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A lesson on English law post-Brexit from the Court of Appeal

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10 May 2021

English lawyers and law students should be getting to grips with a whole new area of English law: retained EU law.  The Court of Appeal has provided guidance on how to apply retained EU law (although it is unclear why given that the events in question occurred in 2018).  The ruling also explains a rather unusual provision in the EU (Future Relationship) Act 2020 which can modify automatically English law that is not consistent with the EU/UK Trade & Cooperation Agreement (TCA): Lipton & anr v BA City Flyer Ltd [2021] EWCA Civ 454, 30 March 2021

This article focusses on the retained EU law aspects of the decision rather than the detail of the underlying dispute, but for context the claimant, Mr Lipton, claimed compensation for a cancelled flight from Milan to London under an EU regulation, Regulation (EC) 261/2004. The airline claimed that no compensation was due as the ‘extraordinary circumstances’ exception applied due to the captain’s illness. The airline lost and was ordered to pay compensation.

Roadmap for retained EU law and impact of TCA

Green LJ took the opportunity to explain how the English court should approach retained EU law and how English law can automatically be modified by a very broad provision in the EU (Future Relationship) Act 2020 (EUFRA).  Set out below are his nine basic principles (slightly expanded for ease of understanding):

  1. Consider whether the ‘old’ EU law is retained EU law. This requires looking at the European Union (Withdrawal) Act 2018 to see if the ‘old’ EU law (eg EU Regulations, CJEU case law, general principles of EU law) has been retained.  In this case Regulation (EC) 261/04 was retained, as at 11pm GMT on 31 December 2020, as direct EU legislation under s3.
  2. Consider whether the retained EU law has been amended or even revoked. In this case, the EU regulation took effect in English law as amended by one of over 1000 Brexit statutory instruments that have come into force since this process began: the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019.
  3. Apply a purposive construction. This requires taking into account recitals and other principles referred to in the retained regulation and recitals.
  4. To the extent necessary, use provisions of international law which are incorporated by reference in the regulation as an aid to interpretation.
  5. Apply CJEU case law pre-1 January 2021 to determine the meaning and effect.
  6. Apply general EU law principles, as recognised in pre-1 January 2021 CJEU case law and as derived from the Charter of Fundamental Rights and the TFEU, as an aid to interpretation.
  7. The Court of Appeal (and Supreme Court) may depart from retained CJEU case law or any retained general principles “if it considers it right to do so”.
  8. The TCA and EUFRA may be relevant to the effect of existing English law if the subject matter of the English law overlaps with the subject matter of the TCA and/or EUFRA, and insofar as domestic law does not already cover the subject matter of the TCA.
  9. If the English law does not already reflect the substance of the TCA then the English domestic law “takes effect in the terms of the TCA”.

This final limb is perhaps the most striking.  It reflects s29 EUFRA.

Section 29 EUFRA modifies ‘existing domestic law’ if not consistent with the TCA

Section 29 EUFRA modifies existing English law insofar as it is not the same as the TCA.  ‘Modify’ includes amend, repeal and revoke.  Green LJ called s29 a ‘sweeping up mechanism’.

Green LJ explained that s29 is not just a principle of interpretation.  Section 29 has the ability to modify automatically existing English law where there is ‘inconsistency, daylight, lacuna’ between the existing English law and the TCA.

There are some limitations to s29.  For example, it only applies to ‘existing domestic law’.  This is defined to mean (in summary) English ‘enactments’ that were passed or made before, and ‘any other domestic law’ as it has effect on, the coming into force of the TCA.  It would therefore appear not to apply to any new enactment passed after this date. 

Green LJ refers, in addition, to two statutory clarifications: 

  • s29 only applies to the extent necessary. It does not modify a domestic law that is already consistent with the TCA; and
  • s29 only applies where necessary for complying with the international obligations of the UK under the TCA.

Comment

Anyone needing to look at retained EU law will want to refer to Green LJ’s judgment to cross-check their analysis.  It is likely that many judges will also be referring to it, so advocates may want to order their submissions accordingly.   

The ruling reminds us how the terms of the TCA can impact on private disputes where the subject matter of the dispute overlaps with the subject matter of the TCA. The TCA is wide-ranging.  It covers many areas in which we see commercial disputes – for example public procurement, energy, IP, and transport.

The impact of an overlap could be most acute where the broad sweeping-up provision in s29 is engaged. It is not a surprise to see such a provision, but it has the capacity to introduce uncertainty and argument.  If s29 applies, in order for a private party to know what English law says, it demands that the party interpret the UK’s obligations in the TCA (some of which are phrased in extremely broad terms), determine whether existing English law is ‘the same’, and if not, read across the TCA into the existing English law.  It is not hard to imagine disputing parties reaching different conclusions when conducting that exercise. 

It is difficult to predict exactly how often we will see s29 apply, although we may see parties running arguments that it should, including for purely tactical reasons in some cases.  It should only apply where existing English law is not consistent with the TCA. To the extent that the TCA is based on shared ideals which underpin existing EU law, in many cases it may be possible to assume that existing English law as at the end of last year was largely compliant with the TCA.  The scope of application of s29 may therefore be slim.

Finally, the events in this case occurred in 2018, while Mr Lipton’s claim originally commenced around 2019.  As the events took place prior to the end of the Brexit transition period it is not entirely clear why the Court of Appeal decided to look at retained EU law, rather than just apply the original EU regulation.  Both parties had made submissions based on the original regulation, and the Court of Appeal does not explain why it thought that retained EU law, as amended, was relevant.  In Varano v Air Canada, Air Canada argued that Green LJ’s approach in Lipton was wrong, but the Deputy High Court judge felt bound by the Court of Appeal’s ruling in Lipton albeit observing some of the far reaching implications of Green LJ’s analysis.  So, whilst the principles in Green LJ’s judgment are useful when retained EU law applies, the case is not necessarily good authority for when to apply retained EU law. 

Why does it matter? The retained EU law version of an EU law may be different from the original EU law version.  In addition, the court may be required by the European Union (Withdrawal) Act  2018 to take a slightly different approach when applying and interpreting the retained EU law version of a regulation than would be required if the original EU law version was applied. It is a shame that this uncertainty as to how to approach these issues clouds the first cases to be heard on the operation of the UK’s post-Brexit legal regime.

Updated July 2021