Opinion of Mr Advocate General Darmon delivered on 1 June 1989
1 Language of the case: French.
2 See, however, the decision of the Arbitration Tribunal of the International Chamber of Commerce of 3 March 1984, in the case of Westland v Arab Organization for Industrialization, Arab Republic of Egypt and Other States, ILM XXIII (1984), p. 1082; see also some of the examples given by I. Seidl-Hohenveldern in Responsibility of Member States of an international organization for acts of trust organization, studies in honour of Roberto Ago, Vol. III, 1987, pp. 427 to 428.
3 A list of the main decisions to date is annexed.
4 It would appear that Maclaine Watson obtained another arbritation award on 24 March 1986 which the ITC complied with on 21 April 1986.
5 Judgment of 29 July 1987 Maclaine Watson & Co. Ltd v Department of Trade and Industry and Others, upheld by the Court of Appeal on 27 April 1988; the case is now pending before the House of Lords.
6 Translator's note in other language versions — does not apply in English version.
7 In a judgment of 13 May 1987.
8 Judgment of 27 April 1988.
9 9 July and 18 December 1987, upheld by the Court of Appeal on 27 April 1988.
10 See Opinion 1/78 of the Court of Justice of 4 October 1979, [1979] ECR 2871, on the International Agreement on Natural Rubber, in paragraphs 4 and 5 of which the Court examined the Integrated Programme and its objectives which are principally to improve market structures in international trade in commodities of importance to developing countries.
11 That is to say by a simple majority of both the producing countries group and the consuming countries group.
12 Australia, Indonesia, Malaysia, Nigeria, Thailand and Zaire, producing countries; Canada, Finland, India, Japan, Norway, Sweden, Switzerland and the 10 Member States of the Community, consuming countries.
13 Cited above in footnote 9, at p. 2920, emphasis added.
14 OJ L 342, 3.12.1982, p. 1.
15 The percentages taken into account here are set out in Annex A to the Agreement (OJ L 342, 31.12.1982, p. 30).
16 See in particular Crise du Conseil international de l'étain et insolvabilité d'une organisation intergouvernementale, P M. Eisenmann, AFD1, 1986, p 781; Anderson, Gilbert: Commodity agreements and commodity markets; the lesson from tin. The Economic tournai, Cambridge, Vol 98, No 389, March 1988, pp 1 to 15; I Marques and P. N Giraud Tin the end of an agreement, Natural resources forum, London, Vol 11, No. 3, August 1987, pp. 207 to 218, Eric Mc Fadden The collapse of tin; restructuring a failed commodity agreement, American Journal of International Law, Vol 80, No 4, October 1986, p 811 to 830; B S. Chimni: International commodity agreements: a legal study, Croom Helm, 1987, Chapter 10, p. 197, U. Wasserman. Tin and other commodities in crisis, JWTL, Vol 20, 1986, p. 233
17 Some countries, although consuming members of the ITC, also produce tin; the example is cited of the United Kingdom.
18 Article 27(1) of the Agreement.
19 See Eisenmann, op. cit., in particular at p. 737, Chimni, op. cit., in particular at p. 201.
20 Judgment of 17 December 1981 in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigihafener Walzmuble v Council and Commission [1981] ECR 3211, paragraph 12, emphasis added
21 Judgment of 2 June 1976 in Joined Cases 56/74 to 70/74 Kampjmeyer v Commission and Council [1976] ECR 711
22 Judgment of 28 March 1979 in Case 90/78 Granaria v Council and Commission [1979] ECR 1081.
23 Paragraph 6 of the decision.
24 Ibid., emphasis added.
25 Judgment of 4 October 1983 in Case 191/82 [1983] ECR 2913.
26 Paragraph 30 of the decision.
27 Judgment of 20 March 1985 in Case 264/82 [1985] ECR 849, paragraph 16.
28 Judgment of 7 November 1985 in Case 53/84 Adams v Comminimi [1985] ECR 3595
29 Paragraph 15.
30 Judgment of 28 October 1982 in Case 52/81 Faust v Commission [1982] ECR 3745.
31 Paragraph 27 of the decision.
32 Judgment of 27 September 1988 in Case 204/86 Hellenic Republic v Council [1988] ECR 5323.
33 Judgment of 24 June 1986 in Case 267/82 Développement SA el Clemessy v Commission [1986) ECR 1907
34 Second subparagraph of Article 228(1).
35 11 November 1975 [1975] ECR 1355.
