9.

However, the principal argument whereby the defendant institution maintains that the application is inadmissible is different: that argument is based on the nature of the contested measure. Its basis is beyond question: the measure of 7 July 1981, it is stated, concerns the organization of the work of the Parliament and is therefore concerned exclusively with the activities of that institution, without distinguishing between the various powers conferred upon it by each of the three Treaties. It adds that such a measure cannot correspond to the words “act of the Assembly”, contained in Article 38 of the ECSC Treaty, and cannot therefore be contested. The argument is based, on the. one hand, on the finding that neither the EEC Treaty nor the EAEC Treaty envisages, expressly at any rate, that measures of the Parliament may be challenged and, on the other hand, on the view that Article 38 of the ECSC Treaty only permits measures whose subject-matter comes within its scope to be challenged. On that basis it is clearly necessary, according to the defendant, to hold immune from challenge measures concerning matters common to the three Treaties, as, for example, those concerning the organization and work of the institutions. Of one fact there can be no doubt. The interpretation thereby placed on Article 38 is extremely narrow and if it is accepted very few of the measures enacted by the Parliament in its capacity as an ECSC institution may be challenged. If measures having no binding effect are excluded (which by itself considerably narrows the field since this Parliament is an institution whose task is principally supervisory: cf. Article 20 of the ECSC Treaty) three categories of measures remain: (a) the motion of censure on the High Authority referred to in Article 24 of the ECSC Treaty; (b) measures concerning the budget adopted on the basis of Article 78 of the ECSC Treaty, as amended by the Treaty of 22 July 1975 concerning the Amendment of Certain Financial Provisions of the Treaties establishing the European Communities and of the Treaty establishing a Single Council and a Single Commission of the European Communities; (c) measures whereby the Assembly approves, under Article 95 of the ECSC Treaty and within the framework of what is known as the “minor amendments procedure”, amendments to the Treaty proposed by the High Authority and the Council and subsequently referred to the Court för its opinion. Is the Parliament, then, practically immune from supervision? No. There are a number of reasons why the interpretation suggested by the defendant cannot be upheld. The first, of a general character, concerns the nature of the resolution. As the Court is aware, the Parliament adopted the measure in order to define the way in which its own work is to be carried out with regard to its meeting places and to the staff and technical assistance necessary. However, it ís surely impossible to break down the contents of the measure, distinguishing between the powers conferred upon the institution by each of the three Treaties and then, having made that dubious distinction, hold that the measure may be challenged under Article 38 of the ECSC Treaty only in so far as it relates to the powers conferred by that Treaty. Although such an operation may perhaps be contemplated in the abstract (but even here doubts may be entertained), it would be absurd in practice, since the Parliament is a single body and clearly can only function in accordance with uniform procedures, independently of the framework of powers laid down in the ECSC, EEC and EAEC Treaties. The foregoing furthermore is confirmed by the type of internal organization which the defendant institution has enacted. Power to organize its own business is conferred upon the Parliament by separate provisions of the three Treaties; Article 25 of the ECSC Treaty, Article 142 of the EEC Treaty and Article 112 of the EAEC Treaty, all of which have the same content. On the basis of those provisions the Parliament has adopted uniform rules of procedure which apply to its operations relating to the ECSC (only Article 31 refers exclusively to powers based on that Treaty) and to those relating to the EEC and EAEC. The Parliament does not deny that this is the position. In fact it recognizes these facts, but draws from them an argument to the effect that measures which concern the working of the institution, and as such are common to the ECSC, EEC and EAEC, may not be challenged under Article 38. Article 38, accordingly, must receive a narrow interpretation under which it would not apply to measures of the Parliament concerning also, but not exclusively, powers under the ECSC Treaty. In my view, however, the reasoning must be inverted: it is precisely the indivisible nature of the measure which prompts the view that it may be challenged. I arrive at this conclusion for various reasons. It is necessary first of all to define the scope of Article 38 of the ECSC Treaty, independently of the subsequent EEC and EAEC Treaties, and of the Convention of 25 March 1957 on certain Institutions common tö the