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The Benelux Court*

Published online by Cambridge University Press:  07 July 2009

J.W. Schneider
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“By applying norms in a uniform and consistent manner, the court insures the equal administration of justice which is, of course, at the heart of any rule of law system”. Judged by this function the contemplated Benelux Court, whose task it is to promote uniformity in the application of legal rules common to Belgium, Luxemburg and the Netherlands (Art. 1(2) ) is no less a judicial organ than any true court. Some doubts may be entertained as to whether its function of resolving basic conflicts is equally prominent. In the final analysis, the Court's judicial activity does help to solve conflicts but, apart from its role as an administrative tribunal, the Court's task remains strictly indirect, that is by way of preliminary review. It does not hand down judgments directly binding upon the litigant parties. This somewhat reduced role is allied to the peculiarity of the legal order, or rather the entire system, within which its work has been charted. This system is the Benelux Economic Union whose basic instrument, the Union Treaty of 3 February 1958, does not mention that it is a common market; in fact, it materially resembles the European Common Market. Its juridical structure is, however, a strictly intergovernmental one and its decisions are taken by unanimity (Art. 18) which features are characteristic of an international organization whereas a supranational organization is provided with an organ capable of issuing “real” decisions without admitting of the direct intervention of the governments concerned.

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Section A: Articles
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Netherlands Yearbook of International Law , Volume 4 , December 1973 , pp. 193 - 235
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Copyright © T.M.C. Asser Press 1973

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References

1. Scheingold, S.A., The Rule of Law in European Integration (New Haven: Yale University Press, 1965) p. 7.Google Scholar

2. 381 U.N.T.S. p. 165, Trb. 1958 No. 18, Benelux-Basisteksten I-I (B.T.), European Yearbook, vol. V, p. 166. For the English translation of the Union Treaty (U.T.) see: 381 U.N.T.S. p. 260, van Panhuys, H.F., Brinkhorst, L.J. and Maas, H.H., eds., International Organization and Integration (Leyden: Sijthoff/Deventer: Kluwer, 1968) p. 978CrossRefGoogle Scholar, Peesley, A.J., International Governmental Organizations, vol. I, 2nd rev. ed. (The Hague: Nijhoff, 1961) p. 87Google Scholar. Current Benelux texts are published by inter alia the Secretariat-General of Benelux at Brussel in B.T., a loose-leaf edition, vol. I-VI, and also in Trb.

3. See the comparison at the end of the Explanatory Memorandum (E.M.) of the Union Treaty, B.T. I p. 104. The Report on the Conference of Cabinet Ministers of the Netherlands, Belgium, Luxembourg, held at the Hague, 10–13 March 1949, proposes in its Annexes, definitions for a Tariff Community, a Customs Community, a Customs Union and an Economic Union. In the definition of the latter: it “(covers a definite economic territory…) b) wherein the establisment and application of the economic, financial and social policies are coordinated.” The latter term indicates the intergovernmental character attributed to the fledgling Pre-Union, cf. infra n. 8.

4. See Colliard, C.-A., Institutions Internationales, 5th ed., (Paris: Dalloz, 1970), p. 477Google Scholar and von Lindeiner-Wildau, K., La supranationalité en tant que principe de droit (Leyden: Sijthoff, 1970), p. 39–63.Google Scholar

5. For an extensive survey see de Waart, P.J.I.M., Het onderhandelingselement in de vreedzame regelingen van geschillen tussen staten. [The element of negotiation in the peaceful settlement of inter-state disputes], (Amsterdam, 1971)Google Scholar, thesis. Cf. “Memorial submitted by the government of India in the appeal relating to the jurisdiction of the ICAO Council (India v. Pakistan)”, 12 I.J.I.L. (1972) p. 421 et seq.Google Scholar

6. B.T. IV-I, Trb. 1965 No. 71, 12 European Yearbook (1964) p. 259.Google Scholar

7. B.T. IV-I, Trb. 1955 No. 15. The Commission is financially independent from Benelux though some of its officers may be paid by the Secretariat. It is now responsible to the Working Group of the Ministers of Justice which acts within the Committee of Ministers. The Commission can act as an organ for Benelux properly speaking but most of its activities are concerned with objectives comprised under the general heading of intergovernmental cooperation for which organs of Benelux, in its narrow sense, are also used.

