T Sovereignty Regained, EU Law Retained

SOVEREIGNTY REGAINED, EU LAW RETAINED

By Master Philip Moser

Luxembourg, on the 12 February 2020. The President of the Court of Justice of the European Union (CJEU), Koen Lenaerts, is giving a valedictory address bidding farewell to the last United Kingdom judge of the CJEU, Christopher Vajda QC, following the departure of the UK from the EU on 31 January of that year. President Lenaerts pays tribute to the British judges’ contribution, both to the acquis communautaire and the Court itself, as follows:

“Successive British members have, over the past 47 years, enriched our institution, both intellectually and personally, bringing to their work the rigorous, case-law based approach that is the hallmark of common law systems, as well as their British pragmatism and common sense, not to mention their inimitable sense of humour.”

Successive CJEU presidents have paid similar compliments to the Bar over the years of UK membership. Writing in the Spring 2015 issue of the European Advocate (pp.2-7), then President Skouris said this about the UK’s distinctive approach to representation before the Court:

“…it is worth noting that the United Kingdom is not represented by government agents before the Court but by independent and experienced advocates. Those advocates carefully test whether the government’s arguments are intuitively persuasive and optimize their presentation so that it will immediately catch the attention of the Judges. Common lawyers therefore manage to give more distinctive relevance to an oral argument than civil lawyers do, and their written and oral presentations are usually particularly clear, concise and gripping.”

This considerable common law contribution to the hearings in Luxembourg and the case law of the CJEU will not be lost entirely following the exit of the UK from the EU, as the Irish Bar remains. Intending no offence to our Irish colleagues, however, and from the clear disparity in the numbers of cases and barristers alone, it is clear that this contribution will be much diminished without the UK.

Over those 47 years, a distinctive body of EU law practitioners evolved at the Bar of England and Wales, with a particular specialism in advocacy before the CJEU, both in references for preliminary rulings from national courts and tribunals and in direct actions (which are mostly against Commission decisions) before the court of first instance, the General Court. The barristers who appeared regularly in Luxembourg were the most prominent exponents of the practice of EU law at the Bar, and one might mention the late David Vaughan CBE QC, Eleanor Sharpston QC, Paul Lasok QC or David Anderson QC in a very non-exhaustive list, with others too numerous to add here. The hearings in Luxembourg, although often only lasting a morning, and the judgments delivered by the Court, were likewise the most visible forensic features of the influence of EU law on our domestic legal scene. They were however only a part of the whole. EU legislation and other acts of the EU institutions contributed greatly to the UK statute book, mainly by way of regulations (which were directly applicable without the need for implementation) and directives (which required implementation but could take ‘direct effect’ if unimplemented). It was after all a key feature of EU law that it took effect in, as well as taking precedence within, national law. This being the very feature that had proved controversial throughout UK membership and was generally summed up by the term ‘sovereignty’, which became a key driver for Brexit.

In EU terms this is the principle of ‘precedence’ established, well before UK membership, in Case 6/64 Costa v ENEL [1964] ECR 585:

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”

That transfer of the UK’s sovereign rights was reversed by Brexit and the Trade and Co-operation Agreement (TCA) between the UK and the EU. Thus, the precedence of EU law in the UK (with exceptions for Northern Ireland under the Ireland-Northern Ireland Protocol to the Withdrawal Agreement) ended on 31 December 2020, some eleven months after the UK’s actual exit. The jurisdiction of the CJEU in the UK likewise ended that day.

The immediate consequence for the EU Bar is that the visible manifestation of EU practice via appearances in Luxembourg is now no longer open to barristers in post-2020 actions. That is a matter of regret not merely for those who practised in that Court, but also for UK and other (eg US) clients who have traditionally preferred the English Bar for this work. An obvious example would be a UK company fined for breach of EU competition law (which famously takes extraterritorial effect), seeking to bring a direct action in the General Court to annul the Commission’s decision. That company will no longer be able to use an English barrister and will have to seek foreign representation (although happily English remains an official language of the Court, so that at least it will not have to litigate in a foreign language – as eg Japanese companies are forced to do). That problem of representation may in part be overcome by those with a particular expertise in this area being called to the Brussels or Irish Bars. As ever, the London legal market will find a solution. Yet however important cases before the CJEU may be for those practitioners who regularly appear in Luxembourg and their clients, they are only the tip of the iceberg when it comes to the consequences of Brexit for the profession.

