10. Retained EU Law

Question 1

What is retained EU law?

Answer 1

It is a snapshot of EU law that was in force in the UK immediately before IP completion day, and that law continues in force despite the UK’s exit from the EU.

However, some key aspects of EU law were repealed
with effect from IP completion day.

Question 2

When is IP completion day?

Answer 2

11.00pm on 31 December 2020.

Question 3

Regulations

Answer 3

Regulations issued by the EU are directly applicable and automatically binding in all Member States without the need for any further legislation in the Member States.

Question 4

Directives

Answer 4

Directives set out objectives to be achieved and oblige Member States to pass domestic legislation themselves to implement those objectives. Directives set a date by which Member States must implement them.

Question 5

Decisions

Answer 5

Decisions are directly binding in the same way as regulations, but only on those to whom they are addressed, which may be Member States, companies or individuals.

Question 6

Recommendations and opinions

Answer 6

Recommendations and opinions are not binding.

Question 7

Vertical direct effect

Answer 7

EU law being enforced against the state or a state body.

Question 8

Horizontal direct effect

Answer 8

Enforced against private bodies.

Question 9

What effect are regulations and decisions capable of?

Answer 9

Both vertical and horizontal direct effect.

Question 10

What effect are directives capable of?

Answer 10

Directives can only have vertical direct effect; ie they can only be enforced against the state or emanations of the state.

Question 11

Requirement for a provision of EU law to have direct effect?

Answer 11

It must be sufficiently clear, precise and unconditional and must not require additional measures, either at national or EU level.

Question 12

Requirement for a Directive to have direct effect?

Answer 12

The time limit for implementation by Member States has expired.

Question 13

Was EU Law considered supreme in the UK during the period of the UK’s membership of the EU?

Answer 13

Yes, because between the Joining Date and the Implementation Date, EU law was binding on the UK courts and this led to decisions where the UK courts had to disapply UK statute where it conflicted with EU law.

One of the terms of membership of the EU was that EU law was supreme.

Question 14

Does the judiciary have the power to strike down UK legislation?

Answer 14

No.

Question 15

How does the court take account of any relevant retained general principle of EU law?

Answer 15

Section 6(3) of that Act provides that any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it, in accordance with any retained case law and any retained general principles of EU law.

Question 16

What is the HC bound by when interpreting retained EU law?

Answer 16

The HC is bound by any relevant retained general principles of EU law when interpreting retained EU law.

Question 17

Which general principles of EU law will be retained?

Answer 17

Will only be retained if they were recognised as such by EU case law before IP completion day.

Question 18

Does the Charter of Fundamental Rights form part of retained EU law?

Answer 18

No.

Question 19

What does s 2 of the European Union (Withdrawal) Act 2018 (as amended) allow for UK legislation?

Answer 19

Allows for UK legislation derived from EU law to continue to have legal effect, so an individual could enforce their rights in the UK courts.

Question 20

Why wouldn’t the ECJ have jurisdiction?

Answer 20

If the he IP-completion date has passed.

Question 21

Why wouldnt the ECtHR have jurisdiction?

Answer 21

If there are no obvious human rights issues.

Question 22

What is the correct approach to the interpretation of retained EU legislation following IP completion day?

Answer 22

Retained EU legislation is normally to be interpreted in line with retained EU case law and retained general principles of EU law and the UK Court can proceed to do this.

The UK court is no longer able to make a preliminary reference to the Court of Justice of the European Union.

All courts are able to interpret retained EU legislation in line with retained EU case law, not just the Supreme Court.

Question 23

Can the UK courts ignore EU law?

Answer 23

The UK courts cannot ignore EU law simply because we are outside the implementation period. Questions on the meaning of retained EU legislation that remain unmodified on or after IP completion day will be determined by UK courts in accordance with relevant retained case law and retained general principles of EU law.

Question 24

How is retained direct principal EU legislation treated?

Answer 24

As if it were primary legislation for the purposes of the Human Rights Act 1998. Whilst the courts can make a declaration of incompatibility under the Act, this would not invalidate the EU legislation.

Question 25

How is the EU general principle of equality recognised?

Answer 25

The EU general principle of equality was recognised by EU case law prior to the UK’s exit from the EU, so it will be classed as a retained general principle of EU law. However, following Brexit, UK courts are no longer required to disapply the conflicting UK legislation.

Whilst the EU general principle of equality is indeed retained, UK courts are no longer required to disapply conflicting UK legislation following Brexit.

Question 26

What do rights arising under s 2(1) of the ECA 1972 become?

Answer 26

Retained EU law. They do not become direct EU legislation.

Question 27

Can a state liability claim be made after the UK leaves the EU?

Answer 27

No, the UK will no longer be under an obligation to implement directives after exit day and therefore, there is no right in domestic law on or after exit day to damages.

If the fact pattern states that the implementation deadline was after exit day and therefore, no breach of EU Law has occurred before exit day for which there is a cause of action.

Question 28

Are UK courts are bound by decisions made by the CJEU post-withdrawal?

Answer 28

The UK courts are bound by decisions prior to the UK’s withdrawal from the EU but not post-withdrawal.

It is the date of the decision (pre or post withdrawal) that governs whether it is binding, not the date of the directive.

Question 29

How do UK courts consider ECJ judgments?

Answer 29

As persuasive.