The Gazette 1975

students applying for admission to the legal professions

had increased to such an extent that it was posing a

serious problem.

Mr. Gerald Fitzgerald,

solicitor,

Brussels, stated that there was not much material avail-

able as to the conditions of the professions in the

Member States, and this created difficulties in harmon-

ising regulations. Normally directives relating to pro-

fessions were published in 3 parts:- (1) Professional

basic rights, (2) Mutual recognition of the profession

amongst Membed States and (3) co-ordination of the

legislation and the regulations relating to the profession

amongst the Member States. Provision was being made

to eliminate all difficulties relating to access to social

security amongst recipients in Member States.

As regards practising as a solicitor in Belgium, he

was not recognised as a qualified Belgian lawyer, and

had to avail of the services of a Belgian avocat in any

matter relating to Belgian law. Even though he was

only entitled to be a conseiller juridique, the Belgian

authorities insisted upon obtaining the prior authoris-

ation of the Irish authorities before he could open an

office, which is under the disciplinary control of the

local Brussels Bar.

The Reyners case decided that Article 52 was directly

applicable to Member States. In other words, national

regulations relating to the professions which are too

onerous are no longer enforceable. Undoubtedly the

co-ordination of legal education will take place more

rapidly than is anticipated. Mr. Osborne said he did

not think many Irish legal practitioners would wish to

practise in Europe. However it was up to each pro-

fession to look after its own interests. Mr. Fitzgerald

mentioned that there were various academic courses

in European Law available. On the whole, there had

not been much progress with lawyers in regard to the

problem of freedom of establishment. However any

university law teachers who had a right of audience

in their national Courts would be heard in the Euro-

pean Court.

In answer to a question whether the Government

concerned would nominate all professional members

to discuss directives,

Mr. Bath

stated that in general

there was no indication as to how such members would

be nominated. All nominations on an advisory level

would be made by the National Government, but many

nominations will come directly from the professions in

the Member States; it would be for the Council of

Ministers to make the appointments.

In Belgium, there were many Bars in different pro-

vincial centres, and it was possible to set oneself up

as a legal adviser without legal qualifications, provided

one did not attempt to practise in the Courts. Mr.

Bath also pointed out that in the case of Van

Duyn

v. Home Office (The Times, 5th December, 1974), the

European Court, although affirming the freedom of

religious practice, had found the tenets of Scientology

as a religion objectionable, and consequently the Home

Office were justified in refusing to allow the plaintiff

to live in England. Mr. Fitzgerald pointed out that the

tenets of Scientology contravened the restrictions on

public order.

Mr. Brendan McGrath,

a former President of the

Society ,suggested that we were concentrating too much

on the right of access and establishment, and on Com-

munity Law in general, instead of studying the prin-

ciples of private commercial International Law in the

European Countries. It was essential to be in a position

to solve problems of the business community rapidly.

He personally had to decide on the validity of a con-

tract worth £2£ million without having an opportunity

of referring to books. It is also essential to determine,

in the case of a contract under private international

law, which law is the most advantageous to be applied

in the particular case.

Mr. Dermot Devine

stated that the Commission had

devised two Conventions (1) A Convention relating to

Judgments signed by the six original Member States,

(2) A Convention on Private International Law which

was never ratified. At the Convention of the Ministers

of Justice in Brussels in November, 1974, Britain was

alone in objecting to signing it.

Mr. Bath,

in reply to a question, stated that regul-

ations concerning engineers were of a double dimen-

sional complexity. It would not be possible at this stage

to evolve a regulation for the engineers profession. In

relation to any regulation, the Council of Ministers

was entitled to consult the European Parliament as well

as the Economic and Social Council. The dossier for

the architects' profession had for instance undergone

many changes through the years.

Mr. Roger Hussey,

President of the Institute of Char-

tered Accountants, presided at the next lecture, which

was delivered by

Mr. Dermot Devine,

a Director in

the

Competition Section of the Commission in Brussels. It

was emphasised that one of the main objectives of the

Treaty of Rome was the promotion of mobility of

persons. In pursuance of the idea of a characteristic

economic non-wage earning activity, the principle of

establishment must be continuous or recurrent. Never-

theless a free offer of services must not be connected

with public authority. A right had been established,

not to be discriminated against on the basis of nation-

ality. This right was confirmed by the

Reyners

and

Binsbergen

cases. While an Irish pharmacist who wishes

to establish himself in France as a pharmacist must

conform in all respects with the French regulations,

nevertheless all nationals of each Member State have

a right of establishment in another Member State.

With regard to establishment, a distinction must be

made between (1) regulated and (2) unregulated econ-

omic activities. Unregulated economic activities com-

prise wholesale and retail, whereas strict qualifications

are laid down in the case of regulated economic activ-

ities. Any discrimination relating to nationality has now

disappeared in dealings with unregulated economic

activities.

It is important to realise that one cannot claim a

right of establishment

per

se but that in every case

national qualifications are also essential. However the

more ambitious the co-ordination, the greater the

mobility. Less ambitious projects are easier to achieve,

as they promote lesser mobility, which can, if need be,

be amplified.

In relation to the professions, the term "ambitious"

would include a mutual recognition of qualifications

and a guarantee of minimum standards. The term

"less ambitious" would apply to qualifications topped

by practical experience. The period would in any event