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The Balancing of Community and National Interests by the European Court

Published online by Cambridge University Press:  24 January 2025

Leslie Zines
Leslie Zines*
Affiliation:
Australian National University
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Abstract

Problems similar to those that have, for many years, occupied the courts of the United States, Canada and Australia in interpreting a federal charter now confront the judicial arm of the European Community. Professor Zines develops a comparison between the approach that has found favour in the European Court and the approach of the courts of those Federations, although he admits that such a comparison has innate limitations. From a study of the revelant cases Professor Zines concludes that the European Court, by adopting a functional approach, has strengthened community rather than state interests. He discusses in detail how the Court has achieved this result by relying on the broad economic and political objects which are recognised as underlying the Treaty, rather than by strict legal construction of its provisions.

Type
Research Article
Information
Federal Law Review , Volume 5 , Issue 2 , June 1973 , pp. 171 - 199
Copyright
Copyright © 1973 The Australian National University

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References

1 Schwarzenberger, G., English Law and the Common Market (1963) 17Google Scholar.

2 Peter, Hay, Federalism and Supranational Organizations (1966)Google Scholar.

3 Lasok, D. and Bridge, J. W., Introduction to the Law and Institutions of the European Communities (1973)Google Scholar.

4 Green, A. W., Political Integration by Jurisprudence (1969)Google Scholar.

5 The Advocate-General has no conterpart in the court practice of common law countries and comes from French Law. Before the judges come to their decision, he is required to present a judgment of his own, setting out the arguments and issues, proposing a solution of the case in the light of existing principles and doctrine. The Treaty requires him to act with “complete impartiality and independence” (Article 166). The Court is not bound by the AdvocateGeneral's submissions.

6 Ninth General Report of the Activities of the E.E.C. (1966), 3133.

7 Brinkhorst, L. J., “European Law as a Legal Reality” in European Integration ed. Hodges, M. (1972)Google Scholar.

8 (1972) 4 U. of Tas. L.Rev. 1, 9.

9 Van Gend En Loos v. Nederlandse Administratie Der Belastingen [1963] C.M.L.R. 105.

10 Walt Wilhelm v. Bundeskartellamt [1969] C.M.L.R. 100.

11 Van Gend En Loos case, supra n. 9; G. Bebr, “Directly Applicable Provisions of Community Law: The Development of a Community Concept”, 19 I. & C.L.Q. 257.

12 Special transitional provisions have been agreed on for the three new Members—See Act annexed to the Treaty of Accession, Article 32.

13 [1937] A.C. 326, 354.

14 Cooley v. The Board of Wardens (1851) 12 How. 299.

15 James v. The Commonwealth (1936) 55 C.L.R. 1.

16 Cf. Barwick C.J. in Samuels v. Readers' Digest Association Pty Ltd (1969) 120 C.L.R. 1, 14.

17 A.N.A. v. The Commonwealth (1946) 71 C.L.R. 29; The Bank Nationalization Case (1948) 76 C.L.R. 1.

18 Huddart Parker v The Commonwealth (1931) 44 C.L.R. 492; Herald and Weekly Times Ltd v. The Commonwealth (1966) 115 C.L.R. 418; U.S. v. Darby 312 U.S. 100 (1941).

19 Article 39:

The objectives of the common agricultural policy shall be:

(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;

(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;

(c) to stabilise markets;

(d) to assure the availability of supplies;

(e) to ensure that supplies reach consumers at reasonable prices.

20 Groupement Des Hauts-Fourneaux Et Acieries Beiges v. High Authority, reported in D. G. Valentine, The Court of Justice of the European Communities (1965) Vol. II, 511, 518. I have not followed the exact translation in Valentine. Cases before 1961 are not in the Common Market Law Reports but are all included and translated in the second volume of Valentine.

21 E.G. Commission v. France [1970] C.M.L.R. 43.

22 Walt Wilhelm v. Bundeskartellamt [1969] C.M.L.R. 100.

23 Meroni v. The High Authority, Valentine Vol. II, 481.

24 Internationale Handelsgesellschaft case [1972] C.M.L.R. 255. Federation Charbonniere De Belgique v. High Authority, Valentine Vol. II, 110.

25 Re European Road Transport Agreement: E.C. Commission v. E.C. Council [1971] C.M.L.R. 335.

26 Stauder v. City of Ulm [1970] C.M.L.R. 112.

27 (1940) 63 C.L.R. 338.

28 (1942) 65 C.L.R. 373.

29 Re Aids to the Textile Industry: France v. Commission of the European Communities [1970] C.M.L.R. 351.

30 Syndicat National Des Importateurs Francais En Products Laitiers Et Avicoles [1968] C.M.L.R. 81.

31 Scheingold, S. A., The Rule of Law in European Integration (1965)Google Scholar; Hay, P., Federalism and Supranational Organizations (1966) 185-191Google Scholar; Chevallier, R. M., “Methods and Reasoning of the European Court in its Interpretation of Community Law” (1964) 2 C.M.L. Rev. 21, 31Google Scholar. Some writers would accept “teleological” as a description of the Court's approach, but not “functional” on the ground that the latter term implies too great a regard for political and economic objects and too little regard for the text. See Green, A. W., Political Integration by Jurisprudence (1969) 430, 463-467, 494Google Scholar. This is primarily a matter of degree. In any case, the decisions dealt with later in this article and delivered since Green's book was published, indicate a trend towards greater “functionalism” in Green's sense of that word.

32 Union Label Case (1908) 6 C.L.R. 469; R. v. Barger (1908) 6 C.L.R. 41.

33 The Engineers' Case (1920) 28 C.L.R. 129.

34 Re Import Duties on Mutton: Germany v. E.C. Commission [1967] C.M.L.R. 22; Re Export Tax on Arts Treasures: E.C. Commission v. Italy [1969] C.M.L.R. 1.

