Monday, 12 September 2016


Imagine we are post BREXIT.  Imagine there is before the Court a UK Regulation which implemented an EU Directive - say Public Procurement - although you could choose from loads of Regs (food, employment, cars, product safety etc etc..)which I suspect will not be repealed in the short to medium term....The Court does not quite know how to interpret and apply a particular provision of the Regs.  The Court knows that the Regs were enacted to transpose the provisions of the Directive into English law.  But the Court, post-BREXIT is free of the section 3 Euro Communities Act 1972 obligation to comply with the ECJ's famous ruling in Marleasing that domestic courts have to interpret domestic law so as to comply with directives.  But should the post-BREXIT Court ignore the directive when interpreting the Regs?  Probably not, if it knows that was what the Regs were for and that was the intention behind them, then why would it not consider the directive as an interpretative aid?  And then say the CJEU had recently come out with a decision which clarifies what the directive means in a material aspect?  Is the post-BREXIT Court not likely to do what it did pre-BREXIT i.e. Effectively apply directives and CJEU judgments?  BREXIT means....?

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