Roy v M. R. Pearlman Ltd (10 March 1999) Court of Session 1

The dividing line between national and European Union law is of significance in environment law and therefore this case is of interest. In this case, the court refused to dismiss as irrelevant and lacking in specification an action by Stewart Roy against M. R. Pearlman Limited under the Commercial Agents (Council Directive) Regulations 1993 (SI 1993 No 3053). Two questions arose: whether the material issues of the claim should be determined in accordance with national law or whether community law should be followed; and whether the national law of another Member State was relevant to the interpretation of the Regulations. On the first question Mr Roy argued that the claims were claims made under community law and should be determined accordingly. The judge followed the decision in Barbara Bellone v Yokohama SpA ([1998] ECR 1 2205, 2208-9) and said that where a provision of domestic law was inconsistent with a relevant directive, the domestic rule would be required to yield. However, he went on to say that, as the wording of the Directive had been largely replicated in the Regulations and there were no apparent inconsistencies between the two instruments, this was not a relevant issue in this case. With regard to the second question Mr Roy argued that provisions on the assessment of compensation under Regulation 17 were ultimately based on pre-existing French law and practice and it was legitimate to follow such law and practice in the interests of harmonisation. M. R. Pearlman Ltd argued that the French law should not be used to interpret United Kingdom Regulations and that in any event the court was not competent to rely on foreign law without confirmation and proof of that law. The judge, following the decision in Moore v Piretta Ltd ([1999] 1 All ER 174), stated that it was not necessary in the present context to have the content of such law and practice addressed formally by experts and that he would have regard to the principles of foreign domestic law where it assists in determining the appropriate rights and remedies. In this case, French law and practice was not being invoked because an issue in the court required to be determined in accordance with French law but because, in the context of the Directive which provided for a remedy drawn from French legal experience, assistance towards a harmonised approach might be obtained by having regard to the longer experience of the French courts in applying that remedy.
(Times Law Reports, 13 May 1999)