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[1] See, for example, the essay by Lord Mackenzie Stuart, Subsidiarity - A Busted Flush?, in D. CURTIN & D. O'KEEFFE, CONSTITUTIONAL ADJUDICATION IN EUROPEAN COMMUNITY AND NATIONAL LAW, Essays for the Hon. Mr. Justice T. F. O'Higgins (1992) 19.
[2] A. BARAK, JUDICIAL DISCRETION (translated from the Hebrew) (Yale University Press, New Haven, 1989).
[3] Barak, op.cit., p. 196.
[4] Barak, op.cit., pp. 196-7.
[5] Carter, Constitutional Adjudication and the Indeterminate Text ; A Preliminary Defense of an Imperfect Muddle, 94 Yale L.J. 821 (1985).
[6] Ormrod R., Judicial Discretion, 40 Current Legal Problems (1987) 123 at p.123. He begins with a study of the progressive precedential fettering of the judicial discretion given in the Matrimonial Causes Act 1857, s.39 (pp. 24-7).
[7] Morgan v. Morgan (1869) L.R. 1 P.& D. 644, per Lord Penzance.
[8] Ormrod, op. cit., p. 125.
[9] R v. Secretary of State for Transport, ex parte Factortame [1991] 1 All ER 70; [1990] 3 CMLR 375. Lord Bridge rebuffed those who decried the overriding of a British statute as a novel and dangerous invasion of Parliamentary sovereignty. He observed that it was an inevitable consequence of the doctrine of the supremacy of Community Law, established in the ECJ's jurisprudence long before the UK's accession in 1973.
[10] J.H.H. Weiler, The Transformation of Europe 100 Yale L.J. 2043.
[11] A. HIRSCHMAN, EXIT, VOICE AND LOYALTY - RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS AND STATES (1970).
[12] Case 294/83 Parti Ecologiste 'Les Verts' v. European Parliament [1986] ECR 1339 at p. 1365, Recital 23; Opinion 1/91 (Re a Draft Treaty on a European Economic Area) [1991] ECR I-6079, Recital 21.
[13] H. KELSEN, THE PURE THEORY OF LAW (1967), pp. 194-221.
[14] Les Verts (See above, note 12). See also below.
[15] Les Verts (See above, note12) Recital 23.
[16] A. Barak, The Supreme Court's Weighty Task, The Jerusalem Post, May 24 1992.
[17] Sussman, The Courts and the Legislative Branch, 3 Mishpatim 213 (1971) at 216 (Hebrew).
[18] A. BARAK, JUDICIAL DISCRETION (see above, note 2) at p. 194.
[19] Barak, op. cit., p. 204. Such aversion to the absolute separation of powers is manifest in a number of decisions of the Israeli Supreme Court. Barak cites the dicta of President Shamgar; 'Separation of the powers does not necessarily mean the creation of a barrier that absolutely prevents any link among the branches but rather it is expressed mainly in the maintenance of a balance among the powers of the branches, in theory and in practice, permitting independence through defined mutual supervision. (Emphasis added) [H.C. 306/81 Sharon v. the Parliamentary Committee, 35 P.D.(4) 118 at 141].
[20] I am grateful for the advice of the young Israeli Constitutional Law scholar, Aeyal M. Gross after a seminar in Comparative Constitutional Law which he addressed at Harvard Law School on February 10th 1995.
[21] P. Lahav, Rights and Democracy: the Court's Performance, in SRINZAK & DIAMOND (Eds.), ISRAELI DEMOCRACY UNDER STRESS (Lynne Rienner Publishers, Boulder, 1993) 125-52.
[22] Bergman v. Minister of Finance 23 (i) P.D. 693. See further M. EDELMAN, COURTS, POLITICS AND CULTURE IN ISRAEL (University Press of Virginia, Charlottesville, 1994) pp. 13-15.
[23] Knesset Election (Validation Statutes) Law 1969, 23 L.S.I. 221. The Law reasserted the Legislature's power to pass laws 'valid for every legal proceeding and for every matter and purpose'.
[24] A. Barak, The Supreme Court's Weighty Task (see above, note 16).
[25] For example, Article 5 of the Basic Law: Freedom of Occupation - 1992 [published in Sefer ha-Chukkim No. 1387 (12th March, 1992)];
This basic law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset.
