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Lawyers, Judges, and the Making of a Transnational Constitution

Published online by Cambridge University Press:  27 February 2017

Eric Stein
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Extract

Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology. Proceeding from its fragile jurisdictional base, the Court has arrogated to itself the ultimate authority to draw the line between Community law and national law. Moreover, it has established and obtained acceptance of the broad principle of direct integration of Community law into the national legal orders of the member states and of the supremacy of Community law within its limited but expanding area of competence over any conflicting national law.

Type
Research Article
Information
American Journal of International Law , Volume 75 , Issue 1 , January 1981 , pp. 1 - 27
Copyright
Copyright © The American Society of International Law 1981

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References

1 No dissenting or other separate opinions are allowed.

2 On the use of the term “amicus curiae”in this paper, see the penultimate paragraph of note 3 infra.

3 Article 177 of the Treaty Establishing the European Economic Community (EEC) provides: The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. Seethe corresponding Article 41 of the Treaty Establishing the European Coal and Steel Community and Article 150 of the Treaty Establishing the European Atomic Energy Community. For a handy volume of the text of these Treaties, see Office For Official Publications Of The European Communities, Treaties Establishing The European Communities (1978). EEC Article 177 is at p. 348. Article 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community requires that in cases governed by Article 177, when a national tribunal refers the case to the Court of Justice, the parties to the case, the member states, and the Commission (and also the Council if its act is involved) must be notified and they are entitledto submit oral statements or written observations to the Court. Id.at 525. The term “amicus curiae”is used in the text in a general sense only. According to Article 37 of the same Protocol, member states may “intervene” in cases before the Court. Id.at 529. This essay deals exclusively with the Treaty Establishing the European Economic Community, March 25, 1957, 298 UNTS 11 (in forceJan. 1, 1958). For an authoritative English text, see [1973] Gr. Brit. TS No. 1, pt. II (Cmd. 5179 II), at 1.

4 For examples of writings by judges and Advocates General of the Court of Justice, see L. Delvaux, La Cour De Justice De La Communauté Européenne Du Charbon Et De L'acier (1956); A. M. Donner, The Court Of Justice As A Constitutional Court Of The Communities—The Exeter Lecture In European Law (1978); Donner, The Constitutional Powers of the Court of Justice of the European Communities,11 Comm. Mkt. L. Rev. 127 (1974); R. Lecourt, L'europe Desjuges (1976); Lord Mackenzie Stuart, The European Communities And The Rule Of Law (1977); P. Pescatore, The Law Of Integration (1974); Hammes, Gedanken %u Funktion und Verfahren des Gerichtshofs der Europaeischen Gemeinschaften,[1968] Europarecht [Eur] 1; Kutscher, Der Gerichtshof der Europaeischen Gemeinschaften,[1978] Europaeische Grundrechte-Zeitschrift [Eugrz] 503; Lagrange, La Cour de Justice des Communautés européennes: duplan Schuman à I ‘union européenne,[1978] Revue Trimestrielle Du Droit Européen [Rev. Trim. D.E.] 1; Mertens de Wilmars, La jurisprudence de la Cour de Justice comme instrument de I'intégration communautaire, [1976] Cahiers De Droit Européen [Cah. Dr. Eur.] 135; Touffait, La Cour de Justice des Communautés européennes, [1978] REV. Internationale De Droit Comparé 363; Trabucchi, L'effet (erga omnes>) des décisions préjudicielles rendues par la Cour de Justice des Communautés européennes,[1974] REV. TRIM. D.E. 56; Warner, The Relationship Between European Community Law and the National Laws of Member States,[1977] L.Q. Rev. 349.

