The Gazette 1995

GAZETTE

Most clients are blissfully unaware of areas such as competition law, public procurement, employee rights and so on. Fourthly, an understanding of EU law generally and the practice o f the European Courts particularly is imperative even to understand some | areas o f Irish national or municipal I law. An obvious example is that it is i impossible to adequately advise on Ireland's Competition Act, 1991 8 without understanding the underlying EC competition law rules: notifications to the Irish Competition Authority require citation of the judgments of the European Courts while the Competition Authority itself cites EC precedents in its own Decisions. Another example is environmental law where it is impossible to understand some o f the recent Irish legislation on the environment without appreciating the purpose and effect o f the underlying EC Directives and the judgments of the European Courts. Indeed, the judgment of the European Court of Justice in Marleasing v La Comercial 9 means that it is not possible to review Fifthly, the jurisprudence and practice o f European Courts sometimes present an opportunity to circumvent the rules o f national law in such matters as procedural time-limits. 10 EU law also provides compensation in some circumstances for breaches o f EU competition l aw ." The European I Courts can provide another court j of appeal. 12 | Finally, there is the small matter of fees which can be earned from the j application by Irish solicitors o f the | jurisprudence of the European Courts, j S ome solicitors have carved out niches within their own practices in such areas as the EC law relating to milk quotas, social welfare and fisheries law. Other solicitors have occasionally had a particular case which has led to a "baptism of fire" i but often an abiding love o f the subject lingers for many years after the case is over. However, the whole area o f EU law is still a largely national implementing legislation without regard to the underlying EC Directive.

unfilled field for Irish lawyers. In the case o f EU law, there is not only a niche in the market but there is also a market in the niche.

criminal law solicitor 14 can avail o f the jurisprudence of the European Courts. It is important to realise at the outset that EU law is often "ma s k e d" as Irish law. This is often the case because a Directive has been implemented by way o f a Statutory Instrument or a Statute and people rely on the Statute or Statutory Instrument alone. It is surprising how few lawyers realise how such a Statute or Statutory Instrument ought to be interpreted in the light of the underlying Directive. Cases such as Marleasing 15 seem to be almost unknown to many lawyers.

How can Irish Solicitors utilise the Practice and ! Jurisprudence of the European Courts?

Thijmen Koopmans, a former judge of the European Court o f Justice, has written that " one might say that the [European Court o f Justice] is the European lawyers' hobbyhorse. . . It would indeed be difficult to discuss any important area o f Community law without referring to the Court's contribution to its development." 13 It I can also be said that it would be impossible to practise as a solicitor advising on EU law ! without having regard to the practice and jurisprudence of the European Courts. j In practice, Irish solicitors do not have j adequate access to the European Court Reports or the Common Market | Law Reports. There are very few subscriptions in Ireland to these | periodicals. There are very few court libraries around the country with a stock o f these law reports. Greater efforts need to be made by all concerned to ensure greater access to such materials by the establishment of regional libraries and there is a need for some Universities to open the European Documentation Centres to solicitors. [ It is clear that not every member of I either branch o f the Irish legal j profession has availed sufficiently of the opportunities which are presented i by EU law. There are very few legal j practitioners (of either branch) who specialise in the area. Ye t, there is no shortage o f opportunities presenting themselves because there are | developments in European law on a i daily basis and there are few areas of | the law which change as rapidly and as dramatically as F U law.

It is useful to reflect on how a solicitor practising in Ireland c omes across EU law in practice.

Discrimination

If an F U national is discriminated in regard to some matter covered by the EU Treaty then an Irish solicitor can clearly assist that client to remedy the wrong. 16

Trade in Goods

Provisions such as Articles 3 0 and 3 4 of the EC Treaty arise quite frequently in practice. This is particularly so in terms o f advising manufacturers who want to export to other Memb er States as well as to domestic sellers who want to challenge the importation of goods from abroad on the basis that the goods ought not to benefit from the provisions on free movement of goods (for example, because of Article 36). A solicitor can assist a national of ; another EU Memb er State who is j trying to take-up employment in i Ireland but is prevented from doing so by virtue o f some impediment placed upon him or her by the Irish authorities. 17 If an Irish worker wants to work in another EU Memb er State then the worker must be provided with j an Irish passport or any other I appropriate documentation. 18 If a worker from another EU Memb er | State c omes to Ireland then s/he is entitled to reside here. 19 Employment

The practice o f the European Courts is o f interest to solicitors other than the commercial or the litigation solicitor. The private client solicitor or the

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