Sarah Abram

Many are asking what the effect of the Leave vote in the EU referendum will be on litigation involving the CJEU and/or the courts of the UK.

This post identifies some of the types of litigation in which EU law issues arise and in which further consideration will have to be given to the effect of a pending Brexit.

Cases before the CJEU

The first and most obvious category is litigation before the English courts, in which a preliminary reference has already been made to the CJEU under Article 267 TFEU, which allows national courts to ask the CJEU for rulings on the interpretation and validity of EU law. Prior to the referendum, the Leave campaign indicated that it intended to introduce a European Union Law (Emergency Provisions) Bill, which would include a number of measures including “end[ing] the rogue European Court of Justice’s control over national security”. It is not clear exactly what this would entail, or how extensive the changes to the role of the CJEU in the UK legal order would be. It is equally not obvious, however, that pending preliminary references will in general be immediately affected by the vote to leave the EU.

There are also numerous pending cases that have already been brought directly before the courts of the EU, to which the United Kingdom is itself a party, or in which it has submitted (written and/or oral) observations because the outcome of the dispute may affect the UK’s interest or UK law. It is unclear what approach will now be taken by the UK government to the future management of these cases, or how quickly a decision will be made.

Domestic cases raising potentially referable issues

In addition to those English/Welsh cases in which references are already pending before the CJEU, there are a number of cases currently being heard by UK courts, in which the court might otherwise have been inclined to make a reference under Article 267 TFEU. Will the English courts now be far more reluctant to make a reference than would otherwise have been the case?

Assuming that this is not expressly dealt with by any Emergency Provisions Bill, it may nevertheless become more difficult to persuade an English court to make a reference. Since the usual timetable for the determination of a preliminary reference (15 months on average) is not much shorter than the minimum time remaining until Brexit (two years after Article 50 is invoked), litigants may find national courts increasingly reluctant to refer. On the other hand, there will be numerous cases in which the guidance of the CJEU will remain relevant and useful to the determination of national litigation. Until it is known what aspects of EU law will remain part of the UK legal order, English courts may continue to refer as normal. Absent domestic legislation to the contrary, the prospect of persuading the English court to refer may be improved in cases where there is an EU law obligation to refer as the court of last resort (Article 267 para 3 TFEU; Case 283/81 Srl CILFIT at [16]).

Francovich claims

In a Francovich claim, a claimant sues a Member State (ie here the UK) for a breach of EU law. The claimant may be able to recover damages if they can show: (1) that the rule of law infringed was intended to confer rights on the claimant; (2) the breach is sufficiently serious; and (3) there is a direct causal link between the breach and the damage sustained (Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA at [51]; the label for these claims derives from Joined Cases C-6/90 and C-9/90 Francovich).

What will become of the various Francovich claims pending before UK courts? One of the items that the Leave campaign wished to see included in the Emergency Provisions Bill is to “end payouts under EU law to big businesses, saving between £7 billion and £43 billion for public services by 2021”. It is not clear what payouts are being referred to. Time will tell whether they are intended to include the assertion of State liability under the Francovich doctrine.

Domestic cases applying EU law

EU law is applied and relied on in a wide variety of ways in cases before the courts of the UK.

In some areas, UK law derives directly from the EU, as for example in the cases of the Brussels Regulation on jurisdiction and recognition and enforcement of judgments (Regulation (EU) No 1215/2012), which regulates jurisdiction between parties from Member States of the EU (except Denmark). The effect of Brexit on cases arising in these areas of law remains to be decided; presumably, nothing changes in the meantime.

In other areas, UK law implements rules set out in EU Directives. Where this is the case, the duty of consistent interpretation means that national courts are obliged to interpret domestic law consistently with EU law wherever it is possible to do so (Case 14/83 von Colson). This is a strong interpretative obligation, which can require domestic law to be interpreted consistently with EU law even where it was not enacted with the intention of reflecting EU law, or where there may appear to be a tension with the content of the relevant EU rule (eg Case C-106/89 Marleasing SA). How will English courts now deal with litigants relying on the Marleasing duty of consistent interpretation in cases before them? Again, assuming that the envisaged Emergency Provisions Bill does not directly address this issue, one would expect it to be business as usual for now, although it may seem increasingly strange to interpret domestic law by reference to provisions of EU law that may shortly be inapplicable in the UK.

As can be seen, much remains uncertain regarding the effect of the leave vote on domestic and EU litigation. It is to be hoped that clarity emerges over the next months, as these issues are tested in the domestic courts and possibly also before the CJEU.