The Gazette 1976

GAZETTE

March 1976

are to be carried out, to the discretion of the States. In order to find out whether a Directive is directly applicable, the European Court has held that each case must be examined to see whether the provision in question is, in its legal form, structure and wording such that it can produce immediate effects. The means whereby a Member State is to implement the direc- tives will depend largely on the exact content of that directive, and the state of the law in a particular country. Ireland complied with the draft Directive on Company Law by means of a Ministerial Order. The diversity of laws amongst the several Member States made some sort of co-ordinating imperative for a full realisation of te establishment provisions; neces- sary uniformity was not aimed at, as it could not be achieved. Accordingly Articles 100 to 102 of the Treaty provide for the approximation of laws, and these provisions have a widespread and general appli- cation, and extend to all provisions of the Member States which have a direct incidence on the establish- ment or functioning of the Common Market. This is apparently a residual power vested in the Council to be resorted to only when no other specific provision is available. One of the co-ordinating provisions to be construed narrowly refers toArticle 57(2) which pro- vides for "co-ordinating of legislative and administra- tive provisions of Member States concerning the engagement in, and exercise of, non-wage earning activities". It follows that the Treaty provisions on establishment are to be implemented by (1) The General Programme, (2) the subsequent Directives, and (3) the co-ordinating provisions. Recent Case-Law relating to Establishment in the Community (1) The Commission v. The French Government (Case No. 167/73) relates to the free movement of workers. The French Code du Travail Maritime had a regulation that a certain proportion of men employed on French ships had to be French nationals. The Commission claimed that this discrimination on the basis of nationality was contrary to Article 48 of the Treaty, and the Court upheld this contention and held the regulation invalid. This case appears to have extended the general rules to the transport sector, including air and sea transport. But there has been an amazingly strange reluctance on the part of Irish and other authorities to accept this most reasonable inter- pretation of the Commission. It seems obvious that the provisions of the Merchant Shipping Act 1955, which restricts the right to register or mortgage a ship to Irish citizens, is a grave infringement of Community Law. (2) Reyners v. Belgium (Case No. 2/74). As a full translation of the case appeared in the Gazette, Vol. 68, June, 1974, at page 164, it is unnecessary to go into detail. Suffice it to say that the Court found Article 52 to be directly applicable to Member States, notwithstanding the absence of directives provided for in Articles 54(2) and 57(1) of the Treaty of Rome. The Court in the case distinguished between the two functions of Community Directives. The first function was to remove obstacles during the tran- sitional period which obstructed freedom of establish- ment. The second function, which still requires full achievement, was to introduce new provisions which would more easily facilitate the right of establishment. Under the Irish European Communities Act 1972, the whole Treaty of Rome, including Article 52, is

part of the law of Ireland. Consequently any domestic restrictions in the area of establishment are implicitly repealed. As a result of the Van Binshergen decision, any domestic restrictions in the area of the supply of services, which conflict with Articles 59 and 60, are also implicitly repealed. Apart from the Merchant Shipping provisions pre- viously cited, the following provisions of Irish legis- lation, which discriminate on the basis of Irish nationality, appear to be now automatically repealed:- (1) Regulations under Pilotage Acts which state that only Irish citizens may obtain pilot's licences or pilot's certificates. (2) Section 6(3) of the Moneylenders Act 1933 which confines the issue of moneylender's licences to Irish Nationals or Irish based companies. (3) Licensing standards adopted by the Central Bank Act 1971, which required a licensed Bank to be incorporated in the State, and to have a majority of Irish directors. This has already been aban- doned by the Central Bank, as witness the estab- lishment of French and Dutch Banks in Dublin. (4) The articles of the Unit Trust Act 1972 which require any company which intends to exercise the activity of manager and trustee of a trust unit to be incorporated in Ireland. (5) The Insurance Act 1936, insofar as it prohibits the entry of Insurance Companies from other Member States into the Insurance Market. , (6) Provisions which discriminate against non- nationals of Member States in the issues and transfer of flour-milling licences under the Agri- cultural (Cereals) Act 1933. With regard to S.45 of the Land Act 1965, to the extent that it discriminates on the basis of nationality, the Land Act 1965 (Additional Categories of Quali- fied Persons) Regulations 1972 — S.I. No. 332 of 1972 — covered all beneficiaries mentioned in Directives in relation to establishment in agriculture which had been adopted up to then. But up to the time of the Reyners decision, discrimination on the basis of nationality still existed in those areas of establishment of agriculture which were not the subject of Direc- tives. This is clearly no longer the case, since hence- forth nationals of all Member States will have to be given equal treatment in establishing agriculture. A word of warning should be given in regard to the compulsory Irish language requirements for the solicitors and barristers professions. Although this test is equitably applied in both professions to every- one at the moment, being not unduly cumbersome, if in future it were shown that the Irish langauge requirement was being used as a disguised form of national discrimination, it would undoubtedly have to be abandoned. The facts of Van Binsbergen — Case No. 33/74 — (Gazette, Vol. 69, March, 1975, p. 40) and of Walrave and K(x-h —Case No. 36/74—Gazette, Vol. 69, March, 1975, p. 41) are briefly given. The conclusions to be drawn are:- (1) Article 52 is directly applicable to Member States. (2) Article 59 is similarly directly applicable. (3) Those portions of Irish law which discriminate on the basis of nationality and are contrary to Article 52 or to Article 59 are automatically repealed, unless they can theoretically survive under other provisions of the Treaty.

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