References to the European Court and Brexit
09 / 05 / 2017
Before a UK court makes a reference to the Court of Justice of the European Communities (ECJ) for guidance it will usually hear the substantive case beforehand.
One of the interesting Brexit-related issues is what will happen to references that are made by a UK court prior to Brexit, but where the substantive ECJ hearing takes place post-Brexit.
In Coal Superannuation Scheme Trustees v. HMRC, the Upper Tribunal was invited to make a reference prior to hearing the substantive appeal on the basis that if the appeal was heard in the normal way it may be too late for a reference to the ECJ to be made as a result of Brexit. One argument was that if a reference could not be made now, depending on the transitional arrangements being agreed with the EU regarding the resolution of disputes about the interpretation and application of EU law that are pending at the date of the UK’s exit, a right may be lost which may not exist under domestic law post-Brexit.
The Upper Tribunal, applying general principles (which were unaffected by Brexit), rejected the application. It did not consider it appropriate and considered it too difficult to formulate the questions to ask the ECJ in advance of the substantive hearing.