8. The Customs Union, Agreement of 1944, (Stb. 1944 E No. 77) was enlarged into the Pre-Union by Agreement of 15 October 1949. (Trb. 1954 No. 118). This in turn was replaced by the Benelux Economic Union established by Treaty of 3 February 1958 which entered into force on 1 November 1960 (Trb. 1960 No. 124). The Treaty largely codified the results to which the Pre-Union had led.

9. So in the E.M. attached to the Convention of 29 April 1969, for the Unification of the Benelux Customs Area, B.T.I p. 57 et seq., Trb. 1969 No. 125 p. 8.et seq.

10. Report to the Interparliamentary Consultative Council (ICC). Doc. 8–1. The Council set up by Convention of 5 November 1955 (B.T.I, 250 U.N.T.S. p. 201, Trb. 1955 No. 159), was later integrated into the Union but its constitution and objectives remain based on the said Convention.

11. B.T. IV-I, Court p. 16, ICC Doc 8–1 and 2. The latter is a report of the Council's Commission for Penal, Civil and Commercial Law (PCC).

12. Cf. B.T. IV-II. Treaty concerning a Uniform Law on Private International Law, p. 3.

13. The point has often been stressed by the Governments though their position has inflected precisely in connection with the Court. See e.g. E.M. to the Treaty concerning a Uniform Law on Private International Law of 3 July 1969, B.T. IV-II p. 21, Trb. 1970 No. 16 p. 4.

14. Ministerial decision of 3 May 1955, Trb. 1958 No. 21. The provisions on the College of Arbitrators in the Union Treaty (Arts. 41–53) were modelled largely upon this decision. Cf. Stuyt, A.M., Survey of International Arbitrations (Leyden: Sijthoff, 1972), p. 537.Google Scholar

15. Art. 14 of the preliminary draft ran as follows: “When pronouncing upon a request the Court shall only address itself to the point of interpretation before it. The national judges who subsequently have to decide the case will be bound by the interpretation which follows from the Court's decision.”

16. 27 June 1962, B.T. IV-II, Trb. 1962 No. 97.

17. Doc. 8–3, recommendations adopted 13 December 1957.

18. Doc. 13–2, of 24 April 1969, p. 9.

19. Doc. 13–3, p. 3.

20. Doc. 20–1, 5 April 1960, p. 3.

21. In the same vein the observation of PCC, Doc. 20–2, of 31 May 1960, p. 3, which referred to the possibility of fusing the organs into one. The following answer by the Governments are reported by the Rapporteur.

22. Doc. 30–1, of April 1961, p. 3, Doc. 30–2, of September 1961, p. 6 et seq.

23. The Commission was not fully convinced. Yet obtaining the consent of the other EEC countries to an amendment, or even a simple supplement as the Commission proposed, would have been difficult. The proposition would have meant creating a court within a court. The Governments appreciated more correctly the point that the projected court would be a Benelux court.

24. E.M. to the Treaty establishing the Court, B.T. IV-I, p. 19 et seq., Trb. 1965 No. 71 p. 25 et seq.

25. See Doc. 30–3, of 28 October 1961, in which the Council requested the early submission of a draft for the Court. The Convention concerning a Uniform Law on Trade Marks, of 19 March 1969, which came into force on 1 July 1969, B.T. V-I, 704 U.N.T.S. p. 301, Trb. 1962 No. 58, provides in Art. 10 that the Court when constituted will have competence in questions concerning the interpretation of the uniform law. The Convention itself was later brought under the competence of the Court by the First Protocol of 31 July 1970 B.T. V, Trb. 1970 No. 149.

26. Doc. 38–1, of 6 July 1962, p. 3. The draft and the Council's action on it are contained in Doc. 52-(1–5) of 1964/5.

27. B.T. IV-I p. 65, Trb. 1969 No. 128.

28. B.T. IV-I p. 45, Trb. 1966 No. 244.

29. B.T. IV-I p. 51, Trb. 1969 No. 127.

30. Doc. 93–2, p. 5, Doc. 114–2, Annales ICC nos 88–89 p. 68, Doc. 132–1, p. 7, 26, Doc. 132–2, p. 8.

31. 24 May 1966, B.T. IV-II; Trb. 1966 No. 178.

32. Doc. 132–3 of 15 December 1972.

33. The text has been established by decision M(71)5, of 5 June 1971, but has not been signed. See also Doc. 111–1, of 30 June 1970, for the draft submitted to the Council and the latter's advice in Doc. 111–2, of 22 January 1971.

