a) The Treaty of Rome included a provision (Article 235) which was identical to what is now Article 308 of the EC Treaty.
b) The representatives of the Council Legal Service and Commission would see whether their records contained an explanation of the reasons why the authors of the Treaty of Rome had included in the Article the reference to "in the course of the operation of the common market". If such an explanation were discovered, they would tell the Committee what had been found.[5]
c) The concept of the "common market" is wider than the "internal market". The "common market" was created to achieve all the objectives of the Treaty of Rome.
d) The EC Treaty contains specific powers to authorise the adoption of measures to give effect to most of the objectives in Articles 2, 3 and 4 of the Treaty. The sole purpose of Article 308 is to fill the gap where no specific power has been provided to attain one or more of the Treaty's objectives.
e) In 1957, most of the objectives of the EEC were concerned with creating an economic community. So, at the time of the Treaty of Rome, "in the course of the operation of the common market" imposed little or no constraint on the use of the Article and was not intended to do so. Since then, the Community has extended its objectives to include much that is not primarily concerned with the operation of the economic community. But the purpose of Article 308 remains unchanged: to provide a necessary power, when none is available elsewhere in the Treaty, to attain any Community objective.
f) This "purposive interpretation" of Article 308 (formerly Article 235) is in accordance with the following passage from the Opinion of the European Court of Justice (ECJ) in case 2/94:
"Article 235 is designed to fill the gap where no specific provision in the Treaty confers on the Community institutions express or implied powers to act, if such powers appear nevertheless to be necessary to enable the Community to carry out its functions with a view to attaining one or more objectives laid down by the Treaty."
The Opinion makes no reference to "in the course of the operation of the common market".
g) The Commission's and Council Legal Service's understanding of the proper interpretation of Article 308 is incorporated in Article I-18 of the draft Constitutional Treaty. That Article contains no mention of the operation of the common market.
h) The representatives of the Commission and the Council Legal Service could not recall any case law in which the ECJ had ruled on the application of the reference to "in the course of the operation of the common market". But if they found any such case law, they would tell the Committee.[6]
i) While the UK courts give a "literal construction" to Acts of the Westminster Parliament, the ECJ gives a "purposive construction" (teleological method of interpretation) to EC legislation. A purposive construction is essential in construing the EC Treaty because its terms are looser and in more general terms than the statutes of the Westminster Parliament.
j) The European Communities Act 1972 requires the UK courts to follow the jurisprudence of the ECJ in interpreting Community law.
k) Similarly, in advising their institutions, the Legal Services of the Commission and the Council are bound to follow the jurisprudence of the competent legal authority in the jurisdiction, namely, the ECJ.
l) The representatives of the Commission and the Council Legal Service emphasised that Article 308 may be used only to attain a Community objective, that it cannot widen the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and that it requires unanimity in the Council. The decisive point is that the act to be adopted under Article 308 must be within the competence and objectives of the Community.
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