The Gazette 1989

GAZETTE

FEBRUARY

1989

a legal order - it pursues its

objectives purely by means of law.

Fourthly, in a democratic political

context, only a Community of law

can offer all of its participants the

prospect that rights and obligations

will be equally shared. The smaller

and weaker states can be assured

that decisions are taken on their

objective merits and not merely on

an arbitrary basis at the behest of

politically more powerful forces; as

a result, Community law provides

the necessary public confidence in

the decision-making process as we

move towards European Union.

Community law is directly

applicable, it confers rights and

imposes obligations directly, not

only on the Community institutions

and the Member States but also on

the Community's citizens. Finally,

Community law has primacy over

national law, that is sovereign rights

in a number of areas have been

definitely transferred by the Mem-

ber States to the Community and

cannot be regained by unilateral

measures inconsistent with the

Community concept. Nor can a

Member State call into question the

status of Community law as a

system uniformly and generally

applicable throughout the Com-

munity.

Impact of Community Law

It is in order to bring home the

importance and potential of Com-

munity law to legal practitioners in

Ireland that the Irish Centre for

European Law has been founded. Let

me give an example of the potential

of Community law. It is common

myth that Articles 85 and 86 of the

Treaty, which concern the rules of

competition as regards undertakings,

can only be enforced by the

Commission. In fact, Articles 85 and

86 can be enforced by national

courts against private individuals and

state bodies. Damages and interim

measures are available for breach of

Articles 85 and 86 under the legal

systems of all Member States. While

some Article 85 and 86 cases must,

of their nature, involve the fact-

finding powers

which the

Commission has at its disposal, a

recent study indicated that about half

of the complaints submitted to the

Commission could have been dealt

with by national courts without

any serious problem. It is the del-

iberate policy of the Commission to

favour more frequent application

of Community law by national

courts.

Given the physical and psycho-

logical proximity of national courts,

decentralised application would

often provide quicker and more

efficient solutions. Not only would

the effects of anti-competitive

behaviour thus be cut down in time,

but application by national courts

of the relevant block exemption

regulations would allow companies

to launch constructive forms of

cooperation as rapidly as possible,

with the necessary legal security.

This example shows the complex

nature of the relationship between

national and Community law with,

in this instance, Community law

requiring the assistance and sub-

structure of national law.

Legislating for 1992

If considerations such as these

have not impinged themselves to

the extent that one would imagine

they should on the Irish legal com-

munity, there is no doubt but that

recent developments, especially

those linked to 1992, will bring

home very forcefully the points I

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have been trying to make about the

importance of Community law. In

these circumstances I believe it will

be no exaggeration to say that the

work of the Irish Centre for

European Law will be indispensable

to the practice of law in Ireland.

Firstly, there is the immense

corpus of law which the complet-

ion of the Single Market will entail.

Two hundred and eighty-five

legislative texts in all, 91 of which

have already been adopted. I would

estimate that over half of all future,

national, economic, fiscal and

social legislation throughout the

Community will flow from the

working out of the Single Market

programme. To take a few random

examples; think of the legal ramifi-

cations of the harmonisation of

taxation, the establishment of a

European company statute, the

opening up of markets for public

procurement, the introduction of a

model code for building regulations,

directives on labelling requirements

and price transparency, etc., etc.

This is a massive challenge and

workload for the legal profession

which will be called upon to trans-

form the Single Market programme

into living law, i.e. to draft, to

adjudicate upon, to take account of

in imparting advice to clients etc.,

in the immediate future for that

part of the legislation which has

not yet been adopted, lawyers will

be called upon to assess draft

legislation, advise clients on its

impact and to help them with

lobbying activities.

Secondly, the nature of the

Single Market implies a strengthen-

ing of the regulatory and enforce-

ment powers of the Community.

The correct application of the

agreed rules must be ensured. The

greater part of the complaints

received each year by the Com-

mission relate to Articles 30-36, i

to Quantitative Restrictions on

Trade between Member States. The

Commission is improving its pro-

cedures to correct such violations

rapidly and efficiently. These

considerations apply also in relation

to competition policy. The achieve-

ment of the major economic gains

from the opening of markets

depends upon private sector

confidence in the solidity of

Community disciplines over state

subsidies that sharply affect

competitive conditions. New forms

of local protectionism would only