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Archive: will the EU Court of Justice have influence in the UK after Brexit?

Daniel Greenberg

04 Mar 2019

Timeline outlining all the updates as they unfolded on the EU Court of Justice, and whether it will have influence in the UK post-Brexit.

Update as of 28 November 2018: 

Section 6 of the EU (Withdrawal) Act 2018 provides for the UK courts to have regard after Brexit to future decisions of the Court of Justice of the EU to the extent that they consider it appropriate.

Some commentators find this a troublingly uncertain approach, along the lines of it seeming unfair and undesirable to require the non-political judges to determine to what extent continued judicial influence of the EU will be appropriate, when this is a matter on which political parties, and politicians within individual parties, appear unable to agree.

In any event, as with other foreign courts, decisions of the Court of Justice of the EU will be of persuasive authority in relation to areas of UK law that are similar to areas of EU law; and given the fact that for some decades much of UK law will have its origins in EU law, that line of authority is likely to be considered of particularly persuasive weight.

Articles 4 and 5 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as endorsed by leaders at a special meeting of the European Council on 25 November 2018 provide: “4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period. 5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period”.

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