The Gazette 1972

(3) Article 85 does not apply to solicitors, as they do not trade. (4) Many agreements will have to be examined in detail before exemption is granted, and this may take years. Herr Dr. Arved Deringer a former Chairman of the Legal Committee of the European Parliament then gave a lecture on "The European Court—how a case comes to court, is presented and decided". It was emphasised that Community law was neither International law nor National law, but a new category of law. The European Community was an evolving political society where the process of integration was transforming the nations into one living Community. The basis of this Com- munity or Primary Law consists of the Treaty of Rome, and the Treaties establishing Euratom and the Coal and Steel Community. Secondary Community Law consists of all legal instruments (regulations, directives, and decisions) produced by the Council of Ministers and by the Commission. While most provisions affect only member States there are some provisions such as the Competition and anti-trust provisions as well as all regulations which bind the citizens of those States directly. The European Court has evolved the theory of direct applicability to citizens, even though appar- ently directed to States. It follows that, if any citizen can deduce individual rights from these provisions, these rights would have to be observed by national Courts. What might be termed Tertiary Law are the Con- ventions between Member State arising out of Article 220 (such as reciprocal recognition of companies) or even outside the Treaty (such as Conventions about patents and about the European corporation). As regards the conflict between Community Law and National Law, it is important to note that any National Law passed after accession of a Member State is invalid if it conflicts with the Treaty of Rome. It is emphasised that after the Council of Ministers is the Commission which has to act as the highest executive body within the Community and which issues decisions in individual cases on the basis of Com- munity Law. The main cases to be brought before the European Court either by the Commission or by another member State are the following : (1) Against another member State for violation of the Treaty. In this case Governments are usually re- presented by their officials. (2) Articles 173 to 176—by which complaints may he made against the Council of Ministers or the Com- mission either: (a) to contest the validity of an act issued by them, or (b) against a regulation or decision directed to a third party provided the complainant is affected directly by it. This ground is important, but technically hard to prove. (3) The reference of preliminary rulings as to validity ^ d interpretation under Article 177 to the European Court, which is the only competent authority to decide the issue. National Courts have no alternative but to J^fer questions of interpretation of the Treaty to the Court. In this event, it is for the lawyers of the national c °urts to formulate the referable questions. (4) Apart from this, the Court deals with: (a) Proceedings for non-contractural liability of the Community, and

(b) Arbitration proceedings under Article 182. In considering the question when a national lawyer has to act within Community Law, it is to be stressed that this will take place : (1) Before the European Commission. Under Article 85 — for instance — a lawyer may request for a negative clearance or an exemption, or may try to mitigate a fine. Remember that the position is complex, as the lawyers of different nationalities in Brussels have different traditions. You may have to talk for some hours, first with the Director of the Section, then with the Director-General, and finally with the Legal Sec- tion ; this may well present difficulties if all these officials are of different nationalities. It follows that a reasonable knowledge of French and of German systems of law is essential, as well as a knowledge of comparative law and procedure. It is quite an art which can only be gained by experience as to how to draft the relevant questions. The same legal terms have not the same meanings in all languages. (2) The future European Court will have 11 (now 7) Judges as well as 3 (at present 2) Advocates General. The function of this Advocate General is to give an impartial assessment of the case to the Court. Lawyers admitted to practise before their national Courts may plead orally before the European Court even in their own language, if it is an official language; this is nor- mally the language of the plaintiff. All documents are translated by the staff of the Court into the other official languages. Today any lawyer not pleading in French is at a disadvantage—but upon the accession of Britain, Ireland, Norway and Denmark, English and German will tend to displace French. It is to be noted that there are very strict rules about time limits and presentation of documents and these will not be ex- tended. An appeal against a decision of the Commission must be made within 2 months after the client is notified of the decision, and in the notice of appeal, all relevant legal arguments and facts must be stated in detail. Within one further month, the defendant must reply stating all relevant arguments and facts in detail. The plaintiff has a further month to reply in detail to defendant's arguments, and the defendant has a month after that to reply to plaintiff's further argu- ment after this. No further new arguments or facts may be adduced. Within from 4 to 6 weeks later, an oral hearing before the court will be arranged; within a further 4 weeks, the Advocate-General will deliver his plaidoyer or opinion; and the Court will give its final decision about four weeks after that. It will, therefore, be appreciated that a heavy burden is thrown on the lawyer, who has to act quickly to have his documents in order. As the Judges come from various nationalities, the Court will tend to base its decision rather more in promoting the political aims of the Community rather than on strict law. It is finally essential for Irish lawyers to follow closely the legal developments within the Community, and to become acquainted with the legal system of the other Member States. In answer to questions, Dr. Deringer stated : (1) The Treaty on the whole is being interpreted by the Court in a Community spirit. (2) The Court is not necessarily bound by its previous decision. (3) There are no fees payable to the Court—only to your lawyer, and if you lose, to the lawyer representing the Commission. (4) Judgments are first drafted in French, but sub- sequently submitted to the parties in their own lan- 21