The Gazette 1995

GAZETTE

AUGUST/SEPTEMBER 1995

European Union Law and Irish Solicitors

by Vincent Power*

rules o f EC competition law on such agreements would give rise to a suit in negligence: secondly, failure to advise a public authority on the EU public procurement rules could also give rise to a negligence action: and, thirdly, a failure to advise a client on the application of an EC Directive could also be negligent. Secondly, and more importantly, one can help people by invoking EU law. 3 The recent social welfare cases admirably demonstrate the value of EU law to individuals . 4 Advice on rights o f residence can assist EU nationals who wish to settle in other Memb er States. 5 It is well-known that people are beginning to retire to Ireland from other parts of the EU so Irish solicitors may be called upon to give advice to these people on their entitlements under EU pension law and EU social security law. 6 Thirdly, clients demand and deserve assistance in the area of EU law. Irish solicitors must do more to explain and educate their clients about the implications of EU law. A significant part o f the legal profession's service to society is to inform the public about the implications of EU law. Instead, some Irish clients by-pass Irish solicitors to go to lawyers abroad because they do not know that a competent service can often be provided by Irish solicitors or they believe that a foreigner must be able lawyer does not always guarantee a greater chance of success than using Irish lawyers. Similarly, many clients do not appreciate their rights under EU law and wrongs often go unremedied. 7 It is important that Irish solicitors assist their clients in conducting an EU legal audit of their businesses. Such an audit can include an assessment of the client's competition law practices, marking and labelling procedures, pension schemes, employment rules and so on. 239 to provide a better service - it is noteworthy that using a foreign

Why should Irish Solicitors be concerned with EU Law? If there are not more than ten solicitors practising EU law on a full- time basis in Ireland then is it the case that solicitors have no need to worry about EU law? Why should solicitors be worried at all about what happens in the European Courts? Are there not, in relative terms, only a very small number o f cases before the European Courts anyway which are of direct Irish interest each year?

Introduction

; The aim of this article is to discuss the practice o f European Union 1 law by solicitors in Ireland. The article i examines the practice of the European Courts 2 as it relates to Irish solicitors ! but also takes a much broader view to ; discuss the practice of EU law j generally by solicitors in Ireland, j The practice of the European Courts appears to play a very small part in the daily lives of Irish solicitors in terms o f the number of solicitors who practise before those courts. Nonetheless it is clear ! that the jurisprudence of the j European Courts is" applied every day j by Irish solicitors in advising | their clients. It is difficult to discuss the general topic of solicitors practising EU law in Ireland. It would be easier to discuss a particular case o f a discrete area o f the law but instead one is faced with the more difficult task of presenting the "big picture". Yet, by j looking at the "big picture" one I occasionally finds interesting details which would otherwise go I unnoticed. Inevitably, an article such as this contains personal views which may not be shared by i everybody but which can give rise to some discussion and debate afterwards. It is useful to start with a sobering statistic. There are probably no more than ten solicitors in private : practice in Ireland who derive ! all or most o f their fee income from the practice of EU law. This is after 22 years o f membership o f the European Community and despite the fact that virtually all solicitors who have qualified in i the last decade or so have been exposed to EU law in one form or 1 another.

Vincent

Power

While there maybe only a small number of solicitors in Ireland who practice full-time in the area, there is no doubt that EU law is relevant to all 4 , 1 8 0 solicitors with practising certificates in Ireland. The first and most basic reason why all solicitors need to be concerned about EU law relates to professional negligence. Failure to address an EU law aspect o f a case may well result in a suit for negligence. T o take three examples: first, advice given on an ! exclusive distribution agreement which fails to incorporate the relevant