Chapter 10: Withdrawal of the United Kingdom from the European Union

Question 1

1. Introduction to EU law

Answer 1

This section examines the effect of European Union law in the UK constitution following the
withdrawal of the UK from the European Union (EU) in January 2020.

It is divided into two parts. The first part introduces certain aspects of EU law. It begins by very briefly introducing how and why EU law continues to have effect in the UK. It then explains the sources of EU law and the methods for enforcing them in national courts under EU law.

The principle of the supremacy of EU law, which had been introduced in the previous topic on the Sovereignty of Parliament, will also be revisited in more depth. The next part of the topic will then undertake a more detailed examination of the effect of EU law in the UK under the European Union (Withdrawal) Act 2018 as amended by the European Union
(Withdrawal Agreement) Act 2020

Question 2

1.2 The EU and the UK’s membership

Answer 2

The history of the EU can be traced back to the establishment of three initial communities in the 1950s: the European Coal and Steel Community (ECSC), the European Economic Community (EEC) and the European Atomic Energy Community (Euratom). These were established by treaties agreed by six initial Member States. The UK joined the three European Communities on 1 January 1973.

The EU itself was established in 1993. By that time, membership had increased to 12 states and
was to continue to increase afterwards to 28 Member States by the end of 2013.

In 2016, a referendum was held in the UK in which the majority of electors who voted chose to
leave the EU. The UK left the EU on 31 January 2020. This is commonly known as ‘Brexit’.

Question 3

1.3 EU law in the UK

Answer 3

As noted in the topic on the Sovereignty of Parliament, EU law was given effect in the UK by the
European Communities Act 1972 (ECA) for the duration of the UK’s membership. Upon the UK’s
withdrawal from the EU, the ECA was repealed by the European Union (Withdrawal) Act 2018 (the
EUWA 2018). Nevertheless, the EUWA 2018 provides for much of EU law to continue to have effect
in the UK.

Some EU law is preserved by the EUWA 2018 in order to fulfil the requirements of a Withdrawal Agreement between the UK and the EU. However, the bulk of EU law has been retained by the EUWA 2018 in order to avoid the chaos that would ensue if it was all repealed at the same time. This has been converted into domestic UK law by the Act and can be amended or repealed in
virtually the same way as any other domestic law in the UK.

Before examining in detail how the EUWA 2018 gives effect to all of this, it is first necessary to explain the various sources of EU law, to introduce the methods under EU law for enforcing EU law in national courts and to revisit the principle of the supremacy of EU law.

Question 4

1.4 Acts of the EU and sources of EU law

Answer 4

The various kinds of acts which the institutions of the EU can undertake and various sources of EU
law can be broken down into six categories:
(a) Primary sources. These are the EU Treaties and the Charter of Fundamental Rights.
(b) Secondary sources and acts. These are regulations, directives and decisions.
(c) Tertiary acts.
(d) Case law.
(e) International agreements. These are international treaties.
(f) Non-binding acts (‘soft law’).

In addition to these, there are also certain overarching legal principles, derived from the EU treaties and case law, which apply generally across EU law. These are known as general principles of EU law.

Question 5

1.4.1 EU treaties

Answer 5

The primary source of EU law is provided by two EU treaties:
(a) The Treaty on the Functioning of the European Union. This is commonly abbreviated as
‘TFEU’.

(b) The Treaty of European Union. This is commonly shortened to the acronym ‘TEU’. They are both commonly referred to as the EU’s primary legislation.
Note. There is one common mistake to avoid here. Students often assume that the European
Convention on Human Rights is an EU treaty. It is not. It never has been. It is overseen by a completely different organisation.

Some of its signatories are not even EU members. Article 6(2). TEU does provide the EU with the power to accede to the ECHR but it has not done so to date.

Question 6

1.4.2 The Charter of Fundamental Rights

Answer 6

The Charter of Fundamental Rights was adopted in 2000 as an authoritative statement of
fundamental rights within the EU. It was given formal legal recognition by the Lisbon Treaty of 2007 through the insertion of a new article 6(2) into the TEU.

