The Gazette 1995

GAZETTEAUGUST/SEPTEMBER1995

j Establishment of a Business

foreign undertakings - various Irish examples include B&l Line/Stena Sealink (Holyhead), Irish Continental Group/CCI de Morlaix (Port of Roscoff)28 and London European Airways/SABENA.

prosecution of civil litigation where i there are different jurisdictions

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involved.

| A solicitor can assist a national of another EU Member State who is trying to establish a business in Ireland but is prevented from doing by virtue of some impediment placed upon him or her by the Irish authorities. 20

The Euro-Defence is a much ; undervalued weapon in the armoury of | a litigation solicitor. It is very useful ; to be able to say to the plaintiff in a j contract dispute "but your contract is ! void under Article 8 5 ( 2) - you have no case." 30 | It is still commonplace for Irish | solicitors to be consulted by workers who have lost their j o b s because their ! employer has been acquired, i Solicitors can provide practical I assistance in terms of the application o f the Acquired Rights Directive. 31 Public procurement is the body of EC law which restricts the freedom of public bodies to award contracts. There is always a fear that public ! authorities will tend to place contracts j with national suppliers where possible. There is an entire code of law, embodied primarily in Directives, ! which regulates the whole area of | public procurement in such areas as public works and public services. S ome Irish solicitors seem to be largely unaware of this area and this is i somewhat surprising. Every solicitor I now has an opportunity to assist clients who lose or fail to win public j contracts by virtue o f these rules. For | example, if a company fails to win a contract then the process can be upset | and the loser may be able to obtain damages by virtue o f a breach of the j public procurement code. Similarly, j I an undertaking competing in a market j I can seek to obtain more 'public' ! ! business by virtue o f seeking to upset j the current purchasing practice of a public customer. Examples such as | Dundalk/Wavin Pipes 32 demonstrate the importance of EU public ! procurement law in practice in | Ireland. j | Employee Protection | Public Procurement

Public Undertakings

| Availing of Foreign Services

Article 9 0 of the EC Treaty tries to ensure that undertakings which are publicly-owned regulated or privileged do not evade the EC rules on competition. Article 9 0 o f the EC Treaty is aimed at controlling the behaviour o f public undertakings and undertakings to which Memb er States grant special or exclusive rights. Articles 9 2 to 9 4 of the EC Treaty relate to State aids. State aids are advantages (such as subsidies, tax breaks and soft loans) conferred by a Memb er State on undertakings. Article 9 2 prohibits, as a general rule, State aids that distort competition but goes on to specify those aids that will or may be compatible with the common market. Article 93 provides that the European Commission will supervise State aids. Article 9 4 provides for the Council of Ministers to adopt appropriate regulations for the application of Articles 9 2 and 9 3. If a worker in Ireland is being discriminated against in terms of pay on the basis o f gender then clearly an Irish solicitor can assist the worker to avail of the protection of Article 119 of the EC Treaty and the growing jurisprudence of the European Courts in this area. Employee Discrimination State Aid

| A solicitor can assist someone in I Ireland who wants to avails of services which are available from abroad more cheaply or because they are simply not available in Ireland. 21 Free Movement of Capital Í j It is well-known that EU law protects the free movement of capital and, j from time to time, Irish solicitors and courts have had to deal with the EC law aspects of free movement of capital. 22 Arrangements between undertakings which prevent, restrict or distort competition in the c ommon market or any part o f i h e c ommon market are prohibited" and void 24 unless exempted by the European Commission. 25 This rule, embodied in Article 85 of the EC Treaty, 26 is perhaps one o f the two most useful provisions of the EC Treaty for i solicitors in practice. It is often a very good defence mechanism in that it sometimes allows parties to extricate themselves from contracts by virtue of the fact that the contracts are legally void and unenforcable. ! Any abuse of dominance by one or | more undertakings having a dominant position in the c ommon market or a j substantial part o f the common market is prohibited and no exemption can be obtained from the European | Commission. This rule, embodied in i Article 86 of the EC Treaty, 27 is the | second of perhaps the two most useful : provisions of the EC Treaty for solicitors in practice. It is often a very useful way for smaller Irish | companies to combat the abusive conduct of larger and more powerful Anti-Competitive Arrangements Abuse of Dominance

Preliminary References

The "preliminary reference" procedure under Article 177 o f the EC Treaty is an important part of the practice of an Irish solicitor involved in EC law in Ireland. 29

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í i Recognition of Foreign Qualifications

Litigation

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; Many Irish students are studying at universities abroad and inevitably

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The Judgments Convention can facilitate the institution and

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