3.

finally, the federal Government raised further questions, the reply to which may influence both the order to be followed in examining the points contained in the reference and the admissibility of certain questions. They allude to the scope of the jurisdiction of the Court laid down in subparagraph (b) of the first paragraph of Article 177 which mentions rulings on the validity of acts of the institutions of the Community. Two problems should be examined : — Does validity imply legality? — If so, does Article 177 allow examination of the legality of decision; addressed to Member States? (a) According to the arguments of the Federal Government, it is conceivable that the concept of ‘validity’ refers to the formal aspects of legal acts, and therefore that subparagraph (b) of the first paragraph of Article 177 allows examination only of the question whether there is a legal act or a nonexistent act, or whether a legal act has become invalid through later acts (by the institution concerned) or through a judgment of the Court. In support of this argument the Federal Government refers particularly to the different wording used in Article 173 which expressly speaks of the legality of acts of the institution. Doubts arise in many respects with regard to this view, which clearly was not adopted as an argument but was only advanced with the intention of identifying an existing problem. — First, the general principle must not be forgotten that divergences in the text and in the drafting of certain provisions of the Treaty, especially when they are limited to a single concept, cannot have the same importance in the interpretation of the European Treaties as in the exegesis of carefully drafted national codifications. — As regards the concept of validity, the ordinary meaning of the word in no way implies that it designates only the formal aspects of acts. This is particularly clear if we look at the French wording. ‘Validité’, according to Capitant (Vocabulaire Juridique 1930), is the ‘qualité d'un acte qui n'est entaché. d'aucune cause de nullité’. Likewise, the ‘recours en appreciation de validité’ to which allusion is occasionally made in the analysis of Article 177, certainly allows the legality of acts to be examined, without imposing any limitation on the ‘moyens’ (cf. Encyclopédie Dalloz, Droit administratif 1959, Vol. II, p. 743; Odent, Contentieux administratif 1957/58 p. 325). For the German legal language, I refer to the commentary on the Law of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) where the question of validity arises in connexion with judicial review of the conformity of laws with the constitution (cf. Geiger, Kommentar zum Bundesverfassungsgerichtsgesetz, 1952 pp. 239, 241, 245). We are accustomed to see other treaties limit judicial review over certain acts in clear terms and not by resorting to the use of ambiguous expressions (cf. the second paragraph of Article 33 of the ECSC Treaty providing for the institution of proceedings by undertakings against general decisions, invoking misuse of powers; the third paragraph of Article 38 of the ECSC Treaty which allows an application against an act of the Assembly or of the Council only on grounds of lack of competence or infringement of an essential procedural requirement; Article 18 of the Euratom Treaty which limits the examination of decisions of the Arbitration Committee to formal validity and the interpretation of the Treaty). — The Federal Government admits moreover that in view of Article 184 the legality of regulations can also be examined under Article 177 and this cannot be doubted. But if that is so it must be recognized that the concept of ‘validity’ includes legality, for Article 177 contains no special provision for regulations. — Nor would the narrow interpretation of the term ‘validity’ correspond to the importance which the Treaty's system of judicial protection attributes generally to Article 177. I refer in this respect to the official observations of the German and Italian Governments on the EEC Treaty: they note the similarity of the reference procedure to the German procedure for testing the constitutionality of laws (Article 100 of the Basic Law (Grundgesetz)) and to the indirect Italian procedure used for the same purpose (Law No 87 of 11 March 1953) (Bundestag Doc. No 3440 of 4 May 1957 Appendix C page 148; Italian Chamber of Deputies Doc. No 2814 of 26 March 1957 page 27). It seems hardly appropriate to initiate a procedure as cumbersome as that of Article 177, involving the participation of all the Member — States and a decision of the full Court, merely to obtain a judicial opinion on the formal legal aspects of an act, when such an opinion, and one which could be relied on, in the form of information on matters of law, could often be procured from the Executive itself. — Finally, it is difficult to see why the Court has provided in its Rules of Procedure, with regard to references for preliminary rulings (Article 103 of the Rules of Procedure), for the application of provisions on the preparatory inquiry (Article 44 et seq. of the Rules of Procedure). They are hardly ever likely to have any importance in questions of interpretation. They serve to clarify the disputes of fact which occur particularly when judging the legality of an act, but not in the examination of its formal validity. Thus in principle there can De no objection to the Court's examining the legality of the actions of the Community institutions under Article 177. (b) secondly, the question is raised whether Article 177 should be interpreted restrictively so as to exclude from the examination as to legality those decisions which are addressed to Member States, especially the decisions taken on the basis of Article 226 of the Treaty. The Federal Government refers on this point to the general scheme of the system of legal protection established by the Treaty which provides, under the second paragraph of Article 173, that individual persons may not contest decisions addressed to Member States since they do not concern them individually and directly. Those familiar with the case law of the Court will recall on this occasion the judgment given in Cases 2 and 3/60, an action by undertakings against a decision of the High Authority taken under Article 37, the protective clause of the ECSC Treaty. The Court declared this action inadmissible, on the ground that the purpose of Article 37 was to preserve, in a given circumstance of necessity, the equilibrium between the interests of a Member State and the general interests of the Community. The High Authority should try to ensure this equilibrium by taking the