The Gazette 1995

GAZETTE

AUGUST/SEPTEMBER 1995

European Union Law

and Irish Solicitors

by Vincent Power*

Introduction

; The aim of this article is to discuss the

practice o f European Union

law by

solicitors in Ireland. The article

examines the practice of the European

Courts

as it relates to Irish solicitors

but also takes a much broader view to

; discuss the practice of EU law

generally by solicitors in Ireland,

The practice of the European

Courts

appears

to play a very small

part in the daily lives of Irish

solicitors in terms o f the number of

solicitors who practise before those

courts. Nonetheless it is clear

! that the jurisprudence of the

European Courts is" applied every day

by Irish solicitors in advising

| their clients.

It is difficult to discuss the general

topic of solicitors practising EU law

in Ireland. It would be easier to

discuss a particular case o f a discrete

area o f the law but instead one is

faced with the more difficult task of

presenting the "big picture". Yet, by

j looking at the "big picture" one

I occasionally finds interesting

details which would otherwise go

I unnoticed. Inevitably, an article

such as this contains personal views

which may not be shared by

everybody but which can give rise

to some discussion and debate

afterwards.

It is useful to start with a sobering

statistic. There are probably no

more than ten solicitors in private

: practice in Ireland who derive

! all or most o f their fee income

from the practice of EU law.

This is after 22 years o f membership

o f the European Community and

despite the fact that virtually all

solicitors who have qualified in

the last decade or so have been

exposed to EU law in one form or

another.

Why should Irish Solicitors be

concerned with EU Law?

If there are not more than ten

solicitors practising EU law on a full-

time basis in Ireland then is it the case

that solicitors have no need to worry

about EU law? Why should solicitors

be worried at all about what happens

in the European Courts? Are there not,

in relative terms, only a very small

number o f cases before the European

Courts anyway which are of direct

Irish interest each year?

Vincent

Power

While there maybe only a small

number of solicitors in Ireland who

practice full-time in the area, there is

no doubt that EU law is relevant to

all

4 , 1 8 0 solicitors with practising

certificates in Ireland.

The first and most basic reason why

all solicitors need to be concerned

about EU law relates to professional

negligence. Failure to address an EU

law aspect o f a case may well result in

a suit for negligence. T o take three

examples: first, advice given on an

! exclusive distribution agreement

which fails to incorporate the relevant

rules o f EC competition law on such

agreements would give rise to a suit in

negligence: secondly, failure to advise

a public authority on the EU public

procurement rules could also give rise

to a negligence action: and, thirdly, a

failure to advise a client on the

application of an EC Directive could

also be negligent.

Secondly, and more importantly, one

can help people by invoking EU law.

The recent social welfare cases

admirably demonstrate the value of

EU law to

individuals

Advice on

rights o f residence can assist EU

nationals who wish to settle in other

Memb er States.

It is well-known that

people are beginning to retire to

Ireland from other parts of the EU so

Irish solicitors may be called upon to

give advice to these people on their

entitlements under EU pension law

and EU social security law.

Thirdly, clients demand and deserve

assistance in the area of EU law. Irish

solicitors must do more to explain and

educate their clients about the

implications of EU law. A significant

part o f the legal profession's service

to society is to inform the public about

the implications of EU law. Instead,

some Irish clients by-pass Irish

solicitors to go to lawyers abroad

because they do not know that a

competent service can often be

provided by Irish solicitors or they

believe that a foreigner must be able

to provide a better service - it is

noteworthy that using a foreign

lawyer does not always guarantee a

greater chance of success than using

Irish lawyers. Similarly, many clients

do not appreciate their rights under

EU law and wrongs often go

unremedied.

It is important that Irish

solicitors assist their clients in

conducting an EU legal audit of their

businesses. Such an audit can include

an assessment of the client's

competition law practices, marking

and labelling procedures, pension

schemes, employment rules and so on.

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