[26] H.C.J. 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, Mr. Y. Rabin et al. 47(5) P.D. 485. The ratio of the case concerns the absence of economic or market considerations in those taken into account by the Authorized licensing authority. (p. 498).
[27] Basic Law: Freedom of Occupation - 1992 (see above, note 25). Article 1 provided that;
Every Israel national or resident has the right to engage in any occupation, profession or trade; there shall be no limitation on this right except by a Law enacted for a proper purpose and on the grounds of the general welfare.
[28] Mitral (see above, note 26) at p. 505; '[i]n this legal situation the negation of the right of the Petitioner to deal with the importation of meat by the fact that the [Minister of Industry and Commerce] does not give it an import licence according to his authority ...contradicts prima facie the provisions of the Basic Law' [translation of Aeyal Gross].
[29] The Court opined that this could be achieved only by an act passed with the same Knesset majority required of a Basic Law [Mitral (see above, note 26) at p. 505].
[30] Basic Law: Freedom of Occupation - 1992 (see above, note 25), Article 1;
...there shall be no limitation on this right except by a Law enacted for a proper prupose and on grounds of the general welfare' [later amended as Article 4 to achieve consistency with the 'Basic Law: Human Liberty and Dignity', published in Sefer ha-Chukkim No. 1391 (25th March, 1992)]
[31] The 'Shas' party had included Govermental refusal to authorize the importation of non-kosher meats in its 'coalition agreement' list of demands.
[32] Basic Law: Freedom of Occupation - 1994 [published in Sefer ha-Chukkim No. 1454 (10th March, 1994)], Article 8 provides that;
The provisions of any law which are inconsistent with the freedom of occupation shall remain in effect, even if it does not conform with section 4, if it is included in a law adopted by a majority of the Knesset with the explicit comment that it is valid despite the provisions of this Basic Law; such a law shall remain in effect for four years from the date of its commencement, unless an earlier date is fixed.
[33] Shalit v. Minister of the Interior, 23(2) P.D. 447 (1968). I rely on the study of this case by Pnina Lahav, 'Rights and Democracy: The Court's Performance' in SPRINZAK & DIAMOND (Eds.), ISRAELI DEMOCRACY UNDER STRESS, (Lynne Rienner Publishers, Boulder, 1993), 125 at p. 139.
[34] The Eshkol Cabinet were to pay for their refusal to assist the Court. The eventual judicial decision precipitated a political crisis within the coalition, reconstituted only by amending the Law, as had been requested in the first instance.
[35] Case 120/78 Rewe-Zentral AG v. Bundesmonopolverwaltung fhr Branntwein (Cassis de Dijon) [1979] ECR 649.
[36] 'All trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions'. [Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837 at p. 852.]
[37] In American Antitrust Law it is for the Plaintiff to demonstrate the existence of a less restrictive alternative, whereas in the European trade regime, the Defendant Member State is usually required to establish the proportionality of its measure.
[38] See, for example, Case 60-61/84 Cinetheque S.A. v. Federation National des Cinemas Francais [1985] ECR 2605.
[39] See above, note36; at p. 664, Recital 14, Para. 4; 'There is therefore no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State...'
[40] See, for example, Case 188/84 Commission v. French Republic (Woodworking case) [1986] ECR 419 at p.436, Recital 16; 'It is therefore contrary to the principle of proportionality for national rules to require such imported products to comply strictly and exactly with the provisions or technical requirements laid down for products manufactured in the Member State in question when those imported products afford users the same level of protection.'
[41] Compare Case 188/84 Woodworking Case (See above, note 40), in which the health and safety of workers was at issue, with Cassis de Dijon (See above, note 35), where the danger in quesion was one of distortion of consumer choice.
[42] Cassis de Dijon (See note35) at p. 662, Recital 8.
[43] The 'New Approach' to harmonization rejects exhaustive uniform standards, preferring instead to set minimum general interest requirements, while leaving the ongoing process of technical standard-setting to such bodies as CEN and CENELEC. Such an approach allows the onus to show functional parallelism to be taken off the importer , where he or she can demonstrate compliance with the minimum mandatory standard.
[44] Article 100a(2) EC; 'Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons.'
[45] The Times, European Court 'strangling our liberties', September 19th, 1994.
[46] Case 294/83 Les Verts (See above, note 12).
[47] Case 294/83 'Les Verts' (See above, note 12 above) at pp. 1365-6.