Article 6(1) TEU provides that the Charter has the same legal status as the treaties. It is, therefore,
a primary source of EU law. However, it is more limited in its application than the EU treaties.
Article 51 of the Charter makes it clear that it only regulates the activities of the EU, and those of
the Member States when they are implementing EU law. Moreover, it does not confer, extend or
modify any of the powers of the EU under the treaties.

Therefore, the Charter can be used to interpret EU law or to determine the lawfulness of the EU’s
acts or of national measures giving effect to EU law. But it does not provide an independent source of competence for the EU, or an independent legal basis for its activities. Neither does it apply to Member States in purely domestic situations which fall outside of EU law. (See further ‘General principles of EU law’ below.)

Question 7

1.4.3 Regulations

Answer 7

Article 288 TFEU authorises the EU to undertake certain secondary acts. These constitute legislative acts where they are adopted using a legislative procedure (Article 289(3) TFEU). Regulations are one form of secondary legislation. Article 288 provides that:

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. Directly applicable’ means that the regulation applies in the Member States without those
Member States having to enact their own legal measures to implement or give effect to it.

Question 8

1.4.4 Directives

Answer 8

Directives are a second form of secondary legislation. They are also provided for by article 288
TFEU which states that: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

Question 9

In contrast to legislation

Answer 9

This means that, in contrast to regulations, Member States are required to implement directives by
enacting their own legal measures to incorporate or to give effect to them in their national law.

The deadline for implementing a directive will normally be specified in the directive itself. Typically, this will be two years after the directive was adopted. If no deadline is specified in the directive, the deadline for implementation will be 20 days after the publication of the directive (Art
297 TFEU).

Question 10

1.4.5 Decisions

Answer 10

Decisions are another form of secondary act which are provided for by article 288 TFEU. That
article states that: A decision shall be binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them.

Decisions are exactly what their name indicates. For example, the European Commission may
make a decision that a company is in breach of EU competition law and may also decide to impose a fine on the offending company.

It did so in 2018 when it made a decision that Google was in breach of competition law for abusing its dominant position in certain markets relating to its mobile phone operating system. The Commission decided to impose a fine of €4.34 billion. This is currently the record amount for such a fine.

Question 11

1.4.6 Tertiary acts

Answer 11

The TFEU provides for two forms of tertiary act:

(a) Delegated acts Article 290 TFEU enables EU secondary legislation (regulations, directives and decisions) to delegate the power to the European Commission to adopt delegated acts to supplement or
amend that secondary legislation.

(b) Implementing acts Article 291(2) TEU enables legally binding EU acts to confer on the European Commission the power to adopt acts for implementing those legal binding EU acts where uniform conditions
for implementation are needed. The power can also be conferred on the Council of the European Union in certain circumstances.

Tertiary acts may themselves take the form of regulations, directives and decisions. Note. The European Commission and the Council of the European Union are both institutions of the EU.

Question 12

1.4.7 Case law

Answer 12

The principal courts of the EU are the Court of Justice of the European Union (CJEU) and the General Court. While there is no appeal from the national courts of the Member States to the EU courts, national courts can make preliminary references to the Court of Justice. These are questions about EU law which are referred to the Court of Justice by the national court.

The Court of Justice will make a ruling on the question which was referred to it. This is called a
preliminary ruling. The case then returns to the national court to apply the ruling of the Court of Justice.

Question 13

1.4.8 International agreements/treaties

Answer 13

Article 47 TEU confers legal personality on the EU. This gives it the capacity to act on its own
behalf within the realm of public international law, including entering into international agreements (ie international treaties).

Article 216(1) TFEU empowers the EU to be able to enter into international agreements in various
circumstances listed in the article. These international agreements are binding upon the EU institutions and the Member States (Art 216(2) TFEU).

