Pre-Brexit references binding on UK Courts where CJEU Judgment given after 31st December 2020


Re: HMRC v Perfect [2022] EWCA Civ 330

The Court of Appeal held that UK Courts are bound by decisions of the CJEU given after the end of the transitional period (31 December 2020) on preliminary references from UK Courts made before that date.

This case concerned the question of whether a lorry driver importing excise goods where the relevant excise duty had not been paid was liable to that duty despite not having actual or constructive knowledge that the duty owing had not been paid. The First Tier Tribunal and Upper tribunal had both found that a driver could not be said to be ‘holding’ the relevant excise goods, such as to be liable, without such knowledge. The Court of Appeal indicated its view that the relevant Directive and UK implementing Regulations involved strict liability.  That view was confirmed by the CJEU in its response to the reference.

The CJEU received the reference in 2019, but did not deliver a judgment until 10th June 2021. By the time the matter reached the Court of Appeal once more, the UK had withdrawn from the EU. This raised the question of whether the judgment was nonetheless binding or whether the Court could take a different approach to the CJEU.

The Court of Appeal held that Articles 86 and 89 of the Withdrawal Agreement as implemented by section 7A of the 2018 Withdrawal Act 2018 rendered the CJEU’s judgment binding on UK Courts. Accordingly, the Court of Appeal allowed HMRC’s appeal.

Jessica Simor QC represented HMRC.