The consequences for the profession and practice at the Bar fall into two main categories, the first being regulatory consequences and the second being consequences concerning substantive law. Broadly speaking, the TCA contains little in the way of good news for the Bar in the first category whereas the second category looks set to keep practitioners busy for many years to come. It is impossible to give a comprehensive account of either of these areas within the scope of this article, but each will be examined in outline and in turn below.

Before the 1 January 2021, when the TCA took provisional effect, barristers in England & Wales enjoyed rights of establishment, under the Lawyers Establishment Directive 98/5/EC, as well as a right to provide services, under the Lawyers Services Directive 77/249/EC, throughout the European Economic Area (EEA; the EU plus Iceland, Norway and Liechtenstein). Those rights were dependent primarily upon being qualified in a Member State and to some extent also on holding EEA citizenship. They included, for instance, the right to appear in any EEA court (provided it was in conjunction with a host state lawyer) and the right to give advice anywhere in the EEA, whether in person on a fly-in-fly-out basis or remotely, in writing or over the ‘phone, from another EEA state.

For those barristers who are also members of an EU Bar (and, for mobility rights, also hold EEA nationality) their right to provide legal services in the EEA was preserved by the Withdrawal Agreement 2019 (WA). There are also certain other exceptions under the WA, such as for those instructed prior to 31 December 2020 in cases pending before the CJEU, or instructed after that date in CJEU cases under the WA itself up to 31 December 2028. The TCA has not however replicated the full freedom to provide legal services that existed before 2021 and it is important for practitioners to be aware of the change. Under Articles 192 to 194 TCA, barristers may continue to provide legal advice (only) in relation to English law and public international law, but excluding EU law, within the EU, subject to the 27 Member States’ individual registration or mobility (eg visa) requirements. There is also no guarantee that such advice will be covered by legal professional privilege (which in most EU states attaches to the status of the advice giver rather than the nature of the advice). Anyone giving such advice will thus be well advised to have it signed off also by an EEA qualified lawyer. It is worth noting that Article 193(g) TCA, whilst not being particularly clearly drafted, contains a carve-out for legal arbitration, mediation and conciliation services, although EU states may once again impose a registration requirement or a time limit for the duration of stay in the host state.

The Bar Council maintains a very helpful page on these matters and on Brexit and the new EU-UK relationship generally on its website, reflecting the work of its Future Relations Working Group under the chairmanship of Hugh Mercer QC.

On substantive law post-2020, the prospects for practitioners are considerably more exciting. UK lawyers operating in the general EU law sphere now find themselves within a new ‘ecosystem’ of laws (a term coined by Jack Williams in his extremely useful blog on the new relationship between the UK and EU) consisting of retained EU law, the WA, the TCA (together with the EU (Future Relationship) Act 2020 that carries it into effect in UK law) as well as the Internal Market Act 2020. In addition, ‘traditional’ EU law will continue to apply to matters that occurred pre-exit where it constitutes the applicable law at the time of the relevant events. In further addition, some areas of the law, even in England, may be affected by the Northern Ireland Protocol (eg a UK State aid measure in England that has effect in Northern Ireland as well). In yet further addition, the position under private international law remains in flux, with the UK having left the so-called Brussels Regime on jurisdiction and the mutual recognition and enforcement of judgments and where UK accession to the Lugano Convention on these matters is currently still being blocked by the European Commission.