necessary and appropriate measures; it thus exercises, as it were, the functions of an arbitrator. The application of Article 37 is a matter of assessing the economic situation, to which the Member States could contribute by supplying useful information. Article 37 brings into play the political responsibility of the Governments of the Member States, which are at the same time responsible in the Council of Ministers for the protection of Community interests. Consequently, the right to submit to judicial review measures taken on the basis of a protective clause must be reserved to the Member States. All these points of view apply equally to Article 226 of the EEC Treaty; this could justify the conclusion that measures taken pursuant to that Article should not be submitted to judicial review, irrespective of the context, except on the initiative of the Member States. Before arriving at this conclusion, and without proceeding to a critical examination of that judgment, we must note in the scheme of the two Treaties a difference which has played an important part in the reasoning of the Court. In fact, the grounds of the judgment lay great emphasis on the point that Article 37 of the ECSC Treaty gives a special jurisdiction not only to the High Authority but also to the Court. In assessing the High Authority's conduct, the Court has unlimited powers of review, that is to say, it may examine in detail the High Authority's considerations of expediency and, should the occasion arise, vary the High Authority's decision. This circumstance, especially, may have given rise to talk of a compensation of interests by way of arbitration in which private persons affected cannot be involved. But Article 226 of the EEC Treaty does not imitate the system laid down in Article 37 to this extent. That is why I believe that, in judging the present case, the Court is justified in not following the judgment given in Cases 2 and 3/60. The first important consideration in determining the scope of subparagraph (b) of the first paragraph of Article 177 is its wording. As in the first paragraph of Article 173, this speaks of ‘acts’ in a general sense and no indication is given of a limitation in the sense of an exclusion of certain acts. Had this been the intention, it could have been expressed in the text of Article 177 just as well as in the second paragraph of Article 173. This would have been all the more natural since in general it is not only Member States, in whose interests a drafting of Article 177 in broad terms might seem appropriate, which appear as parties in the proceedings leading to orders referring questions for preliminary rulings under Article 177. By far the greatest number of actions before the national courts is brought by individuals. Viewing this matter from the point where the reference procedure begins, that is, in the normal context of the national proceedings, there would thus have been every reason to express in clear terms any limitation which might be desired on the Court's powers of review. It must further be asked what would remain of the supervision of legality under Article 177 if the interpretation proposed by the Federal Government were accepted. As regards directives addressed to Member States, the same should apply to them, according to this proposition, as to decisions addressed to Member States. If the dispute concerns decisions addressed to individuals which can therefore be contested under the second paragraph of Article 173, one may well wonder whether, after the expiry of the time-limit for bringing an action, they could still become indirectly subject to review in proceedings under Article 177. If one excludes recommendations and opinions, which under Article 189 are not binding and so which can surely only play a minor part for the purposes of Article 177, only regulations of the institutions of the Community would remain, according to the Federal Government, to be supervised as to legality under Article 177 in the usual case of national proceedings between individuals. In view of this practical conclusion, it would be quite impossible to understand why a form of words of an entirely general nature should none the less be chosen for subparagraph (b) of the first paragraph of Article 177. In particular, however, it must not be forgotten in this respect that the interpretation contemplated by the Federal Government would divest Article 177 of a quite essential function, that of compensating in part for the rather unfortunate limitation of the judicial protection under Article 173. The implementation of the Common Market necessitates to a large extent legal acts of the Community institutions which are addressed only to Member States but which — and this is always pointed out as being characteristic of the Community system — should at least be directed within a legal framework even if there are no detailed rules or if the powers provided are expressly discretionary. If the only judicial protection existing with regard to these Community acts were left to the initiative of the Member States and determined by them, the interests of persons affected, of the citizens of the Community, would certainly be inadequately protected, for it is a fact that the actions of Member States are frequently governed by political considerations and points of view. The practical result would be a diminution of legal protection, for in failing to institute legal proceedings Member States could thus tolerate departures from the rules of law which were introduced for the benefit of the citizens of the Communities. At the same time this would involve accentuating those features of international law which are inherent in the Community, and to which the idea of a binding Community constitution, in the sense of a federal structure, must take second place. I do not think we need accept these consequences, especially after the judgment in Case 26/62 in which, with regard to Article 12, mention is made of the establishment of individual rights which the national courts must also respect when faced with national legislative measures, and in which this much cited passage occurs: ‘The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which compromise not only Member States but also their nationals.’ I do not, therefore, propose to follow the suggestion of the Federal Government, but on the contrary to give preference to an interpretation which is favourable to an extensive assurance of judicial protection, and to subject to judicial review, under Article 177, the legality of decisions addressed to Member States, as the judgments in Cases 31 and 33/62 (Rec. 1962) have already indicated.