Other provisions of the TEU and TFEU provide further powers to enter into international agreements in relation to more specific matters. These include agreements on arrangements for States to withdraw from the EU (Art 50(2) TEU).

Question 14

1.4.9 Non-binding acts (‘soft law’)

Answer 14

The institutions of the EU may also undertake acts which are not binding on anyone.

• Article 288 TFEU provides for the institutions to be able to make recommendations and to
  deliver opinions. The article expressly states that these are non-binding.
• Other non-binding acts include communications, declarations, notices, programmes and
  resolutions.

These acts are colloquially known as ‘soft law’. However, this label is misleading as they are not
forms of law at all. Note. As these forms of soft law are not binding, they are not, in themselves, enforceable in national courts. However, they can be used to aid the interpretation of the other forms of EU law.

Question 15

1.4.10 General principles of EU Law

Answer 15

Finally, there are certain overarching legal principles which apply generally across EU law. They are known as the general principles of EU law. They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and secondary legislation of the EU, and to determine the lawfulness of those activities of the Member States which fall within the scope of EU law. The rights found in the Charter of Fundamental Rights, which was discussed earlier, provide an example

Question 16

General principles

Answer 16

Some of the general principles were specifically laid down by the EU treaties but many were developed by the Court of Justice drawing on legal principles that are common to the Member States, on public international law and on other provisions of the EU treaties. Some of the general principles which were originally developed by the court have now been formally incorporated into the EU treaties

Question 17

Examples of General Principles

Answer 17

Examples of general principles include:

• Equality and non-discrimination
  This principle includes prohibitions on discrimination on the basis of nationality (Art 18 TFEU),
  sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation (Art 19 TFEU)
• Respect for fundamental rights (Art 6(3) TEU)
  This includes the rights found in the European Convention of Human Rights (Art 6(3) TEU) and
  those in the EU’s Charter of Fundamental Rights (Art 6(1) TEU).
• Proportionality

Question 18

1.5 Methods of enforcement in national courts

Answer 18

While the case law of the EU courts is legally binding in Member States, the primary, secondary and tertiary legal acts as well as international agreements can also be enforced in national courts

Question 19

Three ways of state enforceability

Answer 19

• Direct effect requires EU legal acts that satisfy certain criteria to be directly enforced in national courts.
• Indirect effect requires national courts to interpret their national law in a way that is compatible with EU law, although only in so far as it is possible to do so.
• State liability enables individuals to recover compensation in their national courts from a Member State where they suffered loss as a result of a sufficiently serious breach of EU law by that Member State.

Question 20

1.6 The supremacy of EU law

Answer 20

The principle of the supremacy of EU law addresses the question of how conflicts between EU law and the national law of the Member States should be resolved. It directs that where such a conflict arises, national law cannot override EU law. EU law must prevail over the offending national law instead.

Question 21

Conflict between domestic law and EU Law

Answer 21

Whether or not there is a conflict will depend on the respective requirements of EU law and
national law in the first place in the context in which the issue arises. If there is no requirement under EU law for a national court to enforce the particular provision of EU law, no conflict between EU law and national law will arise in that national court.

Question 22

Primacy of EU law

Answer 22

It is worth noting that the Court of Justice has never used the term ‘supremacy’ to describe the
principle. It has preferred to refer to EU law taking precedence over or priority over the national law of the Member States. In more recent years, it has become common to describe the principle as the primacy of EU law instead

Question 23

Costa v E.N.E.L (Case 6/64)
ECLI:EU:C:1964:66

Answer 23

The supremacy of EU law was established in the case of Costa v E.N.E.L (Case 6/64) ECLI:EU:C:1964:66. In that case, the Italian government argued that there was nothing in the EEC treaty which enabled national courts to override national law on the basis that it was incompatible with the EEC treaty.

This argument was rejected by Court of Justice which held that: ‘the law stemming from the Treaty […] could not […] be overridden by domestic legal provisions […]’ It is this principle which subsequently became known as the supremacy of EU law.

