The Gazette 1995

GAZETTE

AUGUST/SEPTEMBER 1995

j Intellectual Property

there will be questions arising in the , future over the recognising of foreign degrees, diplomas and qualifications. A solicitor should be familiar with the jurisprudence of the European courts in this a r e a ."

CMLR 86; Newton v Chief Adjudication Officer [ 1992] 1 CMLR 149; Johnson fl991 ] 3 CMLR 917; and Clarke v Chief Adjudication Officer [1987] 3 CMLR 277. 5. O'Caoimh and Barry, "The Development of the Free Movement of Persons towards European Citizenship" (1993) IJEL 98. 6. E.g. cases such as Secretary of State for Social Security v Thomas [1993] 3 CMLR 880. 7. Including the right to sue a Member State for damages for failure to implement a Directive; see Joined Cases C-6/90 and C- 9 / 90 Francovich and Bonifaci v Italian Republic [1991] ECR 1-5357, [1992] IRLR 84. 8. Act No. 24 of 1991. 9. Case C-106/8 [1992] 1 CMLR 305, [1992] IRLR 84. 10. Emmott v The Minister for Social Welfare [1991] 3 CMLR 894, [1991] IRLR 387. 11. Case C-106/89 Marleasing v La Comercial International de Alimentacion SA [1990] ECR 1-4135, [1992] 1 CMLR 305, [1992] IRLR 84 and Case 14/83 Von Colson v Land Nordrhein-Wesfalen [1984] ECR 311, [1986] 2 CMLR 430. 12. E.g. Grogan v SPUC [1991] 3 CMLR 849. j 13. Koopmans, "The Future of the Court of j Justice of the European Communities" (1991) 11 YEL 15 at 15. 14. Case 186/87 Cowan v Le Tresor Public [1989] ECR 195, [1990] 2 CMLR 613 and Meagher v Minister for Agriculture and Food [1994] 1 IR 329, [1994] I ILRM 1. 15. See above. 16. EC Treaty, Art.6. 17. EC Treaty, Art.48. 18. See Dir. 68/360, Arts. 2 and 3. See Case C- j 113/89 Rush Portugesa Limitada v ONI [1990] ECR 1-1417, [1991] 2 CMLR 818. 19. Dir. 68/360, Art. 2. 20. EC Treaty, Art. 52. 21 . Grogan v Society for the Protection of the Unborn Child [ 1991] 3 CMLR 849; Cases 286/82 and 26/83 Luisi and Carbone v Ministero de Tesero [1984] ECR 377, [1985] 3 CMLR 52; and Cowan v Tresor Public see above. 22. See East v Cuddy and Cuddy, Circuit Court, Sheehy J., unreported, 11th Nov. 1985. 23. EC Treaty, Art. 85(1). 24. EC Treaty, Act. 85(2). 25. EC Treaty, Art. 85 (3). 26. A comparable (but not identical) provision is contained in Art. 65 of the ECSC Treaty. 27. A comparable (but not identical) provision is contained in Art. 66 of the ECSC Treaty. 28. Unreported Decision of the European Commission, 16th May 1995. 29. McMahon and Murphy, European Community Law in Ireland (1989), Chap. 12. 30. Cf. Dunlea v Nissan [1993] IJEL 146. 31. Dir. 77/187. 32. Case 113/80 EC Commission v Ireland [1981] ECR 1625. 33. E.g. Case 222/86 UNECTEF v Heylens [1987] ECR 4097, [1989] 1 CMLR 901 and Case C-340/89 Vlassopoulou v Ministerium Justiz [1993] 2 CMLR 221. 34. See cases such as An Bord Bainne Co- operative Ltd v Minister for Agriculture ( 1 9 8 7 )2 JIEL 37. 35. Cousins, "The EEC Social Security Regulations in Ireland" (1992) 2 IJEL 105. •

Patents, trademark, copyright and | other intellectual property rights cannot be seen solely in the light of i national law. Recent cases such as Magill clearly demonstrate that a solicitor advising on intellectual property cannot ignore EC competition law. j | Welfare law has been a growth area in j recent years and Irish solicitors who deal with private clients should familiarise themselves with the jurisprudence of the European courts as welfare law. 35 i j Welfare

Marketing

Quite frequently, Irish solicitors are consulted about labelling and marking requirements both offensively in terms o f products which are to be exported from Ireland to elsewhere in the EU and defensively trying to stop the importation into Ireland o f products from elsewhere in the EU. It is surprising that in a country with as strong an agricultural base as Ireland that there has not been more work for Irish solicitors in the area of EC agricultural law. 34 Milk quotas and headage payments have provided some work but other areas seem to be terra incognita. % Consumer Protection Law Solicitors who do consumer protection work ought to be very much aware of the jurisprudence of the European Courts as well as the measures adopted on such issues as product liability, product safety, advertising, timeshares, doorstep selling, consumer credit, unfair contract terms and package holidays. Agriculture

Fisheries

EC fisheries law is particularly important in Ireland. Solicitors in coastal areas should be familiar with EC fisheries law. While there are solicitors with excellent reputations in the subject, there is still room for others!

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Conclusion

I There are many other opportunities ! for the solicitor to apply the j jurisprudence of the European Courts in practices. This article has only examined a few o f the cases. j

Part II o f this article will be published j in the October issue o f the Gazette.

*Vincent Power is a solicitor in A&L Goodbody, Solicitors. He practises in the firm's EU and Competition Law Department. References 1. The term "European Union" or " EU" is used in this paper to include the combined legal regimes of the European Community, the European Coal and Steel Community, the European Atomic Energy Community as well as the Treaty on European Union. 2. The term "European Courts" is used in this article to describe the Court of Justice of j the European Communities ("ECJ") and the j Court of First Instance ("CFI"). | 3. See Van Hamme, "Human Rights and the ! Treaty of Rome" and Power, "Human j Rights and the EEC" in Heffernan (ed.) Human Rights: A European Perspective | (1994) at pages 70 and 81. j 4. A case with an interesting Irish angle was Chief Adjudication Officer v Twomey \ [ 1992] 2 CMLR 571. Other examples j include Warmerdamesteggerda [1991] 2

Contract Disputes

With the growth o f international contracts, there is no doubt that the R ome Convention of 1 9 80 will be of more assistance and interest to lawyers.

Transport

Transport is an extremely important area o f EU law. Transport represents 7 % of the combined GDP o f the EU which is more than agriculture. Irish road hauliers as well as Irish aviation and shipping companies provide work to Irish solicitors in this area. Mo re importantly, some Irish solicitors are now advising international clients in the area o f EU transport law. 242