5 Case 26/62, N. V. Algemene Transport—en Expeditie Onderneming van Gend & Loos v. Nederlandse Administratie der Belastingen, [1963] European Court Reports [Ecr] 1, See, among the many comments on this case, Hay, Federal Jurisdiction of the Common Market Court, 12 AM. J. Comp. L. 21 (1963); and Riesenfeld & Buxbaum.Af. V. Algemene Transport—enExpeditie Onderneming van Gend &f Loos c. Administration Fiscale Néerlandaise: A Pioneering Decision of the Court of Justice of the European Communities, 58 AJIL 152 (1964). See also Amphoux, A propos de I'arrêt 26162 (Société N. V. Allgemene [sic] Transport en Expeditie Onderneming van Gend et Loos contre Administration fiscale néerlandaise) rendu le 5 fevrier 1963 par la Cour de Justice des Communautés européennes, 68 Revue Générale De Droit International Public [Rgdip] 110 (1964); Catalano, L'inserimento diretto delle disposizioni contenute nel trattato istitutivo della Communilà Economica Europea negli ordinamenti giuridici degli Stati membri, 18 Il Foro Padano, Parte Quinta, Col. 33 (1963); Jeantet In 37 Juris-Classeur Périodique, La Semaine Juridique, II Jurisprudence No. 13177(1963); Marsh, Some'Reflections on Legal Integration in Europe, 12int'l & Comp. L.Q. 1411 (1963); Wengler In 16 Neue Juristische Wochenschrift [N.J.W.] 1751 (1963).

6 Unless otherwise indicated, “the Treaty” in this essay refers to the Treaty Establishing the European Economic Community, supranote 3.

7 Belgium-Netherlands-Luxembourg.

8 For this and the second question, Case 26/62, [1963] ECR at 3.

9 Art. 20 of the Protocol on the Statute of the Court of Justice of the European Economic Community, supranote 3.

10 The Belgian and Dutch Governments challenged the jurisdiction expressly, the German Federal Republic by implication with respect to the second, and possibly also the first, question.

11 Case 26/62, [1963] ECR at 6-9.

12 The Advocate General felt that ‘ [i]t is impossible to clarify exhaustively the real legal effects of an international agreement on the nationals of a Member State without having regard to the constitutional law of that Member State. But, on the other hand, it is clear that the question does not refer exclusively to problems of constitutional law. The question whether the Treaty, and especially Article 12, was intended by the parties to be “self-executing” (or have “direct effect“) in their national legal systems was relevant for the decision in the case; the Court of Justice may “extract” from the Dutch tribunal's request an appropriate issue of interpretation, and in principle, at any rate, it is for the national court and not for the Court of Justice to inquire into the relevance of the question for the decision in the principal case. Id.at 18-19. The Advocate General seems to have come close to accepting the “fall-back” position of the Netherlands. This option would have recognized the jurisdiction of the Court to rule on the effect of Article 12, but even if the Court should have found that the article was intended to have direct effect, the application of such ruling for the purpose of determining whether an individual might invoke it in a Dutch tribunal would still have been a matter of national constitutional law. Id.at 8.

13 Id.at 6.

14 To confine the “guarantees against infringement of Art. 12” by the member states to the procedures under Articles 169 and 170 would remove all direct legal protection of the individual rights of their nationals. There is a risk that recourse to the procedure under these articles would be ineffective if it were to occur after the implementation of a national decision taken contrary to the provisions of the Treaty. Id.at 13. The Court's interest in broadening an individual's access to national courts as a basis for a reference under Article 177 became particularly acute when, starting with the cases decided in December 1962, the Court laid down an extremely narrow and technical interpretation of the important Article 173(2) and thus severely restricted the direct access of the individual to the Court itself in case of an infringement of Community law by Community institutions, as compared with the broad access accorded to member states. Cases 16 and 17/62, [1962] ECR 471; 19-22/62, [1962] ECR 491; 25/62, [1963] ECR 95. For subsequent cases, see Stein & Vining, Citizen Access to Judicial Review of Administrative Action in a Transnational and Federal Context,70 AJIL 219, 222-27 (1976). In view of the questionable chance for an individual to obtain satisfaction through an action for damages against the Community under Article 215, the procedure under Article 177 has been crucial in ensuring an individual's protection under the Community system, including cases where a member state acts to implement an act of a Community institution that violates Community law. In Joined Cases 261 & 262/78, Interquell Staerke- Chemie Gmgh & Co. KG and Diamalt AG v. Council and Commission of the European Economic Community, [1980] ECR 3045, the Court of Justice held the Community liable for damages.