36 For an application of this article, see for example the case Governo della Gran Bretagna v Giterrato, where the Constitutional Court declared a decree unconstitutional because it precluded any action against decisions of the Minister of Justice in respect of seizure of goods belonging to foreign States; the Constitutional Court stated: Il fatto invero che tale esame possa in determinati casi riuscire delicato e financo difficile, non esclude che si tratta sempre di un accertamento di dati di fatto e giuridici che non può essere sottrato al sindacato giurisdizionale (Although such an examination may in certain cases prove to be delicate or actually difficult, it always remains a question of establishing the facts and the law which cannot be removed from the ambit of review by the courts), 13 July 1963, La giurisprudenza costituzionale in materia intemazionale, 1976, Starace-De Caro, p. 126, in particular at p. 131.
37 Rivista di diritto intemazionale, Vol. II, 1969, p. 583, especially at p. 586.
38 Bundesverwaltungsgericht, 12 October 1962, BVerwGE 15, pp. 63 and 65.
39 R. Ergec: Le contrôle juridictionnel de l'administration dans les matières qui se rattachent aux rapports internationaux: actes de gouvernment ou réserve du pouvoir discrétionnaire, Revue de droit international et de droit comparé, 1986, p. 72, in particular at p. 77.
40 Archiv des Völkerrechts, 1984, p. 220.
41 Ergec, op. cit., p. 78.
42 Ibid.
43 Rustomjee v The Queen [1876] 2 QBD69, 73, CA.
44 That would be an Act of State, but as Lord Wilberforce points out in Buttes Gas and Oil Co. v Hammer [1982] AC 888, at pp. 930 and 931, the term Act of State may also refer to cases where the court is called upon to adjudicate on the applicability of foreign municipal legislation within its own territory.
45 Attorney General v Misan [1970] AC 179 HL.
46 Ibid.
47 The law reports, 1982, p. 938.
48 Underhill Hernandez [1897] 168 US 250, 252 laid down the principle: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.
49 Legal theorists draw a distinction between Act of the government and Act of State: the doctrine of Act of State is a legal concept of mainly common-law origin, and consists in precluding assessment by the courts of the legality of sovereign acts of foreign States, whereas the concept of act of the government refers to acts of the State of the court seised. The doctrine of Act of State is mainly concerned with public international law and private international law, whereas act of the government arises mainly in the sphere of domestic public law (Ergec: Le contrôle juridictionnel de l'administration dans des matières qui se rattachent aux rapports internationaux, Revue de droit international et de droit comparé, 1986, p. 73, in particular at p. 74). Similarly, it has been said that Act of State is a secondary conflict of laws rule, Falck, quoted by Brazyova in Reflections on immunity of States from the point of view of international law, Questions of International Law, Vol. 3, Dordrecht, 1986, p. 46.
50 In the First National City Bank case, Rehnquist J. stated: It would be wholly illogical to insist that such a rule [Act of State], fashioned because of fear that adjudication would interfere with the conduct of foreign relations, be applied in the face of an assurance from that branch of the Federal Government that conducts foreign relations that such a result would not obtain, p. 483.
51 On the whole question see K. Lenaerts: Le juge et la constitution aux États-Unis d'Amérique et dans l'ordre juridique européen, p. 98 et seq. and the references cited, pp. 104 and 105.
52 In ruling out application of the doctrine in Baker v Carr, Brennan J. stated: Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking, 369 US 186, p. 691.
53 But not exclusive, see the list of conditions given by Brennan J. in Baker v Carr, cited above, p. 691; See also Lenaerts, op. cit.
