What's the issue?

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.

What's the development?

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).

What does this mean for you?

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.

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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:

• During the relevant period, which was from the end of the Brexit transition period on 31 December 2020, there had been no changes to relevant domestic legislation.
• Similarly, there had been no change to relevant EU law, nor to relevant international treaties (WIPO).
• There was no guidance on the relevant issue in the legislation and there was a conflict in rationale. The expertise on the issue came largely from the CJEU which was said to have "unrivalled experience" on the subject and presented the best available source of interpretation.
• Academic commentary on the CJEU jurisprudence, while divided, was not sufficiently dissenting to justify overturning the status quo.
• Jurisprudence from other jurisdictions (like Australia, Canada and the USA) was irrelevant because the law on this issue is too different from that in the EU/UK.
• Overturning CJEU case law and attempting to start from scratch would create "considerable legal uncertainty".
• It would not be sensible to depart from one CJEU case but not other related ones.
• The principal reason submitted for departing from the CJEU jurisprudence was weak and would be unlikely to assist the appellant.

The Master of the Rolls agreed with the overall approach but said he would reach the conclusion on the basis of fewer criteria:

• The relevant area of law is derived from international treaties (as was clear from the Recitals of the retained EU law) and the courts should be "striving to achieve harmonious interpretation of them".
• The CJEU's approach to the law of infringement of copyright by communication to the public does not restrict or impede the development of the law, nor lead to results which are unjust or contrary to public policy. As such, "it would therefore be unnecessary and undesirable for this court to depart from retained EU law in this case. To do so would be to create legal uncertainty for no good reason."

By implication, the Courts might consider departing from CJEU law in future on consideration of factors including:

• changes to domestic legislation or the international legislative framework (including international treaties, particularly where they influence the legislation in question)
• whether there is any available guidance or alternative comparable judicial authority to CJEU jurisprudence
• whether there is a significant weight of academic opinion which suggests the CJEU jurisprudence is wrong
• whether CJEU jurisprudence hinders the development of the law or produces unfair outcomes or decisions which are contrary to public policy
• whether departure would create legal uncertainty or, conversely, clarify a previously unclear position.

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:

• "It is helpful to summarise some basic conclusions. In this case, the task of the court has been relatively straightforward since as of the date of this judgment the new legal regime has been in place for only a few months and nothing of relevance in the case law of the CJEU has changed. As time moves on, and the case law of the CJEU evolves, then the differences between the current state of EU law and that which the Court is to take account of might become more accentuated. At that stage the analysis might become more complex. The basic principles of relevance in this appeal can be summarised as follows:
  • Regulation 261/04 is direct EU legislation. [The Regulation relevant to the case]
  • It takes effect in domestic law as amended by the Air Passenger Regulations 2019. [Relevant Brexit SI]
  • It should be given a purposive construction which takes into account its recital and other principles referred to in the body of the regulation and in the recitals.
  • To the extent necessary this process of interpretation would include any provision of international law that has been incorporated into the Regulation by reference.
  • The meaning and effect of the measure should be determined by reference to case law of the CJEU made prior to 11 pm 31st December 2020.
  • General principles of EU Law from case law and as derived from the Charter of Fundamental Rights and the TFEU, are relevant to interpretation.
  • In construing and applying such a Regulation the Court can depart from any retained CJEU case law or any retained general principles. The Court is not bound by such principles and may depart from them if it considers it right to do so. It has not been necessary to do so in this case.
  • The provisions of the TCA and the EU(FR)A 2020 [EU (Future Relationship Act] may be relevant to the effect of domestic law insofar as the subject matter of the domestic law in issue overlaps with the subject matter of the TCA and/or EU(FR)A 2020 and in so far as domestic law does not already cover the subject matter of the TCA.
  • If domestic law does not already reflect the substance of the TCA then domestic law takes effect in the terms of the TCA. In this case domestic law already implements the relevant provisions of the TCA and there is no need for any further transposition in order to achieve the requisite effect.”

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:

• identify the relevant domestic law
• determine whether the domestic law is the same as the corresponding provisions of the TCA.  If it is, there is no need to apply the automatic read across
• if there is "inconsistency, daylight or a lacuna, then the inconsistent or incomplete provision is amended or replaced and the gap is filled".

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.