The Gazette 1985

GAZETTE

JULY/AUGUST

1985

party concerned established existence of an act of God or a case of Force Majeure that no objection based on expiry of a time limit could be raised. 2. Consistant with previous decisions of the Court the Court held that the concept of Force Majeure relates essentially to outside circumstances making it impossible to take the action in question. Impossibility is not a requirement but there should be abnormal difficulties outside the control of the person concerned even if all necessary diligence was exercised. Force Majeure did not arise where a diligent and well advised person would objectively have been in a position to lodge an application before expiry of the time limit. 3. In this case the applicant did not exercise the necessary diligence as it had had a period of 10 days before the summer holidays began in order to contact its usual lawyer or find a lawyer sufficiently well qualified to defend it. Ferriera Valsabbia S.p.A. -v- EEC Commission Court of Justice — case 209/83 — July, 1984. John Moloney LAWYERS RIGHT OF ESTABLISH- MENT UNDER TREATY OF ROME Otto Klopp, a German national and a Rechtsanwalt of the Dusseldorf Bar applied to be registered as a member of the Paris Bar while retaining his residence and chambers in Dusseldorf. His application was rejected on the ground that Article 83 of Decree No. 72-468 and Article 1 of the Internal Rules of the Paris Bar prohibited an Avocat from having chambers in more than one area of the territorial jurisdiction of a Tribunal de Grande Instance. The Court HELD that:— 1. Article 52, first paragraph, of the Treaty of Rome required the abolition of restrictions on the freedom of establishment. 2. No Directive regarding freedom of establishment for the legal profession had been adopted under Articles 54 and 57 but, in accordance with the Reyners case of 21/6/1974 the fact could not be invoked to defeat the obligation under Article 52. 3. While the French rule of Unicite de Cabinet might apply to an entire national territory it did not imply that the legislation of a member state may require a lawyer to maintain chambers within only one area of the whole territory of the Community. Such an interpretation, once established, would entail the result that a lawyer

capital allowances under the provisions of Section 241 of the Income Tax Act, 1967, and Section 26 of the Finance Act, 1971, in respect of law reports and other legal textbooks purchased by him in the three years ended 5 April, 1979, and used by him for the purposes of his profession as a barrister. The taxpayer had, for a number of years, practised as a barrister both in the Law Library and at his residence. He had purchased for the purpose of carrying on his profession certain books which consisted mainly of a complete set of Irish and English Law Reports. The books were housed at his private residence and were used continuously by him in connection with his practice as a barrister. It was contended on behalf of the taxpayer that the books were plant which qualified for wear and tear allowance under the provisions of the aforemen- tioned legislation. At the Appeal Hearing the Appeal Commissioners held in favour of the taxpayer. HELD in the High Court that the Appeal Commissioners were entitled to find as they did, the circumstances of a barrister's profession being such that his law library, which consists of chattels kept for use in the carrying on of his profession, must be regarded as plant. S.K. Breathnach (Inspector of Taxes), Appellant -v- Thomas McCann, Respondent - [1984] ILRM 679. RECENT EUROPEAN CASES TIME LIMIT — NON AVAILABILITY OF LAWYER — FORCE MAJEURE In Italy during the holiday month of August business in the Bars comes to a halt as does that of undertakings. A decision of the Commission was notified to the Applicant by registered letter received 21 July 1983. The Applicant had one month from date of receipt of the letter within which to commence an action but did not do so. The applicant claimed it had been prevented from applying, within the time allowed, by Force Majeure. The Court HELD that:— 1. Strict application of the community provisions regarding procedural time limits is necessary to ensure legal certainty and avoid discrimination or arbitratory treatment in the adminis- tration of Justice. It is only when the

once established in a specific member state could no longer seek to rely upon the freedoms guaranteed by the Treaty in order to establish himself in another member state unless he abandoned his existing chambers. 4. It is apparent from the terms of Article 52 that the right of establishment carried with it the right to establish and maintain in compliance with the rules of professional conduct more than one centre of activity within the territory of the Community and that general principle also applied to the liberal professions. The Court went on to answer the question submitted by the French Cour de Cassation by saying that even in the absence of a Directive relating to access to the exercise of the legal profession, Article 52 and the following Articles of the Treaty of Rome prevent competent authorities from denying to a national of another member state the right to enter and exercise the legal profession solely on the ground that he simultaneously maintains chambers in another member state. Paris Bar -v- Klopp - Court of Justice - case 107/83 - July. 1984. John Moloney

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