PROVISIONS TO EXERCISE A POWER TO MAKE REGULATIONS SIMILAR TO THE GENERAL POWERS ARISING FROM THE TREATY WHICH HAVE TO BE EXERCISED IN THE FORMS PROVIDED BY ARTICLE 14 .
( A ) ARTICLE 88 GIVES THE HIGH AUTHORITY ONLY A POWER TO RECORD THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .
THIS OBLIGATION MUST ARISE EITHER FROM AN IMPERATIVE PROVISION OR A DECISION OR RECOMMENDATION PRIOR TO THE APPLICATION OF THIS ARTICLE .
THE " REASONED DECISION " REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 88 MAY SIMPLY RECORD A FAILURE AND MAY NOT HAVE A LEGISLATIVE CONTENT .
P . 339
TO MAINTAIN THE CONTRARY WOULD AMOUNT TO RECOGNIZING THAT THE HIGH AUTHORITY HAS AN EXCESSIVE LEGISLATIVE POWER AS AGAINST MEMBER STATES ARISING FROM THE GENERAL LAW .
THE REASONS REQUIRED BY THE FIRST PARAGRAPH OF ARTICLE 88 MUST JUSTIFY THE RECORDING OF THE FAILURE AND THE TIME-LIMIT REFERRED TO THEREIN DEFINES THE PERIOD IN WHICH A PRE-EXISTING OBLIGATION MUST BE FULFILLED AND NOT ONE CREATED BY THE DECISION TAKEN UNDER THIS ARTICLE .
IF IT WERE POSSIBLE TO EQUATE THE " DECISION " REFERRED TO IN ARTICLE 88 WITH A DECISION WITHIN THE MEANING OF ARTICLE 14 BY WHICH THE HIGH AUTHORITY CARRIES OUT THE TASKS ASSIGNED TO IT, IT WOULD BE DIFFICULT TO EXPLAIN WHY A RULE LAID DOWN UNDER ARTICLE 88 WOULD BE SUBJECT TO AN ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION ALLOWING ANY SUBMISSION TO BE MADE BASED NOT ONLY ON LEGALITY BUT ON ANY REASONS JUSTIFYING FAILURE TO ACT, WHEREAS DECISIONS TAKEN IN THE FORM PROVIDED FOR BY ARTICLE 14 ARE SUBJECT TO THE RULES AND TIME-LIMITS FOR BRINGING ACTIONS UNDER ARTICLE 33 .
( B ) ARTICLE 88 OPENS MEANS OF IMPLEMENTATION AND IS THE ULTIMA RATIO ENABLING THE COMMUNITY INTERESTS ENSHRINED IN THE TREATY TO PREVAIL OVER THE INERTIA AND RESISTANCE OF MEMBER STATES .
IT IS A PROCEDURE FAR EXCEEDING THE RULES HERETOFORE RECOGNIZED IN CLASSICAL INTERNATIONAL LAW TO ENSURE THAT OBLIGATIONS OF STATES ARE FULFILLED .
HOWEVER, ARTICLE 88 MUST BE STRICTLY INTERPRETED .
ALTHOUGH WITH REGARD TO DECISIONS AND RECOMMENDATIONS OF THE HIGH AUTHORITY THE GOVERNMENTS MUST FOLLOW THE MEANS OF REDRESS LAID DOWN BY THE TREATY ACCORDING TO THE FORMS AND WITHIN THE TIME-LIMITS PRESCRIBED AND CANNOT SUBSEQUENTLY ALLEGE THAT THESE MEASURES ARE IRREGULAR OR NULL AND VOID WHEN THE HIGH AUTHORITY TAKES STEPS UNDER ARTICLE 88, THE HIGH AUTHORITY FOR ITS PART MUST ADHERE TO THE FORMS AVAILABLE TO IT UNDER ARTICLE 14 OF THE TREATY IN THE EXERCISE OF ITS " LEGISLATIVE " POWER .
IT NEVER HAS THE CHOICE BETWEEN THIS " LEGISLATIVE " POWER AND THE PROCEDURE FOR RECORDING AND DECLARING A FAILURE FOR WHICH ARTICLE 88 HAS BEEN ENACTED .
IN NO WAY CAN IT USE THIS ARTICLE FOR PURPOSES THE DIRECT ACHIEVEMENT OF WHICH BY MEANS OF DECISION THE TREATY DENIES IT .
( C ) THE HIGH AUTHORITY CANNOT, MOREOVER, CLAIM THAT