The Gazette 1995

GAZETTE

NOVEMBER 1995

European Union Law and

Irish Solicitors

by Vincent Power*

Part II

Irish solicitors practising

! before the European Court of

Justice

Irish solicitors can appear before the

' European Courts.

Few have availed

| of the right to appear before the

Courts. Yet, what is stopping solicitors

| from doing so?

In many ways, appearing before the

European Courts will be far less

important for Irish solicitors than

knowing what the Courts have decided

so that the law can be applied in

practice.

Solicitors in practice invoke the

jurisprudence of the European Courts

on a daily basis in advising their

clients. I know from my own practice

that one often has regard to the

jurisprudence of the European Courts

without ever needing to have recourse

to the courts.

It is a widespread misconception

| among many solicitors, even after 22

years, that one has to go to the

European Court of Justice to strike

down an Irish law on the basis that it is

breach.of

EU law. It is a pity that all

solicitors do not appreciate that they

can utilise the Irish courts or,

sometimes more importantly, bring the

case to the attention of the European

Commission which can often give a

more expeditious and effective

remedy.

How can Irish solicitors avail

of the opportunities? What are

the practice resources and

marketing tools required?

Why is it that many Irish solicitors do

not avail of these opportunities?

part, there are a number of self-

imposed impediments which are

difficult to overcome and in part, the

obstacles are not so easily removed.

Irish solicitors should play to their

strengths.

There is a tendency for solicitors in

Britain and Ireland to focus on their

home market and by "home market"

they often mean the city, town or

village in which they live. Irish

lawyers should see themselves as

being in the export/import business.

Irish-based lawyers can market their

services internationally and avail of the

opportunities afforded by EU law - to

a client in Chicago it matters not

whether you are in Achill or Athens.

EU law suits the Irish legal training. It

has been difficult for English lawyers

to contemplate that legislation enacted

by the sovereign Parliament in

Westminster could be overridden by

EU law

- however, the Irish lawyer

has little difficulty in understanding

and appreciating that legislation

enacted by the Oireachtas can be

overridden by the Constitution.

European Union law is not new to Irish

lawyers. In fact, Ireland has been a

member for the last 22 years and

therefore has a very good headstart on

States as diverse as Finland, Austria,

Sweden as well as the Associated

States which may one day join the EU.

S ome Irish-based clients are importing

their legal services, particularly in the

area of EU law, from abroad. They

believe that a service provided by a

Brussels-based firm or a London-based

firm must always be better than an

Irish-based service. This is probably a

relic of a post-colonial attitude rather

than the result of any serious

evaluation of the services which can be

offered by some Irish-based lawyers.

However, Irish-based lawyers must do

as much as possible to dispel such

notions.

It is imperative for all solicitors to

recognise that EU law is not some

specialist doctrine which only arises in

particular circumstances and can be

left in a cupboard to be brought out on

special occasions. EU law is not a

Victorian child. It has been written that

" a common misapprehension among

lawyers in the United Kingdom is that

European Community law is a set of

regulations which apply only in certain

areas of specialised practice, like

competition law and international

! trade."

The same could be said about

Irish lawyers. Many Irish solicitors

believe that an essential prerequisite

for the application of EU law is that

there must be a foreigner involved in

the case. We have been reared on far-

fetched scenarios of an Irish person

driving a German car with defective

brakes (made in Spain) crashing into

an Italian driver in a Swedish car on

the Franco-Belgian border when a

Dutch cyclist on a British bicycle

pulled out in front of the Irish driver to

avoid a Danish motorcyclist wearing

an Austrian helmet whose brakepads

(made in Portugal) are defective.

S o many EU law cases involve

nationals of only one Member State.

Emmet, Fracovich, SPUC

and so on all

involved nationals of one Member

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