Update on the Article 50 judicial reviews on which we previously reported:
Richard Gordon QC considers two core questions which will need to be addressed by the UK courts in their treatment of “EU law” that is preserved after Brexit: (i) the legal status of that law; and (ii) the extent to which the common law may be reshaped by the experience of EU membership.
Please click here to view the article which was first published in Butterworths Journal of International Banking and Financial Law.
(3) Commission decisions
Many current actions for damages for breach of Articles 101 and 102 rely, in whole or in part, on decisions of the European Commission that establish an infringement of those provisions by the addressees. These decisions are currently binding on the English courts.
It is tempting to suppose that, after Brexit, this will no longer be so. It is correct, in this regard, that, unless other provision is made by Parliament, the English courts will cease to be bound by Regulation 1/2003 (the Modernisation Regulation) and by the ‘duty of sincere cooperation’ with EU institutions. However, such a view overlooks the existence of section 58A of the Competition Act 1998. Continue reading
(2) Jurisdiction
The previous blogpost in this series considered whether a claimant that wishes to bring an action for damages for violation of Article 101 or 102 in the U.K. courts after Brexit will have a valid cause of action. Assuming there is such a valid cause of action (a foreign tort), a claimant will still need to establish jurisdiction. If the defendant is based in the U.K. then establishing jurisdiction will not be difficult, but in many cases a claimant will also wish to sue defendants domiciled elsewhere.
At present, our jurisdiction rules are governed by the Recast Brussels Regulation. A previous blogpost has argued that, after Brexit, the U.K. will, by virtue of Section 2(1) of the Civil Jurisdiction and Judgments Act 1982, fall back on the old Brussels Convention of which we are (and will be) still a contracting state. Whether we are ultimately governed by the old Brussels Convention, or Parliament continues to apply the Recast Brussels Regulation or we join the Lugano Convention, all sets of rules potentially permit joinder of EU defendants to an anchor defendant domiciled in a contracting state. In particular, this is permitted where the claims against an (English) anchor and the other proposed defendants are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. In such circumstances, the English courts have no discretion to decline jurisdiction.[1] Continue reading
If there is a ‘hard Brexit’[2], will it still be possible to bring actions before the U.K. courts seeking damages for breaches of Articles 101 or 102?
As recent cases[3] have reminded us, competition law, including EU and domestic competition law, is territorial in nature. Following a hard Brexit, Articles 101 and 102 TFEU will no longer apply in the territory of the U.K. and EU law will no longer be a part of our law. Articles 101 and 102 would continue to apply only if and insofar as the infringing conduct is implemented in (or, arguably, has immediate, foreseeable and substantial effects in) the remaining EU Member States and has an effect on trade within those States. If and insofar as the conduct amounting to an infringement of competition law is implemented only within the U.K. then just the Chapter I and Chapter II prohibitions of the Competition Act 1998 should apply to such conduct. The territorial ambit of competition law will therefore respect our border. Continue reading
A number of Parliamentary committees have opened inquiries into legal issues arising from Brexit:
The Foreign Affairs Committee of the House of Commons is conducting an inquiry into the following legal issues:
The Joint Committee on Human Rights has launched an inquiry in to the human rights implications of Brexit, including for:
The House of Lords Select Committee on the Constitution has published a report on Article 50 (on 13 September 2016) which comments on whether an Article 50 can be made without Parliament and whether it can be unilaterally withdrawn by the UK. The report concludes that Parliament should assume that it cannot be withdrawn, and that:
“It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval – particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament… In our representative democracy, it is constitutionally appropriate that Parliament should take the decision to act following the referendum. This means that Parliament should play a central role in the decision to trigger the Article 50 process, in the subsequent negotiation process, and in approving or otherwise the final terms under which the UK leaves the EU.”
See also the report of the House of Lords Select Committee on the EU’s reports on the process of withdrawing from the EU and on the role of Parliament.
On Tuesday 13 September Richard Gordon QC and Bernard Jenkin MP were interviewed by Ellie Price on Daily Politics about how to untangle more than 40 years of entwined British and European law: Watch here
On Wednesday 14 September Richard Gordon QC took part in Unreliable Evidence in a panel discussion moderated by Clive Anderson (including Lord Falconer) about how EU law has become woven into the fabric of our lives, and whether, on the day that Britain leaves the EU, all that law cease to apply. In the absence of EU law guaranteeing free movement of labour, what will happen to EU citizens working in the UK and UK citizens working and living around Europe? Listen here
French campaign group Fair Deal for Expats has brought a challenge in the EU General Court to Commission President Jean-Claude Junker’s “presidential order” preventing Brexit negotiations with the UK until the UK has triggered TEU Article 50.
Mr Junker foreshadowed such an order shortly after the UK referendum result, and stated on 28 June 2016 that he had “forbidden Commissioners from holding discussions with representatives from the British government — by presidential order” and “told all the directors-general that there cannot be any prior discussions with British representatives”.
According to the Fair Deal for Expats website, the challenge is being brought under TFEU Article 263. Its grounds include that the order contravenes the principle of sincere cooperation, has no proper basis and discriminates against UK citizens (who remain EU citizens).
Professor Derrick Wyatt QC argued at the Brick Court debate on 21 July that the UK constitution should evolve to allow parliamentary scrutiny of the Brexit negotiations. He will speak on this issue to the House of Lords EU Committee on 6 September. Further details may be found here.
Brick Court Chambers invites you to a seminar on
Tuesday, 6 September 2016
15:00 – 16:30 CET
9:00 – 10:30am EST
Location:
Siemens AG, Avenue des Arts 20, 1000 Brussels, Belgium
Following the Brexit referendum result, this Trans-Atlantic Business Council seminar will examine the UK dimension of Article 50 of the Treaty on European Union. Richard Gordon QC of Brick Court Chambers will make a presentation on the constitutional aspects of triggering the Article 50 process in the UK: Prime Minister or Parliament? Alastair Sutton of Brick Court Chambers will add a short section on the trade policy aspects of Brexit. These presentations will be followed by a Q&A where their colleague Robert O’Donoghue will contribute in response to any questions on related competition or regulatory matters.
Attendees may join the meeting on-site in Brussels or participate via conference call.
Brexit Law 