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allegation of the breach of the Regulation was an allegation of breach of
statutory duty, and since the duty imposed by the Regulation was for the benefit
of consumers, not rival traders, a breach of the Regulation could not support a
private action by rival traders. It was contended that, in any event, the
Regulation could not support a private action by a trade association such as the
first plaintiff.
5.127
Sir Richard Scott V-C ruled that as a matter of construction of the Regulation
as a whole it could be concluded that its purposes included not only the
protection of the consumer but also the maintenance of the quality of the
products and the protection of traders in those products from unfair com-
petition from rival traders who described and sold as 'whisky' spirit with an
alcoholic content that was less than 40 per cent. Therefore, it was at least
arguable that the Regulation gave right to a private right of action for breach
and, accordingly, the application to strike out the allegations based on breaches
of the Regulation was dismissed.
29
As the Regulation had direct effect in the
United Kingdom, the Court ruled that private actions could be brought by
persons falling in the requisite class or classes of those adversely affected by a
breach of the Regulation.
5.128
In
Scotch Whisky Association v Glen Kella Distillers Ltd
30
a trade association,
whose members included the majority of the makers of the leading brands of
Scotch Whisky, objected to the sale by the defendant of a drink known as Glen
Kella, which was called 'white whisky' and which was made by the re-distilling
of matured and blended Scotch Whisky in the Isle of Man. The plaintiffs issued
proceedings and sought an injunction in the UK High Court to prevent the
defendant selling the drink as whisky. They contended that Glen Kella was not
whisky by reason of the fact that it was not matured after distillation and
accordingly, its sale as whisky was in breach of Art 1(4)(b) of Regulation No
1576/89, which required that the 'spirit drink' concerned should have under-
gone a process of maturation for at least three years in wooden casks after its
production as a liquid by distillation. The defendant contended that Glen Kella
was whisky within the definition contained in the Regulation since it had
undergone a process of maturation for at least three years prior to the defend-
ant's re-distillation of the spirit. It was submitted that in any event the plaintiffs
had no
locus standi
to enforce the provisions of the Regulation, which could only
be enforced by government agencies.
29
[1997] EuLR 446, at 450-51.
30
[1997] ETMR 470.