[48] Case C-70/88 European Parliament v. Council (Chernobyl Regulation case) [1990] ECR I-2041.
[49] Case 70/88 'Chernobyl Regulation case' (See above, note 48), at p. 2073, Recital 27 .
[50] J. BENGOETXEA, THE LEGAL REASONING OF THE EUROPEAN COURT OF JUSTICE (Clarendon Press, Oxford, 1993), at p. 101.
[51] Opinion 1/91 Re. a Draft Treaty on a EEA [1991] ECR I-6079.
[52] EEA (See above, note 51) Recital 20.
[53] H. RASMUSSEN, ON LAW AND POLICY IN THE EUROPEAN COURT OF JUSTICE (Martinus Nijhoff, Dordrecht, 1986).
[54] Rasmussen, op. cit., p 7; 'In terms of methodology, the student of European judicial activism has, indeed, no choice but to monitor carefully the responses to activism offered by the Court's political as well as legal, social and economic environments' (Emphasis in the original).
[55] J. Weiler, The Court of Justice on Trial, 24 CMLR 1987, 555, at p. 570. As he observes in conluding his following paragraph; '[t]he Court as guardian of the Treaties ...has, of course within proper limits, a huge responsib[i]lity in not allowing that vision and idea, as incorporated into the Treaties establishing the European Communities, to be destroyed by contingent political and social negative inputs.'
[56] Rasmussen, op. cit., p. 508.
[57] Rasmussen, op. cit., p. 36.
[58] Rasmussen, op. cit., p. 75.
[59] Weiler, op. cit., pp. 578-583.
[60] Rasmussen, op. cit., p. 508.
[61] Note that a similar doctrine exists in American Constitutional Law governing Presidential exercise of executive authority. The leading case is Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) 343 U.S. 579 (1952) in which the Supreme Court found that President Truman had exercised legislative powers, without Constitutional or Congressional authorization, in ordering the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. In declining to imply Congressional authorization, Justice Black observed that 'prior to this controversy Congress had refused to adopt that method [, the seizure technique,] of resolving labor disputes' (p. 586). Indeed when amendment had been proposed to the Taft-Hartley Act of 1947 in order to authorize government seizures in case of emergency, Congress had rejected it. It preferred the customary process of collective bargaining, supplemented with investigation by boards of inquiry, public reports and even temporary injunctions to provide cooling-off periods.
[62] Arguably a third would exist where the number of years during which case-law has remained unrepealed is considerable. For example, in Texas Industries, Inc. v. Radcliff Materials, Inc. [451 U.S. 630 (1981)], the Supreme Court upheld the historic refusal of antitrust courts to allow the defendant to seek contribution from his alleged co-conspirators; 'the continuing existence of this statutory scheme [of remedies, without judicial implication of a right to seek contribution] for 90 years without amendments authorizing contribution is not without significance' (p. 645, per Chief Justice Burger). Likewise in Central Bank of Denver, N.A.v. First Interstate Bank of Denver, N.A. [114 S.Ct. 1439 (1994)] the minority believed that the implied private right of action under Rule 10b-5 against aiders and abettors had 'become part of the established system of enforcement [since 1946]. ...[W]e should also be reluctant to lop off rights of action that have been recognized for decades, even if the judicial methodology that gave them birth is now out of favor' (p. 1460, per Stevens J.).
[63] The existing conservative majority in the Supreme Court have expressed their opposition to the simplest and most radical expression of the acquiescence doctrine in Central Bank of Denver (See above, note 62), citing earlier cases;
'It does not follow ...that Congress' failure to overturn a statutory precedent is reason for this Court to adhere to it. It is 'impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the [courts'] statutory interpretation... Congressional inaction cannot amend a duly enacted statute' [Patterson v. McLean Credit Union 491 U.S. 164, 175 (1989) (quoting Johnson v. Transportation Agency 480 U.S. 616, 671-672 (1987))].
[64] The ECJ has similarly inferred intent to endorse an existing norm (but has restricted itself to statutory rules) where legislative review has left that norm untouched. In Case 302/87 Parliament v. Council (Comitology) [1988] ECR 5615, for example, the Court adopted a strictly literal interpretation of Article 173 on the grounds that the framers of the SEA had declined to modify that article when it could easily have done so.
[65] Musick, Peeler & Garrett v. Employers Insurance of Wausau 113 S.Ct. 2085 (1993).
