The Gazette 1995

GAZETTE

NOVEMBER 1995

European Union Law and Irish Solicitors

by Vincent Power*

European Court of Justice to strike down an Irish law on the basis that it is in breach.of EU law. It is a pity that all solicitors do not appreciate that they can utilise the Irish courts or, sometimes more importantly, bring the case to the attention of the European Commission which can often give a more expeditious and effective remedy. How can Irish solicitors avail of the opportunities? What are the practice resources and marketing tools required? Why is it that many Irish solicitors do not avail of these opportunities? 37 In part, there are a number of self- imposed impediments which are difficult to overcome and in part, the obstacles are not so easily removed. There is a tendency for solicitors in Britain and Ireland to focus on their home market and by "home market" they often mean the city, town or village in which they live. Irish lawyers should see themselves as being in the export/import business. Irish-based lawyers can market their services internationally and avail of the opportunities afforded by EU law - to a client in Chicago it matters not whether you are in Achill or Athens. EU law suits the Irish legal training. It has been difficult for English lawyers to contemplate that legislation enacted by the sovereign Parliament in Westminster could be overridden by EU law 38 - however, the Irish lawyer has little difficulty in understanding Irish solicitors should play to their strengths.

therefore has a very good headstart on States as diverse as Finland, Austria, Sweden as well as the Associated States which may one day join the EU. S ome Irish-based clients are importing their legal services, particularly in the area of EU law, from abroad. They believe that a service provided by a Brussels-based firm or a London-based firm must always be better than an Irish-based service. This is probably a relic of a post-colonial attitude rather than the result of any serious evaluation of the services which can be offered by some Irish-based lawyers. However, Irish-based lawyers must do as much as possible to dispel such notions. It is imperative for all solicitors to recognise that EU law is not some specialist doctrine which only arises in particular circumstances and can be left in a cupboard to be brought out on special occasions. EU law is not a Victorian child. It has been written that " a common misapprehension among lawyers in the United Kingdom is that European Community law is a set of regulations which apply only in certain areas of specialised practice, like competition law and international ! trade." 39 The same could be said about Irish lawyers. Many Irish solicitors believe that an essential prerequisite for the application of EU law is that j there must be a foreigner involved in the case. We have been reared on far- fetched scenarios of an Irish person driving a German car with defective brakes (made in Spain) crashing into an Italian driver in a Swedish car on the Franco-Belgian border when a Dutch cyclist on a British bicycle pulled out in front of the Irish driver to avoid a Danish motorcyclist wearing an Austrian helmet whose brakepads (made in Portugal) are defective. S o many EU law cases involve nationals of only one Member State. Emmet, Fracovich, SPUC and so on all involved nationals of one Member 111

Part II

Irish solicitors practising ! before the European Court of Justice Irish solicitors can appear before the ' European Courts. 36 Few have availed | of the right to appear before the Courts. Yet, what is stopping solicitors | from doing so? I In many ways, appearing before the European Courts will be far less important for Irish solicitors than knowing what the Courts have decided j so that the law can be applied in practice. Solicitors in practice invoke the jurisprudence of the European Courts j on a daily basis in advising their clients. I know from my own practice that one often has regard to the jurisprudence of the European Courts without ever needing to have recourse to the courts. It is a widespread misconception | among many solicitors, even after 22 years, that one has to go to the

and appreciating that legislation enacted by the Oireachtas can be overridden by the Constitution.

European Union law is not new to Irish lawyers. In fact, Ireland has been a member for the last 22 years and