It appears that the effective decentralised enforcement of EC competition law in the national courts is not being eased by the difficulties facing those seeking interim relief from alleged breaches of the competition provisions in the UK courts. While acknowledging the difficulties facing the courts in cases at an interim stage, it is submitted that there are not adequate means of redress in the Scottish and English courts, although some guidance can be given. The status quo is an important factor in both jurisdictions and it is submitted that this makes the timing of any action raised for interim relief crucial. In Scotland, at least, interim interdict is also now available to enforce positive obligations, and this may be important in refusal to supply cases. The weight to be attributed to the relative merits of each party's case is a difficult issue under both jurisdictions at such an early stage of the case. In Scotland, the merits are accorded an important role, yet consideration appears to fall within the balance of convenience test. This is unclear, but in any case neither the consideration of comparable losses nor the difficulties in proving the merits of a European competition law case appear to favour the pursuer. Further, these national court difficulties, in dealing with European law issues swiftly and effectively, also pose a significant hurdle to the assessment of the merits of a competition law defence. This was not aided by the omission from the final Co-operation Notice of provision for a systematic ongoing education programme for lawyers and judges of the Member States to allow them to gain more expertise in Community law and procedures. Perhaps both jurisdictions could make more effective and frequent use of the relative provisions for cross-undertakings and caution.
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