Note. The EEC Treaty 1957 is the treaty that established the initial European Economic Community. This was one of the original three communities that preceded the establishment of the EU (see ‘The European Union and the UK’s membership’ above).

Question 24

1.6.2 Internationale Handelsgesellschaft

Answer 24

The approach of the Court of Justice to the supremacy of EU law has been absolutist. In Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel (Case 11/70) ECLI:EU:C:1970:114, the Court of Justice held that EEC law takes precedence over the national constitutions of the Member States, including any fundamental rights provided by these national constitutions.

However, the Court of Justice has mitigated the effect of this to some extent by adding in the same case that the protection of fundamental rights was itself a general principle of EEC law. Consequently, EU law must itself be interpreted and applied in accordance with fundamental
rights (see also ‘General principles of EU law’ above).

Question 25

1.6.3 Simmenthal (the absolutist approach)

Answer 25

The absolutist approach of the Court of Justice to the principle of the supremacy of EU law has
also been reinforced in Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) ECLI:EU:C:1978:49. In that case, the Court of Justice held that:

Question 26

Enforcement of EU Supremacy

Answer 26

(a) The principle applies in all national courts. This includes the constitutional courts of the
Member States.
(b) The principle applies irrespective of when the national law was enacted.
(c) The Italian court which made the preliminary reference was not entitled to wait until the
Italian constitutional court had ruled that the national law was to be disapplied. The Court of Justice insisted that EEC law must immediately be given precedence over the national law.

Note the effect of the supremacy of EU law here. The national law is not to be rendered void or invalid. It simply has to be disapplied. In other words, it is not to be enforced if it is incompatible with EU law.

Question 27

1.7 Summary

Answer 27

The UK was a member of the EU and its predecessor communities for 47 years. It left the EU in
January 2020. The UK’s withdrawal is known as ‘Brexit’.

• Despite its departure, much of EU law continues to have effect in the UK through the European
  Union (Withdrawal) Act 2018.
• There are various sources of EU law and other kinds of EU act. These include the primary sources of the Treaties and the Charter of Fundamental Rights, and the secondary sources of
  regulations, directives and decisions. There are also tertiary acts, case law, international agreements and non-binding acts. Finally, there are certain overarching general principles of EU law.
• Over time, the Court of Justice of the EU has developed three methods of enforcing of EU law
  in national courts. These are direct effect, indirect effect and state liability.
• The principle of the supremacy of EU law directs that EU law cannot be overridden by national
  law. If national law is incompatible with the requirements of EU law, national law must be disapplied.

Question 28

2 Brexit and the European Union (Withdrawal) Acts

2.1 Introduction

Answer 28

This is the second part of the topic examining the effect of EU law in the UK constitution following the withdrawal of the UK from the EU. As was noted in part 1, the UK left the EU on the 31 January 2020 after 47 years of membership.

This followed a referendum held in 2016 in which the majority of the votes cast by the electorate were in favour of leaving. The UK’s withdrawal from the EU is commonly known as ‘Brexit’.

Part 1 of this topic introduced the sources of EU law and the methods for enforcing EU law in
national courts. It also revisited the principle of the supremacy of EU law.

This second part considers the legal framework which has been established in the UK by the European Union (Withdrawal) Acts to provide for and govern the legal consequences of its withdrawal from the EU.

Question 29

2.2 The effect of EU law: a recap

Answer 29

• Section 2(1) gave effect to EU law in the UK by providing that: ‘All such rights, powers, liabilities,
  obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed, and followed accordingly […]’
• Section 2(2) provided a power to make subordinate legislation to implement EU law or to deal
  with any matters arising out of obligations and rights under EU law.
• Section 3(1) provided that questions of law relating to the EU shall be determined according to
  the principles and decisions laid down by the Court of Justice. This gave effect to the case law of that court.

