EU

Axiom members recognise that it is essential for a Scots lawyer to have an awareness of European Union law. 



EU law is an increasingly important source of rights and obligations. EU law is not just for use in the European Courts, but is available to litigants in Scottish courts at all levels. Scottish courts have obligations to ensure that EU law is enforced. They must provide remedies on similar terms to domestic cases, and even create remedies where none would otherwise exist under Scots law. Some EU legislation applies in Scotland even without being incorporated into Scots or UK legislation. Or where there is domestic legislation, it is often based on EU legislation, and has to be interpreted in accordance with it. Scottish legislation and acts of Scottish Ministers may be invalid for failure to comply with EU law. The European Courts are progressive, a fruitful source of law, and their fundamental rights jurisprudence is far reaching. 
If you're struggling to find a right or remedy under domestic law, it may exist under EU law. Axiom members have acted in a number of cases involving EU law, both in Scotland and in the European Court of Justice, and are well placed to advise. 



EU law is not a discrete area of law but permeates many different practice areas. Below is a non exhaustive list of areas involving EU law in which Axiom members have acted.

Please select a topic for further information:


Please select a topic for further information:

Jurisdiction

Jurisdiction, or the question of where a dispute should be litigated, arises in all court cases. In cases involving persons from member states of the EU, jurisdiction is based on an EU Council Regulation (EC 44/2001), now part of the Civil Jurisdiction and Judgments Act 1982. That Regulation requires to be interpreted in accordance with decisions of the European Court of Justice. Even in cases not involving persons from Member States, the courts have looked at EU cases and principles as interpretative aids. Axiom members have both advised on, and argued in court, jurisdiction matters involving EU law, including Rolf Barkmann v Innova House (17/09/08 Inverness Sh Ct) and Bettina Breitenbucher v Cornelia Wittge [2008] CSOH 145. Please also see  international group.

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Direct and indirect effect

Under the European Communities Act 1972 and under the Treaties, the UK has to give effect to EU law. To ensure 'effectiveness' of EU law, the European Court of Justice has developed far reaching principles, including direct and indirect effect. Axiom members have relied on these doctrines in Scottish courts on behalf of clients.

Direct effect arises where there is a right arising under EU legislation which has not been implemented by a Member State. If the provision is sufficiently clear and precise, unconditional, and leaves no room for discretion in implementation by the Member State, then it may be relied upon even without implementation. Direct effect arguments can assist where Scots law appears to have no remedy for a client, and have been taken by Axiom members in cases involving liability of the police, part time workers, and health and safety (see for example Cross v HIE 2001 SLT 1060).

Indirect effect is the name given to the obligation to interpret national law in accordance with Community law. The obligation applies whether or not national provisions have been introduced to comply with a directive. The interpretative obligation arises in a surprising number of contexts. Axiom members have relied on the doctrine in areas as disparate as planning (Lerwick Port Authority v Scottish Ministers 2008 SLT 74), interdicts (OFT v MB Designs (Scotland) Ltd 2005 SLT 691), use of government money (Mockton v Lord Advocate 1995 SLT 1201), stress (Cross v HIE 2001 SLT 1060), the protection of birds (RSPB v Secretary of State for Scotland 2000 SLT 1272), manual handling (Hughes v Grampian Country Foods [2007] CSIH 32), and freedom of information and data protection (Common Services Agency v Scottish Information Commissioner [2008] UKHL 47).

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Challenging Scottish Legislation and Ministerial acts

Acts of the Scottish Parliament are 'not law' if they are incompatible with EU law. Likewise, Scottish Ministers have no power to act, or make delegated legislation, so far as the act or legislation is incompatible with EU law. These restrictions are potentially a fruitful source of challenge to legislation or ministerial acts. For example, it can be argued that there was no proper legal basis for any underlying EU regulations, or that legislation or ministerial acts are incompatible with fundamental rights. Axiom members have acted in cases in which Scottish legislation has been challenged for being incompatible with EU law in various areas, including tobacco advertising, animal health (ABNA v Scottish Ministers 2004 SLT 176) and infant milk (Infant and Dietetic Foods Association v Scottish Ministers 2008 SLT 137). 

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Rights of compensation based on EU law

Failure to comply with an EU right may give rise to a right of damages. Liability may arise to pay damages if an EU measure confers rights on individuals, the content of the rights can be identified, and the breach is sufficiently serious (in that limits of discretion were manifestly and gravely exceeded). The government may also be liable in damages for loss caused by a failure to properly implement EU Directives. Rights of compensation may also arise under principles of unjust enrichment. The availability of EU based compensation can be particularly important in public law. Scots law has traditionally placed strict limits on the recoverability of damages from public bodies, but the principles of EU law can give rise to a right to compensation even where Scots law would not normally permit it. Axiom members have acted and advised in cases where compensation, interest and expenses have been claimed on the basis of EU law. 

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References to and cases in the European Court of Justice

In all cases involving a question of EU law, the possibility of a reference for a preliminary ruling to the European Court of Justice from Scotland may become an issue. Axiom members have been involved in cases arguing both for and against references from Scots courts (ABNA v Scottish Ministers 2004 SLT 176, Gray & Co (Muirfield) v Scottish Ministers 2006 2 SLCR 190, Stephen v Scottish Ministers SLC/32/07, Booker Aquaculture v Secretary of State for Scotland 2000 EU LR 449 and Scotbeef v Palmero 2006 SC 1).

It can take some time for cases to be heard in the European Court of Justice, so it may be necessary to apply for interim relief in Scots courts pending a reference. Axiom members have acted in cases in which interim relief was granted by Scots courts, applying EU principles for interim relief (ABNA v Scottish Ministers 2004 SLT 176).

