386 / 406
GAZETTE
JULY/AUGUST
1985
capital allowances under the provisions of
Section 241 of the Income Tax Act, 1967,
and Section 26 of the Finance Act, 1971, in
respect of law reports and other legal
textbooks purchased by him in the three
years ended 5 April, 1979, and used by him
for the purposes of his profession as a
barrister.
The taxpayer had, for a number of
years, practised as a barrister both in the
Law Library and at his residence. He had
purchased for the purpose of carrying on
his profession certain books which
consisted mainly of a complete set of Irish
and English Law Reports. The books
were housed at his private residence and
were used continuously by him in
connection with his practice as a
barrister.
It was contended on behalf of the
taxpayer that the books were plant which
qualified for wear and tear allowance
under the provisions of the aforemen-
tioned legislation.
At the Appeal Hearing the Appeal
Commissioners held in favour of the
taxpayer.
HELD in the High Court that the
Appeal Commissioners were entitled to
find as they did, the circumstances of a
barrister's profession being such that his
law library, which consists of chattels
kept for use in the carrying on of his
profession, must be regarded as plant.
S.K. Breathnach (Inspector of Taxes),
Appellant
-v-
Thomas
McCann,
Respondent - [1984] ILRM 679.
RECENT EUROPEAN CASES
TIME LIMIT — NON AVAILABILITY
OF LAWYER — FORCE MAJEURE
In Italy during the holiday month of August
business in the Bars comes to a halt as does
that of undertakings. A decision of the
Commission was notified to the Applicant
by registered letter received 21 July 1983.
The Applicant had one month from date of
receipt of the letter within which to
commence an action but did not do so. The
applicant claimed it had been prevented
from applying, within the time allowed, by
Force Majeure.
The Court HELD that:—
1. Strict application of the community
provisions regarding procedural time
limits is necessary to ensure legal
certainty and avoid discrimination or
arbitratory treatment in the adminis-
tration of Justice. It is only when the
party concerned established existence
of an act of God or a case of
Force
Majeure
that no objection based on
expiry of a time limit could be raised.
2. Consistant with previous decisions of
the Court the Court held that the
concept of
Force Majeure
relates
essentially to outside circumstances
making it impossible to take the action
in question. Impossibility is not a
requirement but there should be
abnormal difficulties outside the
control of the person concerned even
if all necessary diligence was exercised.
Force Majeure
did not arise where a
diligent and well advised person
would objectively have been in a
position to lodge an application
before expiry of the time limit.
3. In this case the applicant did not
exercise the necessary diligence as it
had had a period of 10 days before the
summer holidays began in order to
contact its usual lawyer or find a
lawyer sufficiently well qualified to
defend it.
Ferriera Valsabbia S.p.A.
-v-
EEC
Commission Court of Justice
— case
209/83 — July, 1984.
John Moloney
LAWYERS RIGHT OF ESTABLISH-
MENT UNDER TREATY OF ROME
Otto Klopp, a German national and a
Rechtsanwalt of the Dusseldorf Bar
applied to be registered as a member of the
Paris Bar while retaining his residence and
chambers in Dusseldorf. His application
was rejected on the ground that Article 83
of Decree No. 72-468 and Article 1 of the
Internal Rules of the Paris Bar prohibited
an Avocat from having chambers in more
than one area of the territorial jurisdiction
of a Tribunal de Grande Instance.
The Court HELD that:—
1. Article 52, first paragraph, of the
Treaty of Rome required the abolition
of restrictions on the freedom of
establishment.
2. No Directive regarding freedom of
establishment for the legal profession
had been adopted under Articles 54
and 57 but, in accordance with the
Reyners
case of 21/6/1974 the fact
could not be invoked to defeat the
obligation under Article 52.
3. While the French rule of Unicite de
Cabinet might apply to an entire
national territory it did not imply that
the legislation of a member state may
require a lawyer to maintain chambers
within only one area of the whole
territory of the Community. Such an
interpretation, once established,
would entail the result that a lawyer
once established in a specific member
state could no longer seek to rely upon
the freedoms guaranteed by the Treaty
in order to establish himself in another
member state unless he abandoned his
existing chambers.
4. It is apparent from the terms of Article
52 that the right of establishment
carried with it the right to establish
and maintain in compliance with the
rules of professional conduct more
than one centre of activity within the
territory of the Community and that
general principle also applied to the
liberal professions.
The Court went on to answer the
question submitted by the French Cour
de Cassation by saying that even in the
absence of a Directive relating to access
to the exercise of the legal profession,
Article 52 and the following Articles of
the Treaty of Rome prevent competent
authorities from denying to a national of
another member state the right to enter
and exercise the legal profession solely on
the ground that he simultaneously
maintains chambers in another member
state.
Paris Bar
-v-
Klopp - Court of Justice -
case 107/83 - July. 1984.
John Moloney
xiv