The Gazette 1975

SUGG SEMINAR on E.E.G. LAW—OCTOBER 1974 THE E.E.C. AND THE ORDINARY SOLICITOR—SOME RELEVANT CASES

By JOHN F. BUCKLEY, Solicitor

Luxembourg. It is nothing of he kind, it is law that is practised in all the Courts of the Member States of 'he Community from the level of our District Court up- wards. Indeed I shall be mentioning a number of eases later on which firs: saw the light of day in the equivalent of our Distric* Court. Because most of what we have heard so far about the Com- munity has been to emphasise the purely economic «-.spec's of it, you will be surprised to find that the area covered by E.E.C. Law is wide indeed, ranging from a decision as to what constitutes a sausage and whether an Italian widow is entitled to the benefit of reductions on French railways for families with numerous child- ren, wi'h a recent excursion into the world of inter- national cycle racing. It has frequently been stressed that the E.E.C. is essentially a legal struc'ure. In its early days emphasis was placed on the fact that :hc administration and operation of the Community was carried out by means of legally enforceable instru- ments, principally regulations, directives and decisions, all of which had to a greater or lesser extent the bind- ing force of law in the Community. The considerable volume of case law which has now emerged in the Community Courts and the Courts of the various Mem- ber Stales have made this emphasis on the legal struct- ure even more obvious. Cases have now arisen on al- most all of the important aspects of the Treaty and 'here have been numerous decisions on the interpre- tation of Regulations on the force of Directives and appeals against decisions of the Community. In dealing with :he present topic I propose to go through the various parts of the treaty commenting on the opera'ion of parts .hereof by reference, largely to cases which have arisen, but it is necessary to offer a few introductory words to set 'he operation of the Treaty in context. It is important to recall that the main purpose of the Treaty is economic, the aim being to create one big market area by primarily abolishing customs barriers and quanti alive restrictions; Secondly by the abolition of restrictions which cffect trading itself, such as the free movement and establishment of pcr- sons in the Communi y or the provision of services across the borders; finally the elimination of distortions of trade which involves control of monopolies, restrictive trade practices, and finally co-ordination of policies in the held of agriculture, commerce, finance, taxation, social legislation and paten's and trademarks. You will see therefore that what is defined as economic does in fact spread a rather wider net than what one might otherwise expect. The first seven articles of the treaty contain the general principles on which the Community is based and only one of them, namely article 7 appears to provide any ground on which a case might be brought, in providing that, within the scope of application of the treaty, rnv discrimination on grounds of nationality shall be prohibited, the possibility of proceedings whore

P a r t I Very few of us have come to terms with the fact that Ireland is now a member of the Community in so far as our legal prac'ices arc concerned. We have from time to time made efforts, greater or lesser, to try to get some insight into the operations of the Community and how it may affect our Clients and ourselves. When I say that I believe that these efforts have largely failed I do not intend this as a criticism cither of ourselves, in that our efforts may not have been as wholehearted as some might wish, or as a criticism of those who have endeavoured to enligh'en us by allowing us to share in the fruits of their experience and researches. There have been a number of reasons why we have not suc- ceeded in coming to terms with the law and prnc'ive of the E.E.C. and there is no doubt that language has been a major stumbling block. Not many of us have the level of competencc in any of the languages of the original Community to have become familiar with the jurisprudence of the Community, and even fewer of us will have kept in touch with the sort of practitioners guide to the law that we are apt to use in our own jurisdiction. As the approach of E.E.C. membership drew nigh we endeavoured to acquire some basic knowledge of the Community and its workings and a number of seminars and other meetings were held, all of which did give us some reasonable appreciation of the operation of the Community. Unfortunately we have been relying on a limited number of academic writers and the occasional visi'ing foreign Lawyer to point ourselves in the right direction. I think it is fair comment to say that in spite of the erudition and experience of these people most of us still feel that the legal aspects of the Community are not such as are likely to concern us in our ordinary practice. I believe that this impression is quite a wrong one and I would offer 'he view that in this country at any rate it may very well be that there will be as much opportunity from the ordinary local Solici'or to become involved in European law as it will be for the large Dublin office. I have therefore chosen not to deal in f n abstract way with he operation of the European Court, or its relationship with National Cour!s, hut to go through the Case Law of :he Courts, both Com- munity and National, giving examples from various aspects of he legal system of the Community to show that not all he cases are concerned with the great con- centrations of economic power and that there is a possibility, perhaps even a likelihood, that the average Irish city or country Practitioner may become involved in the field of European Law.

The EEC essentially a legal structure

The first illusion I want to shat'er is that European Law is something that is practised in a Court in