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Trinity College Dublin
Should Irish lawyers be worried at all about what happens in the European courts and in European law generally? Are there not, in relative terms, very few cases before the European courts which are of direct Irish interest each year?
The first and most basic reason why all lawyers need to be concerned about EU law relates to professional negligence. Failure to address an EU law aspect of a case may well result in a suit for negligence. To take three examples: first, advice given on an exclusive distribution agreement which fails to incorporate the relevant rules of 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 social welfare cases admirably demonstrate the value of EU law to individuals. Advice on rights of residence can assist EU nationals who wish to settle in other Member States. People have been migrating to Ireland from other parts of the EU for several years so Irish lawyers may be called upon to give advice to these people on their entitlements under EU employment, pension law, social security and free movement law.
Thirdly, clients demand and deserve assistance in the area of EU law. Irish lawyers must do more to explain and educate their clients about the implications of EU law. A significant part of the legal profession's service to society is to inform the public about the implications of EU law. Similarly, many clients do not appreciate their rights under EU law and wrongs often go unremedied. It is important that Irish lawyers assist their clients in conducting an EU legal review of their businesses. Such a review can include an assessment of the client's competition law practice, marking and labelling procedures, pension schemes, employment rules and so on. Some clients are unaware of areas such as competition law, public procurement, employee rights and so on.
Fourthly, an understanding of EU law generally and the practice of the European courts in particular is imperative even to understand some areas of Irish national or municipal law. An obvious example is that it is impossible to advise adequately on Ireland's Competition Acts 2002-2006 without understanding the underlying EC competition law rules: merger notifications to the Irish Competition Authority can require citation of EC jurisprudence while the Competition Authority itself cites EC precedents in its own Decisions. Another example is environmental law where it is impossible to understand some of the recent Irish legislation on the environment without appreciating the purpose and effect of the underlying EC Directives and the judgments of the European Courts. Indeed, the judgment of the European Court of Justice in Case C-106/8 Marleasing v. La Comercial  ECR I-4135 means that it is not possible to review national implementing legislation without regard to the underlying EC Directive.
Finally, the jurisprudence and practice of European Courts and the European Commission sometimes present an opportunity to circumvent the rules of national law in such matters as procedural time-limits. EU law also provides compensation in some circumstances for breaches of EU competition law. The European Courts can also provide another court of appeal. Knowing more law and legal options helps the lawyer and the client alike.
Joining the Irish Centre for European Law is an important first step to meeting these objectives: I urge you to join and participate!
Our Brexit series continues with an examination of the implications for agriculture on 26th April. For details of the final line-up of speakers, click here.
The 2017 Privacy Conference is now open for registration. For details of the event, click here.
Professor Carl Baudenbacher, President of the EFTA Court will address members of the ICEL on the possible role of the EFTA court in a post-Brexit world. Click here for more details.
Interested in learing about practice and procedure before the European courts? Click here for more details.
The ICEL Eversheds Sutherland Procurement Conference can be found here.
Over the past 20 years, the Irish Centre for European Law has provided an important forum for debate and discussion on major developments in the area of EU law. It has been the link between legal practitioners, academics and representatives of the wide range of sectors affected by European Law