Question 30

Most significant provision was s 2(4):

Answer 30

Arguably, the most significant provision was s 2(4):

• Section 2(4) provided that: ‘any enactment passed or to be passed shall be construed and have effect subject to [EU Law]’. This sought to accommodate the supremacy of EU law and provided the primary basis upon which the UK courts were willing to disapply statutes which were incompatible with EU law (see eg R v Secretary of State for Transport, ex parte Factortame [1990] 2 AC 85 and [1991] 1 AC 603).

Question 31

2.3 Brexit and the Withdrawal Agreement

Answer 31

The legal framework which provided for and governs the legal effect and consequences in UK law of the withdrawal of the UK from the EU was laid down by the European Union (Withdrawal) Act 2018 (EUWA 2018). Section 1 of this Act formally repealed the ECA 1972 when the UK left the EU on 31 January 2020. This is referred to in the EUWA 2018 as ‘exit day’.

Question 32

Relationship between the UK and the EU following Brexit

Answer 32

The relationship between the UK and the EU following Brexit was initially governed by the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

This international agreement, which is more commonly known simply as ‘the Withdrawal Agreement’, was entered into as part of the withdrawal process under article 50 TEU. It was incorporated into UK law by the European Union (Withdrawal Agreement) Act 2020 (EUWA 2020) which amended the EUWA 2018 to this end.

Question 33

2.4 The EUWA and the transition period and provisions

Answer 33

• Section 1A was inserted into the EUWA 2018 which, despite the ECA 1972 having been repealed,
  provided for the ECA 1972 to continue to give legal effect to EU law in accordance with the Withdrawal Agreement during the transition period.
• By this means, EU law continued to have effect in the UK in much the same way as it had previously under ss 2 and 3 ECA during the UK’s membership of the EU. This included UK courts being able to disapply any domestic law which was incompatible with the Withdrawal Agreement.

Question 34

EU-Derived Domestic Legislation

Answer 34

• When a statute is repealed, there is a presumption that any subordinate legislation made under it is also to be repealed. Section 1B of the EUWA 2018 prevented the repeal of the ECA from having this effect during the transition period by preserving EU-derived domestic legislation passed before the UK withdrew from the EU.

‘EU-derived domestic legislation’ was defined in s 1B(7) of the EUWA 2018 as referring to any UK 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. This thereby covers domestic legislation in the UK which had been 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

Question 35

2.5 After the transition period

Answer 35

Following the end of the transition period at the end of December 2020, the application of EU law in the UK is now governed by two different legal regimes:

(a) The Withdrawal Agreement provides for some EU law to continue to apply to certain specific
matters in the UK.

(b) The application of the rest of EU law – that which is no longer preserved by the Withdrawal
Agreement – is now governed by a separate legal regime.

Question 36

2.6 Legal Regime 1: EU law preserved by the Withdrawal Agreement

Answer 36

The Withdrawal Agreement provides for some EU law (see Note 1) to continue to apply to certain
specific matters, such as the rights of Union citizens (see Note 2) and their family members who were resident in the UK at the end of the transition period. The most controversial part of the Agreement is the Protocol on Ireland/Northern Ireland which is designed to maintain an open
border between Northern Ireland and the Republic of Ireland.

Question 37

Preserving the Withdrawal Agreement

Answer 37

The EU law preserved by the Withdrawal Agreement after the end of the transition period is given
effect in the UK by s 7A of the EUWA 2018, which is drafted in similar terms to ss 2(1) and 2(4) of the ECA 1972.

It follows from this that, in accordance with the principles laid down in the earlier case law on s 2(4) ECA, the UK courts remain able to disapply statutes where they are incompatible with any EU law which continues to be preserved by the Withdrawal Agreement after the end of the transition period.

This is reinforced by s 5(7) of the EUWA 2018 which also serves to preserve the supremacy of EU law in so far as it is required by the Withdrawal Agreement.

Question 38

Required by EUWA 2018

Answer 38

Notes:

1 This includes the Charter on Fundamental Rights and the general principles in so far as they
are preserved by the Withdrawal Agreement (see Art 2(a) of the Withdrawal Agreement).

