Grasping the European nettle

Michael Renouf argues that solicitors in England and Wales are beset by an insular attitude when it comes to appreciating the nuances of EU laws

I recently attended a conference in Hamburg.

Its focus was a recent piece of European Union legislation which introduced EU rules in a field of law traditionally the reserve of national law.

I had been asked to explain the European approach to interpreting legislation.

It was fascinating to see the reactions of lawyers from different EU member states.

German lawyers, accustomed to analysing preparatory documents at national level in order to interpret domestic legislation, were open to the idea of obtaining copies of pre-publication drafts of the EU proposal and reviewing minutes of meetings where the measure had been discussed and adopted (sometimes called the 'historical approach' to interpretation, which can ascertain the purpose behind the legislation).

Lawyers from Belgium, which has three official languages, did not consider unusual the suggestion of comparing language versions of the text, with a view to identifying differences which could form the basis for further argument (based on linguistic equality).

Many were at home with a creative approach.

Most present nonetheless admitted that, in fact, they rarely used this 'European' approach to interpret specific EU measures; and almost none had done so to interpret provisions of national law.

In the context of a European gathering, the reactions of the British lawyers present were most striking.

The historical approach to interpreting measures derived from EU legislation, and the principle of linguistic equality, were unheard of.

This position is prevalent among solicitors in England and Wales.

Twelve years ago, I wrote an opinion column for the Gazette, titled 'The high street to Europe' (see [1990] Gazette, 30 May, 2).

In it, I expressed the view that it was absurd, 17 years after the UK's accession to the Treaty of Rome, that people who had no understanding of basic EC law were still being admitted as solicitors.

As we approach the 30th anniversary of UK membership, we need to ask whether the legal profession has moved on.

In my opinion, it has not - there is still a lack of training on EU law rights and their effects within the national legal order.

Almost no area of law in England and Wales is untouched by EU law.

Recent cases where application of an EU approach has proved successful include: the defence of a shoe shop in magistrates' proceedings (the trading standards prosecution collapsed, largely the result of the EU input on consumer legislation); social security (a group of self-employed people from the UK, forced to pay contributions during a five-week stay in Belgium, finally had them refunded after the European Court of Justice confirmed that the Belgian authorities had misinterpreted EU law); and amateur sports (a student visitor to the UK, who was told that foreigners could not appear in the national ranking and that she was ineligible for national tournaments, showed that EU law gave her enforceable rights).

A systematic approach must be applied by lawyers to reviewing their files, so that chances for using a 'European' approach are not missed.

Reciting old excuses - 'my clients don't want to pay for advice on EU law' - is like trying to advise on the application of a statutory instrument while ignoring any relevant Acts of Parliament.

It cannot be done without risk.

As the newly-elected Law Society Council member for EU matters, I shall develop initiatives to help raise awareness of every solicitor of the importance of EU law.

Michael Renouf practises at Renouf & Co in Brussels