement between them either to an Arbitral Tribunal established in accordance with the provisions of the Annex to this Convention, which shall form an integral part thereof, or to any other international tribunal. If no agreement is reached for this purpose between the Parties within a period of sixty days from the date on which written notice of intention to institute proceedings is given, it is hereby agreed that an Arbitral Tribunal established in accordance with that Annex shall have jurisdiction. See also 2 Int’l Legal Materials 241 (1963).
Article 7(b) of the Draft Convention on the Protection of Foreign Property provides: “A national of a Party claiming that he has been injured by measures in breach of this Convention may institute proceedings against any other Party responsible for such measures before the Arbitral Tribunal.”
Feld, “The Court of Justice of the European Communities: Emerging Political Power? An Examination of Selected Decisions of the Court’s 1961–1962 Term,” 38 Tul. L. Rev. 53 (1963). Feld, “The Judges of the Court of Justice of the European Communities,” 9 Vill. L. Rev. 37 (1963). Lorenz, “General Principles of Law: Their Elaboration in the Court of Justice of the European Communities,” 13 Am. J. Comp. L. 1 (1964); and Weser, “Litigation on the Common Market Level,” 13 Am. J. Comp. L. 44 (1964).
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Gormley, W.P. (1966). European Economic Organizations. In: The Procedural Status of the Individual before International and Supranational Tribunals. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9530-0_6
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