[66] See Central Bank of Denver (See above, note 62) in which the Court denied the existence of secondary liability under SEC Rule 10b-5 for those who aid and abet a primary violation of that rule.
[67] Cannon v. University of Chicago 441 U.S. 677 (1979). The Court has generally tended to reject claims of implied federal remedies, placing a more conservative focus on the text and legislative history. See, for example, Touche Ross & Co. v. Redington 442 U.S. 560 (1979) at p. 576, per Rehnquist J.
[68] Central Bank of Denver (See above, note 62).
[69] Central Bank (See above, note 62) at p. 1458
[70] Ibid.
[71] Musick, Peeler (See above, note 65).
[72] Musick, Peeler (See above, note 65) at p. 15.
[73] 15 U.S.C. ' 78aa-1 (Supp. III).
[74] Case 43/75 Gabrielle Defrenne v. SABENA (No. 2) [1976] ECR 455]
[75] J. Weiler, The Court of Justice on Trial, 24 CMLR 1987, 555, at p.572.
[76] Birmingham City Corporation v. West Midland Baptist (Trust) Association (Incorporated) [1969] 3 All E.R. 172 at p. 180.
[77] Barak, op. cit., p. 209.
[78] P. DEVLIN, THE JUDGE (O.U.P., Oxford, 1979), p.12.
[79] J. Gibson & G. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court of Justice, 39 American Journal of Political Science (1995) 459. The authors report that 'across the Union as a whole, only 4.5% claim to be very aware of the Court. And in some countries (Portugal, Spain, and Italy) nearly a majority of the respondents assert that they had never heard of the Court before the interview' (p. 470). In their analysis of the Court's diffuse support, Gibson and Caldeira exclude over a third of the European population who have 'virtually no information or opinion about theCourt' concentrating instead on the 'attentive public' (p. 471, emphasis added).
[80] See above, note 74.
[81] Defrenne (see note 74), p. 464.
[82] Defrenne (see note 74), p. 465.
[83] Case 69/80 Worringham v. Lloyds Bank [1981] ECR 676.
[84] For example, Case 66/80 ICC v. Amministrazione delle Finanze dello Stato [1981] ECR 1191.
[85] Bengoetxea, op. cit., p. 99.
[86] Case 148/78 Pubblico Ministero v. Tullio Ratti [1979] ECR 1629 at p. 1642, Recital 22.
[87] Case 6/64 Costa v. ENEL [1964] ECR 585, at p. 594.
[88] See above, note 36.
[89] H. Kutscher, Methods of Interpretation as Seen by a Judge at the Court of Justice, in 'Judicial and Academic Conference, Luxemburg', at pt. 2, sect. 6(a).2.
[90] J. Weiler, The Community System: The Dual Character of Supranationalism, 1 Y.E.L. (1981) 267, at p. 306. Professor Weiler does not shy from suggesting the self-consciousness of the Court's consequentialist interpretative norm; '[t]he Court's jurisprudence was inspired perhaps by its all too familiar knowledge of that very world in which international agreements lacking a normative framework have such limited impact.' (p. 306).
[91] By way of anecdotal evidence, it is well known at the English Bar that certain silks prefer their juniors' submissions to avoid 'teleological' reference and to adhere rather to the 'fundamental principles' of the Communities.
[92] Reisman, Book Review, 81 AJIL (1987), 263 at p. 266 (emphasis added).
[93] G. SLYNN, INTRODUCING A EUROPEAN LEGAL ORDER (Hamlyn Lectures, 1992), at p.13.
[94] Slynn, op. cit., p. 18.
[95] Case 314 Firma Foto-Frost v. Hauptzollamt Lhbeck [1987] ECR 4199.
[96] Slynn, op. cit., p. 12.
[97] Slynn, op. cit., p. 24 (Emphasis added). The author is referring to Case 45/86 Commission v. Council [1987] ECR 1493.
[98] Slynn, op. cit., p. 25.
[99] Rasmussen, op. cit., p. 69 (Emphasis in the original).
[100] Rasmussen, op. cit., p. 73 (Emphasis in the original).
