A2.205 Retained EU case law and EU general principles—from 1 January 2021
Retained EU case law and retained general principles of EU law also form part of retained EU law (A2.202) as discussed below1.
Retained EU case law
EU case law continues to be relevant to UK taxpayers, and HMRC, even after IP completion day. Its status in UK law depends on whether it dates from before, or after, IP completion day.
The UK's domestic case law dating from before IP completion day and relating to EU law continues to be relevant for the purpose of interpreting retained EU law. However courts will no longer be bound by decisions made by the European Court of Justice on or after IP completion day. There may also be uncertainty in the courts over the relevance of pre-Brexit case law and the extent to which UK courts would still find it persuasive.
The Withdrawal Agreement Act2:
• requires UK courts generally (subject to some exceptions) to interpret retained EU-derived law in accordance with retained EU case law
• provides that the case law of the EU courts up to exit remains binding on UK courts, except upon the UK Supreme Court and a number of higher appeal courts (including the Court of Appeal), which will have power to depart from it, and
• provides that the UK courts are free to have regard to post-Brexit EU case-law. This issue is likely to trigger further litigation in its own right, eg where HMRC continues to apply
To continue reading
View the latest version of this document, as well as thousands of others like it, sign in to TolleyLibrary or register for a free trial