34. Doc. 124–1, of 8 August 1971, p. 14; Doc. 132–1, of 31 August 1972, p. 26.

35. Art. 1(2): “The Court shall promote uniformity in the application of the legal rules common to Belgium, Luxembourg and the Netherlands.” The wording suggests a rather more active role on the part of the Court but it would be burdensome to resort to more accurate descriptions. Neither has the European Court such power except for ‘pecuniary obligations’ enforceable through national organs but its judgments can have the force of res judicata, Green, A.W., Political Integration by Jurisprudence (Leyden: Sijthoff, 1969), p. 48 et seq., p. 197 et seq.Google Scholar

36. See Doc. 38–2, p. 2 et seq. In view of the increasing number of conventions everywhere suitable for uniform interpretation the suggestion was made of having an international court for this purpose.

37. Doc: 30–2, of 8 September 1962, p. 2. PCC already stressed that the Commission for Unification should adopt the task of preventing the legislations concerned from developing further descrepancies and that its function should, in principle, extend to the entire legal production of the member countries. The Governments pointed out that unification was a delicate matter given the peculiarities of the various national law system, a point attracting even greater importance when matters of public and administrative law were concerned.

38. The appellation ‘Benelux’ connotes two meanings. Benelux properly speaking is the organisation destined to foster the objectives of the Union as laid down in the Union Treaty. Benelux more generally speaking is the expression of the intergovernmental cooperation in other fields such as culture and foreign policy. The Union's organs are used for this wider cooperation, too. The intergovernmental cooperation has few organs of its own, viz. the Commission for Unification and, partly, the Interparliamentary Council. Unification of laws is important for matters in both spheres of Benelux. Though the distinction as indicated is strictly kept up it is also clearly recognised that the borderline is shifting because the objectives of the Union get ever wider application.

39. So the ESRA procedure (CCES in French). A convention was to permit goods to cross the border even if they would be otherwise barred from entering into the receiving country by reason of not satisfying the necessary technical and other qualifications. It would be sufficient that they met the requirements in the country from which they were to be exported. On reflection, the Governments were not inclined to hasten the conclusion of the convention because the device simply meant a papering over of difficulties that could rebound more seriously and also because such a convention would slow down the work, at least so they feared, on the more fundamental effort to harmonize the standards themselves. See Doc. 99–1.

40. The various customs legislation proved to be too interwoven with other parts of the respective legal systems so that a more thorough unification would have meant overhauling substantial parts of the entire legal systems. Cf. E.M. to the Convention for the Unification of the Benelux Customs Area, see supra n. 9.

41. Cf. bibliographies in Green op.cit., p. 412 et seq., and in Pescatore, P., L'ordre juridique des Communautés Européannes (Liége: Presses universitaire de Liége, 1971), p. 136Google Scholar et seq. For the following discussion see Doc. 38–2 and 3.

42. The Convention on Metrology of 11 March 1970 whose execution will be determined by protocols (Art. 2(1)) runs as follows in art. 2(2): “These protocols will be directly applicable in each Benelux Country.” (B.T. V–II, Trb. 1970 No. 79). By way of these protocols the action taken by the Council of Ministers of EEC can be accomodated, as the first paragraph expressly notes. The terminology of ‘directly applicable’ is certainly preferable to that of ‘self-executing’., a phrase too overworked and too reminiscent of, finally, American law. See also Convention on Arms and Ammunition, of 9 December 1970, B.T. V-II p. 21, Trb. 1971 No. 43 p. 23.

43. Cf. the Convention concerning a Uniform Law on Trade Marks of 19 March 1962, see supra n. 25.

44. The Convention concerning a Uniform Law on Trade Marks, see previous note, and the Convention concerning a Uniform Law on Designs of 25 October 1966, B.T. V-I, Trb. 1966 No. 292. The Union Treaty provides for the possibility of common services (Art. 40), a solution deliberately left out by the two Conventions. By M(72)22 a Common Service for Pharmaceuticals has been set up, B.T. VI-I p. 1589, Trb. 1973 No. 10. The device of identical documents and comparable effects is crucial for the functioning of the present Benelux.

