EU law on the rise in the Scottish courts

9 December 2008

By Anna Poole, Advocate, Axiom Advocates: Published in the Scotsman 8th December 2008

With the continuing build-up of EU legislation across an array of subject areas in the 35 years since the UK joined the EU, it's perhaps surprising how few references to the European courts there have been from the Scottish courts.  Figures from the European Court of Justice's 2007 Annual Report show the UK as a whole has made 434 references.    Scotland's contribution is only about 7 of these 434 cases. To put this figure in context, Denmark, a country roughly Scotland's size, had made 116 references to the ECJ.

Some might conclude from these statistics that familiarity with EU law is of marginal interest to the Scottish legal practitioner. However, there is evidence that in future we may see not only a significant rise in references from the Scottish courts to EU courts, but also more regular use of EU legal points in cases in the Scottish courts themselves.

One reason for the dearth in cases referred so far is that, until relatively recently, the Scottish courts showed reluctance to refer cases to the European courts.  They applied a strict test of necessity if a reference was requested.  But the Scottish courts have begun to take a more relaxed approach to references, now using a 'complete confidence' test - namely, if the court has any doubt about its ability to decide an EU point, it should ordinarily refer. 

A second obstacle to references has been the time traditionally taken by the ECJ to decide cases referred to it. Faced with the prospect of waiting years for an answer, reference to the European courts has tended to be an unattractive course for many litigants.  In response to these concerns, the ECJ has introduced a number of procedures designed to expedite cases. In addition to its existing powers to accelerate cases, in March a new urgent preliminary ruling procedure was introduced for cases relating to freedom, security and justice. The intention behind the new preliminary ruling procedure is that references in these areas are dealt with in a matter of weeks, rather than months or years.

Contrast these developments with the current average waiting period for civil appeals in the Court of Session - 30 term weeks in 2006/07, which according to internal sources will increase to 40 term weeks for 2007/08.  In some cases it will now be quicker to get an answer from the European courts if a case is referred at first instance, than if the case is appealed to the Inner House.

Meanwhile, there is evidence that the use of EU points in Scottish court cases is likely to increase. One example arises in contract law. Since 2004, not only the European Commission, but also national competition authorities and courts have had responsibility for assessing whether or not an agreement is compliant with EU competition law. Recent papers from the Commission and the UK's Office of Fair Trading suggest that overworked regulators are keen to encourage more devolved enforcement of competition law by private litigants in the domestic courts.  At the same time, regulators have also indicated their desire to promote the possibility of collective redress in the future.  This would mean that EU points could be raised in the Scottish courts by a trade association or individual consumer bringing a representative action on behalf of consumers or businesses at large.

Another example is post devolution Scottish public law.  Legislation passed by the Scottish Parliament, and acts of ministers in the Scottish government, must be compliant with EU law. If there are allegations of non-compliance with EU law, Scottish legislation, and government acts, can be challenged, and their effect suspended from the outset of a court case.

It's just as well practitioners are increasingly aware of the need to be alive to EU law issues.  All the signs point to increasing recourse to EU points in day-to-day legal practice in the coming years.

Anna Poole is a member of Axiom Advocates, specialising in public law, and has been a standing junior to the Scottish government since 2002.