In this blog post, Jack Williams of Monckton Chambers discusses the recent Court of Appeal judgment in C G Fry & Son Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 730 (“Fry”) concerning the role of directives as part of Retained EU Law (prior to 2024) and when interpreting Assimilated Law (from 2024).
The repeal of sections 4 and 5 of the EU (Withdrawal) Act (“EUWA”) by the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”) means that, for any new facts and matters arising from 1 January 2024:
- any provisions of directives that meet the now repealed test in section 4(2)(b) can no longer be directly relied upon for causes of action arising from 1 January 2024. That is, a directive cannot now be enforced, allowed and followed in domestic as part of Assimilated Law or otherwise for new facts and matters. Section 4(2)(b) had provided, for the period between IP Completion Day and the end of 2023, that certain provisions of directives formed part of Retained EU Law if they were “of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before IP completion day (whether or not as an essential part of the decision in the case)”; and
- there is no longer a duty to interpret domestic law consistently with Assimilated Law since the Marleasing duty is no longer part of domestic law (as part of Assimilated Law or otherwise) in respect of facts and matters arising from 1 January 2024. This is due to the repeal of the principle of supremacy and general principles: see HHJ Tindal in E-Accounting Solutions Ltd (t/a Advancetrack) v Global Infosys Ltd (t/a GI Outsourcing) [2023] EWHC 2038 (Ch) (“E-Accounting”) at ([13]) and the Explanatory Notes to the REULA, at paragraph 92.
However, as I have explained before, EU law will nonetheless continue to play an interpretative role in connection with Assimilated Law even for matters arising from 1 January 2024 on account of orthodox, domestic principles of purposive interpretation. In short, the originating EU law norm which provided the original foundation for what is now Assimilated Law can still be a relevant external aid for construing the latter.
Although it concerns facts and matters arising before the end of 2023 (and so concerns Retained EU Law as it then applied, rather than Assimilated Law as it applies from 1 January 2024), the Court of Appeal in Fry lends further support for that position. The Court applied a conventional approach to statutory interpretation (including the purposive approach) to interpret EU-derived domestic legislation (the Habitats Regulations) that was enacted to give effect to an EU directive (the Habitats Directive 92/43/EEC). The Court concluded that it was unnecessary in this case (which dealt with matters arising before the end of 2023) to refer to the direct effect of the EU directive under section 4 of the EUWA, or the Marleasing duty. Domestic principles of interpretation were sufficient.
Unlike the Court below, which primarily considered whether a provision of the Habitats Directive was directly effective under section 4 (as discussed here), the Court neatly sidestepped this by stating that there is an anterior question as to whether the domestic law can in any event be interpreted in conformity with the directive – either, firstly, under ordinary domestic principles of interpretation, or, secondly, the Marleasing duty if necessary and to the extent applicable.
The Court held that the Habitats Regulation could, on ordinary domestic principles of purposive interpretation, be interpreted in the way sought by the Claimant without having to consider either the Marleasing duty or whether the relevant provision of the Habitats Directive was directly effective. In doing so, the Court took account of the fact that the Habitats Regulations were enacted in order to give effect to the Habitats Directive. See: [37], [68] and [81]. As such, the EU law continued to have an indirect role, like in E-Accounting at [13] and [109] (as discussed here).
One should not get carried away, however. Although it demonstrates that domestic courts still can, and indeed in certain circumstances still should, take into account the EU origins of any domestic Assimilated Law when interpreting the latter (and thus it is still wise for counsel to show the Courts the EU genesis of any Assimilated Law and case law interpreting it as context and external aids), ultimately the domestic principles of purposive interpretation do not go as far as Marleasing. As the Court of Appeal noted, the “strong form” of interpretation under Marleasing may include giving a “strained interpretation to legislation, so long as it is possible to do so”: that is, though, “different” from the domestic principle of interpretation, even adopting a purposive approach: [50], and see, also, [109] of E-Accounting.
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