Back to top
News In Focus

EU law set for boost, advocates predict

21 November 2008

The use of EU law in the Scottish courts is likely to rise significantly in the coming years, according to a group of advocates.

Members of the Axiom Advocates stable, at their monthly "Third Thursday" lecture last night, highlighted the probable trend.

Anna Poole pointed out the surprising statistic that since the UK joined the EU in 1973, only about seven cases had been referred by the Scottish courts to the European Court of Justice for a ruling on a point of EU law, whereas Denmark, roughly comparable in size, had referred a total of 116 cases.

"But the number of references is likely to grow in the future. Areas of Scots law affected by EU law are increasing as member states add additional areas of competence to the Union. Also, Scottish courts have begun to relax their approach to referring cases where EU points arise. In place of a strict test of necessity, they are now applying a 'complete confidence' test, meaning that, if the court has any doubt about its ability to decide on an EU point, it should ordinarily refer."

Opening the event, David Johnston QC claimed that the use of EU law within the Scottish courts is also likely to increase, as competition regulators encourage consumers to take some of the strain of enforcing competition law against illegal business practices, through collective or representative actions.

"There can be little doubt that that would mark a significant devrelopment in enforcement of competition law, since it can hardly be doubted that as things stand many consumers or small businesses who believe they have been exposed to anti-competitive conduct are deterred on grounds of cost from doing anything about it.", he pointed out.

Advocate James Mure added that national courts had a duty to provide full protection for rights under EU law, with appropriate remedies including a compliant system of interim orders.

Have your say