54 A consistent line of case-law; see for example Conseil d'État (CE), 5 February 1926, Dame Caraco, p. 125; CE, 16 March 1962, Prince Siiman Bey, p. 179; CE, 13 July 1979, Cofarex, p. 319.
55 Suspension of navigation in a maritime safety zone in order to conduct nuclear tests (CE, 11 July 1975; Paris de la Bollardière, p. 423); intervention with a foreign State to protect the goods or interests of a French national (CE, 2 March 1966, Cramennel, p. 157); refusal to take proceedings before an international court (CE, 9 January 1952, Geny, p. 17); refusal to communicate to a union proposals addressed to an international body (CE, 10 February 1978, CFDT, p. 61).
56 Opinion delivered by Odent in the Tribunal des conflits, 2 February 1950, Radiodiffusion française, RDP, 1950, p. 423, in particular at p. 427.
57 Some writers maintain that Whilst international treaties obviously concern the relations of the French State with foreign States, they are not acts of the government. Apart from the fact that they are not acts of municipal law, since they do not emanate from the French Government alone, the rules applying to them are completely different from those applying to acts of the government. Chapus, Droit administratif général, 1985, p. 618 and 619.
58 Conseil d'Étal, Compagnie générale d'énergte radio-électrique, 30 March 1966, Rec. Lebon, p. 257; on that judgment see AJDA, 20 June 1966, Chronique Puissochet et Lecat, p. 349; the decision marks the extension to international agreements of no-fault liability arising from laws
59 It has been said that act of the government should be banished from the systems of public law of all civilized countries, Duguit, Traite de droit institutionnel, 3rd ed., III 1930.
60 Chapus: L'acte du gouvernement, monstre ou victime?, D 1958, Chr p. 5; other authors consider that the courts' lack of jurisdiction is a consequence of the mixed character of the act: Virally L'introuvable acte de gouvernement, RDP 1952, p. 338
61 Conseil d'État, 20 January 1876, Mangin, Conseil d'État, 26 April 1933, Pasicrisse VIII 108, sec A. Bonn Le contentieux administratif en droit luxembourgeois, p. 144, No 157, and F Schockweiler. Le contentieux administratif et la procédure administrative non-contentieuse en droit luxembourgeois, p. 28, No 74
62 F. A. Schockweiler, op cit
63 Ergec, op. cit.
64 4 December 1963, JT 15 December 1963, p. 782, see also Civ. Brussels, 23 September 1964, JT 25 October 1964, p. 600.
65 15 September 1969, Pasicrisie beige, p. 247, in particular at p. 249.
66 14 January 1963, JT 27 January 1963, p. 64, in particular at p. 66.
67 14 December 1973, Recueil des arrêts, p. 955.
68 21 May 1984, KG 1984, 168.
69 President Rechtbank Den Haag, 5 November 1985, KG 1985, p. 376.
70 2 March 1951, NJ 51.217.
71 In particular Article 24(1) thereof, according to which any person shall be entitled to effective protection by the courts in the exercise of his legitimate rights and interests and in no case shall such protection be denied to him.
72 29 December 1986, REDI 1988, No 2, Note by Castro-Rial Garrone, see also, 16 November 1974, Aranzadi, Jurisprudencia, 1974, No 4510; see in connection with that decision Discrecionalidad en el ejercicio de la protección diplomatica y responsabilidad del Estado en el orden interno. M Paz Andres Saenz de Santa Mana, ADI. Vol III (1976), p 321
73 Byrne v Ireland 1972 I R 241
74 Crotty v An Taoiseach [1987] 2 CMLR 657, in which it was held that the applicant was entitled to bring an action putting forward claims relating to the constitutionality of the Single European Act
75 See also the judgment of the French Conseil constitutionnel of 15 January 1975 on voluntary termination of pregnancy: Article 61 of the Constitution does not confer ott the Conseil constitutionnel a general power of assessment and decision identical to that of Parliament, but merely gives it jurisdiction to rule on the conformity with the Constitution of laws submitted to it for examination, Decision 74.54, Rec DC 19 (emphasis added); the approach of the United States Supreme Court might also be recalled here.