15 There were 106 cases brought under Articles 169 and 93, as compared with 764 cases initiated by private parties under Article 177. Thirteenth General Report on the Activities of the European Communities, Feb. 1980, at 340, updated by Ec Bulletin, NOS. 1-6, 1980.

16 Case 26/62, [1963] ECR at 8 (Netherlands) and 19 (Advocate General).

17 Id.at 8 (Netherlands). Article 12 states: “Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.” Official Publications, Treaties, supranote 3, at 203, 230.

18 Case 26/62, [1963] ECR at 8 (Belgium and Germany).

19 According to the Dutch Government, any other conclusion would “upset the system the authors of the Treaty intended to establish“; it would create uncertainty with respect to many Community norms expressly imposing obligations on member states—as does Article 12—and it would reduce the willingness of member states to cooperate; and finally it would provide an inappropriate way of testing the responsibility of member states. Ibid.In German law, the German Government pointed out, a national provision that laid down a customs duty contrary to the provisions of Article 12 would be “perfectly valid.” Ibid.

20 Id.at 19-22. Advocate General Roemer may have reflected the view of the German courts, which recognize treaty-derived rights of individuals only if the intention to that effect appears “with full clarity” (mit voller Klarheit)from the content, purpose, and scheme (lnhalt, Zweck und Fassung)of the treaty. Reichsgericht, March 29, 1928, 121 RGZ 7, 9. Prof. Waelbroeck cautions, however, that in practice the German courts have not been as restrictive as the above wording would indicate. M. Waelbroeck, Traités Internationaux Etjuridictions Internes Dans Les Pays Du Marché Commun 185 (1969).

21 Case 26/62, [1963] ECR at 7.

22 Arts. 31 and 32 of the Vienna Convention on the Law of Treaties, UN Doc. A/CONF. 39/27 (1969), reprinted in63 AJIL 875, 885 (1969).

23 Emphasis added.

24 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. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee. In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. Case 26/62, [1963] ECR at 12.

25 Ibid.

26 Id.at 12-13. Cf.Chief Justice Marshall's definition of a self-executing treaty in Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

27 Advisory Opinion on the Jurisdiction of the Courts of Danzig, March 3, 1928, PCIJ, ser. B, No. 15, at 4, 17 and 18.

28 M. Waelbroeck, supranote 20, at 165. It is safe to say that the subjective interpretation principle based on intention of the parties has been losing support in international law. See, e.g.,Bleckmann,TeleologieunddynamischeAuslegungdesEuropaeischenGemeinschaftsrechts,[1979] Eur239.

29 M. Waelbroeck, supranote 20, at 185-86.

30 Case 26/62, [1963] ECR at 16.

31 Case 6/64, Flaminio Costa v. ENEL, [1964] ECR 585. Of the many comments on this case, see Frowein, Zum Verhaeltnis zwischen dem EWG-Recht und nationalem Recht aus der Sicht des Gerichtshofes der Europaeischen Gemeinschaften,[1964] Aussenwirtschaftsdienst Des Betriebs-Beraters [Awd] 233; Kovar, Chronique de la jurisprudence de la Cour de Justice des Communautés européennes,92 Journal Du Droit Int'l 697 (1965); Monaco, Diritto comunitario e diritto interno avanti la Corte costituzionale, 116 Giurisprudenza Italiana I Col. 1312 (1964); Sasse, The Common Market: Between International and Municipal Law,75 Yale L.J. 695 (1965- 1966); Stein, Toward Supremacy of Treaty-Constitution by Judicial Fiat: On the Margin of the Costa Case,63 Mich. L. Rev. 491 (1964-1965).

