The Upper Tribunal has rejected an application by the trustee of the British Coal Staff Superannuation Scheme for an expedited referral of its case to the Court of Justice of the European Union (“CJEU”). The Upper Tribunal decided that the unprecedented circumstances arising from the triggering of Article 50 did not alter its established test, or override its discretionary powers, in relation to making a reference to CJEU; and the trustee’s case had not met those requirements.

The trustee had appealed an HMRC decision concerning withholding tax and applied for its case to be referred to CJEU before being heard in full by the Upper Tribunal. Without an expedited referral, the trustee argued, the length of the judicial process could deprive the trustee of its opportunity to seek CJEU’s assistance before the end of the Brexit negotiations. The Upper Tribunal decided that it was not prepared to assume that “the arrangements that the Government will make for resolving disputes about the interpretation and application of EU law that are pending at the date of UK’s exit will be so unsatisfactory that the Tribunal should change its usual practice”.

The Upper Tribunal did, however, call upon the UK Government to make clear what its proposals will be, commenting that a solution “will have to be implemented because there are likely to be very many people in the same position as the Trustee may be on the date of exit”. Subsequently, the UK Government’s White Paper on the Great Repeal Bill has confirmed that “any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.” Whether, and how, further UK-derived points of law might become CJEU case law before that day remains to be seen.