Judgment Approved by the court for handing down.
Davis & Ors v SSHD
understandably, opposed the late request to refer the case to Luxembourg. We heard
oral argument on this issue on 9 July 2015.
105.
The Swedish case is not the only decision of a domestic court of another Member
State concerning Digital Rights Ireland to which we have been referred. Mr Welch,
solicitor for Mr Davis and Mr Watson, has referred us to four decisions in other
Member States, three of them by Constitutional Courts, holding their country’s
communications data legislation invalid without finding it necessary to make a
reference to the CJEU: the Constitutional Court of Slovenia on 3 July 2014; the
Constitutional Court of Romania on 8 July 2014; the District Court of The Hague on
11 March 2015 and the Constitutional Court of Belgium on 11 June 2015. Some of
the translations we have of those judgments are unofficial, and the details of each
country’s laws under scrutiny are of course not identical: but the general theme is
clear.
106.
Mr Eadie relied on the judgment of Sir Thomas Bingham MR in R v Stock Exchange
ex p Else Ltd [1993] QB 534 at 545, where he said:
“I understand the correct approach in principle of national
courts (other than a final court of appeal) to be quite clear: if
the facts had been found and a community law issue is critical
to the court’s final decision, the appropriate course is ordinarily
to refer the issue to the Court of Justice unless the national
court can with complete confidence resolve the issue itself. In
considering whether it can, with complete confidence resolve
the issue itself, the national court must be fully mindful of the
differences between national and Community legislation, of the
pitfalls which face a national court venturing into what may be
an unfamiliar field, of a need for uniform interpretation
throughout the community and of the great advantages enjoyed
by the Court of Justice in construing Community instruments.
If the national court has any real doubt, it should ordinarily
refer.”
107.
It seems to us that in Else the Master of the Rolls primarily had in mind issues of EU
law which have arisen without there being an existing judgment of the CJEU giving
that court’s ruling on them. The dicta are less obviously applicable where the CJEU
has pronounced judgment and the domestic court is being asked to interpret what it
meant. In Trinity Mirror v Commissioners of Customs and Excise [2001] 2 CMLR 33
Chadwick LJ cited the above passage from Else and continued:
“52. But it is, I think, important to have in mind, also,
the observations of the Advocate-General (Mr Francis
Jacobs QC) in Case C-338/95, Wiener SI GmbH v.
Hauptzollamt Emmerich. The question which he
thought it necessary to address is stated at paragraph 10
of his Opinion:
… whether it is appropriate—and especially whether it
is still appropriate today, in view of developments
which I shall mention below—for the Court to be asked