32 Costa c. E.n.el. & Soc. EdisonvoLTA, Judgment No. 14 of March 7, 1964, 87 Foro Italiano [Foro It.] I, at 465.

33 Case 6/64, [1964] ECR at 589 and 593.

34 Id.at 589.

35 Id.at 599.

36 The Court said: By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. Id.at 593

37 Id.at 593-94. The Court relied here on the provision of Article 5(2), requiring member state cooperation and loyalty in very general terms, on Article 7, prohibiting discrimination on the ground of nationality, and on Article 189, which makes “regulations” issued by the Community institutions directly applicable in all member states. Ibid.

38 If a “supremacy clause” is to be read into the Treaty, the Court's formulation appears more appropriate. SeeCasper, in Asil, 72 Proc. 169, 172 (1978). Sasse, supra note 31, at 720, calls Advocate General Lagrange's attitude “rather dualistic,” as opposed to the “definite monistic” view taken by the Court.

39 See infranote 41.

40 Case 6/64, [1964] ECR at 593. In June 1965, the Court refused to suspend the proceeding before it pending the consideration by the Italian Constitutional Court of the constitutionality of the Italian law ratifying the European Coal and Steel Community Treaty. Case 9/65, Order of the Court, Acciaierie San Michele Spa (in liquidation) v. High Authority of the ECSC, [1967] ECR 27, 29. (The Report of the Interim Order does not give the position of either the Commission or the Advocate General.) In December 1965, the Constitutional Court rejected the claim made in the Acciaierie San Michelecase that the transfer of judicial power to the Court of Justice deprived the Italian plaintiff of his constitutional right to be judged in an Italian court. The basis for upholding the transfer was that the Community system was distinct from, but “internally effective,” in the internal system (shades of Advocate General Lagrange) and that it assured individual legal protection through its own judicial process. Soc. Acciaierie San Michele v. C.E.C.A., No. 98 of Dec. 27, 1965, 89 Foro IT. I, at 8 (1966), 6 Comm. Mkt. L.R. 160 (1967). In Case 14/68, Walt Wilhelm and Others v. Bundeskartellamt([1969] ECR 1), the Commission,the Court,and Advocate General Roemerconcurred in allowing simultaneous application of national and Community competition laws, but the Court took what may be viewed as a middle position on the extent of deference national authorities must accord to Community action in case of a possible conflict with national action.

41 Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, [1978] ECR 629.

42 Judgment No. 232 of October 30, 1975,98 FORO IT. I, at 2662 (1975); Judgment No. 205 of July 28, 1976 and Order No. 206 of July 28, 1976, 99 FORO IT. I, at 2298 (1976);seeadjudgment No. 183 of Dec. 27, 1973, 97 FOROIT. I, at 314 (1974), 14 Comm. Mkt. L.R. 372 (1974).

43 Case 106/77, [1978] ECR 629. SeeBarav, Observations. Les Effets du Droit Communautaire directement applicable,[1978] Cah. Dr. Eur. 265; Carreau, Droit communautaire et droits nationaux: concurrence ouprimauté?,[1978] Rev. Trim. D.E. 381; Ilprimato Deldirittocommunitario E I Giudici Italiani (Angeli ed. 1978).

44 [1978] ECR at 643-45. In Simmenthal,the Commissionand the Advocate Generalengaged in an elaborate debate with the Italian Governmenton the advantages and disadvantages of an ad hoc decision of “invalidity” by an ordinary judge, which would be applicable only to the particular case, as compared with a ruling by the Constitutional Court entailing an impact erga omneswith a retroactive ex tunceffect. For better or for worse, the Court refused to grasp this particular thicket, apparently because it was not specifically asked by the Italian court to address it. There is no indication that as a result of the Court's ruling Italian administrative authorities or courts were swamped with requests for refunds of payments exacted on the basis of the law held invalid in the Simmenthalcase context or of any other law held invalid, so that the question of the reach of the retroactive effect and its impact on completed transactions has apparently not arisen thus far.

45 Barav, supranote 43, at 279, concludes that national measures conflicting with Community law do not exist from a legal point of view. Therefore, there is no conflict, and the national judge has to apply the only valid law which is Community law. Carreau, supranote 43, at 4Q4, sees in the Court's words only a forceful statement of the inapplicability of conflicting national law. This interpretation does not admit the “invalidity” of subsequent conflicting law, but he views it as “inapplicable.” Id.at 403-04. See alsoIpsen, Die Rolle des Prozessrichters in der Vorrang-Frage,[1979] Eur223, 233-37.

