BREXIT Flashcards
What were the main provisions of ECA 1972?
s2(1) - The treaties have given legal effect
s2(2) - power to make secondary leg to implement EU law
s2(4) - primacy/ supremacy of EU law
s3(1) - q’s of the law are determined principles laid down by CoJ
Which article of the TEU is relevant in withdrawing from the EU?
ARTICLE 50
○ Article 50(1) permits any Member State to decide to withdraw from the EU
○ Article 50(2) provides for the withdrawal process to be initiated by the Member State formally notifying the European Council of its intention to withdraw. The Member State is then required to negotiate an agreement with the European Union on the arrangements for its withdrawal.
○ Article 50(3) specifies that the parties have two years in which to reach agreement otherwise the Member State will automatically cease to be a member. However, the European Council and the Member State can agree to extend the deadline.
How did the UK withdraw from the EU?
- referendum = 52% people voted leave
- UK Gov tried to use the royal prerogative to initiate the process but is not allowed to without Parliament’s authority (Miller)
- Gov introduced EU (notification of withdrawal) act 2017
- March 2017, PM notified the European Council of intention to withdraw
- OG meant to leave in March 2019 but got pushed back
- UK finally left EU on 31 Jan 2020
Which statute provides the legal framework in the UK for the withdrawal from the EU?
- The European Union (Withdrawal) Act 2018 (‘EUWA 2018’)
○ main statute
○ formally repealed the ECA - The European Union (Withdrawal Agreement) Act 2020 (‘EUWA 2020’)
○ amended the EUWA 2018 to implement a withdrawal agreement
○ includes transition period
When does the transition period last until?
31 Dec 2020 (Part 4 of Withdrawal Agreement)
What still applies during the transition period?
- EU law continues to apply (Art 127(1))
- ECA 1972 continues to have legal effect during transition period (s1A EUWA 2018)
- s3(1) ECA - decisions laid down by CoJ
- principle of EU supremacy (s5 EUWA 2018)
- EU-derived domestic legislation passed before the end of the transition period (s1B EUWA 2018)
What will apply after the transition period ends?
- EU law to apply for Union citizens/ family members who are resident in the UK (s7A EUWA 2018)
- certain provisions of EU law governing the free movement of goods in NI
(s7A EUWA 2018) - retained EU law
- due regard for case law decided after TP ends but not bound by principles
- no state liability
- continue to be bound by retained EU case law (except SC)
- continue to be bound by retained general principles recognised before TP ends
Is the Withdrawal agreement supreme of UK national law?
Yes
- s7A(3) reflects the requirement of art4(2) of the Withdrawal Agreement that the UK has to misapply domestic law which is incompatible with the Withdrawal agreement
- the Withdrawal Agreement can override the EUWA 2018 itself
HOWEVER:
- s38: reasserts that Parliament remains sovereign and can override EU law (inc withdrawal agreement) by using express words (such as in Thoburn).
Does EUWA 2018 say anything about giving effect to the decisions of the CoJ?
No
- instead s7C requires q’s of the validity of certain laws to be decided in accordance with the Withdrawal Agreement
- will be interpreted in conformity with case law from CoJ BEFORE end of transition period
- UK judiciary only need to have due regard to the case law decided AFTER end of transition period
- after transition period the UK can’t ask any prelim questions
What are the 3 forms of retained EU law?
- EU-derived domestic legislation
- Direct EU legislation
- Other EU law
Explain the retained EU law: EU-derived domestic legislation.
s2 EUWA 2018
- any UK secondary legislation which was enacted under s.2(2) of the ECA or for one of the purposes in s.2(2) of the ECA, or which otherwise relates to the EU.
- It covers secondary legislation enacted for the purpose of implementing obligations under EU law, of enabling legal rights under EU law to be enjoyed or of dealing with other matters arising out of or related to such obligations and rights.
- E.G secondary leg enacted to implement a directive
Explain the retained EU law: Direct EU legislation.
S3 EUWA 2018
- any EU regulation, EU decision or EU tertiary legislation which is in force and applicable in domestic law immediately before the end of the transition period (s.3(2)).
- EU tertiary legislation refers to legislation made by the EU Commission under powers delegated to it by EU secondary legislation (directives excluded)
Explain the retained EU law: Other EU law.
S4 EUWA 2018.
- any other EU law which was applicable in UK law by virtue of s.2(1) of the ECA immediately before the end of the transition period
- the section excludes any rights and obligations under EU directives which ‘are not of a kind recognised’ by the EU courts or domestic courts in a case decided before the end of the transition period (s.4(2)(b)).
- the directive will have direct effect if they are of a ‘of a similar kind’ to those already recognised by the EU courts or domestic courts as being able to do so
- ambiguous.
What are the two categories of Direct EU leg?
s. 7(6) of the EUWA 2018
- Direct principal EU legislation which refers to EU Regulations which were not tertiary legislation
- Direct minor EU legislation which covers any other direct EU legislation which is not direct principal EU legislation.
What is retained EU case law?
- the courts and tribunals will be required by s.6 of the EUWA 2018 to determine any questions as to the validity, meaning or effect of this retained EU law, in so far as it remains unmodified, in accordance with the case law of the Court of Justice that exists at the end of the transition period.