European Communities. I refer of course to the part in which the first Treaty provides that: “The Court may, on application by a Member State or the High Authority, declare an act of an Assembly... to be void.” It cannot be seriously doubted that these words also refer to measures whereby the institution regulates its own working (naturally in so far as such acts are capable of producing external effects). I am inclined to favour that view because of the complete clarity of the wording and, having regard to the interests protected by the provision, because of the irrational nature of the system which would result if we excluded from the categoiy of measures which may be challenged those concerning the working of the Parliament. There are no serious factors which militate in favour of such an exclusion or which render it plausible. On the contrary, the requirement that the law should be upheld, laid down in Article 31 of the ECSC Treaty (“the Court shall ensure that in the interpretation and application of this Treaty, and of rules laid down for the implementation thereof, the law is observed”) and confirmed by identical wording in the EEC Treaty (Article 164) and the EAEC Treaty (Article 136), indicates that the wide interpretation should be adopted. If the foregoing is correct, in order to find for the defendant institution, it would be necessary to argue, as in fact it does, that the scope of Article 38 of the ECSC Treaty was reduced by the conclusion of the EEC and EAEC Treaties. I will remind the Court that the latter do not provide, at any rate expressly, that measures adopted by the Parliament may be challenged. Such a lacuna, it is argued, leads to the view that, in addition to measures relating exclusively to powers based on the EEC and EAEC Treaties, measures which concern common powers, including those affecting the structure and working of the institution, are not open to challenge. But that proposition does not withstand critical examination. There are provisions containing clear evidence to the contrary. I refer first of all to Article 232 (1) of the EEC Treaty, which provides that: “The provisions of this Treaty shall not affect the provisions of the Treaty establishing the European Coal and Steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that Treaty for the functioning of the common market in coal and steel.” It is clear that, if immunity from challenge is granted for measures concerning the working of the institution, two classes of powers are reduced: on the one hand, those of the Member States and of the High Authority, which are deprived of a form of judicial protection, and, on the other hand, those of the Court of Justice, which loses its power to review the lawfulness of measures which are often important. Such consequences are clearly at variance with the provision in question, the purpose of which is precisely to prevent the advent of the two new Treaties and their incorporation into a single framework from altering the legal position established by the ECSC Treaty for the institutions and the Member States. If the problems created by the introduction of new provisions and the need to coordinate them with the earlier provisions are appraised in accordance with the terms of Article 232 of the EEC Treaty, it must therefore be accepted that the EEC and EAEC Treaties have not modified Article 38, at any rate so far as the definition of measures which may be contested is concerned. Article 30 of the Treaty of 8 April 1965 establishing a Single Council and Single Commission of the European Communities proceeds along the same lines. It states: “The provisions of the Treaties establishing the European Economic Community and the European Atomic Energy Community relating to the jurisdiction of the Court of Justice and to the exercise of that jurisdiction shall be applicable to the provisions of this Treaty..., with the exception of those which represent amendments to articles of the Treaty establishing the European Coal and Steel Community, in respect of which the provisions of the Treaty establishing the European Coal and Steel Community shall remain applicable.” The provision is plainly prompted by the requirement which, as we have just seen, is intended to comply with Article 232 of the EEC Treaty, namely to leave unaltered the powers conferred upon the Court of Justice by the ECSC Treaty, preventing the merger of the executive bodies from affecting them, just as the establishment of the new Communities and the contemporaneous unification of the Assemblies and of the Courts did not affect them. The view may accordingly be taken that the provisions subsequently enacted did not amend Article 38 of the ECSC Treaty. The same view was, moreover, expressed by Mr Advocate General Reischl in his Opinion delivered in Case 66/76 (CFDT v Council [1977] ECR 311, at p. 314). It is thus confirmed that the provision in question still provides that an action lies against measures of the Parliament, including those concerning the working of that institution. In support of its reading of Article 38 the defendant