2 A Union citizen is any national of a Member State of the EU.

Question 39

No direct repetition of general obligation

Answer 39

There is no direct repetition of the general obligation in s 3(1) ECA to give effect to the decisions of the Court of Justice. Instead, s 7C of the EUWA 2018 (as amended) requires questions as to the validity, meaning or effect of the following to be decided in accordance with the Withdrawal Agreement:

• The provisions of the EUWA 2018, such as s 7A, which provide for the implementation of the
  Withdrawal Agreement;
• Anything which is part of domestic law by virtue of those provisions; and
• Anything else which is part of domestic law for the purposes of the Withdrawal Agreement, or
  because it otherwise falls within the scope of the Withdrawal Agreement.

Question 40

Section 7C(2) specifically refers to several articles of the Withdrawal Agreement

Answer 40

• Article 4 of the Withdrawal Agreement. This requires the Withdrawal Agreement’s provisions,
  including any EU law preserved by them, to be interpreted in conformity with the case law of
  the Court of Justice made before the end of the transition period. However, it requires the UK’s judiciary to have only due regard to such case law decided after the end of the transition period.

Question 41

Article 158

Answer 41

• Article 158 of the Withdrawal Agreement. This enables UK courts and tribunals to continue to
  make preliminary references to the Court of Justice on questions concerning the rights of Union citizens and their family members in cases which commenced at first instance within eight years of the end of the transition period.

Question 42

Article 12 of the Protocol on Ireland/Northern Ireland

Answer 42

Article 12 of the Protocol on Ireland/Northern Ireland attached to the Withdrawal Agreement.
This enables preliminary references to be made to the Court of Justice in relation to EU law preserved by the Protocol in Northern Ireland.

Question 43

2.6.1 The Withdrawal Agreement and Parliamentary Sovereignty

Answer 43

As has been noted, the insertion by the EUWA 2020 of ss 1A and 7A into the EUWA 2018 preserves the ability of the courts to disapply statutes where they are incompatible with the Withdrawal Agreement and with any EU law that is preserved by it.

Section 7C also does so by requiring compliance with the obligation in article 4(2) of the Withdrawal Agreement to ensure the
disapplication of domestic law which is incompatible with the Withdrawal Agreement.

Question 44

Section 38 of the EUWA 2020

Answer 44

Nevertheless, s 38 of the EUWA 2020 specifically reasserts that Parliament remains sovereign notwithstanding the insertion of these sections into the EUWA 2018. One consequence of this may be to reinforce the principle in Macarthys Ltd v Smith [1979] All ER 325 and Thoburn v Sunderland
City Council [2002] EWHC 195 that Parliament retains the right to override EU law, as well as the
Withdrawal Agreement, by using express words or at least specific words that disclose a deliberate intention to do so.

Question 45

2.7 Legal Regime 2: The application of the rest of EU law

Answer 45

Most EU law is no longer preserved by the Withdrawal Agreement following the end of the
transition period. Nevertheless, the sheer volume of EU law which formed part of the UK legal
systems at the end of the transition period made it impracticable to repeal this remaining EU law
in its entirety at that time.

Therefore, the EUWA 2018 (as amended by the EUWA 2020) provides for a second legal regime which has retained the bulk of this EU law – that is the EU law which was not preserved by the Withdrawal Agreement – and has converted it into domestic UK law. This retained EU law is now capable of being amended or repealed by subsequent domestic legislation in much the same way as any other law in the UK.

Question 46

2.8 Retained EU law

Answer 46

To that end, ss 2 to 4 of the EUWA 2018 provide for the following to continue to have effect in the
UK (except where they are excluded by the Act):
(a) EU-derived domestic legislation
(b) Direct EU legislation
(c) Other EU law

These three forms of law are collectively referred to as ‘retained EU law’ (s 6(7) EUWA 2018).
(Note that retained EU law does not include any EU law which continues to apply under the Withdrawal Agreement after the end of the transition period. That is governed by s 7A of the EUWA 2018 instead.)