[101] Bengoetxea, op. cit., p. 135 (Emphasis added). The author purports to reject the functionalist theory which would make 'good' reasons those which achieve acceptability, rightly observing that 'it makes the practice of decision-making dependent on persuasive success' (p.271). However, it is harder to deny the theory's importance as a premise to his 'rational reconstruction' of the ECJ's doctrine of justification, especially where such reconstruction relies in part upon connection to enacted Community Law. After all, the latter is at all times subject to review or amendment by the very political audiences to which judicial decisions must be acceptable. Bengoetxea concedes the relevance of the 'acceptability approach' in explaining the development of doctrines of justification not originally found in the Treaties. Substantive reasons founded upon such principles as human rights, environmental preservation and consumer protection require 'an 'adequate' (rational?) consensus concerning their urgency within the different audiences to which decisions are addressed' (p.273).
[102] F.Mancini, The Making of a Constitution for Europe, 26 CMLR (1989) 595.
[103] F. Easterbrook, Foreword: The Court and the Economic System, 98 Harvard Law Review 4, p. 45, at pp. 45-46 (1984).
[104] Butor, Meltzer, Mishkin and Shapiro question the judicial argument which underpinned the Court's implication of a private right of action under ' 14(a) of the SEA 1934 in J.I. Case Co. v. Borak [377 U.S. 426 (1964)]; 'Since Congress must have meant the prohibition to be taken seriously, does it follow that recognition of a private remedy not explicitly provided by statute should always be deemed consistent with, and in furtherance of, the statutory purpose? ...[This argument] assumes that a statutory prohibition is motivated by a simple one-dimensional purpose to deter or require certain kinds of conduct. In fact, a statute is often the product of a pitched battle between competing interest groups, and one outcome of that battle may well have been a tacit understanding that the available remedies would be limited - that full compliance was neither desired nor desirable.' [P. BUTOR, D. MELTZER, P. MISHKIN, D. SHAPIRO, 'HART AND WECHSLER'S' THE FEDERAL COURTS AND THE FEDERAL SYSTEM (3rd Edition) (Foundation Press, New York, 1988) at p. 944].
[105] Landes and Posner, 4 Journal of Legal Studies, 1 at p.15 (1975). They observe that where the social cost of the prohibited activity and thus the value of prevention increased, this could be achieved in a public enforcement regime simply by raising the penalty. Yet private enforcers, 'constrained to act as private profit maximizers' would perceive such a move as 'an upward shift in the demand curve facing them, and [this] would have the effect of increasing the resources devoted to ...prevention, as in the case of an ordinary product the demand for which increases'. What in a universe of public enforcement would be a simple reflection that the probability of conviction is less than one now becomes a signal to private enforcers that additional resources should be diverted to enforcement - precisely when the system endeavours to minimize enforcement resources.
[106] Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.
[107] R v. Secretary of State for Home Department, ex parte Vitale [(Unreported) Q.B.D. March 1995, Case No. CO1252/94] per Judge J..
[108] Ex parte Vitale (See above, note 107) at p. 29.
[109] The political dimension to antitrust legislation and its enforcement was most evident in the U.S. during the Recession of the 1930's, when the 'National Recovery Administration' made various proposals for 'fair competition', permitting such supracompetitive pricing as was deemed necessary to keep companies in business. This thinking is widely thought to have informed such otherwise anomalous decisions as Appalachian Coals v. U.S. 288 US 344 (1933). In that case, the Court declined to enjoin the establishment of a joint selling agency controlling 73% of the commercial coal production of the Appalachians; 'the fact that the correction of abuses may tend to stabilize a business, or to produce fairer price lebels, does not mean that the abuses should go uncorrected or that co`perative endeavor to correct them necessarily constitutes an unreasonable restraint of trade' (p. 374).
[110] In Appalachian Coals v. U.S. [see above, note 109] the Court observed that '[a]s a Charter of freedom, the Act has a generality and adaptability comparable to that found to be desirable in constitutional provisions' (p. 359).
[111] Les Verts (See above, note12) at p. 1365, Recital 23.
[112] Case 41/74 Van Duyn v. Home Office [1974] ECR 1337. 'If, however, by virtue of the provisions of Article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of actis mentioned in the Article can never have similar effects' [p. 1348, Recital 12].
[113] Van Duyn (See above, note 112), at p. 1348, Recital 12 (Emphasis added).
[114] Cases C-6 and 9/90 Francovich and Bonifaci v. Republic of Italy [1991] ECR 5357.
