26 April 2021
Radar - April 2021 – 1 of 2 Insights
Following the end of the Brexit transition period, the UK is now free (in theory) to depart from retained EU legislation and from retained EU case law under certain circumstances.
A significant proportion of EU Legislation which was retained in UK law under the EU Withdrawal Act had to be amended in order to make it work in a post-Brexit landscape. In many cases, the revised legislation has not yet been published in full which can lead to having to follow a complex network of statutory instruments to work out the final position. In addition, this law has to be interpreted in light of UK case law and retained EU case law, as well as in light of international treaties.
Another post-Brexit issue in terms of jurisprudence is that the Court of Appeal and the Supreme Court have the power to diverge from CJEU case law as it stood at the end of the transition period. They may do so in the same way that the Supreme Court may depart from its own decisions ie when it is right to do so – a somewhat vague parameter.
Two recent Court of Appeal cases have looked respectively at when departure from CJEU case law might be appropriate and at applying the current legal framework.
In TuneIn Inc. v Warner Music Ltd, a copyright case relating to framing and hyperlinking as a communication to the public, the Court of Appeal considered whether it was appropriate to depart from retained CJEU case law, and gave reasons for its eventually declining to do so. These centred around the principle that the power to depart should be used as an exception, and because there had been no relevant domestic or international legislative changes since the end of the Brexit transition period.
Interestingly, not only did the Court decline to depart from retained CJEU jurisprudence, it also applied a post-Brexit CJEU ruling in reaching its decision.
In Lipton v BA City Flyer, the Court of Appeal set out a helpful list of the approach to deciding what law applies post Brexit and the order in which to consider it. The list appears to be obiter and was not central to the facts of the case nor to the ruling and it is unclear whether it was even necessary for the court to go into that level of detail. Nonetheless, Green LJ's useful checklist discusses the order in which to apply legislation as interpreted by case law, and in accordance with relevant treaties including the EU-UK Trade Cooperation Agreement (TCA).
Although the principles behind the application of retained EU law are relatively clear, we haven't yet seen much practical application in the courts. Nor have we seen significant departures from retained EU legislation and jurisprudence as it stood at the end of the transition period. As such, guidance from the courts is helpful.
Departing from retained EU (CJEU) case law
The reasoning in the TuneIn case is specific to the facts but provides an indication of factors which might persuade the Court of Appeal and the Supreme Court to override or depart from existing retained CJEU decisions.
The Court of Appeal was asked to depart from CJEU case law on whether hyperlinking is considered to be a 'communication to the public', an aspect of copyright dealt with in s20 of the UK's Copyright Designs and Patents Act (CDPA). This was declined for a number of reasons in Lord Justice Arnold's leading judgment, including:
The Master of the Rolls agreed with the overall approach but said he would reach the conclusion on the basis of fewer criteria:
By implication, the Courts might consider departing from CJEU law in future on consideration of factors including:
These will be in addition to any precedent set for departing from UK Supreme Court and House of Lords decisions because departures from EU retained CJEU law should be dealt with in the same way.
Applying and interpreting current law
The Lipton case related to a claim for compensation for a travel delay caused by a plane not taking off through illness of the captain. The issue considered was whether the cancellation or delay was caused by “extraordinary circumstances”, a test set by the relevant EU Regulation. That Regulation (as amended by statutory instrument) now forms part of English domestic law, as retained EU law.
Green LJ's judgment in Lipton set out ten principles by way of guidance, stating that:
Lord Justice Green emphasised the impact of s29 TCA. While clarifying that it does not have direct effect, he noted the "sweeping up" mechanism in the TCA which provides that existing domestic law has effect with such modifications as are needed to implement the TCA in domestic law. He said it was clear that this was an automatic process to be widely interpreted, amounting "to a generic mechanism to achieve full implementation." To apply s29, it is necessary to:
In some cases, as in this one, the application of s29 can involve applying very broad overarching interpretations. In this instance, Lord Justice Green said that "the TCA imposes a duty on the parties, in pursuit of a principle of consumer protection to "ensure" that "effective" measures are taken to protect consumers in the field of transport".
The application of s29 TCA is an entirely new addition to the assessment of applicable law, following the end of the Brexit transition period. It will be interesting to see what tangible impact it has on case law going forward.