By Susan Wolf
In our previous Blog, we examined the European Union (Withdrawal) Act 2018 and explained that the GDPR, EIR and PECR will remain on the domestic statute book post Brexit. In other words they will continue to be legally binding after the date that the UK leaves the European Union in March 2019.
In this blog we briefly examine the role of the Court of Justice of the EU (or CJEU) post Brexit. We explain how, despite leaving the EU, the interpretive rulings of the CJEU in relation to the following legislation, will continue to have relevance for UK organisations and practitioners:
- The GDPR 2016
- The Law Enforcement Directive 2016/680
- The Directive on Public Access to Environmental Information 2003/4
- The Privacy and Electronic Communications Directive 2002/58
Preliminary Rulings of the CJEU
Any national court or tribunal of a Member State has the right to request a ‘preliminary ruling’ from the CJEU, where it considers that a ruling is ‘necessary’ to enable it to give judgment in a case involving the interpretation of EU law. The CJEU has jurisdiction to interpret EU Law, but it does not rule on the outcome of a case. This task falls to the national court that has requested the ruling. However, the national court is bound to follow the interpretive ruling, which is binding. The ruling is also authoritative and must be followed by the courts and tribunals of all the Member States.
For example in East Sussex County Council v the ICO (2013), the First Tier (Information Rights) Tribunal requested a ruling from the CJEU on the meaning of the ‘reasonable charges’ for the supply of environmental information. Quite clearly, the CJEU’s interpretation has had major implications for public authorities subject to the EIR 2004, particularly those providing property search information. But the interpretation given by the CJEU is also binding on public authorities throughout the EU.
The purpose of the procedure is to ensure that EU Law is interpreted ‘uniformly.’ This is particularly important given that the EU currently comprises 28 Member States and has 24 official languages and each country has a different and unique legal tradition and culture.
A Red Line not to be crossed
The role of the Court of Justice, post Brexit, has been one of the controversial aspects of the Brexit negotiations, with the Prime Minister Teresa May suggesting that its continued jurisdiction was a ‘red line’ not to be crossed. In fact the position is more complex and nuanced.
Under the terms of the EU Withdrawal Act 2018, the UK national courts and tribunals, including the First Tier (Information Rights) Tribunal, will no longer be allowed to refer questions about the interpretation of EU law to the Court of Justice. However, in the interest of certainty, these previous rulings, in so far as they relate to retained EU law provisions, are still to be regarded as binding. Therefore, anyquestions as to the meaning of EU retained law will be determined by the UK courts by reference to the CJEU’s case law as it exists on the day the UK leaves the EU. For example, the CJEUs ruling on the interpretation of the Privacy and Electronic Communications Directive in a German case (Deutsche Telekom AG v Bundesrepublik Deutschland (2011) continues to be binding on the UK courts.
The Supreme Court
The position is different for the Supreme Court (or High Court of Justiciary in Scotland). Under the EU (Withdrawal) Act both the English and Scottish highest courts can depart from any retained EU case law if it appears ‘right to do so’. In deciding whether to do this the court must apply the same test as it would apply in deciding whether to depart from its own case law. In practice, this power is exercised rarely and there is no reason to suggest that the Supreme Court will seek to depart from any existing CJEU rulings, at least in the immediate future.
What about future CJEU rulings?
There can be no doubt that the GDPR and the Law Enforcement Directive 2016 will raise significant questions of interpretation in the future. Inevitably the CJEU will soon be faced with preliminary ruling requests on key questions, such as the interpretation of the ‘right to be forgotten’in the GDPR. However, given the time it takes to obtain a preliminary ruling (often over a year), it will be some time before the Court is able to cast some light on these new provisions.
As one might expect, the EU Withdrawal Act makes it clear that the domestic national courts and tribunals are no longer bound by any principles laid down, or any decisions made by the CJEU on or after the date of exiting the EU. This comes as no surprise. However, what is perhaps less well known is that the national courts and tribunals may have regardto post Brexit rulings if the national court ‘considers it appropriate to do so’. Of course, it remains to be seen how willing the national courts will be to ‘follow’any future rulings. However, it would be prudent to suggest that information rights /data protection practitioners and lawyers should still play close attention to future CJEU rulings on the interpretation of EU information rights and data protection laws, post March 2019.
(Future CJEU preliminary rulings will be posted on the Act Now Blog).
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