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SUGG SEMINAR on E.E.G. LAW—OCTOBER 1974
THE E.E.C. AND THE ORDINARY SOLICITOR—SOME RELEVANT CASES
By
JOHN F. BUCKLEY, Solicitor
P a r t
I
Very few of us have come to terms with the fact
that Ireland is now a member of the Community in so
far as our legal prac'ices arc concerned. We have from
time to time made efforts, greater or lesser, to try to get
some insight into the operations of the Community and
how it may affect our Clients and ourselves. When I
say that I believe that these efforts have largely failed
I do not intend this as a criticism cither of ourselves,
in that our efforts may not have been as wholehearted
as some might wish, or as a criticism of those who have
endeavoured to enligh'en us by allowing us to share
in the fruits of their experience and researches. There
have been a number of reasons why we have not suc-
ceeded in coming to terms with the law and prnc'ive
of the E.E.C. and there is no doubt that language has
been a major stumbling block. Not many of us have the
level of competencc in any of the languages of the
original Community to have become familiar with the
jurisprudence of the Community, and even fewer of
us will have kept in touch with the sort of practitioners
guide to the law that we are apt to use in our own
jurisdiction. As the approach of E.E.C. membership
drew nigh we endeavoured to acquire some basic
knowledge of the Community and its workings and a
number of seminars and other meetings were held, all
of which did give us some reasonable appreciation of
the operation of the Community. Unfortunately we
have been relying on a limited number of academic
writers and the occasional visi'ing foreign Lawyer to
point ourselves in the right direction. I think
it is fair comment to say that in spite of the erudition
and experience of these people most of us still feel that
the legal aspects of the Community are not such as
are likely to concern us in our ordinary practice.
I believe that this impression is quite a wrong one
and I would offer 'he view that in this country at any
rate it may very well be that there will be as much
opportunity from the ordinary local Solici'or to become
involved in European law as it will be for the large
Dublin office. I have therefore chosen not to deal in
f n abstract way with he operation of the European
Court, or its relationship with National Cour!s, hut
to go through the Case Law of :he Courts, both Com-
munity and National, giving examples from various
aspects of he legal system of the Community to show
that not all he cases are concerned with the great con-
centrations of economic power and that there is a
possibility, perhaps even a likelihood, that the average
Irish city or country Practitioner may become involved
in the field of European Law.
The EEC essentially a legal structure
The first illusion I want to shat'er is that European
Law is something that is practised in a Court in
Luxembourg. It is nothing of he kind, it is law that is
practised in all the Courts of the Member States of 'he
Community from the level of our District Court up-
wards. Indeed I shall be mentioning a number of
eases later on which firs: saw the light of day in the
equivalent of our Distric* Court. Because most
of what we have heard so far about the Com-
munity has been to emphasise the purely economic
«-.spec's of it, you will be surprised to find that the area
covered by E.E.C. Law is wide indeed, ranging from
a decision as to what constitutes a sausage and whether
an Italian widow is entitled to the benefit of reductions
on French railways for families with numerous child-
ren, wi'h a recent excursion into the world of inter-
national cycle racing. It has frequently been stressed
that the E.E.C. is essentially a legal struc'ure. In its
early days emphasis was placed on the fact that :hc
administration and operation of the Community was
carried out by means of legally enforceable instru-
ments, principally regulations, directives and decisions,
all of which had to a greater or lesser extent the bind-
ing force of law in the Community. The considerable
volume of case law which has now emerged in the
Community Courts and the Courts of the various Mem-
ber Stales have made this emphasis on the legal struct-
ure even more obvious. Cases have now arisen on al-
most all of the important aspects of the Treaty and
'here have been numerous decisions on the interpre-
tation of Regulations on the force of Directives and
appeals against decisions of the Community.
In dealing with :he present topic I propose to go
through the various parts of the treaty commenting
on the opera'ion of parts .hereof by reference, largely
to cases which have arisen, but it is necessary to offer
a few introductory words to set 'he operation of the
Treaty in context. It is important to recall that the
main purpose of the Treaty is economic, the aim being
to create one big market area by primarily abolishing
customs barriers and quanti alive restrictions; Secondly
by the abolition of restrictions which cffect trading itself,
such as the free movement and establishment of pcr-
sons in the Communi y or the provision of services across
the borders; finally the elimination of distortions of trade
which involves control of monopolies, restrictive trade
practices, and finally co-ordination of policies in the
held of agriculture, commerce, finance, taxation, social
legislation and paten's and trademarks. You will see
therefore that what is defined as economic does in
fact spread a rather wider net than what one might
otherwise expect.
The first seven articles of the treaty contain the
general principles on which the Community is based
and only one of them, namely article 7 appears to
provide any ground on which a case might be brought,
in providing that, within the scope of application of
the treaty, rnv discrimination on grounds of nationality
shall be prohibited, the possibility of proceedings whore