35 Laskin, B., Canadian Constitutional Law (3rd ed. 1966) ch. viiGoogle Scholar.

36 [1970] C.M.L.R. 194.

37 Id., 201; cf. Gallagher v. Lynn [1937] A.C. 863.

38 E.C. Commission v. France: Re Export Credits [1970] C.M.L.R. 43.

39 Article 169.

40 E.C. Commission v. France: Re Export Credits, supra n. 38, 65.

41 Ibid.

42 Norddeutsches Vieh-und-Fleischkontor v. Hauptzollamt Hamberg [1971] C.M.L.R. 281.

43 Costa v. E.N.E.L. [1964] C.M.L.R. 425; Hauptzollamt v. Waren-Import Gesellschaft Krohn and Co. [1970] C.M.L.R. 466; Deutsche Bakels v. Oberfinanzdirektion Munchen [1971] C.M.L.R. 188.

44 Hauptzollamt v. Firma Paul G. Ballmann [1970] C.M.L.R. 141.

45 Hessische Knappschaft v. Singer [1966] C.M.L.R. 82.

46 Unger v. Bestuur Der Bedrijfsvereniging Voor Detailhandel En Ambachten [1964] C.M.L.R. 319.

47 Singer case, supra n. 43.

48 De Sociale Voorzorg v. Berthalet [1966] C.M.L.R. 191, 204.

49 [1970] C.M.L.R. 243.

50 Caisse Regional De Securite Sociale Du Nord v. Torrekens [1969] C.M.L.R. 377; Caisse D'Assurance Vieillesse Des Travailleurs Salaries De Paris v. Duffy [1971] C.M.L.R. 391.

51 Walt Wilhelm v. Bundeskartellamt [1969] C.M.L.R. 100.

52 Cf.Victoria v. The Commonwealth (1937) 58 C.L.R. 618.

53 For the latter position reliance is sometimes placed on Article 222 which provides that “This Treaty shall in no way prejudice the system existing in Member States in respect of property”.

54 [1966] C.M.L.R. 418.

55 Sirena s.r.l. v. Eda s.r.l. [1971] C.M.L.R. 260.

56 Id., 274.

57 [1968] C.M.L.R. 47.

58 Id., 53.

59 (1819) 4 Wheat. 316; 4 L.Ed. 579.

60 France v. The High Authority, Valentine Vol. II, 18, 33 (exact translation not followed).

61 Re Import Duties on Gingerbread: E.C. Commission v. Luxemburg and Belgium (1963] C.M.L.R. 199.

62 See e.g. Import Duties on Mutton: Germany v. E.C. Commission (1967] C.M.L.R. 22.

63 Re Export Tax on Art Treasures: E.C. Commission v. Italy (1969] C.M.L.R.1.

64 Social Fonds Voor De Diamantafbeiders v. Brachfeld and Sons [1969] C.M.L.R. 335.

65 Re Statistical Levy: E.C. Commission v. Italy [1971] C.M.L.R. 611.

66 R. v. Vizzard (1933) 50 C.L.R. 30.

67 Hughes, and Vale, Pty Ltd v. N.S.W. (1953) 87 C.L.R. 49Google Scholar.

68 [1968] C.M.L.R. 81. The Community authorities had taken a different view. While the above case related to tinned milk, Article 18 of Regulation 11, with respect to cereals, defined a measure of equivalent effect as including “any restriction on the grant of import or export certificates to a specified category of beneficiary”.

69 State v. Cornet [1967] C.M.L.R. 351. The Cour d'Appel de Lyon had come to the same conclusion on this point-[1965] C.M.L.R. 105.

70 1nternational Fruit Co. Case Recueil, XVII (1971) 1107. This case was not reported in the Common Market Law Reports at the time of writing.

71 Consten (Ets.) S.A. and Grundig Verkaufs-G.M.B.H. v. E.C. Commission [1966] C.M.L.R. 418, 472.

72 [1968] C.M.L.R. 187.

73 Id., 224. The Court added that when the rate of tax was determined in the framework of a general national tax system there was a presumption that such restrictions on the free circulation of goods do not exist.

74 [1971] C.M.L.R. 631.

75 Id., 656-7.

76 Id., 644; see [1972] C.M.L.R. 35.

77 (1948) 334 U.S. 168.

78 [1971] C.M.L.R. 335.

79 The extent to which the Community differs from a federation can be gauged from the attitudes of the parties in this case. The main legislative body of the Community was strenuously arguing that it should not have power to deal with the matter and that the State should have the power.

80 Article 74:

The objectives of this Treaty, shall, in matters governed by this Title, be pursued by Member States within the framework of a common transport policy.

Article 75:

1. For the purpose of implementing Article 74, and taking into account the distinctive features of transport, the Council shall, acting unanimously until the end of the second stage and by a qualified majority thereafter, lay down, on a proposal from the Commission and after consulting the Economic and Social Committee and the Assembly:

(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;

(b) the conditions under which non-resident carriers may operate transport services within a Member State;

(c) any other appropriate provisions.

2. The provisions referred to in (a) and (b) of paragraph 1 shall be laid down during the transitional period.

3. By way of derogation from the procedure provided for in paragraph 1, where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the Council acting unanimously. In so doing, the Council shall take into account the need for adaptation to the economic development which will result from establishing the common market.

81 Re European Road Transport Agreement: E.C. Commission v. E.C. Council, supra n. 78, 350.

82 Id., 344.

83 1d., 355.

84 [1972] C.M.L.R. 255.