Meeting the EU challenge
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4 October 2013
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12 February 2014
1 November 2013
A new handbook for the Bar sets out to help lawyers with European Union law, says Nicholas Green QC. Nicholas Green QC is a barrister at Brick Court Chambers.
European law represents an enormous challenge for all lawyers. But many lawyers have only a half-knowledge of aspects of EU law relevant to their practices, while some exhibit an almost total lack of knowledge about EU law, even where it touches their everyday professional lives.
Many practitioners consider that EU law starts and ends with competition law. Articles 85 and 86 already play a major part in the practices of many commercial lawyers who are required to advise on the enforceability of terms to be included in commercial arrangements.
EU competition law is about to be copied into domestic law under the guise of the repeal of the Restrictive Trade Practices Act 1976 and its replacement by copies of Articles 85 and 86.
It is intended that a renvoi will be included in the new Act which will necessitate commercial practitioners construing the UK Act on the basis of relevant EU case law and legislation. Competition law, based on the jurisprudence of the EU, will become an even more critical part of the commercial practitioners armoury, since the domestic competition law provisions will apply even where there is no effect on trade between EU member states.
Practitioners advising in the area of consumer law have, until recently, been required to have knowledge of the Unfair Contract Terms Act 1977, although this has not caused a wholesale review of the way in which contracts have been drafted.
However, since the adoption of EU legislation on the control of unfair contract terms, which renders such terms void and which gives the Office of Fair Trading power to review contracts, lawyers have made a far more profound analysis of the intrinsic fairness of the terms they advise on and draft.
Allied to this development has been legislation protecting agents against their principals. In particular, a growing number of disputes have gone to court in which agents have sought compensation from principals on termination of the relationship between them.
Difficult issues of construction of the domestic regulations have occurred. The courts have been required to construe the domestic legislation in the light of EU legislation.
For the intellectual property lawyer, the adoption of trade mark legislation at EU level has led to a re-evaluation of the nature of protection afforded to trade mark owners.
Traditional views as to the nature of the protection afforded by such rights have been thrown into doubt by the adoption of EU-wide legislation, designed to place on a common footing across the EU the degree of protection afforded by trade marks.
New approaches to interpretation are required. As Mr Justice Laddie stated in Wagamama v City Centre Restaurants (1997): "The purpose of the 1988 directive was to ensure a measure of uniformity between the trade mark laws of member states of the EU. For that reason it is right that British courts should pay regard to decisions in the courts of other member states on equivalent provisions in their law."
Vast swathes of UK company law represent implementation of a substantial number of directives. This means that company lawyers, when construing ambiguous provisions of domestic law, are bound to seek guidance and inspiration from the underlying EU instrument. For example, the European Court in Re: Friedrich Haaja GmbH (1975) made liberal use of the first company law directive when interpreting the German statute implementing that measure.
But help is at hand for barristers at a loss about EU law. The Practitioners' Handbook of EC Law, written by about 80 acknowledged experts from the Bar and the judiciary, is being published this summer. Individual sections (complete with details of further sources) will deal with areas including employment and discrimination, crime, contract, tort and product liability, social security, intellectual property, company law, banking and insurance, taxation, public procurement, competition and human rights.
The handbook is produced by the Bar Council in association with the Bar European Group and Trenton Publishing, with financial assistance from the European Commission's Robert Schuman Project.
The book will be provided, free of charge, to every practising barrister as part of their subscription to the Bar Council. It will be available to judges and others. It is hoped that this will contribute to ensuring that commercial lawyers, among others, develop an awareness of relevant aspects of European law.