General Assembly of the Church of Scotland

The General Assembly of the Church met in a ‘blended’ form, based at the Assembly Hall, from 22 May to 27 May. The Moderator on this occasion was an elder, rather than a minister, but with the distinction of being Lord Wallace of Tankerness PC QC FRSE, a Liberal Democrat life peer since 2007, who served as the Deputy First Minister of Scotland from 1999 to 2005. He was formerly Leader of the Scottish Liberal Democrats from 1992 to 2005 and of the Liberal Democrats in the House of Lords from 2013 to 2016. He also served as a Member of Parliament for Orkney and Shetland from 1983 to 2001 and a Member of the Scottish Parliament for Orkney from 1999 to 2007. He was Advocate General for Scotland in the Westminster Government from 2010 to 2015.

The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill—A Reference by the Attorney General and the Advocate General for Scotland [2018] UKSC 64, Supreme Court. This case is concerned with the competencies of the Scottish Parliament, and the nature of devolution in the UK more generally. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case note summarizes the facts and decision in R (on the application of Miller and Cherry) v Prime Minister and Advocate General for Scotland [2019] UKSC 41, Supreme Court. This case concerned the constitutional-legal limits on a Prime Minister’s capacity to advise the monarch to exercise their power to prorogue Parliament. The document also includes supporting commentary from author Thomas Webb.

4. The European Courts: composition, functions, jurisdiction; preliminary rulings

This chapter discusses the composition, functions and jurisdiction of the European Courts. It discusses indirect actions (preliminary rulings) and direct actions, i.e. actions brought by or against the European Institutions and the Member States, and between the Member States. The Courts are the CJEU, which includes the Court of Justice, the General Court, and specialised courts. The chapter explains the role of the Advocate General (AG), and further discusses rules of procedure, judicial activism, preliminary rulings, the jurisdiction of national courts, discretionary and mandatory references, when national courts should refer, interim measures, effect of preliminary rulings, and the future of preliminary rulings. The chapter also explains the role of the EFTA Court.

Case C-336/19 Centraal Israëlitisch Consistorie van België: Animal welfare and freedom of religion

Article 13 of the Treaty of the Functioning of the European Union (TFEU) explicitly provides for animal welfare. Animals are sentient beings, and thus the EU and Member States have an obligation to take animal welfare into consideration. At the same time, Article 10(1) of the Charter guarantees freedom of religion. Case C-336/19 Centraal Israëlitisch Consistorie van België dealt with the balance between animal welfare and freedom of religion. Regulation 1099/2009 stipulates that animals must be protected at the time of killing and established the principle of prior stunning in slaughter. Ritual slaughter based on religion is accepted as a derogation of this principle. In the Centraal case, which is pivotal in the context of ritual slaughter, the opinion of Advocate General Hogan and the judgment of the Court of Justice of the European Union were divided over the interpretation of the contested regulation. Ultimately, the Court demonstrated a definite preference for animal welfare over freedom of religion. In so doing, the Court attached a high value to national legislative competence and in paying attention to changes in society to ensure that citizens are increasingly aware of animal welfare.

The case law of the Court of Justice of the European Union on ‘judicial authority’ and issuing European arrest warrants

The case law of the Court of Justice from 2016 to 2019 on the interpretation of ‘judicial authority’ in Article 6(1) FD-EAW essentially examines whether a public prosecutor can be an issuing judicial authority and if so, how Member States’ systems for issuing EAWs ensure effective judicial protection for the person concerned. For the Advocate General, applying the Court’s ‘rule of law’ jurisprudence, effective judicial protection when deprivation of liberty is involved can only be assured by a body with the highest level of judicial independence, being a court. The Court’s broader approach of including public prosecutors with sufficiency of independence from the executive and requiring their decisions to be amenable to review by a court, when applied in practice arguably falls short of the requisite standard of effective judicial protection. There is also a lack of clarity about access to the interpretative jurisdiction of the Court by public prosecutors acting as judicial authorities. Effective judicial protection and EU cooperation in criminal matters would now be better served by the designation in all Member States of a court as the issuing judicial authority for the FD-EAW. This is against the background of the uniquely coercive nature of the EAW in terms of deprivation of liberty; the differences in Member States’ institutional arrangements for public prosecutors and the post-Lisbon effective constitutionalisation of judicial protection of rights of individuals.

Cross-border exchange of tax information upon request and fundamental rights – Can the right balance be struck?: Joined cases C-245/19 and C-246/2019, État luxembourgeois contre B EU:C:2020:795

On 6 October 2020, in joined cases C-245/19 and C-246/19, État luxembourgeois contre B, the Court of Justice delivered a landmark ruling about the fundamental right to a judicial remedy against an information order issued by the national tax authorities of a Member State in the application of Directive 2011/16/EU. The Court ruled that the holders of the taxpayer’s information have the right to directly challenge the request to provide information but, differing from the Opinion of Advocate General Kokott, the Court decided that, when other remedies are available, the taxpayer under tax investigation and other third parties concerned do not have the right to direct judicial remedy against the information order. Likewise, the Court clarified how specific and precise the information requested must be in order to admit that the request for information is foreseeably relevant for the taxation of the concerned taxpayer. Following the Berlioz case, the ruling at hand continues to outline the content, scope and limits of fundamental rights in cross-border exchanges of tax information upon request in the European Union. However, this casuistic approach will not necessarily result in the development of a coherent and general framework of protection, which underlines the need for a common minimum standard to enhance the protection of fundamental rights in cross-border situations.

Exploitative Abuses

Chapter 5 provides a detailed and comprehensive description and analysis of the major exploitative abuses cases considered by the English courts and competition and regulatory authorities since the inception of the Competition Act 1998, including the High Court, the Competition Appeal Tribunal, and the Court of Appeal. This decisional practice and case law have been widely cited and adopted by the EU Courts in Advocate General opinions and in the judgments and opinions of overseas authorities and courts. The chapter also contains a critique of the case law and decisional practice and highlights important practical points and points of principle that have received insufficient (or no) attention, as well as issues on which the case law and decisional practice are arguably wrong. This analysis is timely, since it is clear that the topic of exploitative abuse remains an important one for the UK competition authorities, regulators, and courts, perhaps even more so than authorities and courts in EU Member States.