Sunday, March 25, 2012

The AM & S Case case brief

The AM & S Case (European Ct of Justice, 1982; p. 123)
  • AM&S was required by an EC Commission to turn over documents in connection with an investigation of competitive conditions (in re to EEC treaty). AM & S withheld some of the documents on grounds ttey they were protected by atty/client privilege. They instituted the trial to nullify the order from the Commission.
  • Holding 1: Absence of express language in a treaty regarding the legal privilege of documents does not preclude the privilege.
  • Community law principles are in effect in the absence of express language.
  • Holding 2: Community law does not have to be a consensus of laws of member states.
  • Community law is qualitative law based on spirit and gen tendency of natl laws.
  • National law is means to find “unwritten principles” of community law.
  • Total unanimity is not necessary.
  • Ct takes a comparative law approach: Looks at practices and extracts main principles. Different practices but still a general principle.
  • Regional treaty being interpreted.
  • If this were a truly intl ct, must have a representative group of countries to look at. Gen principles not that hard to find b/c no ex post facto legislation.
  • Problem w/ this: When a judge does this and uses least common denominator, may create a rule that didn’t exist and wasn’t in the treaty.
  • Interesting points:
    • Advocate general—most of the time decision is followed by the ct (his opinion is pt of the ct’s opinion.)
    • Ct looks at value oriented concepts: (p. 127)
      • Public interest
      • Proper admin of justice
      • Best needs of man in a civilized society
      • Seems as if ct wld have found this norm w/o the analysis of the countries.

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