In this post Jack Williams of Monckton Chambers considers the recent judgment of the Court of Appeal in TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (“TuneIn”) – the first case to consider the power in section 6(4) of the EU (Withdrawal) Act 2018 for the Court of Appeal and Supreme Court to depart from retained EU case law.
The power to depart from retained EU case law
Section 6(3) of the EU (Withdrawal) Act 2018 (the “EU(W)A 2018”) provides that lower courts are bound to decide any question as to the meaning, validity or effect of “retained EU law” in accordance with CJEU judgments handed down prior to IP completion day (11pm on 31 December 2020), such judgments becoming “retained EU case law”. This is not, however, the case for all appellate courts: first, section 6(4)(a) states that the Supreme Court is not bound by any retained EU case law, and, second, section 6(4)(ba) and (5A) empower a relevant Minister to make regulations which provide that a “relevant court” is also not bound by retained EU case law. This power was exercised in Regulation 3(b) of the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (“the Regulations”), which, relevantly for present purposes, listed the Court of Appeal as a “relevant court” for the purposes of section 6(4).
Taken together, these provisions thus provide that certain appellate courts across England and Wales, Scotland and Northern Ireland may depart from retained EU case law in disputes relating to “retained EU law”. Critically such provisions have no application other than in relation to “retained EU law” disputes, for instance in disputes about “relevant separation agreement law” (stemming from, for example, the Withdrawal Agreement: see here) or about “relevant relationship agreement law” (stemming from, for example, the Trade and Cooperation Agreement: see here).
Regulation 5 of the Regulations provides that “[i]n deciding whether to depart from any retained EU case law by virtue of section 6(4)(ba) of the 2018 Act and these Regulations, a relevant court must apply the same test as the Supreme Court would apply in deciding whether to depart from the case law of the Supreme Court.”
The “test” has no particular or settled formulation. That the Supreme Court could depart from its own case law and the considerations taken into account when doing so are set out in the 1966 Practice Statement [1996] 3 All ER 77 – essentially “when it appears right to do so”, but, exercising caution and taking into account the damage to legal certainty that such a course would entail. This is reflected by Arnold LJ at [75] of TuneIn:
“In the domestic context both the House of Lords and the Supreme Court have consistently stated that this is a power to be exercised with great caution. As Lord Bingham of Cornhill said in Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307 at [29] in a passage cited as continuing to be applicable by Lord Wilson in Peninsula Securities Ltd v Dunnes Stores Ltd (Bangor) Ltd [2020] UKSC 36, [2020] 3 WLR 521 at [49] (two decisions in which the power was exercised):
“Over the past 40 years the House has exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors.””
My colleagues, David Gregory and Khatija Hafesji, have explored the test in the Practice Direction in considerable more detail here.
TuneIn: when does the question of departure arise and for what purposes?
TuneIn is the first decided Court of Appeal case exploring when the Court will apply its new-found freedom to depart from pre-IP completion day retained EU case law in a dispute about retained EU law. The Court declined the invitation of the Appellant to do so.
A short summary of the facts helps understand the approach of the Court. TuneIn, the internet radio app, was being sued for copyright infringement for its use of the IP streams on which internet radio stations were broadcast. The claim was for an injunction and thus necessarily embraced infringement before IP Completion Day and infringement after it. At the heart of the dispute was the key copyright concept of “communication to the public”, a term that had been the subject of much debate before the CJEU in some jurisprudence seen in at least some quarters as unsatisfactory. TuneIn invited the Court of Appeal to take its own path.
Before examining the factors that led to this decision, it is worth noting what is recorded at [76] of the Judgment:
“He [Counsel for the Appellant inviting the Court to depart from retained EU case law] also explained that TuneIn accepted that it would only be possible for this Court to depart from the CJEU’s case law with effect from 1 January 2021, and thus the point would only be relevant to the continuing availability of an injunction from that date, not to financial remedies for infringements prior to that date.”
What the last part of this passage reflects is the fact that, pursuant to section 16 of the Interpretation Act 1978, there may well be acquired rights in relation to past copyright infringements – founded on EU law ‘proper’ as opposed to any retained EU law – that apply up until 11pm on 31 December 2020, which, unless the contrary intention is expressed in legislation otherwise (as it is, for instance, with regard to Francovich damages: see paragraph 4 of Schedule 1 and paragraph 39 of Schedule 8 of the EU(W)A 2018), the Court would then be vindicating (even in a case post Brexit).