46 Joint Cases 36-38/59 and 40/59, President Ruhrkohlen-Verkaufsgesellschaft etc. [Geitling] v. High Authority of the Ecsc, [1960] ECR 423.

47 Erich Stauder v. City of Ulm, Sozialamt, [1969] ECR 419. For a comment, see Ehlermann, Anmerkung,[1970] Eur 41.

48 The Community act in question was a decision of the Commission, which was intended to help reduce surplus stocks of butter by allowing retailers to sell at reduced prices to welfare recipients in exchange for “individualized coupons” that would make sure that the system was not abused. The German administrative court felt that the decision made it impossible to avoid revealing the name of the beneficiary to the retailers and thus was contrary “to the German concept of social welfare and to the German system of protection of fundamental rights which must, at least in part, be guaranteed equally by the Community institutions as a part of protection afforded by the provisions of Community law.” [1969] ECR at 421. The Commission,the Advocate General,and the Courtinterpreted the Commission's decision as not necessarily requiring identification by nameso that the question of a conflict with the general principles of Community law did not arise. The Commissionopined that even the identification by name would be proper because it was a necessary means, proportionate to the desired end; thus, the principle of proportionality which was repeatedly applied by the Court of Justice (and was part of German constitutional law) had not been violated. According to the Commission, the general principles of Community law were derived from the general principles of law in force in the member states. Id.at 422-23. The Advocate Generalwould follow “many writers’ “ views that “general qualitative concepts of national constitutional law, in particular fundamental rights recognized by national law, must be ascertained by means of comparative evaluation of laws, and that such concepts which form an unwritten constituent part of Community law, must be observed in making secondary Community law.” Id.at 428. The Courtdid not identify the source of the general principles. It confined itself to the statement that the Commission decision, as properly interpreted, “contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.” Ibid.

49 Case 11/70, Internationale Handelsgesellschaft mbh v. Einfuhr- und Vorratsstelle fur Getreide und Futtermittel, [ 1970] ECR 1125. SeePescatore, The Protection of Human Rights in the European Communities, 9 Comm. Mkt. L. Rev. 73 (1972); and Zuleeg, Fundamental Rights and the Law of the European Communities,8 id.at 446 (1971), both also dealing with the Staudercase, supranote 47. See alsomost recently, Case 44/79, Liselotte Hauer v. Land Rheinland-Pfalz, [1980] Ecr

50 The German court claimed that the system of deposits runs counter to the principles of freedom of action and of disposition, of economic liberty, and of proportionality arising from the Grundgesetzand that the “primacy of supra-national law must yield before the principles of the German Basic Law.” [1970] Ecr at 1133.

51 Id.at 1131. The definition of the actual content of these general principles of law is up to the Court of Justice. Pescatore, supranote 49, at 78. According to Pescatore (at 79), the Court will have to apply the highest standard of protection for the Community citizen found in the law of any member state.

52 [1970] ECR at 1146-47.

53 Id.at 1131. See alsoCase 4/73, J. Nold Kohlen- und Baustoffgrosshandlungv. Commission, [1974] ECR 491.

54 Internationale Handelsgesellschaft mbh v. Einfuhr- und Vorratsstelle fur Getreide und Futtermittel, 37 Bverfge 271 (1974), 14 Comm. Mkt. L.R. 540 (1974); Italian Constitutional Court Judgment No. 183 of Dec. 27, 1973, supranote 42. However, in a recent order the German Constitutional Court left open the question whether or to what extent the reservation in the 1974 judgment should continue to apply “in view of the political and legal developments in the European sphere” that had taken place since 1974. Order of July 25,1979, 2 Bvl 6/77, [1979] Eugrz 547, 551.

