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The application of EU law by the Scottish courts : an analysis of case-law trends over 40 years

Rodger, Barry (2017) The application of EU law by the Scottish courts : an analysis of case-law trends over 40 years. Juridical Review. ISSN 0022-6785

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Abstract

This article will present the findings of a Carnegie funded project which looks at the application of European Union ('EU') law before the Scottish courts from UK accession in 1973. European law produces rights and obligations which must be given effect by national courts. Over the last 40 years the EU has been given competence in ever broader areas of substantive law which have changed the legal landscape across increasing areas of personal, social, business and economic life. Accordingly, the Scottish courts are required to apply EU rules to a broad range of legal disputes. This is the first comprehensive study of the application of EU law by the Scottish courts. It is important to consider the extent to which EU law is considered and applied in order to assess its impact on the Scottish legal order. This research project was triggered by the Scotch Whisky Association minimum alcohol unit pricing case. This case and the constitutional inter-relationship between EU law and Scots law that is at its core, leads to a wider inquiry about the role played by EU law in many disputes before the Scottish courts. The hypothesis is that there have been an increasing number of judgments in recent years applying EU law, demonstrating the increasing substantive reach and enhanced awareness of EU law. The article will assess different trends in the EU case-law before the Scottish courts to the end of 2015. This research is particularly prescient and important in the light of the recent Brexit outcome in the EU referendum, and should allow us to reflect on the significant impact Brexit is likely to have on the legal landscape in Scotland (and the UK more generally) and the potential difficulties in neatly unpicking 40 years of assimilation of EU law and principles into Scots law. These research outcomes should lead to further reflection and debate on the role of EU law and its impact on judicial decision-making and the Scottish legal system in general.