The Gazette 1976

GAZETTE

March 1976

are to be carried out, to the discretion of the States.

In order to find out whether a Directive is directly

applicable, the European Court has held that each

case must be examined to see whether the provision

in question is, in its legal form, structure and wording

such that it can produce immediate effects. The means

whereby a Member State is to implement the direc-

tives will depend largely on the exact content of that

directive, and the state of the law in a particular

country. Ireland complied with the draft Directive on

Company Law by means of a Ministerial Order.

The diversity of laws amongst the several Member

States made some sort of co-ordinating imperative for

a full realisation of te establishment provisions; neces-

sary uniformity was not aimed at, as it could not be

achieved. Accordingly Articles 100 to 102 of the

Treaty provide for the approximation of laws, and

these provisions have a widespread and general appli-

cation, and extend to all provisions of the Member

States which have a direct incidence on the establish-

ment or functioning of the Common Market. This is

apparently a residual power vested in the Council to

be resorted to only when no other specific provision

is available. One of the co-ordinating provisions to be

construed narrowly refers toArticle 57(2) which pro-

vides for "co-ordinating of legislative and administra-

tive provisions of Member States concerning the

engagement in, and exercise of, non-wage earning

activities". It follows that the Treaty provisions on

establishment are to be implemented by (1) The

General Programme, (2) the subsequent Directives,

and (3) the co-ordinating provisions.

Recent Case-Law relating to Establishment in the

Community

(1) The Commission

v. The French

Government

(Case No. 167/73) relates to the free movement of

workers. The French Code du Travail Maritime had

a regulation that a certain proportion of men employed

on French ships had to be French nationals. The

Commission claimed that this discrimination on the

basis of nationality was contrary to Article 48 of the

Treaty, and the Court upheld this contention and held

the regulation invalid. This case appears to have

extended the general rules to the transport sector,

including air and sea transport. But there has been an

amazingly strange reluctance on the part of Irish and

other authorities to accept this most reasonable inter-

pretation of the Commission. It seems obvious that

the provisions of the Merchant Shipping Act 1955,

which restricts the right to register or mortgage a

ship to Irish citizens, is a grave infringement of

Community Law.

(2)

Reyners

Belgium

(Case No. 2/74). As a full

translation of the case appeared in the Gazette, Vol.

68, June, 1974, at page 164, it is unnecessary to go

into detail. Suffice it to say that the Court found

Article 52 to be directly applicable to Member States,

notwithstanding the absence of directives provided

for in Articles 54(2) and 57(1) of the Treaty of Rome.

The Court in the case distinguished between the

two functions of Community Directives. The first

function was to remove obstacles during the tran-

sitional period which obstructed freedom of establish-

ment. The second function, which still requires full

achievement, was to introduce new provisions which

would more easily facilitate the right of establishment.

Under the Irish European Communities Act 1972,

the whole Treaty of Rome, including Article 52, is

part of the law of Ireland. Consequently any domestic

restrictions in the area of establishment are implicitly

repealed. As a result of the

Van Binshergen

decision,

any domestic restrictions in the area of the supply of

services, which conflict with Articles 59 and 60, are

also implicitly repealed.

Apart from the Merchant Shipping provisions pre-

viously cited, the following provisions of Irish legis-

lation, which discriminate on the basis of Irish

nationality, appear to be now automatically repealed:-

(1) Regulations under Pilotage Acts which state that

only Irish citizens may obtain pilot's licences or

pilot's certificates.

(2) Section 6(3) of the Moneylenders Act 1933 which

confines the issue of moneylender's licences to

Irish Nationals or Irish based companies.

(3) Licensing standards adopted by the Central Bank

Act 1971, which required a licensed Bank to be

incorporated in the State, and to have a majority

of Irish directors. This has already been aban-

doned by the Central Bank, as witness the estab-

lishment of French and Dutch Banks in Dublin.

(4) The articles of the Unit Trust Act 1972 which

require any company which intends to exercise

the activity of manager and trustee of a trust unit

to be incorporated in Ireland.

(5) The Insurance Act 1936, insofar as it prohibits

the entry of Insurance Companies from other

Member States into the Insurance Market.

, (6) Provisions which

discriminate

against

non-

nationals of Member States in the issues and

transfer of flour-milling licences under the Agri-

cultural (Cereals) Act 1933.

With regard to S.45 of the Land Act 1965, to the

extent that it discriminates on the basis of nationality,

the Land Act 1965 (Additional Categories of Quali-

fied Persons) Regulations 1972 — S.I. No. 332 of 1972

— covered all beneficiaries mentioned in Directives in

relation to establishment in agriculture which had

been adopted up to then. But up to the time of the

Reyners decision, discrimination on the basis of

nationality still existed in those areas of establishment

of agriculture which were not the subject of Direc-

tives. This is clearly no longer the case, since hence-

forth nationals of all Member States will have to be

given equal treatment in establishing agriculture.

A word of warning should be given in regard to

the compulsory Irish language requirements for the

solicitors and barristers professions. Although this

test is equitably applied in both professions to every-

one at the moment, being not unduly cumbersome, if

in future it were shown that the Irish langauge

requirement was being used as a disguised form of

national discrimination, it would undoubtedly have to

be abandoned.

The facts of

Van Binsbergen

— Case No. 33/74

— (Gazette, Vol. 69, March, 1975, p. 40) and of

Walrave and K(x-h

—Case No. 36/74—Gazette, Vol.

69, March, 1975, p. 41) are briefly given.

The conclusions to be drawn are:-

(1) Article 52 is directly applicable to Member States.

(2) Article 59 is similarly directly applicable.

(3) Those portions of Irish law which discriminate

on the basis of nationality and are contrary to

Article 52 or to Article 59 are automatically

repealed, unless they can theoretically survive

under other provisions of the Treaty.