The Gazette 1974

1973—to bring into effect. The Second Convention on

mutual recognition of Companies has been ratified by

5 out of the original 6 Member States. So far this

process has taken 15 years, and it is not anticipated

that this Convention will come into force soon. The

Copenhagen Summit Meeting of 1973 has encouraged

the procedure under Article 235, instead of relying on

Conventions. The position furthermore is that, when

any international Convention is presented before a

'National Parliament', then that Parliament can either

ratify the Convention or decline to ratify it, but it

cannot change it in any way. There is, on the other

hand, plenty of discussion undertaken, when the Com-

mission introduces Regulations, and the advice of the

European Parliament undoubtedly influences Com-

munity legislation.

Most of the lobbying before the Commission, as

Dr.

Schwartz

pointed out, is carried out by Banks, In-

surance Companies, Employers and Tr ade Unions

(whether Christian or Socialist) who group themselves

in European associations. Many visitors from different

organisations in the new Member States have come to

the Commission in Brussels, and have been received by

the relevant official experts, who are always willing to

give the necessary information. Unfortunately for law-

yers, there is no European Lawyers Organisation re-

presenting them at European level, and lobbying can

only be effective if such a body existed.

Mr. Temple

Lang

stressed that there would henceforth be a Euro-

pean impetus to reform Company, Law and that the

distinction between public companies and private com-

panies, so beloved by Briti

h and Irish lawyers, would

gradually tend to disappear in practice as soon Irish

Private Companies will have to publish some form of

Accounts.

Mr. Mac Liam,

of the Department of In-

dustry & Commerce deprecated the remarks about

secret legislation. He said that the Restrictive Practices

(Groceries) Act 1973 had arisen as a result of a

lengthy public inquiry before the Fair Tr ade Commis-

sion followed by a lengthy report. As regards Insur-

ance, a wide and representative Committee would re-

port upon the problem soon. There will also be an

uninhibited Report on Consumers Protection which

has been financed by the Minister. An informal Com-

mittee of experts advises the Minister on Company

Law reform, and organisations can make suitable rep-

resentations at all times.

CREATING A COMMON MARKET FOR

COMPANIES

Ty Dr. Ivo E. Schwartz, LLM.

A lecture entitled "Creating a Common Market for

Companies" was delivered by Dr. Ivo E. Schwartz,

LL.M., Director for Approximation of Laws : Compa-

nies and Firms, Public Contracts, Intellectual Property,

Fair Competition, General Matters, Commission of the

European Communities, Brussels, at Wexford on 9th

Ma r ch 1974.

Part I

The European Commission has initiated or is elabor-

ating proposals to approximate national laws covering

many aspects of the activities of commercial enterprises

in the Common Market. Its programme ranges from

customs matters, exchange controls, technical standards

and safety requirements, food and veterinary laws to

taxation, banking, insurance, company law, and profes-

sional standards. The Communities' legislator, the

Council of Ministers, has before it a volume of propos*

als for approximation of national laws far

e x c e e d i ng

the usual workload of a national parliament. High °

its list of priorities are several proposals concerning

company law. The Commission's programme of com*

pany law approximation has attracted comments an"

criticism at every level, particularly from the three ne^

Member States. Such a reaction is quite understandably

The programme and the proposals have been drafts"

by the former Commission without benefiting from th

participation of experts from the new Member States-

Because these draft directives were intended to bring

the national laws of the Six into closer alignment, it was

only natural that they should reflect the traditions an"

aspirations of these countries. It is equally obvious that

the accession of countries with a somewhat different

tradition of law and practice should pose difficulties-

It should be made clear from the beginning, that, not

only the Commission, but also its staff, realise it woul"

be unfair, unwise and not realistic to press proposals

formulated in view of the Six without benefiting from

the fullest possible discussion of these proposals with

all interested circles from the three new members.

There is still very little known in Ireland about th

law making process of the Community and on its pr°"

gramme and proposals concerning Company Law. An"

the Commission's staff have still very much to learn o"

Danish, British and Irish law and practice. In thi*

effort, we feel privileged to be now assisted by very abl

colleagues from your country. Lack of mutual info*'

mation is probably the most important reason for most

misunderstandings on both sides. It is interesting to note

that most of the problems raised at the moment i"

relation to Company Law are problems the Commission

discussed already with the original Member States at the

beginning of approximation in the early sixties. Th

problems are :

—why is it necessary to approximate company laws,

—which problems should be dealt with first, and

—how far should approximation go, in other word*

how detailed and how rigid should a directive be»

and whether or not it should merely contain comm

minimum rules or fixed rules to be incorporated in

the nine national legislations.

Fundamental differences between Civil and Commo

Law

Let us first comment briefly on one objection

principle directed against our effort to approximat

company lav/. The argument is the following: Th

British and Irish legal systems differ fundamentally

from the systems of most other Member States. This dift'

erence is of real significance in the field of company la^:

Irish and British Company Acts do govern the life

companies only in part and in response to experien"

under the Common Law which continues to regula

many aspects of company law.

My answer to this is that such a situation seems n"

to be peculiar to Britain and Eire. In all other Memb

States, too, Company Law does not regulate all the leg

problems of companies. There is an extensive body

case law on companies in the other Member States, to"'

A comparison of British and Irish Company Acts wi"

Continental Acts shows that the former has p r a c t i c al

the same contents as the latter, even where the soluti"

retained for a particular problem may be different-

Moreover, it can be said that the questions covered b)

178