The Gazette 1995

GAZETTEAUGUST/SEPTEMBER1995

j Establishment of a Business

| A solicitor can assist a national of

another EU Member State who is trying

to establish a business in Ireland but is

prevented from doing by virtue of some

impediment placed upon him or her by

the Irish authorities.

| Availing of Foreign Services

| A solicitor can assist someone in

I Ireland who wants to avails of services

which are available from abroad more

cheaply or because they are simply not

available in Ireland.

Free Movement of Capital

j It is well-known that EU law protects

the free movement of capital and,

j from time to time, Irish solicitors and

courts have had to deal with the EC

law aspects of free movement of

capital.

Anti-Competitive Arrangements

Arrangements between undertakings

which prevent, restrict or distort

competition in the c ommon market or

any part o f i h e c ommon market are

prohibited" and void

unless

exempted by the European

Commission.

This rule, embodied in

Article 85 of the EC Treaty,

perhaps one o f the two most useful

provisions of the EC Treaty for

i solicitors in practice. It is often a very

good defence mechanism in that it

sometimes allows parties to extricate

themselves from contracts by virtue of

the fact that the contracts are legally

void and unenforcable.

Abuse of Dominance

! Any abuse of dominance by one or

| more undertakings having a dominant

position in the c ommon market or a

substantial part o f the common market

is prohibited and no exemption can be

obtained from the European

| Commission. This rule, embodied in

i Article 86 of the EC Treaty,

is the

| second of perhaps the two most useful

: provisions of the EC Treaty for

solicitors in practice. It is often a very

useful way for smaller Irish

| companies to combat the abusive

conduct of larger and more powerful

foreign undertakings - various Irish

examples include

B&l

Line/Stena

Sealink (Holyhead), Irish Continental

Group/CCI de Morlaix (Port of

Roscoff)28 and London European

Airways/SABENA.

Public Undertakings

Article 9 0 of the EC Treaty tries to

ensure that undertakings which are

publicly-owned regulated or

privileged do not evade the EC rules

on competition. Article 9 0 o f the EC

Treaty is aimed at controlling the

behaviour o f public undertakings and

undertakings to which Memb er States

grant special or exclusive rights.

State Aid

Articles 9 2 to 9 4 of the EC Treaty

relate to State aids. State aids are

advantages (such as subsidies, tax

breaks and soft loans) conferred by a

Memb er State on undertakings.

Article 9 2 prohibits, as a general rule,

State aids that distort competition but

goes on to specify those aids that will

or may be compatible with the

common market. Article 93 provides

that the European Commission will

supervise State aids. Article 9 4

provides for the Council of Ministers

to adopt appropriate regulations for

the application of Articles 9 2 and 9 3.

Employee Discrimination

If a worker in Ireland is being

discriminated against in terms of pay

on the basis o f gender then clearly an

Irish solicitor can assist the worker to

avail of the protection of Article 119

of the EC Treaty and the growing

jurisprudence of the European Courts

in this area.

Preliminary References

The "preliminary reference"

procedure under Article 177 o f the EC

Treaty is an important part of the

practice of an Irish solicitor involved

in EC law in Ireland.

Litigation

The Judgments Convention can

facilitate the institution and

prosecution of civil litigation where

i there are different jurisdictions

involved.

The Euro-Defence is a much

; undervalued weapon in the armoury of

| a litigation solicitor. It is very useful

; to be able to say to the plaintiff in a

j contract dispute "but your contract is

! void under Article 8 5 ( 2) - you have

no case."

| Employee Protection

| It is still commonplace for Irish

| solicitors to be consulted by workers

who have lost their j o b s because their

! employer has been acquired,

i Solicitors can provide practical

I assistance in terms of the application

o f the Acquired Rights Directive.

| Public Procurement

Public procurement is the body of EC

law which restricts the freedom of

public bodies to award contracts.

There is always a fear that public

! authorities will tend to place contracts

with national suppliers where

possible. There is an entire code of

law, embodied primarily in Directives,

which regulates the whole area of

| public procurement in such areas as

public works and public services.

S ome Irish solicitors seem to be

largely unaware of this area and this is

i somewhat surprising. Every solicitor

I now has an opportunity to assist

clients who lose or fail to win public

j contracts by virtue o f these rules. For

| example, if a company fails to win a

contract then the process can be upset

| and the loser may be able to obtain

damages by virtue o f a breach of the

public procurement code. Similarly,

I an undertaking competing in a market

I can seek to obtain more 'public'

! business by virtue o f seeking to upset

the current purchasing practice of a

public customer. Examples such as

| Dundalk/Wavin Pipes

demonstrate

the importance of EU public

! procurement law in practice in

| Ireland.

Recognition of Foreign

Qualifications

; Many Irish students are studying at

universities abroad and inevitably

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