[115] Case C-2/88 Imm Zwartveld [1990] ECR I-3365. In this case the general principle of loyal cooperation between Community and Member State derived from Article 5 was found to give rise to a concrete duty. This duty was particularized in the Member State's corelative right to secure the disclosure of various Commission documents and the waiver of its inspectors' immunity. It was found to be sufficiently strong to prevail over both Article 2 of the Protocol of Privileges and Immunities of the European Communities and the absence in Article 177 of any express right of the national court to refer such a 'request for judicial cooperation' to the ECJ.
[116] The extension is clear from the language of Recital 36 in its discussion of Article 5, 'under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community Law. Among these is the obligation to nullify the unlawful consequences of a breach of Community Law' (emphasis added) [Francovich, see above, note 114]. The 'unlawful consequences' can clearly now include particular harm to a particular individual.
[117] It is conceded that the rule in Russo that 'the State is liable to the injured party [for] the consequences in the context of national law on the liablility of the State' [Case 60/75 Russo v. AIMA [1976] ECR 45 at p. 56, Recital 9 (Emphasis added)] probably still applies.
[118] Francovich (See above, note 114) Recital 35.
[119] Indeed an action for damages under Francovich would seem to have much in common with the tortious action for damages for harm caused by breach of the Constitution in such jurisdictions as the Republic of Ireland. A similar right of action for violation of constitutional norms exists in the U.S. under the rule in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
[120] Given the spectacular failure of the previous European settlement of 1919 and the uncertainties regarding Europe's economic and political future, it seems hardly surprising that the participating powers strove to avoid a static norm. Process jurisprudence, by which Courts are forbidden from straying into substantive matters, had failed to prevent the abuses of Law by the Axis regimes. At the same time, Koopmans has observed in the Post War period an Institutional and Instrumental approach to law, by which the new powers might "plan" society and "make the future" through law [Koopmans, The Role of Law in the Next Stage of European Integrationm, 35 ICLQ (1986) 925]. A new rights discourse developed in the recognition that Law should strive to defend not only the orthodox liberal rights of the 19th Century, but also the economic and social rights which could better protect them. Law, viewed 'minimally' and through process jurisprudence, had been horribly abused in the destruction of Europe. Now it would be pressed into service in its reconstruction.
[121] Bengoetxea, op cit., pp. 33-4.
[122] The Court's decision in Foto-Frost (see above, note 95), in derogation from principles of internalization which apply regarding the interpretation of Community Law, perhaps provides the best example of this. As the Court observed in Recital 13, Article 177 does not definitively determine the exclusivity of its competence in deciding on the validity of Community legal acts. Such a determination was found to be essential to ensure the uniform application of Community Law (Recital 15). Where there is little practical risk of damage to the internal market, for example in decisions by National Courts providing interim relief against EC legal acts (Recital 19), the Court is less worried by the resulting incoherence of the system of judicial protection.
[123] Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1, at p. 12; '...Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community Law has an authority which can be invoked by their nationals before those courts and tribunals.'
[124] Case 6/64 Costa v. ENEL [1964] ECR 585.
[125] Case 6/64 Costa v. ENEL (see above, note 124) at p. 594.
[126] Case 283/81 CILFIT [1982] ECR 3415.
[127] Bengoetxea, op. cit., p. 46. The author suggests that the basic freedoms, prohibitions and principles of the Treaty 'negatively determine the content of derived legislation in implementation thereof' (p. 48).
[128] N. Luhmann, TheUnity of the Legal System, in G. TEUBNER, AUTOPOIETIC LAW: A NEW APPROACH TO LAW AND SOCIETY (W. de Gruyter, Berlin, 1988).
[129] Bengoetxea, op. cit., p.50.
[130] Bengoetxea, op. cit., p. 78.
[131] Barak, op.cit., p.207.
[132] I was struck recently by a 'Sunday Spotlight' in a Boston tabloid on the daily life of the recently-appointed Justice Stephen Breyer of the U.S. Supreme Court. The highlighted section of text reported that 'he finds (high court) very isolating and it worries him. He's afraid he'll lose contact with the real world...', and was set opposite bold headlines declaring that 'Sexual diseases may be infecting 1 in 5 in U.S.' [Boston Sunday Herald, February 26, 1995]. Whilst the judges of the ECJ may enjoy their freedom from such scrutiny, its absence in Europe surely highlights the low visibility of the Court's functioning. See above, note 79.
[133]See above, note 35, at p. 664, Recital 14.
[134] Barak, op. cit., p.219.
[135] Barak, op. cit., p 220.
[136] See above, note 123.