The Gazette 1973

(a) Provisions under which the licensee, when selling

licenced products, has to observe certain prices.

(b) Provisions under which the licensee must neither

manufacture nor sell products which compete with

the licenced products. In this case, however, an

exemption may in certain circumstances be granted.

visions under which the licensor and the licensee

have to keep each other informed on the improve-

ment or on new applications of the invention or

under which they have to grant non-exclusive

licences for such inventions. However, a violation

of Art. 85(1) obtains, if the licensor reserves the

right to apply for a patent in his own name in

respect of improvements made by the licensee,

(d) The Commission considers the usual non-content

clause by which the licensee undertakes to refrain

from challenging the licenced protection rights by

an action declaring them null and void or by any

other means to be a violation of Art. 85(1); it

principally refuses an exemption. In this way the

Commission wants to avoid that competition is

restricted by licence agreements through fictitious

patents, which are only secured by non-contest

clauses.

DR. HOR ST H E L M ,

Stuttgart

E.E.C. Caused "A Legal Revolution"

by John Temple Lang

The EEC has caused a legal revolution in Ireland,

John Temple Lang lecturer in law in Trinity College

Dublin told the I.C.T.U. summer course in Galway on

16 July 1973 in a lecture on European Law. Rules of

Irish law could now be enacted without any action by

any Irish governmental body at any stage, and free from

the limitations imposed by the human rights clauses in

the Constitution. If there was a conflict between Irish

law and Community law, Community law would pre-

vail over Irish law, even in the Irish courts. The final

ruling on the interpretation of the Community rules

which are now part of Irish law would be given by the

Community Court in Luxembourg, not by an Irish

court. The law giving effect to the EEC Treaty in

Ireland had given wide legislative powers to Ministers,

including the legal power to amend Acts of the

Oireachtas. All of this had been done without any

balancing imposition of democratic control, so it was

essential that the Irish government and Oireachtas

should do everything possible to strengthen the Euro-

pean Parliament as the organ for democratic control

in the EEC, and should set up Oireachtas committees

to consider draft Community legislation in time to

allow Irish officials and advisers to influence the Com-

munity's own law-making process.

A still more important legal revolution was the fact

that the EEC was both a fertile source of new ideas

for reform of Irish law and a strong impetus for law

reform here in certain fields. In the economic and social

spheres many of our outdated laws would have to be

looked at in the light of their effects and whether they

are in line with laws elsewhere in the nine member

states. Revision of Irish laws to bring them into line

with Community standards would provide us with

an opportunity to carry out major legal reforms

in many spheres—but only if we were ready to do

so. It was a great pity that the European Com-

munities Act contemplated implementation of EEC

laws largely by Ministerial Order. These Orders would

do little more than carry out changes necessitated by

EEC rules, and they should not do more, because

they are not subject to satisfactory democratic control.

But if EEC laws were implemented primarily by Acts

of the Oireachtas, the opportunity could be taken to

improve Irish economic and social legislation in some

of the many ways it now needs updating. Law reform

was one of the most neglected fields of government in

this country.

The formation of Community standards involved

detailed comparisons between the laws of member

states, to see which best achieved the purpose intended,

national laws had to be "harmonised upwards', and

standards raised all round. This needed much hard work

and realism, and it is essential to see the practical effects

of legal rules and not merely the theory. For example,

the dole in rural areas is not an unemployment allow-

ance at all, but an income subsidy for small farmers,

but because this is not admitted, it acts as an unneces-

sary disincentive to work.

It would be a catastrophe if insularity or dislike or

fear of the EEC led to trade union failing to take an

active part in it. The EEC was a challenge, but also

an opportunity for trade unions as well as others in-

terested in law reform to advance their aims.

Company Law Directive on Mergers

For example, the draft Third Company Law Directive

on Company Mergers requires advance publication of

merger plans, and their assessment by independent

experts. It also specifically requires the plan to state the

implications of the merger for the employees of the

companies involved, requires consultation with the em-

ployees, and entitles the employees to make their views

known to the shareholders meetings which decide

whether to proceed with the merger. Irish law at

present requires none of these things. Irish company

law as such provides virtually no protection for the

interests of workers, consumers or the public. In this

respect

the

EEC

is far less "capitalist' 'in its outlook

than Irish law.

Unfortunately the draft directive at

present applies only to certain types of mergeri.and not

to the type of merger common in Ireland, through

purchase of shares or of a business : clearly the protec-

tion for shareholders and workers given by the directive

should be extended to all kinds of mergers.

Compare the position of directors considering two

offers to buy a factory: one from an asset stripper who

would close down the factory, and a lower bid from a

buyer who would keep it open. Under Irish law the

directors would have a duty to accept the higher offer

in the interests of the shareholders, regardless of the

interests of the workers. Under Dutch law, for example,

the directors would be free to take the lower offer if to

do so was in the interests of the employees. A change in

Irish law in this respect is far more likely to come about

through EEC influence than in any other way.

190