The Gazette 1974

the grounds among oth ers that its fundamental rights wore violated by being deprived of direct supplies of coal. The Court repeated that fundamental rights form an integral part of the general principles of Communitv law which the Court is obliged to uphold. The Court will base itself on the constitutional traditions common to the Member States and will not permit measures which are incompatible with the fundamental rights recognised and guaranteed by their Constitutions. Inter- national conventions on human rights to which Mem- ber States are parties also provide evidence of what basic rights should he recognised in Community law. In this case, what was involved was the right or free- dom to carry on business activities, a right similar to the right of ownership, and recognised by several nati- onal constitutions and by the European Convention on Human Rights. These rights, however, are not absolute: they must be considered in the light of the social func- tion of the property and activities which are protected, and they, therefore, are guaranteed only subject to limits resulting from the public interest. In Communitv law, some of these limits result from the aims pursued in the general interest by the Community, provided that the substance of the fundamental rights is not affected. In particular, fundamental rights of enter- prises cannot provide protection of all their interests against commercial risks inherent in economic activitv, and this, the Court held, was what was involved in the case before it. activities which are connected, even occasionally, with the exercise of official authority. The question is whether this means that the legal profession as a whole is excluded from the application of those provisions or that only those particular activities which are connected with the exercise of official authority should be regarded as excluded. Ireland favours the latter interpretation. This point has also been raised in the case Reyners v Belgium (case 2/74) which has recently been referred to the Court of Justice of the Communities by the Belgian Conseil d'Etat for a preliminary ruling under Article 177 of the EEC Treaty. The legal profession is being kept informed of developments in relation to the draft Directive and is being consulted as necessarv. Company Law 10.1. The Council Resolution of 17 December 1973 on Industrial Policy (OJ No. CI77, 31 December 1973) established a timetable for the consideration of the draft Second, Third, Fourth and Fifth Directives on Company Law as well as the draft statute establishing a European Company. The provisions of these drafts are described in the First Report, paragraphs 10.2 to 10.7. T lie Resolution provides that the Council will act (a) by 1 January 1975 on the draft Second Directive which deals with the formation of public limited liability companies and with the maintenance and operation of their capital;

however. It made it impossible to contest the validity in the Irish Courts of any Community measure on the grounds that it was inconsistent with the fundamental rights provisions of the Constitution. It also made it impossible to contest the validity, on those grounds, of any measure adopted by any Irish governmental insti- tution, once it had been shown that the measure was "necessitated by the obligations of membership of the Communities". This result, which can fairly be de- scribed as a revolution in Irish constitutional law, under- standably caused concern as a matter of principle, although it is clear that no conflict between Community measures and the Irish fundamental rights provisions is likely. As the present writer has already pointed out in an analysis of the constitutional amendment ("Legal and Constitutional Implications for Ireland of Adhesion to the EEC Treaty", 9, Common Market Law Review (1972), p. 167), the Court of Justice of the Commu- nities has repeatedly declared that fundamental rights are basic principles of Community law. It is reassuring for Irish lawyers concerned with civil rights to consider the Court's decision in the case of Nold v Commission (No. 4/73) decided on 14 May 1974, in which the Court indicated the sources on which it will draw for Community law on fundamental rights, and how it would interpret that law. The Commission had autho- rised the major supplier of coal in the Ruhr to make direct supplies of coal only to purchasers who signed firm contracts for 6,000 metric tons per year for two years. Nold claimed that this decision was invalid, on 6.12. A working group of officials of the Member States is continuing its examination of a draft Directive on the provision of services by lawyers (OJ No. C78. 20 June 1969). At a meeting in October 1973 the group decided to submit an interim report to COREPER setting out the progress made to date and seeking direc- tions on certain basic issues. The interim report has since been prepared and was circulated in February 1974. It seeks policy decisions on such matters as : —the activities to be covered by the draft directive and the conditions under which they should be exercised taking into account rules of professional conduct; —the form of the instrument by which liberalisation should be achieved, i.e. whether this should be a Directive under the EEC Treaty or a Convention between the Member States; —the Courts before which advocacy and related acti- vities might be permitted, e.g., should the right of audience in the highest Courts of Member States be excluded because in some States this is reserved to a certain class of lawyer; and —-the extent and form of the collaboration between the lawyer of the host State and the visiting lawyer. The working group has also posed a more fundamental question regarding the interpretation of Article 55 of the EEC Treaty which provides that the Treaty provi- sions on establishment and services shall not apply to

Extracts from the Third Irish Report on Legislation of the European Communities Right to provide services: Lawyers

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