29 January 2021
71.Section 12(1) defines several of the terms in Part 1 of the Act.
72.Subsection (2) makes clear that the power in section 1 does not require Ministers to implement the whole of an EU Directive or make provision corresponding to the whole of an EU Regulation.
73.In terms of the interpretation of provision made under the power in section 1 of the Act, whilst there is no express provision about this on the face of the Act, it is also relevant to note section 6 of the EUWA. Section 6(3) makes provision about the relationship between the Court of Justice of the European Union(4) (‘the CJEU’) and domestic courts and tribunals at the end of the implementation period.
74.Section 6(1) of the EUWA makes clear that CJEU judgments passed after the end of the implementation period are not binding on domestic courts in the UK. Section 6(2) of the EUWA establishes that, despite section 6(1), domestic courts may have regard to CJEU judgments delivered after the end of the implementation period in so far as any such judgments are relevant to any matter before the court or tribunal. In so far as a court may need to interpret provisions implemented under section 1 of this Act, it is considered likely to be relevant for a court to have regard to any case law of the CJEU interpreting the corresponding EU legislation.
75.Section 6 of the EUWA also makes provision regarding the interpretation and application of retained EU law. As a general proposition, section 6(3) makes clear that UK domestic courts remain bound by judgments of the CJEU and domestic courts passed before IP completion day (‘retained EU case law’), albeit the Supreme Court and the High Court of Justiciary in Scotland may choose to depart from such CJEU case law. This aspect of section 6 could potentially be relevant in so far as the power under section 1 is used to modify retained EU law.
76.The 2020 Act introduced amendments to section 6 of the EUWA to confer a new power on UK Ministers to make regulations providing for circumstances in which lower courts (to be specified under the power) may also not be bound by such retained EU case law. The regulations may also set the test that is to apply in deciding whether to depart from such case law. Depending on how the new power in section 6 is utilised, the resulting regulations could potentially have implications for the interpretation of provision made under section 1 of this Act.
The CJEU has jurisdiction to rule on the interpretation and application of the treaties. In particular, the Court has jurisdiction to rule on challenges to the validity of EU acts, in infraction proceedings brought by the Commission against member states and on references from national courts concerning the interpretation of EU acts. The Court is made up of two subcourts: the General Court and the Court of Justice (which is sometimes called the ECJ).