Question 47

2.8.1 EU-derived domestic legislation

Answer 47

Section 2 of the EUWA 2018 retains EU-derived domestic legislation. This section performs a similar function to that of s 1B of the EUWA 2018 (on which, see ‘The EUWA and the transition period’ above). Indeed, the definition of ‘EU-derived legislation’ in s 1B(7) of the of the EUWA 2018
applies equally in relation to s 2. As was noted earlier, s 1B(7) defines it as any UK 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

Question 48

2.8.2 Direct EU legislation

Answer 48

Section 3 of the EUWA 2018 retains direct EU legislation. This is defined as 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)).

Question 49

EU Tertiary Legislation

Answer 49

EU tertiary legislation refers to EU legislation made under powers conferred by EU secondary
legislation (s 20 — although tertiary legislation in the form of an EU directive is excluded). Direct EU legislation is divided into two categories by s 7(6) of the EUWA 2018. These are:

• 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.

Question 50

2.8.3 Other EU law

Answer 50

Section 4 of the EUWA 2018 also retains 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, and which does not constitute direct EU legislation under s 3 of the EUWA 2018.

Question 51

2.8.3 Other EU Law

Answer 51

Section 4 of the EUWA 2018 also retains 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, and which does not constitute direct EU legislation under s 3 of the EUWA 2018.

Question 52

Excludes any rights and obligations under EU directives

Answer 52

However, 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)). Paragraphs 97 and 98 of the Explanatory Notes to the EUWA 2018 explain that this is designed to exclude rights and obligations conferred by a directive from having direct effect, unless 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:

So rights arising under a particular directive that have been recognised by a court before [the end of the transition period] as having direct effect, could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address.

Question 53

The Direct Effect Method

Answer 53

Note. Direct effect is a method of directly enforcing EU legislation and other EU acts in national courts. Therefore, a directive which has direct effect is one that is capable of being directly enforced in a national court (see ‘Methods of enforcement in national courts’ in the first section of this chapter).

Question 54

Ambiguity of the direct effect method

Answer 54

Several commentators have noted that this remains ambiguous. For example, Paul Craig has maintained that it is not clear whether the right must have been expressly recognised as having direct effect in a case concerning the particular directive, or whether it will suffice that the right was of a similar kind to one recognised as having direct effect in a case which was not dealing with that directive.

Question 55

5(4) of the EUWA 2018

Answer 55

It should be noted that s 5(4) of the EUWA 2018 specifies that the Charter of Fundamental Rights
will no longer be part of UK law (see further below). Consequently, rights under the Charter are not retained by s 4 of the EUWA 2018.

Question 56

2.9 The amendment of retained EU law

Answer 56

Under s 5 EUWA 2018, the principle of the supremacy of EU law continues to apply in relation to
any British law made in the UK before the end of the transition period. However, it does not apply
to any British law made after the end of that period.

Question 57

Section 7 of the EUWA 2018, together with sch. 8

Answer 57

Accordingly, s 7 of the EUWA 2018, together with sch. 8, specifically permits retained direct EU
legislation and other retained EU law to be modified by the following methods:

• By an Act of Parliament
• By any other primary legislation. This refers to primary legislation of the devolved assemblies in
  Scotland, Wales and Northern Ireland (see s 20)
• By subordinate legislation where it is made under a Henry VIII power to modify such retained
  EU law or to amend primary legislation.
• Section 7 of the EUWA 2018, together with sch 8, also permits retained direct minor EU
  legislation to be modified by subordinate legislation where that subordinate legislation was not
  made under such Henry VIII enabling powers.

Question 58

Subordinate legislation

Answer 58

However, this subordinate legislation can only modify direct principal EU legislation retained under s 3 or other EU law retained under s 4 in so far as the amendment is supplementary, incidental or consequential to any modification of retained direct minor EU legislation. It cannot modify retained direct principal EU legislation or other retained EU law in any other
circumstance.

