As described above, the jurisprudence of the CJEU has now become part of UK law in a number of areas. Principally, the influence of the CJEU can be seen in three separate areas:
- first, in interpreting those provisions of EU law that are required to be implemented into domestic law of the Member States and, in particular, whether they are being implemented correctly; with a plethora of languages and legal systems in the EU, it is inevitable that some Directives are applied differently in different Member States and the CJEU aims for uniformity of interpretation;
- second, in assessing whether a Member State is complying with its obligations under the constitutional documents of the EU, such as ensuring that its domestic laws do not contradict the fundamental freedoms enshrined in the EU treaty; and
- third, in developing the concepts that form the backbone of EU jurisprudence, which concepts are to be applied in looking at matters that have an EU angle; examples of these concepts are the concepts of proportionality and fiscal neutrality.
In all these areas, the CJEU operates as an appellate body in particular disputes, but also as a body that then provides precedent for the courts of Member States to apply when interpreting these matters. Again, there is some doubt about how these concepts would continue to be applied after a Brexit and what the role of the CJEU might be in a post-Brexit UK, although the UK Government has now set out its proposed approach as discussed below. In addition, precedent provides some useful clues as to how this might work.
Precedent value of the CJEU decisions
One of the Government’s stated aims in the Brexit process is that CJEU decisions will no longer be binding in the UK. However, in an effort to avoid uncertainty, the Great Repeal Bill White Paper provides that “any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.”
To this end, the White Paper proposes that CJEU decisions before Brexit will have the status of Supreme Court decisions. This has the effect of preserving continuity, although allows for future divergence insofar as the Supreme Court is able to overturn its previous decisions and therefore will be able to depart from existing CJEU decisions. In addition, changes can, of course, also be implemented by way of new legislation.
An area where one can see the English courts begin to diverge from the CJEU more quickly is in the application of wider concepts of jurisprudence such as the doctrine of abuse of law. This is a concept which appears in civil law and is applied in a number of EU law areas, such as in relation to VAT avoidance, where it enables the courts to find that abusive VAT avoidance schemes do not have the desired fiscal effect despite complying with the strict legislative provisions. This contrasts to some extent with the English law approach to tax avoidance cases, where the Supreme Court has recently affirmed that this is a question of interpreting the facts of the case realistically, whilst bearing in mind the purpose of the relevant statute. Given that these approaches often provide different routes to achieving the same result (and sometimes different routes to different results), it is possible to see a post-Brexit Supreme Court deciding that there should only be one doctrine that should be applied in these cases, leading to EU concepts in relation to EU matters (such as VAT) being side-lined as UK judicial decisions progress. Interestingly, the White Paper suggests that the courts may not take this approach stating that “CJEU case law has over the past four decades clarified what is and is not subject to VAT, and failing to follow that case law in our own legal system would create new uncertainties about the application of VAT”, which suggests there is an expectation at Government level that EU case law will potentially remain relevant to enable a coherent system.
Value of future CJEU decisions
The White Paper goes on to state that there will be no requirement for UK Courts to consider any new CJEU cases. This creates the risk that EU law will gradually diverge from UK law, even where they both remain bound by identical legislation. This is an obstacle to future deals that require continued convergence between UK and EU law (on environmental or consumer protections, for instance).
On the other hand, the UK courts now frequently take note of the way a court in, say, Australia or Canada would approach a similar matter, as these jurisdictions were formerly part of the same English law legal heritage. It remains to be seen whether English courts will adopt a similar approach to future CJEU decision, notwithstanding that they will not be required to take them into account.
From the EU perspective, it seems less likely that the CJEU will have regard to future UK court decisions given the civil law basis on which the CJEU is founded.
Australian case study
Although Australia’s independence is beyond dispute, the process took many years and was undertaken in stages. In fact, it was not until 1986 that the last ties with the British legal system were severed. Up to that point, the Privy Council was the ultimate court of appeal in Australia and decisions of the UK House of Lords, even though not relating to Australia at all, were taken to be precedents.
Both the UK and Australian parliaments (with the consent of Australian state legislatures) passed their own Australia Act 1986. These complementary Acts rendered Australian law fully independent of the UK Parliament and courts, undoing all remaining constitutional ties except retaining the British Monarch as formal Head of State. Perhaps most significantly, the Privy Council was closed off as an avenue of appeal, leaving the Australian High Court as the court of final appeal in Australia. Exchange of ideas is common, and although not binding, UK Supreme Court decisions are influential in Australia and vice versa.
South African case study
Similar to Australia, South Africa’s process in gaining independence was a gradual one.
The Privy Council remained the highest court of appeal in South Africa until 1950. Prior to that, all South African courts regarded themselves as absolutely bound by a decision of the Privy Council. Post 1950, the Appellate Division (which then became South Africa’s highest court of appeal) treated decisions of the Privy Council made before 1950 on the same footing as it did its own previous decisions, however, the court assumed power to depart from a previous decision if it considered it to be erroneous. Decisions of the Privy Council made after 1950, while in no way binding, could have persuasive force in all Union courts.
South Africa’s ties with the British Commonwealth of Nations were finally severed in 1961, when it officially became the Republic of South Africa. The Republican constitution of 1961, although bringing about a fundamental political change, altered little in the form of law and jurisprudence. It preserved all existing legislation with the necessary amendments to references that had previously been to the Union, Crown, King and Governor-General. The state president replaced the British monarch and Governor-General.
Hong Kong case study
The continuity of the laws in force in Hong Kong before the handover is maintained by the Basic Law (which was the law that, broadly speaking, enacted the constitutional change). By virtue of this, English court decisions prior to 1 July 1997 that were binding on Hong Kong courts2 remain binding on the Hong Kong Special Administrative Region (the HKSAR) courts below the Court of Final Appeal3 – this is also in accord with the common law doctrine of precedent and in line with the principle of continuity of the legal system as enshrined in the Basic Law.
Post-handover English court decisions are not binding on the HKSAR courts. On the other hand, the Basic Law expressly empowers the HKSAR courts to “refer to precedents of other common law jurisdictions” in adjudicating cases – English cases (as with cases from other common law jurisdictions) can, therefore, still be persuasive to the HKSAR courts after the handover.
In summary, assuming the forthcoming legislation matches what is set out in the Great Repeal Bill White Paper, the past jurisprudence of the CJEU will continue to be part of UK law and it is likely that English courts will continue to have regard to future EU jurisprudence in relation to legislation and concepts that originated from the EU, although they may not be formally bound to follow that jurisprudence.