45. The solution has not only been sought through the greatest possible harmonization, still a long way off, but also by declaring the various legal systems concurrently applicable. Thus customs goods passing an intra border also remain under the first legislation until final clearance, or of two legislations when crossing two intra-borders. In this system law officers may, under certain conditions, continue pursuit or investigate in another territory and judicial authorities are bound, to a large extent, to cooperate. In this system uniform interpretation becomes an institutional necessity. See the important Convention on Administrative and Penal Cooperation of 29 April 1969, B.T. V-I, Trb. 1969 No. 124.

46. See supra n. 42.

47. See supra n. 31. The term ‘model law’ has now acquired a different meaning.

48. Cf. Arts. 11(3), 62(2).

49. Of 10 June 1970, B.T. V-II, Trb. 1970 No. 155.

50. See supra n. 42.

51. cf. E.M., B.T. V-II p. 23, Trb. 1971 No. 41 p. 25.

52. Cf. supra n. 45. Till now three protocols have been adopted, viz. on imports, exports and transit; on taxes and on transport, B.T. V-I, Trb. 1969 No. 124.

53. Of 15 June 1970, B.T. V-II, Trb. 1970 No. 193.

54. Cf. supra n. 45. This method of extending certain laws over the entire Benelux territory has been adopted in the Convention for the Unification of the Benelux Customs Area of 29 April 1969 see supra n. 9, and the Convention for the Unification of the Benelux Excise Area of 10 June 1970, B.T. I, Trb. 1970 No. 106. Also the Convention on the Simplification of Formalities at the Inland Borders concerning Purchase Taxes of 30 October 1970, B.T. I, Trb. 1971 No. 1.

55. Of 11 April 1960, B.T.I, 374 U.N.T.S. p. 3, Trb. 1960 No. 40. Visa are valid for the entire Benelux area, Art. 4.

56. See infra p. 229 et seq.

57. Cf. Doc. 38–3, being a note by the Governments answering various points raised in Doc. 38–2.

58. Report, p. 8 et seq., B.T.I, , Jaarboek van het Ministerie van Buitenlandse Zaken (1968/1969) pp. 185–198.Google Scholar

59. Protocol of 29 April 1969, which entered into force on 29 January 1971, B.T. I, Trb. 1969 No. 126. Art. 6, Union Treaty imposes upon the parties the obligation to observe that no national provisions concerning public health will necessitate the retention of frontier formalities. At the Conference of Heads of Government of 6 July 1970, it was noted that no difficulties existed to the abolition of most frontier formalities by 1 January 1971, B.T. VI p. 1229 et seq., Jaarboek van het Ministerie van Buitenlandse Zaken (1970/1971), p. 24. Annex 3 and 3.Google Scholar

60. The general obligation arises from the fundamental objectives of the Union as formulated in Arts. 2–11 U.T. In a common market system the recommendation has to be interpreted against this background of obligations and not as an additional effort to extend obligations not yet undertaken. Besides, recommendations are adopted, in Benelux, by the three countries together. They should therefore be regarded as drafts formally presented to the authorities concerned, either the executives or the parliaments. Pescatore points to the fact that the European system is strongly centralised in the phase of legislation but very much decentralised in the phase of execution, op. cit, p. 149.

61. This particular argument has not been used but rather that of the separation of powers, Doc. 52–3, p. 2.

62. First Protocol, E.M., B.T. IV-I p. 60, Trb. 1969 No. 127 p. 15.

63. Van Gend & Loos v. Netherlands Tax Administration, see Green op.cit., p. 325. Brinkhorst, L.J. and Schermers, H.G.: Judicial Remedies in the European Communities (Deventer: Kluwer/London: Stevens/South Hackensack: Rothman, 1969) p. 109 et seq.Google Scholar

64. These aspects have probably been insufficiently taken into account in discussions on the uniform interpretation of treaties in general. Cf. Mann, F.A., Studies in International law, (Oxford: Clarendon Press, 1973)Google Scholar, Ch. XIX: “The Interpretation of Uniform Statutes”, p. 614 et seq.; Mankiewicz, R.H., “The Judicial Diversification of Uniform Private Law Conventions”, 21 I.C.L.Q. (1972) p. 718 et seq.CrossRefGoogle Scholar

65. Cf. E.M., B.T. IV-I p. 61, Trb. 1969 No. 127 p. 16. The Committee did not consider the point whether a provision binding upon Governments, by virtue of a convention, could give rise to rights in private individuals, the point decided in the Van Gend & Loos case, supra n. 63. See the views of Pescatore on the ‘effet direct’ the real significance of which is the integration of the individual into the community system, op.cit., p. 164.

