Clause 6: Interpretation of retained EU law

102 Clause 6 sets out how retained EU law is to be read and interpreted on and after exit day.

103 Subsections (1) and (2) set out the relationship between the CJEU and domestic courts and tribunals after exit. These subsections provide that:

○ decisions of the CJEU made after exit day will not be binding on domestic (UK) courts and tribunals;

○ domestic courts cannot refer cases to the CJEU on or after exit day; and

○ domestic courts are not required to have regard to anything done by the EU or an EU entity on or after exit day.

104 When interpreting retained EU law domestic courts will, however, be able to consider post-exit EU actions including CJEU case law if they consider it appropriate.

105 Subsection (3) provides that any question as to the meaning of retained EU law will be determined in UK courts in accordance with relevant pre-exit CJEU case law and general principles. This includes, amongst other matters, taking a purposive approach to interpretation where the meaning of the measure is unclear (i.e. considering the purpose of the law from looking at other relevant documents such as the treaty legal base for a measure and where relevant the ‘travaux preparatoires’ (the working papers) leading to the adoption of the measure, applying the interpretation that renders the provision of EU law compatible with the treaties and general principles of EU law). The general principles (such as proportionality, fundamental rights and non-retroactivity) are applied by the CJEU and domestic courts when determining the lawfulness of legislative and administrative measures within the scope of EU law, and are also an aid to interpretation of EU law. Where retained EU law has not been amended on or after exit day then it will be interpreted in accordance with pre-exit CJEU case law and the retained general principles of EU law (insofar as relevant). Non-binding instruments, such as recommendations and opinions, are still available to a court to assist with interpretation of retained EU law.

106 UK courts will also be required to interpret retained EU law by reference to (among other things) the limits of EU competence, as it exists on the day the UK leaves the EU. A matter could not fall within retained EU law if the EU had no competence in that area. Article 5(2) TEU confirms that the Union could only act within the limits of the competences conferred upon it by the member states. Competences not conferred upon the Union remain with the member states. For example, article 4(2) TEU provides that, amongst other matters, the maintenance of law and order and safeguarding national security matters have not been conferred on the EU and remain with member states. 1

107 Subsections (4) and (5) set out that unlike other courts the UK Supreme Court (UKSC) and the High Court of Justiciary (HCJ) are not bound by either retained general principles or retained CJEU case law. The HCJ is the highest criminal court in Scotland from which there is no right of further appeal to the UKSC, except in respect of certain matters set out in subsection (4)(b)(i). After exit day, retained CJEU case law will have the same binding, or precedent, status in domestic courts and tribunals as existing decisions of the UKSC or HCJ. This means that the UKSC (and except where there is a further appeal to the UKSC, the HCJ) will be able to choose to depart from previous CJEU case law. In doing so, the UKSC and the HCJ are required to apply the same tests as they would when considering whether to depart from their own previous decisions. The test the UKSC uses is set out in an existing practice statement which sets out that it may depart from previous decisions ‘where it appears right to do so’. The HCJ will apply its own tests in deciding whether or not to depart from inherited CJEU case law.

108 Subsection (6) sets out that retained EU law which has been amended on or after exit day can be determined in accordance with CJEU case law and the general principles where that accords with the intention of the amendments.

109 Subsection (7) provides definitions of the terminology relevant to this clause.