Q&As

What is the position on the interpretation of EU case law relating to EU Directives post IP completion day? In cases concerning retained EU-derived domestic legislation which implements an EU Directive, are UK courts and tribunals bound or permitted to have regard to EU case law on that Directive even though the Directive itself is not retained?

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Published on LexisPSL on 29/10/2020

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • What is the position on the interpretation of EU case law relating to EU Directives post IP completion day? In cases concerning retained EU-derived domestic legislation which implements an EU Directive, are UK courts and tribunals bound or permitted to have regard to EU case law on that Directive even though the Directive itself is not retained?
  • Interpretation of retained EU law under the European Union (Withdrawal) Act 2018
  • Intention
  • Relevance
  • Further reading

Interpretation of retained EU law under the European Union (Withdrawal) Act 2018

Section 6 of the European Union (Withdrawal) Act 2018 (EU(W)A 2018) provides that retained EU law which has not been modified on or after IP completion day (and questions as to its validity, meaning or effect) is to be interpreted according to retained case law and retained general principles of EU law so far as it is relevant to any matter before the court or tribunal.

Retained EU law which has been modified after IP completion day can still be interpreted in accordance with retained case law and retained general principles of EU law provided that/to the extent that to do so is ‘consistent with the intention of the modifications’.

After IP completion day, a UK court or tribunal may also ‘have regard’ to anything done on or after IP completion day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.

EU(W)A 2018, s 6 defines the key terms as follows:

‘retained EU case law’ means any principles laid down by, and any decisions of, the European Court, as they have effect in EU law immediately before IP completion day and so far as they—

(a)    relate to anything to which section 2, 3 or 4 applies, and

(b)    are not excluded by section 5 or

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