The Gazette 1972

The services to be provided are defined in Article 60

of the Treaty, and this includes "activities of all liberal

professions".

A modest draft directive to enable lawyers to practise

within limits in the Community was turned down by

the German and Luxemburg delegations on the

ground that, under Article 55, these might encompass

State activities which were specifically excluded.

It was decided recently in Milan that either bi-literal

or multi-lateral Conventions should be concluded be-

tween member states as to the rights of their respective

lawyers to practise within one another's country. Satis-

factory agreements had already been reached between

the Bars of Paris and Brussels, and the Bars of Paris

and Rome. On 1st September 1971, a Benelux Conven-

tion on pleading and practice was ratified by Belgium

and Luxemburg. In principle, barristers and solicitors

would have an equal status before the European Court

and National Courts of member states, subject to the

terms of the Convention. In England it was agreed that

the same barristers only should appear on behalf of

clients, if an English Judge sought a ruling from the

European Court under Article 177 of the Treaty, if they

had appeared before the English Court. It was essential

to note that we were not exporting a divided legal pro-

fession into Europe.

In answer to questions, Mr. Crossick made the follow-

ing points:

(1) He was not aware of any Community legisla-

tion which would hinder restrictions to be imposed

upon aliens purchasing land in any of the member

states. Mr. Temple Lang pointed out that the present

provisions of the Land Act 1965 restricting the purchase

of land by aliens are contrary to Article 7, which

prohibited discrimination on the grounds of nationality

as well as to the principles of freedom of establishment.

If any controls were to be retained they would have to

be non-discriminatory.

(2) It would be possible for the larger firms of

English Solicitors to establish branches in Ireland. The

only effective way to prevent this would be for a

sufficient number of Irish lawyers to become recognized

experts in European Community Law.

(3) In answer to the President, it was stated that we

should have some knowledge of Community legisla-

tion, and we must keep track of the legal develop-

ments on other states. It would be most useful to create

a centralised Law Institute to co-ordinate legal research.

It was regrettable that official contact between the two

legal professions was not more amicable.

(4) He propounded the joke about Gallic Modesty,

Prussian Charm, Italian efficiency and Irish succinct-

ness in speech.

(5) Despite the Hague Convention of 1964 on the

Unification of Laws governing the International Sale

of Goods, and the subsequent English Act passed, the

"Uniform Laws on International Sales Act 1967",

relatively little progress had so far been achieved in

this field.

(6) It would be useful to have tax havens, Luxem-

burg was not a tax haven, but gave tax concessions to

holding companies.

(7) The problem of numerous trade unions in

England was- a barrier to trade. The German system

was preferable, whereby there was one trade union per

industry, as against one trade union per trade.

(8) In France, the two professions of "Avocat" and

"Avoué" were about to be unified. The profitable pro-

fession of "Notaire" was strictly controlled, while a

"Conseiller Juridique" had no legal standing in France.

Mr. David Hall, a legal official of the Commission

in Brussels, spoke on "Monopolies and Restrictive

Practices Legislation in the Common Market". This

referred in particular to some aspects of compe-

tition, as contemplated in Articles 85 and 86 of

the Treaty; these Articles should be read in the context

of the whole Treaty of Rome. Article 85 laid down that

agreements incompatible with the Common Market,

such as price-fixing and Market-sharing were conse-

quently prohibited; this was an all embracing Article,

which had to be considered in relation to the European

Court decisions and the regulations and notices

issued by the Commission. Regulation 17 lays

down prov

sions for granting exemption but does not

affect Article 85. Many large industries have applied

for exemption from the strict application of Article 85,

but block exemptions have not been adopted. In the

smaller cases, the norms for granting exemption have

been laid down by the Commission. On the other hand

in the more important matters, such as the

Machine

Tool Decision

(March 1969); the

International Textile

Decision

(October 1971); and the

Société Technique

Miniere v. Maschinenbau Ulm.

the European Court

laid down definite principles.

The

Konstam Grundig Case

established that any

separation of the national markets is invalid as conflict-

ing with the competition rules. In certain circumstances

the Commission would be prepared to limit the appli-

cation of Article 85 (1). It would not be possible to

apply Article 85 (2) rigidly. Any doubts however about

the specific application of Article 85 should be referred

to the Comission but an agreement remains valid until

the Commission decides otherwise; it is therefore neces-

sary to notify the Commission. If it is possible to sever

valid provisions of an agreement from invalid ones,

this will be done.

The

Omega Watchmakers Exclusive Dealers Case

(November 1970) established the procedure. Here it

was held that the retail distribution system of that

company was valid as be

ng beneficial. The

German

Tyremakers Case

(December 1970) was based on a

principle that rebates would be given to bought articles;

this was held to be an infringement of Art. 85. The

Van

Kalbeck Case

(October 1970) related to an agreement

between Belgian and Dutch companies in regard to

cardboard tubings.

Dentsche Gramofon Gesellschaft

case was a conflict between Siemens and Phillips in

regard to the rights to sell Polydor S.A. Records. In this

case a Hamburg firm had sold the records at a lower

price by purchasing them from a Swiss retailer; it

established that the exercise of exclusive rights could

contravene Article 85.

Article 86 prohibits any action undertaken by one

or rqore large enterprise to take improper advantage

of its dominant position within the market, if it thereby

affects trade between member States. These improper

transactions include limitation of production, or the

compulsory receipt of additional supplies by the pur-

chaser if the vendor is to sign the contract. Fines were

actually imposed in the

Analyn Dyestuff Case.

In reply to questions, it was stated :

(1) In an application for an exemption, the Com-

mission acts on information received from various

sources. All interested parties may appear before the

Court, but the Court does not normally reduce the

amount of the fines. So far, there have been 9,500

applications for exemption under Article 85 (3).

(2) Article 85 does not apply to mergers but Article

86 does.