76 See the Judgment in Case 377/87 Council v Parliament [1988] where it was stated that although the Court is bound to ensure that the institutions which constitute the budgetary authority observe the limits of their powers, it is not for the Court to intervene in the negotiating process between the Council and the Parliament which must result, those limits having been observed, in the establishment of the general budget of the Communities (emphasis added); see in addition Lenaerts, op. cit., who refers also to the judgment of 22 November 1978 in Case 93/78 Mattheus v Doego [1978] ECR 2203, in which the Court held that it had no jurisdiction to decide on the substance of a question concerning the conditions of accession of Spain and Portugal.
77 I would refer in this connection to Advocate General Van Gerven's very recent Opinion in Case 70/87; after rejecting the objection of inadmissibility raised by the Commission on the ground that the rules on measures to counter illicit trade practices gave the applicant only limited legal protection, Mr Van Gerven pointed out, when examining the merits of the case, that there does exist discretionary power of a political nature which is not reviewable by the courts if the principles to which tha_ power is subject are not legally definable (paragraph 18).
78 Case 53/84 Adams, cited above, paragraph 15, emphasis added.
79 O. Jacot-Guillarmod : Droit communuataire et droit international public, Geneva, 1979, p. 237.
80 Catalano: Manuel de droit des Communautés européennes, Paris, 1965, p. 73, who is in favour of excluding the possibility of any ex post facto review.
81 P. Pescatore: Les relations extérieures des Communautés européennes, 1961, p. 129.
82 Ibid., p. 128.
83 The Council's decision adopted for the purpose of concluding the agreement constituted in that respect an act of the government not reviewable by the Court, and in any event not detachable from the agreement; see Kovar: Les accords liant les Communautés européennes, RMC, 1974, p. 345, particularly at p. 558; Melchior: La procédure de conclusion des accords externes de la CEE, Revue belge de droit international, 1965, p. 187
84 See Kovar, op. cit., p. 357.
85 See in addition, for arguments against review of validity by means of Article 177, Kovar, JD1, 1976, p. 197; Simon, RTDE, 1975, p. 454; sec also Barav, ELR, 1977, p. 8.
86 According to O. Jacot-Guillarmod, a declaration that an agreement was void (Article 174 of the Treaty) would be a legal aberration, annulment of the Community act approving it would have the same catastrophic result and to claim that the agreement itself was unaffected would be, in the latter case, dualist inconsistency because the iwo acts are inseparable, op. cit., p. 240.
87 See Denys Simon: Quelques problèmes des relations extérieures des Communautés européennes, RTDE, 975, p. 454.
88 Judgment of 30 April 1974 in Case 181/73 Haegemann v Belgium [1974] ECR 449, in particular p. 459, paragraphs 3, 4, 5 and 6 (emphasis added)
89 Opinion 1/75, cited above (emphasis added).
90 Reference has been made to the paradoxical contrast between that position and the attitude taken by the Court as regards review at national level of the constitutionality of legislation approving the Treaties; Joliet: Le droit institutionnel des Communautés européennes, les institutions, les sources, 1983, p. 252.
91 Judgment of 27 September 1988 in Case 165/87 Commission v Council [1988] ECR 5545
92 Melchior, op. cit.; Joliet, op. cit., who states: From the Community's point of view, it is the procedure of the first subparagraph of Article 228(1) of the EEC Treaty which will be followed; from the point of view of the Member States it is the normal procedure for concluding international treaties which will be used. The procedure for concluding a mixed agreement thus closely resembles the amendment procedure of Article 236, especially if the basis chosen is, for the Community, Article 238 of the EEC Treaty which necessitates consultation with the European Parliament. The question arises as to the relationship (is there a hierarchy or are they on a footing of equality) between the EEC Treaty itself and the mixed agreement, p. 237; it is hard to see how the Court of Justice of the European Communities could arrogate to itself the power to assess the validity of a treaty signed and ratified by the Member States, p. 251.