66. Ibid., p. 133.

67. Cf. the George Pinson case where the arbiter, Verzijl, clearly perceived the difference in viewpoint between the national and the international judge, O'Connell, D.P., International Law, Vol. I (London: Stevens, 1970), p.45Google Scholar, and generally p. 38 et seq. The point has also been stressed by W.J. Ganshof van der Meersch, De Belgische Rechter tegenover het Internationaal Recht en het Gemeenschapsrecht [The Belgian judge, dealing with international law and Community law ], 33 Rechtskundig Weekblad (1969) pp. 193–238. The author deals, at some length, with the Benelux Court. The injunction ex Art. 9(3) not to interpret the public order of the member States should probably be read as implying that the Court cannot declare, or imply, that national laws are contrary to Benelux law and hence invalid. Cf. Art. 48 U.T. The European Court did pronounce upon the nullity of contravening national law, Green, op.cit. p. 193.Google Scholar

68. Thus E.M. to Second Protocol, text M(71)5, p. 16. By stressing the need for the Court's jurisdiction in regard to rules not yet having a binding character in any of the countries as preferable to delays in the procedure the Governments have finally moved to an almost unrestricted view on the extent of the Court's task. The question was put, Doc.52–3, p. 3, whether the Court should be declared competent for rules contained in conventions adopted only by two countries so as to guide the interpretation from the start. Only at a later stage have conventions been proposed that would enter into force after the ratification by only two States, e.g. the Convention on the Exercise of the Profession of Advocacy of 12 December 1968, containing common rules according to the First Protocol, B.T. IV-I, Trb. 1969 No. 13. See also the Convention on Commorientes, Doc.122–1, signed on 29 December 1972, B.T. IV-II, Trb. 1973 No. 36. Some difficulties arose in applying the system of the Commorientes Convention: Doc. 124–1, p. 10, Doc. 132–2, p. 10.

69. It is not clear exactly from what date this period should be computed, from the introduction of the case, the date the fact(s) occurred or the question of the preliminary ruling was raised. In the latter case the provision would hardly make sense since the timing of raising the interpretation (by the parties? or the judge? ) remains discretionary.

70. The general strategy is that important matters are dealt with in instruments before the national parliaments. Decisions designating common rules have to be laid before the Interparliamentary Council and cannot, on the excuse of urgency, be withheld as is not infrequently done in other cases. The Council observed that the stipulation of Art. 1 was insufficient as it contained no right of initiative or amendment, Doc. 52–3, p. 2.

71. For the following see text and E.M. supra n. 6. Also van Binsbergen, W.C., “Ontwerp-verdrag tot Instelling van een Benelux-Gerechtshof” [Draft-Treaty establishing the Benelux Court], S.E.W. (1964) p. 318.Google Scholar

72. Art. 63 U.T. and the ministerial decisions etc. cited there.

73. For the control of persons see Trb. 1971, No. 107. As for tariffs the difficulty is that the administrative appeal is very different in the three countries. During the discussion it was alleged that the load of the Dutch Tariefcommissie is quite heavy, about 300–400 cases a year, and that, if tariffs were to fall under the Court's jurisdiction, it would be necessary to establish a separate court. Besides, and more importantly, tariff questions involve questions of fact and law that can hardly be dealt with separately so that a ruling of the Benelux Court would be tantamount to a ruling binding in toto on the Tariefcommissie. Surprisingly, the obvious answer that the European Court frequently deals with such matters was not given. Proposals to erect a common Tariff College were rejected, E.M. to the First Protocol, B.T. IV-I p. 63, Trb. 1969 No. 127 p. 18.

74. Such a chamber is mandatory for administrative appeal, Protocol of 29 April 1969, see supra n. 27.

75. Governments can also give their opinion on matters pending before the Court. (Art. 5) cf. Art. 20 Statute European Court, Green, op.cit. p. 456 et seq. For a particular application of this idea see Nadelmann, K.H., “Due Process of Law before the European Court of Human Rights: the Secret Deliberation” 66 A.J.I.L. (1972) p. 509.Google Scholar

76. Recourse to the College of Arbitrators, notwithstanding the wide possibilities of arriving at a compromise before the final award, may politically be a hazardous affair in promoting the close cooperation on which Benelux is built. See infra p. 221 et seq.

