Procurement: Will EU case law still affect public procurement cases in the UK?

On 31 December 2020, the UK and EU’s Brexit “transition period” ended. The EU:UK Trade and Cooperation Agreement (TCA) has been concluded and Parliament has passed the European Union (Future Relationship) Act 2020. But what does this mean for public procurement and the application of EU case law?

Before 1 January 2021, contracting authorities and courts in the UK took into account Court of Justice of the European Union (ECJ) cases when considering issues arising in the context of public procurements, which were subject to the EU rules. Following Brexit, new legislation has now changed the position regarding ECJ case law, but to what extent does EU case law remain relevant to procurement cases in the UK?

In this article we explain some of the important concepts and answer your questions in more detail:

Do the Public Contract Regulations 2015 (PCR 2015) and other procurement regulations still apply?

Yes, the PCR 2015 and other procurement regulations still apply[1].

The PCR 2015 have been amended several times since 2015. The most recent amendment, the Public Procurement (Amendment etc.)(EU Exit) Regulations 2020, incorporated changes required following the end of the “transition period”.

Our recent article sets out some of the changes of immediate practical relevance.

What is “retained EU case law”?

Retained EU case law is defined in section 6(7) European Union (Withdrawal) Act) 2018 (EUWA 2018). Save for some specific exceptions, it includes any principles laid down by, and any decisions of, the European Court which have effect in EU law immediately before 31 December 2020.

Will courts and tribunals still be bound by retained EU case law now we have left the EU?

Most will. Section 6(3) EUWA2018 provides that any question as to the interpretation of retained EU law (such as EU-derived provisions of the PCR 2015) will be decided in accordance with any retained EU case law and any retained general principles of EU law. Therefore, apart from the courts discussed at question 5 below, courts and tribunals in the UK will have to have regard to retained EU case law when interpreting retained EU law.

For example, the Technology and Construction Court which hears most public procurement cases in England & Wales will be bound by any retained EU case law when considering provisions of the PCR 2015 which transpose EU law.

Will courts and tribunals be bound by EU case law which has been decided after 30 December 2020?

No. Case law of the European Court made on or after 31 December 2020 will not be binding on UK courts, even it is relates to retained EU law.

Section 6(1)(a) EUWA2018 provides that a court or tribunal will not be bound by any principles laid down, or any decisions made by the European Court on or after IP Completion Day (i.e. 31 December 2020).

However, they may still have regard to any new ECJ decisions so long as it is relevant to the matter which is before the court.

Will all courts still be bound by retained EU case law?

No. Section 6(4) EUWA 2018 specifically states that the Supreme Court will not be bound by retained EU case law. However, to depart from retained EU case law, the UK Supreme Court must “apply the same test” as it would have applied had it been deciding whether to depart from its own case law. The test the UK Supreme Court must apply is set out in an existing practice statement which states that it may depart from previous decisions ‘where it appears right to do so’.

Using powers set out under section 6(5A) EUWA 2018, the government introduced further Regulations[3] setting out a list of additional courts which will also not be bound by retained EU case law after 31 December 2020. This now includes the Court of Appeal.

Therefore, in England & Wales, the Supreme Court and Court of Appeal will now be able to depart from retained EU case law, as long as they satisfy the test for doing so.

Can the UK Courts still refer any matter to the European Court?

Section 6(1)(b) EUWA 2018 provides that a court or tribunal cannot refer any matter to the European Court on or after IP Completion Day (i.e. 31 December 2020).

Should you have any queries about the impact of Brexit on the public procurement sector and how this may affect you and your practice, our team of expert experts would be very happy to advise.

[1]             This is an example of “retained EU law” as it is domestic legislation which transposed EU law.

[2]             Most, but not all, of the provisions in the PCR 2015 are transpositions of EU law to which retained EU law will be relevant. However some provisions, such as the provisions on Contracts Finder, are purely domestic and not EU derived. Retained EU retained case law is not relevant to the interpretation of these non-EU derived provisions.

[3]             European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020. See section 3 for the full list of courts.