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.