Chapter 4: The Court of Justice of the EU
Judgments of the Court of Justice of the EU
64.Our report considered the status of judgments of the Court of Justice of the European Union (CJEU) after Brexit. We concluded that “it would be politically unlikely that UK courts would have to continue to follow the judgments of the Court of Justice following Brexit.” We recommended that “the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts ‘may have regard to’ the case law of the Court of Justice” as this would “allow UK courts to take into account the judgments of the Court of Justice, but not be bound by them.”67
65.We further recommended that “the Bill should provide clarity as to the status of the Court of Justice’s judgments, including the extent (if any) to which those judgments can or must be followed or taken account of by UK courts following Brexit.” We went on to state that “it will also be necessary to consider whether a distinction should be drawn in this regard between judgments given before and after the date on which the UK leaves the EU.”68
66.The Government has acted on these points. The European Union (Withdrawal) Bill sets out how judgments of the CJEU are to be treated by domestic courts and tribunals after exit day.69 Clause 6 draws a distinction between pre-exit and post-exit CJEU case law. Domestic courts and tribunals are not bound by post-exit case law; however the Government accepted our recommendation and has permitted domestic courts and tribunals to have regard to it if the court or tribunal considers it appropriate. In contrast, pre-exit case law is binding upon most domestic courts and tribunals insofar as it is relevant to questions pertaining to retained EU law. The Supreme Court and (in some circumstances) the High Court of Justiciary are, however, not bound; they can depart from pre-exit CJEU case law by reference to the same test as applies when they decide whether to depart from their own case law.
67.The President of the Supreme Court, Lord Neuberger of Abbotsbury, has called for greater clarity about how UK law will be developed after Brexit. He said that Parliament needed to be “very clear” about how judges should approach CJEU decisions and “spell it out in a statute”. He continued “If [the government] doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”70 Professor Alison Young also argued that greater clarity was needed:
“The UK courts will be required to determine the meaning of retained EU law in accordance with the case law of the CJEU up to exit day and in accordance with general principles of the EU. However, this is not the case where retained EU law is modified on or after exit day, unless this is consistent with the intention of the modifications. This creates uncertainty surrounding whether the modified retained EU law should be interpreted in line with EU case law up to exit day, particularly as many of these modifications would occur through delegated legislation which may provide little information as to the intention of these modifications.”71
68.Professor John Bell raised particular concerns about the treatment by clause 6 of EU case law, arguing that:
“Clause 6 unnecessarily clutters the simplicity of what needs to be achieved by regulating “retained EU caselaw” and “retained EU general principles of law”. This seems to be modelled on the preservation of common law rules in other areas … But this does not work in the case of EU law … if a legislative provision is retained, the case law interpreting it is retained and clause 6(2) is sufficient. If the legislative provision lapses or is abolished, then the case law on it lapses. There is no space for special regulation of “retained EU case law”.”72
69.As it is presently drafted, clause 6 draws no distinction between the general category of judgments rendered by the CJEU post-exit day and the specific category of post-exit CJEU judgments rendered in cases that were referred to it by UK courts pre-exit. In our inquiry, we will consider whether that specific category of cases should be treated differently from other post-exit day CJEU case law.
70.While the European Union (Withdrawal) Bill provides some welcome clarity regarding judgments of the Court of Justice of the European Union, it is at least arguable that the Bill should provide more guidance to the courts. We will explore in our forthcoming inquiry the status of post-exit judgments by the CJEU on any pre-exit laws that still apply in the UK. We will also consider whether, post-Brexit, UK courts are likely to take into account CJEU case law which overturns or clarifies pre-exit law.
67 Ibid., para 27
68 Ibid., para 26
69 European Union (Withdrawal) Bill, clause 6
70 BBC News, UK judges need clarity after Brexit: Lord Neuberger, 8 August 2017: http://www.bbc.co.uk/news/uk-40855526 [accessed 8 August 2017]