The Gazette 1989

GAZETTE

FEBRUARY

1989

favour more frequent application of Community law by national courts. Given the physical and psycho- logical proximity of national courts, decentralised application would often provide quicker and more efficient solutions. Not only would the effects of anti-competitive behaviour thus be cut down in time, but application by national courts of the relevant block exemption regulations would allow companies to launch constructive forms of cooperation as rapidly as possible, with the necessary legal security. This example shows the complex nature of the relationship between national and Community law with, in this instance, Community law requiring the assistance and sub- structure of national law. Legislating for 1992 If considerations such as these have not impinged themselves to the extent that one would imagine they should on the Irish legal com- munity, there is no doubt but that recent developments, especially those linked to 1992, will bring home very forcefully the points I

have been trying to make about the importance of Community law. In these circumstances I believe it will be no exaggeration to say that the work of the Irish Centre for European Law will be indispensable to the practice of law in Ireland. Firstly, there is the immense corpus of law which the complet- ion of the Single Market will entail. Two hundred and eighty-five legislative texts in all, 91 of which have already been adopted. I would estimate that over half of all future, national, economic, fiscal and social legislation throughout the Community will flow from the working out of the Single Market programme. To take a few random examples; think of the legal ramifi- cations of the harmonisation of taxation, the establishment of a European company statute, the opening up of markets for public procurement, the introduction of a model code for building regulations, directives on labelling requirements and price transparency, etc., etc. This is a massive challenge and workload for the legal profession which will be called upon to trans- form the Single Market programme into living law, i.e. to draft, to adjudicate upon, to take account of in imparting advice to clients etc., in the immediate future for that part of the legislation which has not yet been adopted, lawyers will be called upon to assess draft legislation, advise clients on its impact and to help them with lobbying activities. Secondly, the nature of the Single Market implies a strengthen- ing of the regulatory and enforce- ment powers of the Community. The correct application of the agreed rules must be ensured. The greater part of the complaints received each year by the Com- mission relate to Articles 30-36, i JB . to Quantitative Restrictions on Trade between Member States. The Commission is improving its pro- cedures to correct such violations rapidly and efficiently. These considerations apply also in relation to competition policy. The achieve- ment of the major economic gains from the opening of markets depends upon private sector confidence in the solidity of Community disciplines over state subsidies that sharply affect competitive conditions. New forms of local protectionism would only

a legal order - it pursues its objectives purely by means of law. Fourthly, in a democratic political context, only a Community of law can offer all of its participants the prospect that rights and obligations will be equally shared. The smaller and weaker states can be assured that decisions are taken on their objective merits and not merely on an arbitrary basis at the behest of politically more powerful forces; as a result, Community law provides the necessary public confidence in the decision-making process as we move towards European Union. Community law is directly applicable, it confers rights and imposes obligations directly, not only on the Community institutions and the Member States but also on the Community's citizens. Finally, Community law has primacy over national law, that is sovereign rights in a number of areas have been definitely transferred by the Mem- ber States to the Community and cannot be regained by unilateral measures inconsistent with the Community concept. Nor can a Member State call into question the status of Community law as a system uniformly and generally applicable throughout the Com- munity. Impact of Community Law It is in order to bring home the importance and potential of Com- munity law to legal practitioners in Ireland that the Irish Centre for European Law has been founded. Let me give an example of the potential of Community law. It is common myth that Articles 85 and 86 of the Treaty, which concern the rules of competition as regards undertakings, can only be enforced by the Commission. In fact, Articles 85 and 86 can be enforced by national courts against private individuals and state bodies. Damages and interim measures are available for breach of Articles 85 and 86 under the legal systems of all Member States. While some Article 85 and 86 cases must, of their nature, involve the fact- finding powers which the Commission has at its disposal, a recent study indicated that about half of the complaints submitted to the Commission could have been dealt with by national courts without any serious problem. It is the del- iberate policy of the Commission to

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