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The application to the sphere of transport of stipulations appearing amongst the general and final provisions of the Treaty. This question arises essentially in connexion with Article 235. (a) Article 228 lays down that where the Treaty provides for the conclusion of agreements between the Community and one or more States or an international organization, such agreements shall be negotiated by the Commission and concluded by the Council, in certain cases after consulting the Assembly. It is also laid down, in the second subparagraph of Article 228 (1), that the opinion of the Court of Justice may be obtained with regard to the compatibility of the agreement envisaged with the provisions of the Treaty. In fact the Commission is asking the Court to put a wide interpretation on the first subparagraph of Article 228 (1), which limits its application to the cases provided for by the Treaty, that is to say, to rule that that provision refers not only to the cases expressly laid down by the Treaty (namely, for example, to those referred to in Articles 111 to 116: tariff or trade agreements, Article 238: agreements establishing an association, or even Articles 229 and 230: relations with the United Nations Organization, with the Council of Europe and the OECD) but must be extended to the sphere of transport in view of the existence of Article 75 of the Treaty and of the adoption in 1969 of Community Regulation No 543/69. I consider that very serious objections may be raised against this line of argument. (1) Article 75 of the Treaty indeed prescribes that the Council shall lay down ‘common rules applicable to international transport’ to the territory of a Member State and that it may lay down ‘any other appropriate provisions’. , The Commission considers in particular that those four words vest in the Community an authority in external matters established by the Treaty and that this is therefore one of the cases to which Article 228 applies. It is difficult to accept this argument for two reasons. The article as a whole shows that the phrase ‘international transport’ appearing in one of the subparagraphs really refers in essence to intra-Community transport, since it is to that alone that the common rules are directly applicable. Secondly, it is difficult to concede that so vague an expression as ‘any other appropriate provisions’ could encompass so precise a power as that of the Community to negotiate and conclude agreements with third countries on behalf of the Member States. There are several instances in the provisions of the Treaty on commercial policy where there are stipulations as general as those in Article 75 (1) (c). It is certain that the authors of the Treaty did not consider that such provisions were sufficient to provide a basis for a Community authority in external affairs, since it considered it necessary, in order to confer that authority, to write into the Treaty six articles specifically devoted to this point. (2) It is much more difficult to ascertain whether the adoption of Regulation No 543/69 or certain of its provisions had the effect of vesting authority in the Community and thus rendering the provisions of Article 228 of the Treaty applicable to the negotiation and conclusion of the AETR. In general, the question arises whether, apart from the instances where international authority is expressly vested in the Community by the Treaty, the entry into force of a Community regulation can cause to be transferred to the Community the capacity to negotiate and conclude agreements capable of affecting the implementation of Community provisions. Various particular aspects of the present case militate strongly in favour of adoption of this view. In fact it is certain: — first, that Community Regulation No 543/69 covers the same subject-matter as that covered by the AETR; — secondly, that on at least one point, namely the date of the entry into force of the provisions concerning the maximum daily driving time, the AETR differs from the Community provision; — lastly, because Article 3 of that Community regulation appears expressly to sanction this transfer of authority where it reads: ‘The Community shall enter into any negotiations with third countries which may prove necessary for the purpose of implementing this regulation’. I shall not conceal from the Court that I was momentarily persuaded to the view that authority in external matters can be transferred to the Community through the adoption of a Community regulation and it is with some regret that upon reflection I must finally suggest to the Court that this view should not be accepted. From the point of view of a certain Community ‘ethic’ there are in fact undoubted advantages in this argument. When, through a regulation, a specific subject-matter is transferred from the national to the Community level it may be maintained that the Member States, acting either individually or collectively, may no longer validly conclude agreements with third countries relating to the same subject-matter. Thus the Community alone would be capable of concluding such agreements within the ambit of Community law. Moreover, on a practical level, such a system would probably be best suited to preventing Member States from concluding with third countries agreements which would subsequently prove difficult to reconcile with Community provisions, and finally it would be best suited to maintaining observance of the balance established by the Treaty between the Community institutions. However, no matter what weight those considerations carry, and I admit that it is considerable, the argument of implied and automatic transfer of authority outside the cases laid down by the Treaty meets with very serious objections quite apart from a general objection relating to the methods of interpreting the Treaty to which I have already referred and to which I shall shortly return. First of all, in practical terms, it would be impossible to confer such an effect upon all Community regulations, some of which govern matters which by their nature are quite distinct from those to which the provisions of an international treaty could refer. Moreover, not even the representative of the Commission has asserted this. It is therefore necessary to discover a means of distinguishing between regulations which result in transferring authority to the Commission in external matters and those which do not. What should the criterion be? Is one to rely on the fact that a regulation is related more or less directly to one of the common policies provided for in the Treaty? Or must one on the other hand give close consideration to the wording, having regard to the negotiations in question, and at what stage in those negotiations? It will be seen how difficult it is to establish a criterion which avoids ambiguity or legal uncertainty. I must also put forward a second objection, namely, that it might also confuse the procedures laid down by the Treaty and sometimes even hamper the development of Community law. With regard to the procedures laid down by the Treaty, it should in fact be noted that in connexion with possible divergences between international agreements with third countries and Community provisions, the Treaty provides two types of procedure: — a disciplinary procedure: this is the action for failure to fulfil an obligation and is initiated only by the Commission, or possibly by a Member State; it is available in all cases; — a preventive