The Gazette 1983

GAZETTE

MARCH 1983

European Community Law,

Irish Law and the Irish Legal

Profession

(Extract from Second Frances E. Moran Memorial Lecture.)

John Temple Lang

Implications for the Legal Profession

I do not think that the fact that Community law has

many and important implications for Irish law has been

adequately realised by Irish lawyers in general.

I base this opinion on the subjective impressions of a

number of people, and also in the ten years since January

1973 the fact that, compared with other Member States of

die Community, there have been in Ireland, relatively:

— few complaints to the Commission from Irish

companies about technical barriers to trade;

— few cases referred to the Court of Justice from Irish

courts;

— few restrictive agreements notified to the Commission

by Irish companies;

— few cases in which points of Community law have

arisen before Irish courts (see Murphy, Community

law in Irish Courts 1973-81, 1982 European Law

Review 331);

— few lectures and conferences on Community law

subjects held in Ireland;

— few Irish lawyers who have attended advanced courses

on Community law outside Ireland;

— few articles and notes on questions of Community law

in the Gazette of the Incorporated Law Society;

— few Irish firms of solicitors supplying their clients on a

regular basis with information on developments in

Community law;

— and Irish legal textbooks written since 1973 have

devoted relatively little space to issues of Community

law.

Why has the influence of Community law in Ireland,

direct indirect, not been more widely understood?

There are several reasons.

— Community measures causing reforms usually are

directives, and Irish lawyers are not always aware that

the Irish implementing legislation is based on

Community principles;

— some of the implementing legislation which should

have been enacted e.g. to give effect to certain

company law directives, has not been enacted when it

should have been;

Irish lawyers have accepted Community law very

easily and in a very matter-of-fact way. They have

almost taken it for granted. Practitioners preparing

themselves to plead in Luxembourg have been

disconcerted by how readily and simply Irish judges

decided to refer questions of Community law to

Luxembourg — in particular as there is still nothing in

the Irish Rules of Court on the subject (the power given

by the European Communities (Rules of Court)

Regulations 1972 has not been exercised);

— some of the Irish civil servants working on EEC legal

matters are not lawyers, and they sometimes tend to

underestimate the importance ofthe changes which are

being considered, and do not always consult profes-

sional bodies about them adequately or in an

appropriate way;

— there is no CELEX facility (computerised information

retrieval system on Community law) in Ireland;

— although Ireland has standing to intervene in

every case before the Court of Justice, and the

Attorney General's Office automatically receives the

papers in every case under Article 177, Ireland has

seldom intervened. Indeed, as far as I have been able to

discover, Ireland has intervened at the oral stage in

only ten cases. This has meant that few Irish lawyers

are required to appear in Luxembourg, and therefore to

inform themselves about the latest cases on

Community law;

— neither House of the Oireachtas has ever adequately

discussed the reports and recommendations of the

Oireachtas Joint Committee on the secondary

legislation of the European Communities. (Indeed

between the 1981 and the first 1982 elections, no such

committee was in operation);

— in my opinion, Irish lawyers are too busy trying to

operate an inefficient legal system to have the time to

inform themselves adequately about new developments

however important;

— Irish bodies such as the Incorporated Law Society

have not given as much detailed consideration to draft

Community legislation as similar bodies in other

countries. As a result, the implications of Community

measures have not been as fully discussed and are not

as clearly seen in Ireland as they are elsewhere;

— the Irish Reports have not reported any of the twenty

Irish court cases in which points of Community law

have arisen during the years 1973-1981.

Economic consequences for the legal profession

The practice of Community law has certain economic

implications for the Irish legal profession.

Both Irish barristers and solicitors are now directly

faced with competition for clients, in Community law