The Gazette 1983

GAZETTE

MARCH 1983 European Community Law, Irish Law and the Irish Legal Profession (Extract from Second Frances E. Moran Memorial Lecture.) by John Temple Lang Implications for the Legal Profession

Luxembourg — in particular as there is still nothing in the Irish Rules of Court on the subject (the power given by the European Communities (Rules of Court) Regulations 1972 has not been exercised); — some of the Irish civil servants working on EEC legal matters are not lawyers, and they sometimes tend to underestimate the importance ofthe changes which are being considered, and do not always consult profes- sional bodies about them adequately or in an appropriate way; — there is no CELEX facility (computerised information retrieval system on Community law) in Ireland; — although Ireland has standing to intervene in every case before the Court of Justice, and the Attorney General's Office automatically receives the papers in every case under Article 177, Ireland has seldom intervened. Indeed, as far as I have been able to discover, Ireland has intervened at the oral stage in only ten cases. This has meant that few Irish lawyers are required to appear in Luxembourg, and therefore to inform themselves about the latest cases on Community law; — neither House of the Oireachtas has ever adequately discussed the reports and recommendations of the Oireachtas Joint Committee on the secondary legislation of the European Communities. (Indeed between the 1981 and the first 1982 elections, no such committee was in operation); — in my opinion, Irish lawyers are too busy trying to operate an inefficient legal system to have the time to inform themselves adequately about new developments however important; — Irish bodies such as the Incorporated Law Society have not given as much detailed consideration to draft Community legislation as similar bodies in other countries. As a result, the implications of Community measures have not been as fully discussed and are not as clearly seen in Ireland as they are elsewhere; — the Irish Reports have not reported any of the twenty Irish court cases in which points of Community law have arisen during the years 1973-1981. Economic consequences for the legal profession The practice of Community law has certain economic implications for the Irish legal profession. Both Irish barristers and solicitors are now directly faced with competition for clients, in Community law 41

I do not think that the fact that Community law has many and important implications for Irish law has been adequately realised by Irish lawyers in general. I base this opinion on the subjective impressions of a number of people, and also in the ten years since January 1973 the fact that, compared with other Member States of die Community, there have been in Ireland, relatively: — few complaints to the Commission from Irish companies about technical barriers to trade; — few cases referred to the Court of Justice from Irish courts; — few restrictive agreements notified to the Commission by Irish companies; — few cases in which points of Community law have arisen before Irish courts (see Murphy, Community law in Irish Courts 1973-81, 1982 European Law Review 331); — few lectures and conferences on Community law subjects held in Ireland; — few Irish lawyers who have attended advanced courses on Community law outside Ireland; — few articles and notes on questions of Community law in the Gazette of the Incorporated Law Society; — few Irish firms of solicitors supplying their clients on a regular basis with information on developments in Community law; — and Irish legal textbooks written since 1973 have devoted relatively little space to issues of Community law. Why has the influence of Community law in Ireland, direct indirect, not been more widely understood? There are several reasons. 1 — Community measures causing reforms usually are directives, and Irish lawyers are not always aware that the Irish implementing legislation is based on Community principles; — some of the implementing legislation which should have been enacted e.g. to give effect to certain company law directives, has not been enacted when it should have been; Irish lawyers have accepted Community law very easily and in a very matter-of-fact way. They have almost taken it for granted. Practitioners preparing themselves to plead in Luxembourg have been disconcerted by how readily and simply Irish judges decided to refer questions of Community law to