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right first time: A practical guide for public authorities in Scotland to decision-making and the law

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annex two
European law considerations

European law, including European Community (or EC) law, derives from the EC and EU treaties 17, and is incorporated into the law of the United Kingdom by the European Communities Act 1972. In some circumstances provisions of the EC Treaty or of Directives made under the Treaty confer rights on individuals.

The aim of the EC Treaty is to establish a free and open common market for all forms of economic activity. The EC Treaty does this by establishing the four freedoms. These are the free movement of goods, persons, services and capital.

Individuals may rely on those provisions of the EC Treaty and Directives made under it in national courts even where the provisions have not been implemented in national legislation 18. These rights are described as having "direct effect".

In addition:

  • All European Regulations are directly applicable and enforceable without the need for any national measures to implement them.
  • Binding Decisions adopted by the European Council of Ministers or the Commission bind those to whom they are addressed. If addressed to a Member State of the EU, they may have direct effect, giving rise to rights which are enforceable in national courts, provided their terms are clear and precise.

The 1972 Act requires questions as to the validity, meaning and effect of European provisions to be determined according to the principles of EU law, including proportionality. If there is a conflict between EU law and national law, directly enforceable EU rights and obligations take precedence. Domestic measures which are inconsistent, or which are considered to hamper the attainment of the objectives of the EC Treaty, may be found unlawful.

In EU law cases, the Scottish Courts have jurisdiction to grant interim remedies, for example:

  • An interim interdict (which is an order to stop someone from doing something in the meantime) against the Scottish Ministers a UK Department, or other public bodies;
  • An order to disapply legislation (including primary legislation).

The Court can also seek an authoritative opinion on an issue of EU law from the European Court of Justice (" ECJ") by way of a preliminary reference, sometimes called an "Article 234 reference". After the ECJ has given its ruling, the matter is referred back to the domestic Court to decide accordingly.

The decisions of the ECJ on matters of European law form part of the national law of Member States. Because the EU recognises human rights, and the Convention, and fundamental rights under the treaties, as sources of general principles of law, these rights too can often be enforced in the UK Courts as part of an action based upon EU law.

Failure by the decision-maker to give proper effect to binding EU law conferring rights on individuals may give rise to a claim for damages. Community law will confer a right to compensation where three conditions are met:

  • The rule of law infringed must be intended to confer rights on individuals;
  • The breach must be sufficiently serious (manifest and grave disregard by the Member State of the limits of its discretion);
  • There must be a direct causal link between the breach of the obligation resting on the Member State and the damage sustained by the individual.

Liability for such damages is one of the exceptions to the principle that, in general, damages are not awarded for a breach of public law. Damages of this type are often called Francovich damages after a leading EC law case.

A basic principle of EU law is that when the liability of a Member State is considered, all its organs of Government are treated as being a single entity. The Scottish Government is responsible for implementing EU obligations relating to devolved matters, and may be liable for any financial penalty for which it is responsible. The UK Government retains the legal power to implement EU law directly under the Scotland Act 19.

Any Act of the Scottish Parliament, statutory instrument or act of the Scottish Ministers incompatible with EU law is ultra vires and can be challenged under the Scotland Act.