77. Protocol of 25 October 1966, (see supra n. 28) amending Art. 12(7) of the Statute.

78. E.M., B.T. IV-I p. 32, Trb. 1965 No. 71 p. 32. In this sense there is no stare decisis because there is only one court which must be able to correct itself, Pescatore, op.cit., p. 132. In Art. 6 the doctrine of the “acte claire” has been adopted. Green, op.cit., p. 184.

79. One can think here of the desirability of admitting or expelling foreigners or the admission or refusal of pornographic materials. See supra n. 67.

80. Cf. Brinkhorst-Schermers op.cit., p. 178 et seq.

81. The Governments explicitly recognised that the system allows national divergences but were of the opinion that complete uniformity could only be obtained at the cost of a fourth judicial organ with the attendant procedural delays, Doc. 52–2, p. 6.

82. Panhuys, op.cit. p. 996.

83. Doc. 52–2, p. 9. The governmental experts indicated that, in their view, the institution of appeal as retained was meant to give some control on the lower judicial colleges, a control the Benelux Court itself lacks, and to ensure a certain uniformity in the question of urgency permitting a judge to forego a preliminary request.

84. Mr. van Rijckevorsel who often acted as Rapporteur for the PCC. The Committee itself remained divided on the issue, p. 12, and left the Council to decide the point. In a second report, Doc. 52–3, the provision quoted (Art.6(6)) was inserted in the draft.

85. Appeal means both direct appeal and request for cassation.

86. This validity ex Art. 6(4) derives from the system of cassation as adopted in the Benelux countries, but it goes further since the Court's interpretation remains binding until changed by the Court itself.

87. The Court's interpretation is final in the case brought before it unless new facts appear or the case is again raised because certain points of interpretation have not previously been laid before the Court, due to oversight or an argument produced only in an advanced stage of the case.

88. The same problem can be brought before the Court in connection with different lawsuits.

89. EM., B.T. IV-I p. 23, Trb. 1965 No. 71 p. 27.

90. Art. 5(4). The article is embodied in the general part of the Statute and must be deemed to apply under all three heads under which the Court is entitled to exercise its jurisdiction. See infra n. 92.

91. Art. 5(5) says that the advocates-general may replace one another without regard to their nationality. Art. 5(1) stipulates that preferably the advocate-general of that state where the case first arose should act. Art. 5(5) also allows judges to be acting advocate-general. All this is in agreement with art. 10 of the Rules of Procedure of the European Court, Panhuys, op.cit., p. 832, which also imply only one advocate-general acting at one and the same time.

92. Art. 10(2): the registrar shall communicate the request to the two other Governments. Art. 5(4) provides that the Minister of Justice has to address himself to the Parquet of the Court, Art. 10(1) only mentions addressing the Court.

93. The Dutch and French texts regularly differ, the French text more often being the better, which is certainly so here. The sudden and only mention of arbitration in Art. 10(3) may be due to Art. 177 of the EEC Treaty. Perhaps the paragraph originally had arbitration in mind only where there did not appear to be any authority to request a preliminary ruling, (nor would there be a great need of it). But the hypothesis must have come to comprise all cases and the tortued construction, see text, was the result. An amendment has been proposed by the Interparliamentary Council for Art. 6 to bring the Dutch text more in line with the French one. The amendment was not taken over, Doc. 52–2, p. 6, 17,

94. B.T. IV-I p. 38, Trb. 1965 No. 71 p. 36.

95. Cf. ICJ Statute Art. 68: “In the exercise of its advisory funtions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognises them to be applicable.”

96. See Rosenne, S., The International Court of Justice. (Leyden: Sijthoff, 1961), p. 452: ‘compulsive’ opinions.Google Scholar

97. Ibid., p. 454 et seq.

98. As did the ICJ in its advisory opinion in the Admission case, I.C.J. Rep., 1948, p. 61. The consideration has been repeated by the Court on other occasions, see Schneider, J.W., “Stare decisis van het Internationaal Gerechtshof” [Stare decisis of the International Court of Justice] in Rechtsvinding (Essays in honour of Prof. Pieters (Deventer: Kluwer 1970), p. 216 et seq.Google Scholar

99. Cf. Rosenne, op.cit., p. 455.

100. Van Binsbergen, op.cit., p. 319.

101. Ibid., p. 316.

102. E.M., B.T. IV-I p. 40, Trb. 1965 No. 71 p. 38. Cf. Art. 17 of the Statute of the European Court for persons entitled to appear before it.

