The Gazette 1995

264 / 424

GAZETTE
Most clients are blissfully unaware of
areas such as competition law, public
procurement, employee rights and
so on.
Fourthly, an understanding of EU law
generally and the practice o f the
European Courts particularly is
imperative even to understand some
| areas o f Irish national or municipal
I law. An obvious example is that it is
i impossible to adequately advise on
Ireland's Competition Act, 19918
without understanding the underlying
EC competition law rules:
notifications to the Irish Competition
Authority require citation of the
judgments of the European Courts
while the Competition Authority itself
cites EC precedents in its own
Decisions. Another example is
environmental law where it is
impossible to understand some o f the
recent Irish legislation on the
environment without appreciating the
purpose and effect o f the underlying
EC Directives and the judgments of
the European Courts. Indeed, the
judgment of the European Court of
Justice in Marleasing v La Comercial9
means that it is not possible to review
national implementing legislation
without regard to the underlying
EC Directive.
Fifthly, the jurisprudence and practice
o f European Courts sometimes present
an opportunity to circumvent the rules
o f national law in such matters as
procedural time-limits.10 EU law also
provides compensation in some
circumstances for breaches o f EU
competition l aw ." The European
I Courts can provide another court
j of appeal. 12
| Finally, there is the small matter of
fees which can be earned from the
j application by Irish solicitors o f the
| jurisprudence of the European Courts,
j S ome solicitors have carved out
niches within their own practices in
such areas as the EC law relating to
milk quotas, social welfare and
fisheries law. Other solicitors have
occasionally had a particular case
which has led to a "baptism of fire"
i but often an abiding love o f the
subject lingers for many years after
the case is over. However, the whole
area o f EU law is still a largely
unfilled field for Irish lawyers. In the
case o f EU law, there is not only a
niche in the market but there is also a
market in the niche.
How can Irish Solicitors
utilise the Practice and
! Jurisprudence of the
European Courts?
Thijmen Koopmans, a former judge of
the European Court o f Justice, has
written that " one might say that the
[European Court o f Justice] is the
European lawyers' hobbyhorse. . . It
would indeed be difficult to discuss
any important area o f Community law
without referring to the Court's
contribution to its development."13 It
I can also be said that it would be
impossible to practise as a
solicitor advising on EU law
! without having regard to the practice
and jurisprudence of the European
Courts.
j In practice, Irish solicitors do not have
j adequate access to the European
Court Reports or the Common Market
| Law Reports. There are very few
subscriptions in Ireland to these
| periodicals. There are very few court
libraries around the country with a
stock o f these law reports. Greater
efforts need to be made by all
concerned to ensure greater access to
such materials by the establishment of
regional libraries and there is a need
for some Universities to open the
European Documentation Centres
to solicitors.
[
It is clear that not every member of
I either branch o f the Irish legal
j profession has availed sufficiently of
the opportunities which are presented
i by EU law. There are very few legal
j practitioners (of either branch) who
specialise in the area. Ye t, there is no
shortage o f opportunities presenting
themselves because there are
| developments in European law on a
i daily basis and there are few areas of
| the law which change as rapidly and
as dramatically as F U law.
The practice o f the European Courts is
o f interest to solicitors other than the
commercial or the litigation solicitor.
The private client solicitor or the
criminal law solicitor14 can avail o f the
jurisprudence of the European Courts.
It is important to realise at the outset
that EU law is often "ma s k e d" as Irish
law. This is often the case because a
Directive has been implemented by
way o f a Statutory Instrument or a
Statute and people rely on the
Statute or Statutory Instrument alone.
It is surprising how few lawyers
realise how such a Statute or
Statutory Instrument ought to be
interpreted in the light of the
underlying Directive. Cases such as
Marleasing15 seem to be almost
unknown to many lawyers.
It is useful to reflect on how a
solicitor practising in Ireland c omes
across EU law in practice.
Discrimination
If an F U national is discriminated in
regard to some matter covered by the
EU Treaty then an Irish solicitor can
clearly assist that client to remedy
the wrong.16
Trade in Goods
Provisions such as Articles 3 0 and 3 4
of the EC Treaty arise quite frequently
in practice. This is particularly so in
terms o f advising manufacturers who
want to export to other Memb er States
as well as to domestic sellers who
want to challenge the importation of
goods from abroad on the basis that
the goods ought not to benefit from
the provisions on free movement of
goods (for example, because of
Article 36).
Employment
A solicitor can assist a national of
; another EU Memb er State who is
j trying to take-up employment in
i Ireland but is prevented from doing so
by virtue o f some impediment placed
upon him or her by the Irish
authorities.17 If an Irish worker wants
to work in another EU Memb er State
then the worker must be provided with
j an Irish passport or any other
I appropriate documentation.18 If a
worker from another EU Memb er
| State c omes to Ireland then s/he is
entitled to reside here.19
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