The concept of “retained EU law” was introduced by the EU (Withdrawal) Act 2018 (EUWA). It preserves what was EU law in our national law, in five categories: (i) EU-derived domestic legislation (s. 2 EUWA), (ii) EU direct legislation (s. 3 EUWA), (iii) certain ‘saved’ directly effective rights (s. 4 EUWA), (iv) retained CJEU case law (s. 6 EUWA), and (v) retained general principles of EU law (s. 6 EUWA). This will likely provide the Bar and the courts with years of work, spent delineating what has or has not been ‘retained’ (the concept of ‘saved’ direct effect being particularly unclear) and how this falls to be applied post-Brexit. Under section 6(4) EUWA the Court of Appeal and the Supreme Court may also depart from retained EU case law. This gives an opportunity to look afresh at nostrums of EU law, untrammelled by the principle of precedence and (at least within orthodox English law principles of departing from previous authority) the concept of stare decisis.

This gives an opportunity to look afresh at nostrums of EU law, untrammelled by the principle of precedence and (at least within orthodox English law principles of departing from previous authority) the concept of stare decisis.

Court of Justice of the European Union in Kirchberg, Luxembourg

© Ricochet64 – stock.adobe.com

Another particular feature of retained EU law that carries some echoes of the CJEU’s ability to identify the ‘direct effect’ of EU legislation is section 29 of the EU (Future Relationship) Act 2020 (EUFRA). It provides that existing domestic law has effect “with modifications as are required for the purposes of implementing in [domestic law] the [TCA] …”, a potentially extremely wide power for the UK Courts to implement in domestic law any TCA provision, and indeed the intended effect of any TCA provision, even if not otherwise implemented.

An early guide to how retained EU law is to be interpreted and applied is to be found in the judgment of Lord Justice Green in Lipton v BA City Flyer Ltd [2021] EWCA Civ 454. Although strictly obiter (the facts of Lipton were pre-exit and the principles were said to be effectively neutral in that case: judgment, para. 84), Lipton is a fascinating preview of litigation yet to come in this field where, as Green LJ put it:

“As at this point in time a new set of legal arrangements are in place which governed the relationship of the UK to EU law. The Court cannot therefore assume that the old ways of looking at EU derived law still hold good. We must apply the new approach. There is much that is familiar but there are also significant differences.”

Apart from identifying whether EU law had been retained (eg because it was an EU regulation, as in Lipton), a court must look to see whether there have been any amendments, e.g. pursuant to the powers to correct any “deficiency” pursuant to s. 8 EUWA. Then the court must examine whether the retained EU law has been somehow abrogated or overtaken by the WA or the TCA, since there exists a form of hierarchy of statutes, with relevant WA or TCA law being supreme over other domestic law, including retained EU law. That is not the end of the exercise, because although (in the words of Green LJ, judgment para. 75) “the TCA does not have direct effect”, s. 29 EUFRA may yet come into play as a “sweepingup mechanism” (ibid, para. 77), an exercise wherein Green LJ gives a very wide scope to the phrase “has effect” as “a generic mechanism to achieve full implementation” without the further involvement of parliament (see generally, ibid at paras. 78-82).

Combined with the appellate courts’ power to depart from previous EU authority discussed above, the TCA is likely to provide potent ground for future legal argument and forensic development of the law.

Additionally, there will be opportunities for practitioners to break new ground in areas of the law where EU law was not retained, most obviously in the field of State aid under the Subsidy Control Bill 2021 and public procurement under the public procurement bill planned for Autumn 2021, as well as whatever regime finally replaces the Brussels regulations on jurisdiction and judgments.

The scope for cross-border practice may have been narrowed by the UK’s departure from the EU, but there is a new horizon for the development of retained EU and related domestic law. The development is likely to occupy not only the present generation but also coming generations of barristers in the 21st century, in a manner not unlike the work of the pioneers of EU law at the English Bar in the 20th century.

Philip Moser QC

Monckton Chambers

SOURCES:

TCA as ratified and in final form on 30 April 2021: ec.europa.eu/info/relations-united-kingdom/euuk-trade-and-cooperation-agreement_en Bar Council Brexit pages: www.barcouncil.org.uk/policy-representation/ policy-issues/eu/brexit.html EU relations law blog: eurelationslaw.com