institution then advances an argument based on what is alleged to be the actual intention of the contracting parties, which comes close to suggesting that the latter should take precedence over the provisions of the Treaties. It is observed (in the rejoinder dated 19 February 1982, at p. 13) that the EEC and EAEC Treaties — which do not envisage, at any rate expressly, that measures of the Parliament may be challenged — were adopted after the ECSC Treaty and accordingly set out the most recent point of view of the Member States on the question of review by the Court of the actions of the Parliament. It is argued that, having regard to that indication, it would be reasonable to place a restrictive interpretation on Article 38. However, that argument too must be rejected — it encounters an insuperable obstacle in the clear wording of Article 232 of the EEC Treaty. I consider that for the purpose of interpretation recourse may be had to a subjective factor such as that relied upon by the Parliament only where provisions are ambiguous. In this case there is no shadow of ambiguity. In any event, the interpretation of Article 38 which I propose finds support in the case-law of the Court. As we have seen, in its judgment of 15 September 1981 in the case of Lord Bruce of Donington v Aspden (cited above), the Court considered the provisions laid down by the Parliament governing the reimbursement of costs and allowances for its own Members. Although the operative part of the judgment makes a general reference to “Community” law, the grounds of the judgment contain an examination of the organizational measure governing payment of travel and subsistence expenses (paragraph 15). Since it concerns the working of the institution that measure was clearly adopted in exercise of powers conferred upon the Parliament by all three Treaties; that is to say, it was a typical example of a “common” measure. The ECSC Treaty confers upon the Court jurisdiction to give preliminary rulings on the validity (but not on the interpretation) of measures of the High Authority and of the Council alone (Article 41 of the ECSC Treaty). On the other hand, the EEC Treaty confers upon it jurisdiction to give preliminary rulings “concerning... the validity and interpretation of acts of the institutions of the Community” (Article 177 (b)), thus including measures adopted by the Parliament. When measures of the Parliament are involved which, relating to the working of the institution, are “common” to the Treaties, the same problem of construction as that created by Article 38 of the ECSC Treaty arises in reverse terms. In these cases the Court is faced with a very abrupt choice: either it must accord Article 177 a wide scope embracing common measures as defined above or it must entirely exclude such measures from the supervision which it exercises by way of preliminary rulings. As early as Case 101/63 (Wagner v Fobrmann and Krier [1964] ECR 195) the Court was required to consider a similar problem: whether it had jurisdiction to deliver preliminary rulings on questions referred to it under Article 177 of the EEC Treaty in so far as such questions concerned the interpretation of the ECSC Treaty. The Court decided the case without settling that point; however, the Advocate General expressed a clear view. In its judgment in the Lord Bruce of Donington case, on the other hand, the Court opted, albeit in terms which are by no means explicit, for a wide interpretation of Article 177. This tendency is developed from a statement of a general nature made in the judgment of 31 March 1971 in Case 22/70 (Commission v Council, already cited). The Court was required to decide whether under Article 173 of the EEC Treaty the Member States and the institutions may only challenge the measures having binding effect which a.re specified in Article 189 of the EEC Treaty or “all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects” (cf. paragraphs 38 to 43 of the decision); the Court opted for the latter alternative, which requires a wide interpretation of Article 173 of the EEC Treaty. It is a choice, which in my view, must be upheld. At its basis — and it is worth emphasizing this — lies the need to ensure, in accordance with the provisions of the Treaties, the widest and most thorough supervision by the Court of the lawfulness of the measures adopted by the Community institutions. In the case of the Parliament that need is more obvious today than it was in the past because the Parliament, by reason of its new representative status, carries greater weight, which will presumably increase in the future. Andrew Jackson wrote, in a letter to Benjamin Franklin, that the guarantee of American freedom resided in the jealousy between the courts, the President and Congress. Jealousy in this case is not the ignoble sentiment which is disapproved of in matters of general morality: it is the motive force of the system of checks and balances whereby the pluralist democracies govern themselves with their catalogue of fundamental rights. I venture to suggest that the Court should encourage these views.