The Court of Justice of the European Union
11.1.1 In this Practice Direction -
- unless otherwise stated, an Article referred to by number means the Article so numbered of the EU-UK Withdrawal Agreement, as given effect by sections 7A and 7C of the European Union (Withdrawal) Act 2018;
- " Article 12(4)" means Article 12(4) of the Ireland/Northern Ireland Protocol, as given effect by sections 7A and 7C of the European Union (Withdrawal) Act 2018;
- the "European Court" means the Court of Justice of the European Union;
- "the reasoning in CILFIT" means the reasoning of the European Court in CILFIT v Ministry of Health (Case 283/81).
11.1.2 Under Article 158, the European Court has jurisdiction to give preliminary rulings on questions concerning the interpretation of Part Two of the EU-UK Withdrawal Agreement (on Citizens' Rights) and, where such a question is raised before the Supreme Court, the Supreme Court may, if it considers that a decision on the question is necessary to enable it to give judgment, request the European Court to give such a ruling.
11.1.3 Under Article 160, the European Court has jurisdiction to give preliminary rulings on questions concerning the interpretation and application of the provisions of EU law referred to in Article 136 and Article 138(1)-(2) (on the UK's contribution to and participation in the EU Budget) and, where such a question is raised before the Supreme Court, the Supreme Court will request the European Court to give a ruling unless:
- the question raised is irrelevant;
- the provision in question has already been interpreted by the European Court;
- the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case; or
- the correct application of the law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question of interpretation or validity is to be resolved.
This reflects the reasoning in CILFIT.
11.1.4 Under Article 12(4), the European Court has jurisdiction to give preliminary rulings on questions concerning the provisions of EU law made applicable by the second subparagraph of Article 12(2), Article 5, and Articles 7-10 of the Ireland/Northern Ireland Protocol and, where such a question is raised before the Supreme Court, the Supreme Court will request the European Court to give a ruling thereon unless:
- the question raised is irrelevant;
- the provision in question has already been interpreted by the European Court;
- the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case; or
- the correct application of the law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question of interpretation or validity is to be resolved.
This reflects the reasoning in CILFIT
11.1.5 When the Supreme Court refuses permission to appeal in a case where the application includes a contention that a question should be referred to the European Court under Article 160 or under Article 12(4), the Supreme Court gives additional reasons for its decision not to grant permission to appeal. These reflect the reasoning in CILFIT.
11.1.6 The Supreme Court may order a reference to the European Court before determining whether to grant permission to appeal. In such circumstances, proceedings on the application for permission to appeal are stayed until the answer is received.
11.1.7 When the Supreme Court intends to make a reference, it will give consequential directions as to the form of the reference and the staying of the appeal (see rule 42(3)), and the parties are invited to submit an agreed draft of the question(s) to be referred. A further statement of facts and issues, for the use of the European Court, may also be appropriate. The Supreme Court then makes the reference, with or without judgments. At this stage the appeal may also be disposed of in part.
11.1.8 The reference must contain the matters specified in the European Court's rules of procedure and comply with any guidance given by the European Court. Parties should be aware that the European Court will not translate documents which are longer than 20 pages; only summaries are made (1).
Further proceedings in the Supreme Court
11.1.9 Within 28 days of the judgment of the European Court, the parties must file written submissions on whether a further hearing before the Supreme Court is necessary, or on how the appeal is to be disposed of. If a further hearing is required before the Supreme Court, the parties may file supplemental cases.
11.1.10 If supplemental cases are filed, then:
- no later than 8 weeks before the expected date of the further hearing, the appellants must file the original and 1 copy of their supplemental case and also serve it on the respondents;
- no later than 6 weeks before the expected date of the further hearing, the respondents must file the original and 1 copy of their supplemental case and also serve it on the appellants;
- no later than 5 weeks before the expected date of the further hearing, any other party filing a case (e.g. an intervener or advocate to the court) must file the original and 1 copy of their supplemental case, and also provide copies to the appellants and respondents.
11.1.11 As soon as all the supplemental cases have been exchanged, and no later than 4 weeks before the date of the expected hearing, the appellants must file additional sets of core volumes containing:
- appellants' and respondents' cases;
- cases of interveners etc, if any;
- judgment of the European Court;
- any additional authorities relied on that are not included in the original authorities.
11.1.12 The Registry will supply the Court with the original core volumes, appendices and the authorities if they are available.
Costs and papers for the European Court
11.1.13 The European Court does not make orders for costs. The costs of the reference are included in the order of the Supreme Court disposing of the appeal; and, if necessary, are assessed by the Costs Officers of the Court.
11.1.14 Parties should be aware that the European Court will not translate documents which are longer than 20 pages; only summaries are made.