What do Euro-lawyers do in Brussels? How can their UK counterparts get a slice of the action? Ian Forrester explains. Ian Forrester is a partner in Forrester Norall & Sutton in Brussels which is incorporated into White & Case.
The European Commission is usually the institution with which European legal practices have most contact. It drafts proposals for legislation, enforces the treaty's provisions on competition and supervises member state compliance with EU law.
A large part of a Brussels practice is administrative advocacy – advising clients with problems involving the European Commission or European Parliament. As legislation moves closer to completion, it is the European lawyer's task to communicate to the European Commission, European parliament, or council working groups, your client's views of the technical, legal and economic issues concerned. For example, the European lawyer may be asked by a pharmaceutical producer to explain to MEPs why biotechnological inventions need patent protection.
Those lawyers who do not engage in this work dismiss it as lobbying. But public affairs is becoming a large part of Brussels practice.
Litigation before the European Courts in Luxembourg is central to a legal practice based in Brussels – also a successful practice should normally be handling direct litigation before the European Courts of First Instance and references from national courts to the European Court of Justice.
This may involve appeals against commission decisions in state aid, competition or dumping cases. It may involve assisting a national lawyer who is pleading before his national court to persuade the court to make a reference to Luxembourg concerning the legal issues arising.
Advising national legal practices may involve the resolution of disputes before national courts or authorities, as well as references to Luxembourg from national courts. Pleading before a multinational, multicultural court ideally calls for a team whose members come from several European legal traditions.
Language is only a perceived barrier – the advantages of having to purge drafts of occasional linguistic exotica outweigh the disadvantages. Whatever language is used words should remain clear and not too numerous – only one-eighth of the members of either European Court speak English as a native language.
While I would hesitate to inflict my French on a Paris court, in a French language case in Luxembourg, the European Court is untroubled by grammatical lapses – almost every discussion involves someone using a language other than their native tongue.
Whichever court is concerned, the task is to present the law, background, facts and policy issues. You are addressing judges who decide legal issues, not policy issues. They must understand the policy, but they need legal grounds.
So how should a UK firm approach its hitherto neglected European practice?
Adapt your priorities to suit your clients' needs. Farmers, truck operators, local authorities and trade associations will all be affected by EU law in different ways. Tell your client what is important to their business. You cannot cover all the topics. Do not be embarrassed to specialise, especially at first.
Clarify what is the relevant law by looking at the texts; do not rely on pamphlets, government press releases or what officials say they have heard from “Brussels”.
Identify in Brussels not only those who sound sympathetic but those who have the power to assist your client.
Put it in writing: that way your interlocutor's notes and understanding of the situation will be as good as they can be.
Do not be afraid to disagree with the commission. Competition officials have the power to inflict fines but they are not ogres. That they would welcome a concession by your client does not make it compulsory.
It is quite easy to give competition law advice which, if followed by your client, will never be wrong, but which attributes weight to getting the commission's approval – it requires courage to give advice which is helpful but does not involve risks.
European Union institutions are far more accessible than the British press imply. So visit Brussels, talk to officials, gather texts, reflect on what they mean, and pursue a goal for your client.