55 Case 57/65, Alfons Lutticke GmbH v. Hauptzollamt Saarlouis, [1966] ECR 205. SeeIpsen, Anmerkung,[1966] Eur 356; Mailänder, Annotation,4, Comm. Mkt. L. Rev. 330 (1966-1967); Waelbroeck, Observations. L'Applicabilité directe de Varticle 95 du traité Cee,[1967] Cah. Dr. Eur. 184. On the impact of the Lüttickecase in Germany, see Wägenbaur, The Elimination of Tax Discrimination in Intra-Community Trade,in Courts And Free Markets—European And United States Perspectives (Sandalow & Stein eds., in the press, Oxford University Press).

56 As to Art. 48: Case 167/73, Commission v. French Republic, [1974] ECR 359, April 4,1974; and Case 41/74, Yvonne van Duyn v. Home Office, [1974] ECR 1337, Dec. 4,1974. As to Art. 52: Case 2/74, Jean Reyners v. Belgian State, [1974] ECR 631, June 21, 1974. As to Arts. 59 and 60: Case 33/74, J. H. M. van Binsbergen v. Bestuur van de Bedrijfsvereniging Metaalnijverheid, [1974] ECR 1299, Dec. 3, 1974. For a list of Treaty articles imposing obligations on member states that the Court held to have direct effect and the relevant case law, see H. G. Schermers, Judicial Protection In The European Communities §187, at 105-07 (2d ed., 1979). For comments on Reynersand van Binsbergen,see Leleux, La libre circulation des avocats. Problémes actuels. Premier rapport,[1976] Cah. Dr. Eur. 676; and Bronkhorst, Freedom of Establishment and Freedom to Provide Services under the EEC Treaty,12comm. Mkt. L. Rev. 245 (1975); on van Duyn,see infra,text at note 73 and literature cited in that note. Generally, see Leleux, The Role of the Court of Justice in Protecting Individual Rights in the Context of Free Movement of Persons and Services,in Sandalow & Stein eds., supranote 55.

57 In the Reynerscase, Luxembourg, Belgium, Irelandand the United Kingdomopposed direct effect of Article 52, while Germanyaccepted it in view of the Court's case law; the Netherlandsis reported also as accepting in Hirsch, Un arrêt fondamental de la Cjce-la liberié d'établissement dans le Marché Commun,[1975] Schweizerische Juristenzeitung 37, 38. In van Duyn,the United Kingdommade “no submission” on the issue of direct effect of Article 48 “in the light” of the previous case law (i.e.,Case 167/73). In van Binsbergen, Irelandopposed the direct effect of Articles 59 and 60; the United Kingdomand Germanyaccepted it in principle but suggested that the difficulties encountered by direct application could be solved only by enacting Community directives.

58 Case 36/74, B. N. O. Walrave and L. J. N. Koch v. Association Union Cycliste Internationale, [1974] ECR 1405. The prohibitions in question are contained in Articles 48, 59, and 7 (general prohibition of discrimination based on nationality). For comments, see Delannay, Observations,[1976] Cah. Dr. Eur. 209; and Ubertazzi, he domaine matériel du droit communautaire,[1976] Rev. Trim. D.E. 635.

59 According to the published record, the Commission referred here to Article 54(3)c, which concerns freedom of establishment. The correct reference in this context indicated by the Court is to Articles 60, 62, and 64, which deal with the supply of services. [1974] ECR at 1419.

60 Id.at 1410 and 1412.

61 Id.at 1415.

62 Id.at 1419. According to Delannay, supranote 58, at 221, it is an innovation that this judgment recognizes obligations imposed on individuals not by an express Treaty provision—as Articles 85 and 86—but derived from the very breadth of the provisions’ wording and from the lack of evidence to the contrary.

63 Case 43/75, Gabrielle Defrenne v. Société Anonyme Beige de Navigation Aérienne Sabena, [1976] ECR 455. For a criticism, see, e.g.,Prof. C. J . Hamson in Court Of Justice Of The European Communities, Judicial And Academic Conference 27-28 September 1976, 2 Reports 10 and 15 (1976); see alsovan Gerven, Contribution de l'arrêt Defrenne au développement du droit communautaire,[1977] Cah. Dr. Eur. 131, 141-43; and Grisham in 14 Comm. Mkt. L. Rev. 108 (1977).

