The Gazette 1976

March 1976

GAZETTE

conjunction with a lawyer who is a member of the competent Bar of that State and who will be, if neces- sary, responsible to the Court in question. COMPANY LAW 17.12. Consideration is being given to the question of amending the European Communities (Companies) Regulations 1973 made to implement the First Directive on Company Law in the light of the observations given on these Regulations by the Joint Committee of the Houses of the Oireachtas on Secondary Legislation of the European Communities and by the Commission. 17.13. The Commission had presented to the Council a draft Fifth Directive on Company Law which dealt with the structure of limited liability companies and in particular employee participation in the management of enterprises. On 12 November 1975 the Commission published a document entitled "Employee Participation and Company Structure in the European Community". In this document the Commission reviews the question of employee participation and the structure of com- panies in the Member States and considers the approa- ches the Community could adopt towards harmonising and extending, where necessary, these provisions. The Commission considers the question of employee partici- pation under four headings : —negotiation of collective agreements; —institutions within companies representative in whole or in part of employees; —participation by employees in decision making bodies of companies and —participation by employees in the company's capital. The Commission will amend its draft Fifth Directive on Company Law in the light of the observations it receives on this document from all interested parties. Conventions Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 17.14. The Council working party which is consid- ering the adjustments which may be necessary to this Convention in order to meet the requirements of the new Member States is continuing with its work. It held meetings in July and October 1975. The principal items dealt with at those meetings were jurisdiction in matters relating to insurance and maritime jurisdiction. Draft Convention: Bankruptcy, Winding-up, Arrange- ments, Compositions and Similar Proceedings 17.15. This draft Convention proposes that where a bankruptcy or winding-up occurs in any Member State it shall be recognised and be enforceable throughout the Community and shall preclude the opening of corresponding proceedings in the other Member States. The draft is being considered at Commission level by a Committee of Experts from the Member States. The Committee met in July and October 1975. Among the matters considered at those meetings were : (a) the adjudication in bankruptcy of directors and managers whose actions have contributed to the liquidation of their companies; (b) the exclusion of banks from the scope of the draft Convention and (c) its application in maritime and aviation matters. Draft Convention on Private International Law 17.16. A meeting of the Commission Committee of Experts on the harmonisation of the rules of Private (iconcluded on opposite page)

Developments in Community Legislation (6th Report, December 1975) FREE MOV EME NT OF PERSONS AND SERVICES Free Movement of Workers 6.1. On 15 October 1968 the Council adopted Regu- lation 1612/68 on freedom of movement for workers. At the time the Commission had proposed to include, within the heading of the exercise of employment and equality of treatment, the exercise of trade union rights and the right to take part in the management and administration of a trade union. Due to the fact that trade union law in France restricted the exercise in France of such rights to French nationals, agreement could not be reached on this proposal. Since then the Court of Justice of the European Communities has handed down its judgments in the Reyners and Van Binsbergen cases in which it held that restrictions based on nationality and residence have been null and void since the end of the transition period. Despite the fact that Article 48 of the EEC Treaty has thus been adjudged to be directly applicable, the Commission considered it necessary to assure legal certainty for those affected and accordingly decided to amend Regu- lation 1612/68 so as to put an end to the ambiguous situation resulting from its present wording. The Commission has forwarded to the Council a draft regulation ensuring that migrant workers from other member States will be entitled to equality of treatment with nationals of the member State in which they are working with regard to eligibility for the administrative or management posts of a trade union. It is expected that the proposed draft regulation will be considered by the Council at a meeting in December 1975. Lawyers 6.6. As requested by the Council (Ministers for Jus- tice) at its meeting on 26 November 1974 the Commis- sion forwarded to the Council on 19 August 1975 an amended draft directive to facilitate the effective exer- cise by lawyers of freedom to provide services. The Commission had submitted its original proposal on 17 April 1969. Discussions on this proposal which began in 1972 revealed differences of opinion regarding the inter- pretation of the reference in Article 55 of the EEC Treaty to the exercise of official authority, the Courts before which advocacy might be permitted and the extent and form of collaboration between the visiting lawyer and the lawyer of the host State. Furthermore, the judgments of the Court of Justice in the Reyners and Van Binsbergen cases meant that the provisions ot the original draft relating to the abolition of discrim- ination on the basis of nationality and residence were no longer necessary. While the Commission withdrew most of its proposals relating to freedom of establish- ment and freedom to provide services consequent on these judgments, the Commission submitted in this case an amended proposal on lawyers instead of withdraw- ing the original proposal because the draft directive on lawyers' activities contains certain provisions which are peculiar to these activities. The revised draft directive, which the Commission has now forwarded to the Council, takes into account the deliberations of the Council working group, the judgments in the Reyners and Van Binsbergen cases and the characteristics of the profession in the new Member States with Common Law systems. It applies to all the activities of lawyers carried on by way of provision of services. However, it allows a Member State to require that a foreign lawyer who wishes to appear before its Courts must work in

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