103. Cf. Rules European Court, Art. 64(2). Practice in the Benelux countries does not allow the division of the bench to become apparent. Separate or dissenting opinions are, therefore, not permitted.

104. Thus Art. 54(3) Statute ICJ. This rendering is followed closely by the Dutch text while the French one reads more curtly: “les délibérations de la Cour sont secrètes”, Art. 12(6). Art. 32 Statute European Court: “The Court's deliberations shall be and shall remain secret”.

105. Cf. supra n. 44. A further protocol is being drafted to grant persons in service with common bureaux or in a common service the right of administrative appeal to the Court.

106. Cf. M(63)6, B.T. II p. 235 and M/adm(71)10 amending it, B.T. VI p. 1519. The administrative decisions are usually not published.

107. If the opinion only concerns a pending lawsuit about which the Governments want to present their observations Art. 5(4) is applicable.

108. Panhuys, op. cit., p. 844.

109. E.M. to Art. 7, B.T. IV-I p. 34, Trb. 1965, No. 71 p. 34.

110. EEC Treaty: 298 U.N.T.S. p. 91, Trb. 1957 No. 74; Euratom Treaty: 298 U.N.T.S. p. 167, Trb. 1957 No. 75.

111. Cf. supra n. 3. See also van Bogaert, E., “De vergelijking tussen het Verdrag van de Benelux Economische Unie en het Verdrag van de Europese Economische Gemeenschap” [The comparison between the Benelux Union Treaty and the EEC Treaty], 17 Tijdschrift voor Bestuursrecht en Publiek Recht (1962) p. 24 et seq.Google Scholar

112. See supra n. 53. Cf. Art. 49, Convention on Metrology: “No article of this Convention shall be interpreted to restrict the freedom of the Contracting Parties to adapt the Protocols for Execution to the obligations resulting from the Treaty establishing the European Community”. See supra n. 42. The E.M. indicates that Benelux measures are necessary for action to be taken whenever directives have to be implemented. See also M(71)51, B.T. VI p. 1506, Trb. 1972 No. 31 p. 3. wherein some former decisions are amended to bring them into line with E.C. directives.

113. This problem has also been raised with regard to the comparison between Benelux conventions and European ones, “European” meaning conventions adopted by the Council of Europe. See E.M., Extradition Treaty of 27 June 1962, B.T. IV-I p. 29, Trb. 1964 No. 108 p. 3 and E.M. to the Treaty concerning a Uniform Law on International Private Law, B.T. IV-II p. 21, Trb. 1970 No. 16 p. 3. Cf. Public Prosecutor v.J.M.de B, 2 N.Y.I.L. (1971) p. 236 et seq.Google Scholar

114. The omission here of ECSC is notable. In the E.M. to the Protocol on Tariffs ECSC is mentioned, B.T. V-II p. 45 et seq. The fusing of the Communities may account for the simple mention of the European Community.

115. See supra n. 112.

116. B.T. V-II p. 93, Trb. 1970 No. 79 p. 108.

117. Cf. Brinkhorst, op.cit., p. 109, Green, op.cit., p. 457.

118. Cf. a regulation whose effects only subsequently come under the objectives of the Union. Usually that will be through the problem of frontier formalities. See E.M. to the Convention on Administrative and Penal Cooperation, B.T. V-I, p. 26, Trb. 1969 No. 124 p. 54.

119. E.M., B.T. IV-I p. 36, Trb. 1965 No. 71 p. 35.

120. The literature on this point in connection with the European Community is extensive. See Green, op.cit., Ch. VI p. 319 et seq., Pescatore, op.cit., p. 136 et seq.

121. Kaser, M.. Das Römische Zivilprozessrecht (München, 1966), p. 170 et seq.Google Scholar

122. Kelsen, H., Théorie pure du droit (Neuchatel, La Baconnière, 1953), p. 126.Google Scholar

123. E.M. to First Protocol, B.T. IV-I p. 61 et seq., Trb. 1969 No. 127 p. 16 et seq.

124. Ibid., B.T. IV-I p. 62, Trb. 1969 No. 127 p. 17.