93 J.-V. Louis: L'ordre juridique communautaire, 4th Ed., p. 84.
94 M. Melchior, (op. cit., p. 209), in connection with the extent of the Court's control in the framework of opinions under Article 228, emphasizes that such control can only relate to legality, not appropriateness; a fortiori a similar solution must apply in the context of litigious proceedings, including actions for damages.
95 Opinion of Mr Advocate General Dutheillet de Lamothe in Joined Cases 9 and 11/71 Compagnie d'approvisionnement v Commission (1972] ECR 411, Judgment of 13 June 1972.
96 Joined Cases 9 and 11/71, cited above; judgments of 2 December 1971 in Case 5/71 Zuckerfabrik Schoppenstedt v Council [1971] ECR 975, of 24 October 1973 in Case 43/72 Merkur v Commission [1973] ECR 1055, of 4 October 1979 in Case 238/78 Ireks-Arkady v Council and Commission [1979] ECR 2955, of 4 October 1979 in Joined Cases 241, 242, 245 to 250/78 DGV v Council and Commission [1979] ECR 3017, of 4 October 1979 in Joined Cases 261 and 262/78 Interquell Starke-Chemie v Council and Commission [1979] ECR 3045, of 12 December 1979 in Case 12/79 Wagner v Commission [1979] ECR 3657, of 12 April 1984 in Case 281/82 Unifrex v Commission and Council [1984] ECR 1969, and of 17 December 1981 in Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigs- hafener Walzmühle v Council and Commission [1981] ECR 3211.
97 Judgments of 28 April 1971 in Case 4/69 Lutticke v Commission [1971] ECR 325, and of 2 July 1974 in Case 153/73 Hollz and Willemsen v Council [1974] ECR 675
98 See Robert Lecourt in Melanges Tettgen, Le rôle unificateur du juge dans la Communauté, p. 223, in particular, p. 225, see also Opinion of Mr Advocate General Dutheillet de Lamothe in Case 4/69, cued above I therefore think that the fact that the action for damages in this case is based on a failure to have regard to the second paragraph of Article 97 or of Article 169 of the Treaty is of very great importance as regards the substance of the case but has no effect on the admissibility of the action for damages, at p. 343.
99 See paragraph 5 of the application; I would again point out that Maclaine Watson indicated at the hearing that it had abandoned all its actions against the Community before the English courts.
100 As to the distinction between civil personality and international personality, and the two aspects of the latter, see Pescatore: Les relations extérieures aes Communautés européennes, p. 32 et seq.
101 Denys Simon: L'interprétation judiciaire des traités d'organisations internationales, Pedone, 1981, p. 639.
102 Advisory Opinion of 11 April 1949, ICJ Reports 1949, p. 178.
103 Order of 5 February 1979, ICJ Reports 1970, p. 1, particularly p. 39.
104 Crise du Conseil international de l'étain, P. Eisenmann, op cit., p. 730.
105 The separate personality of the organization and the liability of its members are two distinct problems; that is what gives rise to all the discussion regarding the question of the members' liability for the ITC's debts, which is not at issue in these proceedings. The English courts have until now considered that the existence of legal personality excludes any liability on the part of the members for the organization's debts. A considerable numer of writers believe that it is essential in this connection to examine whether the organization's statutes have provided clearly for the exclusion of the members' liability (see in particular F. A. Mann: International corporations and national law, BYIL. 1967, p. 145, particularly pp. 160 and 161; Schermers: Liability of international organizations, 1 1. JIL (1988), p. 3, particularly pp. 8 and 9; Chimni, op. cit, p. 208; for an argument maintaining that there is liability, at least secondary liability, of the members for the organization's indebtedness, sec Seidl-Hohenveldern, op. cit., particularly p. 423 et. seq., see in this connection the decision of tne Arbitration Tribunal of the International Chamber of Commerce in the Westland case, contra, Eisenmann, op cit )
106 See paragraph 164 of the application.
107 If reference is made to the application in Case 19/89, as Maclaine Watson requested at the hearing, the Court will note that there is an explicit mention of the non-contractual liability of the ITC.