procedure, implying cooperation between the Council and the Commission but provided for certain cases only, for example those referred to in Articles 111 to 113. It seems to me certain that if this preventive procedure were applicable in cases other than those for which formal provisions are made in the Treaty, confusion would occur at the point where the authors of the Treaty wished to draw a distinction. Finally, from the point of view of the development of common policies, are there not grounds for fearing that the Ministers would resist the adoption of regulations which would result in the loss, in cases not provided for by the Treaty, of their authority in international matters? (3) Let us now consider the argument based on the existence of Article 3 of Regulation No 543/69 which I have just quoted to the Court. Let us note from the outset that if the Court, contrary to my suggestion, were to take the view that the adoption of Regulation No 543/69 by itself resulted in the transfer to the Community of power to conclude agreements with third countries relating to transport, it would be led to deduce that this provision in Article 3 is purely declaratory and is not of itself capable of having legal effects. However, if, as I suggest, the Court adopts the contrary view I consider that it must also recognize that although it was in my view wrongly incorporated in an act termed a ‘regulation’, this provision has no legislative function and is merely a declaration of intent. Article 3 of Regulation No 543/69 may in fact be construed as a type of contingency plan, as indicating a programme: It was hoped that between 1 April 1969, the date of the entry into force of the regulation, and 1 October 1970, the date when the regulation is to apply to all transport (and thus also to vehicles registered in a third country for journeys made within the Community), the current negotiations in Geneva would reduce divergencies and harmonize the draft European Agreement with the Community regulation. However, should this prove impossible, it would be necessary to initiate fresh negotiations with third countries for the purpose of implementing the regulation. It is thus a type of resolutive clause, providing for possible revision, which furthermore originated in a modification suggested by the Parliament, worded thus: ‘Within two years following the entry into force of this regulation (that is to say, 1 January 1970), the Commission shall submit to the Council proposals for the amendment of this regulation’. Furthermore, the objective of this article is to ensure that, by means of negotiations, driving conditions should be specified for the part of the journey made on the territory of third countries both for vehicles of those countries and for Community vehicles. In fact it is clear that the Community cannot claim to fix by its regulation the conditions under which vehicles of third countries are driven on the territory of such countries, except by agreements with those countries. Furthermore, it was by reason of its non-legislative nature that the Council was able, without self-contradiction, to draw up this article as early as its meeting of July 1968, when it agreed that the negotiations on the AETR should be conducted by the Member States, and this is the reason for the ‘interpretative reservation’ appearing in the minutes which refers specifically to this point. (b) Finally, there remains the problem raised as a subsidiary matter by the Commission in relation to Article 235. As the Court will recall, this article provides that ‘If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Community shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the appropriate measures’. The Commission seems to consider that in the present case this had the effect of obliging the Council to confer on the Community power to negotiate and conclude the AETR, even if this power did not follow from the provisions of the Treaty. It does not appear to me that Article 235 has this effect. Even if it is conceded that this article is applicable to the Community's external relations, it only empowers the Council, on a proposal from the Commission, to extend the Community's authority in this sphere. However, it certainly does not oblige it to do so, and above all the Council may act in this sphere only on a proposal from the Commission, which was never submitted. Nevertheless, consideration of Article 235 quite naturally brings me to a general consideration of methods of interpreting the Treaty, with which I wish to conclude these observations. No matter what legal basis the Court finds for it, recognition of the Community's authority in external matters for negotiating and concluding the AETR concedes by implication that the Community authorities exercise, in addition to the powers expressly conferred upon them by the Treaty, those implied powers whereby the Supreme Court of the United States supplements the powers of the federal bodies in relation to those of the confederated States. I for my part consider that Community powers should be regarded as those termed in European law ‘conferred powers’ (in French, ‘compétences d'attribution’) Such conferred powers may indeed be very widely construed when they are only the direct and necessary extension of powers relating to intra-Community questions, as the Court has already ruled with regard to the ECSC. But can the Community's authority to conclude agreements with third countries in the sphere of transport be so widely construed? This is not in fact as necessary as has recently been asserted before the Court. Even without according it ‘implied powers’, with regard to transport the Community is not in a state of ‘permanent weakness’, to borrow the expression recently employed by the Commission's agent. Article 235 exists precisely to vest in the Community whatever powers it may need. On the other hand, this is extremely difficult from the legal point of view, on the basis of the provisions at present in force. It appears clear from the general scheme of the Treaty of Rome that its authors intended strictly to limit the Community's authority in external matters to the cases which they expressly laid down. In this connexion a comparison between the ECSC Treaty and the Treaty of Rome is instructive. Whereas in the ECSC Treaty the negotiators of 1951 laid down that (Article 6): In international relations, the Community shall enjoy the legal capacity it requires to perform its functions and attain its objectives', the negotiators of the Treaty of Rome in 1957 merely provided that the Community shall have legal personality (Article 210), although, with regard to external relations, they expressly laid down in Article 228 that the Community's authority in external matters may only be exercised ‘where this Treaty [so] provides’. Is it not the case that to recognize that the Community has implied powers with regard to negotiations with third countries would far exceed the intentions of the authors of the Treaty and of the States which signed and accepted it? This is my view, and it is the principle reason which brings me to propose to the Court a relatively strict interpretation of the Treaty in this sphere. Such, then, are the reasons why I consider that the contested proceedings of the Council were not conducted within the context of a Community authority established by the Treaty and that consequently they do not constitute a Community act which may be reviewed by the Court under Article 173.