Question 59

2.10 Retained EU case law

Answer 59

The courts and tribunals in the UK are required by s 6(3) of the EUWA 2018 to determine any questions as to the validity, meaning or effect of retained EU law (in so far as it remains unmodified) in accordance with the case law of the Court of Justice that existed at the end of
the transition period. This case law is referred to as ‘retained EU case law’ (s 6(7)).

Question 60

Key points of Retained EU Case Law

Answer 60

• UK courts and tribunals are no longer able to make preliminary references to the Court of
  Justice on questions of EU law (s 6(1)(b)).
• The Supreme Court and, in Scotland, the High Court of Justiciary are not bound by retained
  EU case law (s 6(4)). In deciding whether to depart from retained EU case law, they must apply
  the same test as they would apply in deciding whether to depart from their own case law (s
  6(5)).
• Under the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law)
  Regulations 2020, the following courts are also not bound by retained EU case law:
• The Court of Appeal in England and Wales
• The Court Martial Appeal Court
• Various other courts in Scotland and Northern Ireland specified in the Regulations.
  In deciding whether to depart from retained EU case law, these courts must apply the same
  test as the Supreme Court would apply in deciding whether to depart from the case law of
  the Supreme Court.
• No courts and tribunals in the UK are bound by any cases decided by the Court of Justice
  after the end of the transition period, although they may have regard to them (s 6(1)(a) EUWA
  2018).

Question 61

Other Principles of EU Law

2.11.1 Retained general principles of EU law

Answer 61

UK courts and tribunals also continue to be bound by retained general principles of EU law (s 6(3)
of the EUWA 2018). These are the general principles of EU law which have effect in EU law immediately before the end of the transition period (s 6(7)). However, the courts and tribunals are not bound by any general principles which were not
recognised by the Court of Justice before the end of the transition period (para 2 of Schedule 1).

Question 62

2.11.2 The Charter of Fundamental Rights and retained fundamental rights

Answer 62

As was noted above, under s 5(4) of the EUWA 2018, the Charter of Fundamental Rights has not
been retained as part of UK law since the end of the transition period. (This only excludes the Charter of Fundamental Rights in relation to retained EU law. The Charter continues to apply in relation to the Withdrawal Agreement – see ‘EU Law preserved by the Withdrawal Agreement’ above.)

Question 63

Section 5(5) mitigates the effect

Answer 63

However, s 5(5) mitigates the effect of this by making it clear that:

• This does not affect the retention of any fundamental rights which existed under EU law at that
  time irrespective of the Charter. This will include, for example, any fundamental rights recognised as general principles of EU law.
• Moreover, any references in case law to the Charter are to be treated as if they were references to such retained fundamental rights.

Question 64

2.11.3 State liability

Answer 64

State liability is no longer available as a method of enforcing EU law (para 4 of Schedule 1 which refers to this as the ‘Rule in Francovich’ after the case that first established this method).
On state liability as a method of enforcement under EU law, see ‘Methods of enforcement in
national courts’ in the first section of this chapter.

Question 65

2.12 Summary

Answer 65

• The legal framework governing Brexit and the effect of EU law in the UK after Brexit has been
  laid down by the EUWA 2018 (as amended by the EUWA 2020), and by a Withdrawal
  Agreement between the UK and the EU.
• Following the UK’s withdrawal from the EU in January 2020, there was initially a transition (or
  implementation) period which ran until the end of 2020. During this period, EU law continued
  to have effect in the UK in much the same way as it had previously during the UK’s membership.
• Since the end of the transition period, there have been two legal regimes governing the effect
  of EU law. Some EU law – notably in relation to the Northern Ireland Protocol and to the rights of Union citizens – has been preserved by the Withdrawal Agreement and continues to have effect under a legal regime governed by ss 7A and 7C of the EUWA 2018.
• The rest of EU law derived from the UK’s period of membership of the EU also continues to have effect under a different legal regime through ss 2 to 4 of the EUWA 2018. This is known as
  ‘retained EU law’ and can now be amended by UK legislation.