No more CJEU References: The Practical Implications

Patrick Vincent QC, Cressida Mawdesley-Thomas and Philip Mead and Richard Viney, all of 12 Kings Bench Walk, appeared in the case of Greenaway & Rocks v Covea Insurance & Others, in which Mr Justice Martin Spencer considered how the domestic court is to interpret retained EU law. It was agreed that this was a case which, pre-Brexit, would have almost certainly been referred to the CJEU for a preliminary ruling.

The case concerns section 151(4) of the Road Traffic Act 1988, which excludes an insurer’s obligation to compensate victims of road traffic accidents who are passengers in a vehicle they know has been stolen or unlawfully taken.

Part of the claimant’s case is that Directive 2009/103/EC (‘the 6th Directive’) only permits an exclusion to the obligation to compensate passengers where they know the vehicle has been “stolen” (and not when it has been unlawfully taken).

The issue is whether the word “stolen” in the 6th Directive has the same strict meaning as in the Theft Act 1968 and therefore requires an intention permanently to deprive, or whether the term encompasses unlawful taking. There is no CJEU authority on the point.

The Second Defendant applied for permission for expert evidence as to foreign law. The Master refused that application, but this week Mr Justice Martin Spencer allowed the Defendant’s appeal. The Second Defendant argued that it was a general principle of EU law that Directives should be construed by reference to all the Member States’ language versions (see CILFIT C-283/81) and that the English court could not do so without understanding what the foreign language versions meant. Moreover, since the term in issue was a term relating to criminal law, the domestic court had to be put in a position where it could understand the legal significance of the word used in place of the English word “stolen” in the different language versions of the 6th Directive. The Defendant contended that evidence as to the legal significant of the word used in place of stolen (e.g. volé, rubato, robado etc.)  could only properly come from an expert.

In his judgment Mr Justice Martin Spencer observed that the general principle in CILFIT that the “interpretation of a provision of Community law thus involves a comparison of the different language versions” is more readily achieved by the CJEU who have at its disposal multinational judges and the ability to receive “observations” from member states.

Mr Justice Martin Spencer described the “nightmare” scenario created by section 6(3) of the European Union Withdrawal Act 2018 (‘EUWA 2018’) which requires the domestic court to decide questions as to the meaning of EU law in accordance with the general principles of EU law. This means potentially having to review 22 different foreign language versions of a Directive but without the benefit of observations from Member States or a multinational panel of judges and in a system which is adversarial, such that it is the parties who choose the material which is put before the court.

The Second Defendant asked for four rather than 22 experts, conceding that although the general principle strictly required all the language versions of the Directive to be considered, case management considerations made that unworkable. Mr Justice Spencer granted permission to each party to adduce four foreign law experts reports in EU jurisdictions of their choosing, in order that the relevant foreign language versions of the Directive could be understood. He also gave permission for those experts to give evidence as to the implementation of the Directive in those member states, that material being part of the context in which the point at issue had to be decided.

The case dealt with a problem that is bound to reappear. In this case the parties were content that the CILFIT principle could be followed by relying on four experts each but disputes will doubtless arise when parties ask the Court to more strictly undertake the task which s.6(3) of the  EUWA 2018 mandates. That said, in many cases foreign law experts will not be required as only the language of the Directive will need to be understood rather than, as in this case, a legal concept.

Patrick Vincent QC & Cressida Mawdesley-Thomas appeared on behalf of the Second Defendant. Philip Mead appeared on behalf of the Claimant. Richard Viney appeared on behalf of the MIB.

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