64 The fact that “a great majority of shares” in Sabena are held by the Belgian state was held irrelevant by the Advocate General, since, as the Sabena representative pointed out, the company was organized under private law and its relations with the staff are governed by private law contracts. [1976] ECR at 470 and 488.

65 Id.at 471-72. The question may be raised whether the interpretative criteria are identical with those in van Gendand Costa v. Enel,or whether they are somewhat modified.

66 [1976] ECR at 473.

67 Van Gerven,supranote 63, at 136, compares the factors used by the European Court with those used by the U.S. Supreme Court in cases of prospective overrulings: the practical consequences, the degree of reliance by authorities and individuals on the law as.it seemed to be, and legal certainty. Van Gerven suggests that judgments bringing about as radical a change as did Defrenneshould be treated like legislation, that is, they should not be given any retroactive effect. Id.at 137.

68 In the Case 149/77, Gabrielle Defrenne v. Société Anonyme Beige de Navigation Aérienne Sabena([ 1978] ECR 1365), the Court refused to extend the equal pay principle of Article 119 to equality in other working conditions; although elimination of sex discrimination is a part of fundamental human rights and thus forms a part of general principles of Community law, in the absence of further action by the Community, the Court cannot enforce its observance in relationships between employer and employee, which are exclusively a matter of national law.

69 See infranote 71.

70 Case 9/70, Franz Grad v. Finanzamt Traunstein, [1970] ECR 825. For a comment, see Wägenbaur, Zur Wirkung von Entscheidungen und Richtlinien des Ewg-Rats,[1970] Awd 481.

71 [1970] ECR at 837-38. The Courtconsidered that the clause in Article 189 making regulations “directly applicable,” and thereforecapable of producing direct effect, does not mean that the other legal forms mentioned in that article could never produce a similar effect. Id.at 837. To buttress this argument, the Commissionsuggested that a distinction be made between “direct applicability” in the sense of Article 189, meaning “in particular” that no national legislation is required to make a Community measure effective, and “direct effect,” meaning that an individual may derive a right from the measure “in spite of the absence of national implementing legislation.” Id.at 832. For the Advocate General's view on this distinction, see id.at 847. See alsoBrinkhorst, Annotations,8 Comm. Mkt. L. Rev. 386, 391 (1971).

72 How convincing is the argument in the light of the opinion in the Case 111/75, Impresa Costruzioni Comm. Quirino Mazzalai v. Ferrovia del Renon([1976] ECR 657), in which the Court held that under Article 177 it has jurisdiction to interpret Community acts regardless of whether they are directly applicable? In Franz Grad,the Court appears to have left open the question whether the direct effect would come into play in case of a positive as well as a negative obligation imposed in a decision or a directive on the addressee member state, and there is no indication that it meant to deal with the “horizontal” direct effect of such measures on private relationships between individuals. Wägenbaur, supranote 70, at 482, concludes that the direct effect of decisions and directives is of a lesser kind than the direct effect accorded to Treaty articles and regulations. Whereas the latter immediately replace national law, directives and decisions only give a defense to individuals which they can invoke in national courts. R. Lauwaars, Lawfulness And Legal Force Of Community Decisions (1973), states at p. 36 that directives cannot be given “horizontal” direct effect; but seeEasson, Can Directives Impose Obligations on Individuals'?, 4 European Law Review [E.L.R.] 67, 79(1979), who considers this an “open question.“

73 Case 41/74, supra note 56. See Barav, La Libre Circulation des travailleurs, I'ordre public et le pouvoir de sanctions des états membres, [ 1977] Rev. Trim. D.E. 721; and Simmonds, Van Duyn v. the Home Office: The Direct Effectiveness of Directives, 24 Int'l & Comp. L.Q. 419 (1975).

