number 1 - Centre d'études et de recherches européennes Robert ...

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Christian Pennera
made use of until a few years later with, as we shall be seeing, the appearance on
the scene of actions for interpretation provided for by the Treaty of Rome 25 .
Meanwhile, the Court had seen submitted to it the first "staff cases" which were
to continue increasing in number but which made it possible to forge administrative
case-law that was as complete as it was consistent 26 . It was to a staff case, for
instance, that we owe the Court's first stance on the subject of withdrawal or cancellation
of an illegal act by the administration and the effects resulting therefrom.
It was upon this point, more particularly, that the Court was to have recourse to the
method of comparative law in order to hammer out its doctrine. Since it was seen
that the Treaty did not give any clues in this respect, the Court saw itself obliged
unless it was to deny justice "to solve the problem by reference to the rules acknowledged
by the legislation, the learned writing and the case-law of the member
countries " 27 . Subsequently, as the Court's case-law gradually became consolidated,
the comparative law method lost some of its importance on account of the
specific nature of Community law 28 .
The closing months of the Court's activities under the aegis of the ECSC proper
witnessed a number of decisions reached by the Court which were all favourable to
applicants.
We have already mentioned the judicial interpretation which widely opened up
the way for action on the part of private individuals. In a case judged on 13 June
1958 a firm asked for a decision which had damaged its interests to be annulled,
invoking to this end the irregularity of a preceding general decision which it had
been impossible to attack at the time because the time limit to bring an action had
already expired. Interestingly enough the ECSC Treaty says nothing, except in a
restrictive sense in Article 36, on the subject of this machinery which in administrative
law is referred to as the "objection on the grounds of illegality".
As always with the intention of making it easier for private individuals to start
proceedings, the Court began by saying that, in reality, Article 36, paragraph 3, of
the ECSC Treaty constituted a general principle. Indeed, if it were not possible to
claim that earlier general decisions were irregular, it would be almost impossible
for individual firms to exercise their right to take proceedings. Otherwise they
25. Cases 7 and 9/54, 23 April 1956, [1954 to 1956] ECR 175. This case is the first example of the
application of Article 35 of the ECSC Treaty, the predecessor of the action for failure to act on the
part of an institution under Article 175 of the EC Treaty. Two years later, the Court was to confirm
this decision and extend it to the group of rules consisting of Articles 2, 3, 4 and 5 of the Treaty :
Case 8/57, cited in Note 23.
26. Case 1/55, 19 July 1955, and Case 10/55, 12 December 1956, [1954 to 1956] ECR 151 and 333.
The institutions lost these first two cases brought against them by their staff.
27. Cases 7/56 and 3 to 7/57, 12 July 1957, [1957 and 1958] ECR 39. The Court likewise established
the existence of a "principle generally accepted in the legal systems of the Member States [ according
to which ] equality of treatment in the matter of economic rules does not prevent different
prices being fixed in accordance with the particular situation of consumers" : Case 8/57, cited in
Note 23.
28. The opinions of the Advocates General were best suited to such exercises of comparative law.
Advocate General Lagrange excelled in these : see, for example, his study of the concept of
"misuse of powers" in the case mentioned in Note 23 above.