EU judge questions lack of referrals from Scotland

Surprise at the low number of cases being referred from Scotland to the Court of Justice of the European Union has been expressed by the advocate appointed at the UK's judge at the CJEU's General Court.

Speaking at a Faculty event to honour his appointment, Judge Ian Forrester QC said he would welcome more cases from Scotland being taken to the Luxembourg court.

Courts in EU member states can refer questions of EU law for a ruling from the CJEU which they then apply to theb case before them – the procedure followed in the ongoing litigation on the validity of the Holyrood legislation setting a minimum price for alcohol.

Judge Forrester said that having started in 1952 with a "tiny workload", the CJEU now faced an "immense" pressure of cases, mostly responding to questions referred by national courts.

"There have been thousands of responses requested – more than 2,000 from Germany alone – but one curious fact deserves to be recorded in this city; that is the number of references from Scottish courts. There have been 573 requests from the courts of the United Kingdom... How many from Scotland? The answer is 10."

The judge quoted the figures for other small nations, such as Latvia (37), Portugal (124), Greece (170), Finland (91) and Ireland (77), noting that Scotland had been part of the European Union for 43 years while Latvia had been a member for only 12.

It was his impression that there was a higher awareness in Scotland of the European Court of Human Rights in Strasbourg than the Luxembourg European courts, and that arguments about the human rights Convention were far more frequently invoked before the Scottish courts.

He described the reference procedure as "a valuable dialogue, not a confrontation", and continued: "I do suggest that the Faculty of Advocates and its members ought to be concerned at the very low level of references from this jurisdiction.

"I cannot believe there are 50 times more questions arise outside Scotland in the UK than arise in Scotland. It would be a really great pleasure if Scottish lawyers, Scottish judges, Scottish courts were more visible in Luxembourg in terms of references. I would think the clients of Scottish lawyers as well as Scottish lawyers would benefit."

The event to mark Judge Forrester's appointment was hosted by a new group within the Faculty, AGEUL (Advocates Group on European Union Law), which has brought together senior and junior counsel with a shared interests and expertise in EU law, the creation of which Judge Forrester welcomed. Its website is at ageul.scot.