The Gazette 1976

GAZETTE

March 1976

Developments in Community Legislation (6th

Report, December 1975)

FREE MOV EME NT OF

PERSONS AND SERVICES

Free Movement of Workers

6.1. On 15 October 1968 the Council adopted Regu-

lation 1612/68 on freedom of movement for workers.

At the time the Commission had proposed to include,

within the heading of the exercise of employment and

equality of treatment, the exercise of trade union rights

and the right to take part in the management and

administration of a trade union. Due to the fact that

trade union law in France restricted the exercise in

France of such rights to French nationals, agreement

could not be reached on this proposal. Since then the

Court of Justice of the European Communities has

handed down its judgments in the Reyners and Van

Binsbergen cases in which it held that restrictions

based on nationality and residence have been null and

void since the end of the transition period. Despite the

fact that Article 48 of the EEC Treaty has thus been

adjudged to be directly applicable, the Commission

considered it necessary to assure legal certainty for

those affected and accordingly decided to amend Regu-

lation 1612/68 so as to put an end to the ambiguous

situation resulting from its present wording. The

Commission has forwarded to the Council a draft

regulation ensuring that migrant workers from other

member States will be entitled to equality of treatment

with nationals of the member State in which they are

working with regard to eligibility for the administrative

or management posts of a trade union. It is expected

that the proposed draft regulation will be considered

by the Council at a meeting in December 1975.

Lawyers

6.6. As requested by the Council (Ministers for Jus-

tice) at its meeting on 26 November 1974 the Commis-

sion forwarded to the Council on 19 August 1975 an

amended draft directive to facilitate the effective exer-

cise by lawyers of freedom to provide services. The

Commission had submitted its original proposal on 17

April 1969. Discussions on this proposal which began in

1972 revealed differences of opinion regarding the inter-

pretation of the reference in Article 55 of the EEC

Treaty to the exercise of official authority, the Courts

before which advocacy might be permitted and the

extent and form of collaboration between the visiting

lawyer and the lawyer of the host State. Furthermore,

the judgments of the Court of Justice in the Reyners

and Van Binsbergen cases meant that the provisions ot

the original draft relating to the abolition of discrim-

ination on the basis of nationality and residence were

no longer necessary. While the Commission withdrew

most of its proposals relating to freedom of establish-

ment and freedom to provide services consequent on

these judgments, the Commission submitted in this case

an amended proposal on lawyers instead of withdraw-

ing the original proposal because the draft directive on

lawyers' activities contains certain provisions which are

peculiar to these activities. The revised draft directive,

which the Commission has now forwarded to the

Council, takes into account the deliberations of the

Council working group, the judgments in the Reyners

and Van Binsbergen cases and the characteristics of the

profession in the new Member States with Common

Law systems. It applies to all the activities of lawyers

carried on by way of provision of services. However,

it allows a Member State to require that a foreign lawyer

who wishes to appear before its Courts must work in

conjunction with a lawyer who is a member of the

competent Bar of that State and who will be, if neces-

sary, responsible to the Court in question.

COMPANY LAW

17.12. Consideration is being given to the question of

amending the European Communities (Companies)

Regulations 1973 made to implement the First Directive

on Company Law in the light of the observations given

on these Regulations by the Joint Committee of the

Houses of the Oireachtas on Secondary Legislation of

the European Communities and by the Commission.

17.13. The Commission had presented to the Council

a draft Fifth Directive on Company Law which dealt

with the structure of limited liability companies and in

particular employee participation in the management of

enterprises. On 12 November 1975 the Commission

published a document entitled "Employee Participation

and Company Structure in the European Community".

In this document the Commission reviews the question

of employee participation and the structure of com-

panies in the Member States and considers the approa-

ches the Community could adopt towards harmonising

and extending, where necessary, these provisions. The

Commission considers the question of employee partici-

pation under four headings :

—negotiation of collective agreements;

—institutions within companies representative in whole

or in part of employees;

—participation by employees in decision making bodies

of companies and

—participation by employees in the company's capital.

The Commission will amend its draft Fifth Directive on

Company Law in the light of the observations it receives

on this document from all interested parties.

Conventions

Convention on Jurisdiction and the Enforcement of

Judgments in Civil and Commercial Matters

17.14. The Council working party which is consid-

ering the adjustments which may be necessary to this

Convention in order to meet the requirements of the

new Member States is continuing with its work. It held

meetings in July and October 1975. The principal items

dealt with at those meetings were jurisdiction in matters

relating to insurance and maritime jurisdiction.

Draft Convention: Bankruptcy, Winding-up, Arrange-

ments, Compositions and Similar Proceedings

17.15. This draft Convention proposes that where a

bankruptcy or winding-up occurs in any Member State

it shall be recognised and be enforceable throughout

the Community and shall preclude the opening of

corresponding proceedings in the other Member States.

The draft is being considered at Commission level by

a Committee of Experts from the Member States. The

Committee met in July and October 1975. Among the

matters considered at those meetings were :

(a) the adjudication in bankruptcy of directors and

managers whose actions have contributed to the

liquidation of their companies;

(b) the exclusion of banks from the scope of the draft

Convention and

Draft Convention on Private International Law

17.16. A meeting of the Commission Committee of

Experts on the harmonisation of the rules of Private

(iconcluded on opposite page)