In that situation, retained EU law is not in play, but rather EU law simpliciter as given effect by section 2(1) ECA 1972 which section 16 of the Interpretation Act 1978 preserves for this purpose, and so the provisions concerning retained case law are equally not in play. There, the Court would, it appears based on [76] of TuneIn, be bound by the CJEU jurisprudence, regardless of how that jurisprudence is, for different purposes, categorised in the EU(W)A 2018. This is on account of the Court in TuneIn seemingly – albeit only implicitly and based on a concession by counsel – having rejected in [76] the possibility that, even in that scenario, section 6 of the EU(W)A 2018 provides the requisite contrary intention for the purposes of section 16 of the Interpretation Act 1978 for there to be no acquired right to rely on pre-IP completion day CJEU jurisprudence (which would have meant that a domestic court could in fact depart from any CJEU jurisprudence pre-dating IP completion day even vis-à-vis an acquired right). It will be interesting if this argument is picked up and expressly challenged in a future case.
TuneIn: when will the Court refuse to depart from retained EU case law?
For situations in which retained EU law is, in fact, in play (as in TuneIn, at least partially for the purposes of injunctive relief), the Court of Appeal’s judgment provides an insight into when the Court of Appeal will refuse to exercise its discretion to depart from retained EU case law. Lord Justice Arnold gave eight reasons for refusing the Appellant’s invitation to depart ([77] onwards):
(1) There had been no change in the domestic legislation (i.e. retained EU law) so the language used is the same as that considered previously by the CJEU ([78]).
(2) There had been no change in the international legislative framework, which was relevant in circumstances where the EU law in question gave effect to other international law obligations. As Arnold LJ stated: “given that the issue is regulated by international treaties, courts of the Contracting States should be striving for consistency of interpretation, rather than unilaterally adopting their own interpretations” ([79]).
(3) The interpretation of the relevant provision (whether hyperlinking amounted to “communication to the public”) was “a difficult task” as there was no guidance in the legislation and there was a conflict in rationale. In such circumstances, the domestic Court should more readily defer to the CJEU which “has unrivalled experience in confronting this issue in a variety of factual scenarios. Moreover, it has developed and refined its jurisprudence over time” ([80]).
(4) Distinguished academic commentary went both ways; that favoured maintaining the status quo ([81]). The implication is that the Court may be more likely to depart from CJEU jurisprudence where academic criticism is wholly or perhaps mainly critical of such decisions.
(5) Jurisprudence from other courts in countries such as Australia, Canada and the USA was materially irrelevant as “the statutory framework differs in those countries and the case law cannot be said to offer settled or consistent guidance on the questions which confront the Court” ([82]). The implication is that the Court may be more likely to depart from CJEU jurisprudence where comparable international situations exist where those other courts take a different view from the CJEU on the same or similarly-worded provisions.
(6) Returning to “the drawing board and start all over again… would create considerable legal uncertainty”, for little purpose where the Appellant’s own interpretation may not provide it a clear defence to an infringement in any case (i.e. a change is not worth the candle) ([83]).
(7) It is not sensible to depart from one CJEU case and not the remainder, later cases ([87]).
(8) The principal, substantive reason given from departing from the CJEU jurisprudence was weak and it was not clear that abandoning the CJEU’s approach would assist the Appellant because principles set out in other ECJ cases were enough to determine the issues against the Appellant, and also because an alternative conclusion might be that linking to any content which had been posted without the requisite consent of the right holder would be an infringement ([88]).
Whilst agreeing with the outcome (namely that the Court should not depart from the retained EU case law), Sir Geoffrey Vos (Master of the Rolls) stated that he “would prefer to confine myself to fewer” than the eight reasons given by Arnold LJ ([196]). He, instead, gave two reasons for his view that “ this [was] a paradigm case in which it would be inappropriate for the Court of Appeal to exercise its new-found power to depart from retained EU law” ([197]):
(1) This is an area of law that derives from international treaties and that “courts of the states that accede to such treaties should, wherever possible, be striving to achieve harmonious interpretation of them, not individualistic disharmony” ([198]). The practical lesson for those trying to maintain CJEU jurisprudence is to look up the recitals of the retained EU law in question to see if it was intended to implement an international treaty, for example.
(2) “[T]he CJEU’s approach to the law of infringement of copyright by communication to the public is neither impeding nor restricting the proper development of the law, nor is it leading to results which are unjust or contrary to public policy. It would, therefore, be both unnecessary and undesirable for this court to depart from retained EU law in this case. To do so would create legal uncertainty for no good reason” ([201] – [202]).
Lady Justice Rose (as she then was) agreed that “this is absolutely not a case in which this court should exercise its power to depart from the EU jurisprudence for the reasons given by Arnold LJ and the Master of the Rolls” ([184]).
I am grateful to Tom de la Mare Q.C. for alerting me to this case in a Twitter exchange about retained EU law and prompting me to write about it.
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