Axiom members have also appeared in the European Court of Justice (Booker Aquaculture v Secretary of State for Scotland 2000 EU LR 449).

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Fundamental rights

EU fundamental rights are numerous and far reaching. They can be used to challenge a wide variety of acts, including EU and UK legislation, and Scottish Ministerial acts. In 1970, the European Court of Justice held that one of the general principles of EU law was "respect for fundamental human rights", and that ruling was subsequently embodied in the Maastricht Treaty. As a result, when dealing with issues of EU law, the courts take account of human rights principles in a broader sense, taken not only from the European Convention on Human Rights but also from other international treaties and from European constitutional traditions. There is now also a European Union Charter on Fundamental Rights, which goes beyond the rights in the European Convention, containing economic, political, social, personal data and biotech rights. The Charter currently has status only as a 'political declaration', but there are ongoing steps for it to attain the force of law. The Court has had regard to the Charter in some cases. EU fundamental rights can be relied on in domestic courts. Their existence also allows human rights arguments to be taken against the EU institutions themselves - institutions which are not otherwise subject to the Human Rights Act or the ECHR. Axiom members have relied on fundamental rights in various cases, including ABNA v Scottish Ministers 2004 SLT 176.

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Agricultural law

The EU's common agricultural policy (CAP) involves a system of payments to farmers. These payments are based on EU legislation, but the UK government has a wide discretion in deciding how to put the system into operation. Over the years the European Court of Justice has issued a number of decisions guiding how this legislation should be applied, particularly in the area of penalties or withholding of payments from farmers by the administering authorities in Member States (RPID in Scotland). Disputes over CAP payments can involve complex interactions between EU legislation, Scottish and UK statutory instruments, and the general principles of public law.

Most challenges by Scottish farmers involving CAP payments are brought in the Land Court. Axiom members have acted in cases in the Land Court, including Gray & Co (Muirfield) v Scottish Ministers 2006 2 SLCR 190 , Anniston Farms v Scottish Ministers (SLC/05), and Stephen v Scottish Ministers (SLC/32/07). Axiom members have also been involved in cases in the Court of Session involving CAP, for example judicial review of government policy on the calculation of national reserve payments, and appeals from decisions of the Land Court (Barrachander Farm v Scottish Ministers [2008] CSIH 15).

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Competition

The UK has its own well developed system of competition law. But EU law in this area remains important, because UK competition law is modelled on Articles 81 and 82 of the EC Treaty. Decisions of the European Court of Justice, and of the Commission, influence how competition law is applied in the UK. EU law is also potentially further reaching than UK competition law; in principle some anti-competitive practices may not be struck at by UK competition law but are prohibited under EU law. Axiom members have advised in various competition cases, including cases involving beer tie agreements, supply of milk, minimum prices, and argued cases in court including Calor Gas Ltd v. Express Fuels/ D Jamieson & Son [2008] CSOH 13. Please also see Competition and Procurement Group.

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Procurement

The procurement decisions of public authorities must comply with EU law. In particular, such decisions must comply with the procurement legislation. They must also be compatible with the relevant Treaty provisions, the general principles of EU law and, where appropriate, the state aid rules. Axiom members frequently advise in disputes as to whether public authorities have complied with the procurement rules, including advising both bodies seeking to be awarded contracts, and public authorities. Please also see Competition and Procurement Group.

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European Commission

In many areas of EU law, an understanding of the way in the European Commission functions is valuable. It can assist directly in areas such as competition or state aids where a remedy may be obtained through making a complaint to the European Commission without the need for recourse to the courts. Effective communication with the Commission may also provide a valuable insight into the Commission's policy in a particular area. Knowledge of that policy may indicate the best way to proceed with any case.

Within Axiom, we have members with experience of both working for and communicating with the Commission. In particular, we have members with experience of advising on complaints to the Commission.

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VAT

Value Added Tax (VAT) is a European tax. Various EC Directives on the harmonisation of the laws of Member States relate to turnover taxes; the intention was and is to provide a common system of value added tax with a uniform basis of assessment. This so called simple tax was introduced into the United Kingdom by the Finance Act 1972. The current VAT Act of 1994 extends to 102 sections and 15 Schedules. There are numerous statutory regulations designed to give effect to various EC Directives. The current consolidating Directive modestly described as the Council Directive 2006/112/EC on the common system of value added tax, has an introductory preamble of 67 paragraphs, 14 Titles and 12 Annexes, and establishes the common system of value added tax which we know and love (or hate).

European law features in the foreground or background either directly or indirectly in every dispute with HMRC about the amount of VAT due or repayable. Several members of Axiom Advocates are involved in either deciding VAT disputes at Tribunal level or presenting appeals before Tax Tribunals or the courts.

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Insolvency

In terms of the EC Regulation on Insolvency Proceedings, Scottish courts can deal with insolvency proceedings in relation not only to debtors who have a home or registered office in Scotland, but also debtors who have their centre of main interest or, in certain circumstances, some of their assets in Scotland.  For example, Axiom members have acted in a petition for administration by a director of a company registered in the Cayman Islands, but whose centre of main interest was in Scotland, relying on the EC Regulation to establish the court's jurisdiction.  While many insolvency administrations (post-Enterprise Act 2000) are now out of court, in cases with international elements it can be very useful to have an order of the court, specifying the insolvency practitioner's powers, for use in dealings with overseas creditors, debtors and advisers.

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Axiom advocates with relevant experience:

Areas of Specialism

Lesley Flynn - Practice Manager
0131 260 5651 or lesley.flynn@axiomadvocates.com

Catriona Weir - Deputy Clerk: 0131 260 5653
Scott Gray– Deputy Clerk: 0131 260 5692
Veronica Lynn– Deputy Clerk 0131 260 5652