74 More recently, the French Government refused to respond to the Court's judgment holding its restrictions on lamb meat imports from the United Kingdom contrary to the Treaty. Case 232/78 of Sept. 25, 1979, [1979] ECR 2729.

75 Ministre de l'lntérieur c. Sieur Cohn Bendit (Daniel), No. 11604, Dec. 22,1978. Excerpt in [1979] Cah. Dr. Eur. 265.

76 Case 22/70, Commission of the European Communities v. Council of the European Communities, [1971] ECR 263. SeeConstantinesco, [1971] Rev. Trim. D.E. 796; Ganshof van der Meersch, Les Relations extérieures de la CEE dans le domaine des politiques communes et I'arrêt de la Cour de Justice du 31 mars 1971,[1972] Cah. Dr. Eur. 127; Kovar, La Contribution de la Cour de Justice au développement de la condition internationale de la Communauté européenne,[1978] Cah. Dr. Eur. 527; Raux, La Cour de Justice des Communautés et les relations extérieures de la C.E.E., [ 1972] Rgdip 36; Sasse, Zur auswaertigen Gewalt der Europaeischen Wirtschaftsgemeinschaft,[ 1971 ] EuR 208; Tizzano, La controversia tra Consiglio e Commissione in materia di competenza a stipulare deLTA C.e.e.,94 Foro IT. IV, at 339 (1971); Waelbroeck, L'arrêt A.E.T.R. et les compétences externes de la Communauté économique européenne,[1971] Integration 79.

77 This was the first case in which an intrainstitutional dispute between the Commission and the Council was brought before the Court.

78 See alsoArt. III , applicable during the transitional period.

79 An earlier agreement, negotiated within the UN Economic Commission for Europe in 1962 and signed among others by the six member states, failed to enter into force for want of ratifications. The negotiations were resumed in 1966. Case 22/70, [1971] ECR at 284-85.

80 Reg. No. 543/69, 12 J.O. Comm. Eur. (No. L 77) 49 (Mar. 29, 1969), [1969] O.J. Eur. Comm. (Spec. Ed. I) 170.

81 [1971] ECR at 269.

82 Id.at 274.

83 Ibid.

84 W. at 290-91.

85 W. at 293.

86 Riesenfeld in Asil, 72 Proc. 185-89(1978); Pescatore, External Relations in the Case-Law of the Court of Justice of the Europeán Communities,16 Comm. Mkt. L. Rev. 615 (1979).

87 For an early reference to the EEC Treaty as—“in a sense“—a constitution, see Advocate General Lagrange in Costa v. Enel, [1964] Ecr at 605.

88 See supranote 63.

89 Wägenbauer, supranote 55. In a note submitted on September 20, 1978, the Government of the United Kingdom made a number of suggestions purporting to bring about an improvement in the proceedings under Article 177, but thus far no action appears to have been taken to implement these suggestions. According to Mortelmans, in the 346 cases decided by the Court between 1962 and 1978 under Article 177, member states submitted observations on cases referred from their own respective courts in 37.5% of the cases, while the Commission did so in all the cases. The percentages vary considerably from one member state (e.g.,Denmark, 100%) to another (the Federal Republic of Germany, 27.3%). However, in cases referred from courts other than their own, member states submitted observations in only 5.59% of cases. Mortelmans, Observations in the Cases Governed by Article 177 of the EEC Treaty: Procedure and Practice,16 Comm. Mkt. L. Rev. 557, 572-77 (1979). For a discussion of the United Kingdom suggestions mentioned earlier in this note, see id.at 585-87.

90 Jackson, Governmental Disputes in International Trade Relations: A Proposal in the Context of GATT,13 J. World Trade L. 1, 2 (1979), quoting a document of a U.S. Senate committee.

91 This rule may be illustrated by an example drawn from the American legal folklore. Lawyers defending the United States in a case before the International Court of Justice felt compelled to invoke, quite unnecessarily as it turned out, the notorious “self-judging” reservation against the jurisdiction of the Court even though the President and the executive departments were on record as urging the Senate to drop it. Interhandel Case (Switzerland v. U.S.), [1959] Icj Rep. 6.