ECJ in the fast lane

In any case involving an EU law issue, a reference to the European courts for a preliminary ruling is a possibility. Given that possibility, and the increasing permeation of Scots law by EU law, it is perhaps surprising how few references to the European courts there are from Scottish courts. Statistics contained in the annual report for the European Court of Justice up to the end of 2007 show that in all the time since the UK joined the EU, there have been 434 references.

Only about seven of these are from Scotland. (Denmark, which is roughly the same size as Scotland, had by the end of 2007 referred 116 cases; Germany had referred 1,601.) The Scottish references have been from a mixture of courts: some from the Court of Session, some from the High Court of Justiciary, and some from the sheriff court.

But it is likely that in future years the number of references to the European courts from Scotland will increase. The most obvious reason for this increase is that the areas within which EU law applies are increasing over time, as member states agree to add additional areas of competence to the Union, and more EU legislation is passed. Two other recent developments may herald an increase in the number of references.

Confidence is the key

The first recent development is that the Scottish courts have been relaxing their approach to references. Initially, the courts applied a strict test of necessity, in the sense that before the court would refer it, the EU point had to be conclusive and have no crystal clear answer, there had to be no existing EU authority on the point, and in any event a reference was not to be made until facts had been ascertained (see, e.g. Lord Clyde in Brown v Secretary of State for Scotland 1989 SLT 402, and Lord Hamilton in Hydro Seafood v Scottish Ministers, 7 February 2000, unreported).

But in recent years the courts have been applying a “complete confidence” test: if the court has any doubt about its ability to decide an EU point, it should ordinarily refer. In deciding whether it has complete confidence, the Scots court has to take into account the differences between national and Community legislation, the relative unfamiliarity of the Scots courts with EU law, the need for uniform interpretation in the EU, and the advantages enjoyed by the European courts in construing Community instruments.

Faced with this test, the courts have been more prepared to refer cases (see the Inner House decisions in Booker Aquaculture v Secretary of State for Scotland 2000 SC 9, 27, and Revenue and Customs Commissioners v Empowerment Enterprises Ltd 2007 SC 123; and the Outer House in Scotbeef v Palmero 2006 SC 1).

Expedition decision

The other recent development is that the ECJ has been taking steps to address the criticism that cases before it take too long to decide. Litigants do not want to wait years for an answer. Year on year the ECJ has been reducing the time taken to decide cases, and the average time from start to finish in the ECJ is now around 19 months. That is still a long time, so the ECJ has been beefing up its procedures to enable cases to be expedited. It already had accelerated procedure for cases of exceptional urgency (article 104a of the ECJ’s Rules of Procedure), simplified procedure (under article 104(3)), and powers to dispense with the need for an opinion of the Advocate General (under article 20 of the Statute of the Court of Justice). On 1 March 2008 it added a new urgent preliminary ruling procedure (article 104(b) of the Rules of Procedure).

The urgent procedure covers cases in the areas of freedom, security and justice. The sort of cases that might fall under this procedure are cases on jurisdiction, or certain human rights cases covering issues like residence of children or liberty (Court of Justice guidance note, OJ 2008 C64 P1).

The idea is that references in these areas are to be dealt with in a matter of weeks. This timescale can perhaps be contrasted with the time taken for appeals in the Inner House. The average waiting period for civil appeals for 2006-07 was 30 term weeks (Scottish Court Service Annual Report), which looks set to increase to around about 40 term weeks for 2007-08. “Term weeks” do not include the weeks of court vacation. So now in some cases it may be possible to get a speedier answer from the European courts than from the Inner House, if a case falling with the urgent procedure is referred at first instance.

Anna Poole, advocate, Axiom Advocates. This article is part of a talk originally delivered as part of Axiom Advocates’ Third Thursday event on 20 November 2008. For more details of the Third Thursday series, see www.axiomadvocates.como