English Legal System SBAQ's- Retained EU law + Devolution Flashcards
Is the following statement TRUE or FALSE?
Retained EU law is a snapshot of EU law as it applied in the UK immediately before the UK’s exit from the EU.
the statement is FALSE.
Retained EU law is a snapshot of EU law immediately before IP completion day (11.00pm on 31 December 2020). Although the UK left the EU on 31 January 2020, the Withdrawal Agreement provided for a transition period during which EU law continued to apply in the UK.
What is the status of an EU regulation in force immediately before IP completion day?
A. In the absence of any domestic implementing legislation, it will cease to apply in the UK.
B. It will become direct EU legislation, a category of retained EU law.
C. It will become EU derived domestic legislation, a category of retained EU law.
D. It will fall into the category of retained EU law described as ‘rights and powers available in UK law prior to IP completion day’.
Option B is correct.
Pursuant to s 3 EU(W)A 2018, direct EU legislation includes any EU regulation in force immediately before IP completion day. Option A is wrong as direct EU legislation does not require implementation in the UK to be retained.
Option C is wrong as EU-derived domestic legislation is UK legislation that was enacted to implement the UK’s EU obligations (s 2 EU(W)A 2018).
Option D is wrong as it describes the residual category of retained EU law defined in s 4 EUWA 2018 that does not fall within s 2 or s 3 EU(W)A 2018.
The High Court in England is hearing a case in which the parties are disputing the meaning of a provision of retained EU law. There is a decision of the CJEU that pre-dates IP completion day interpreting the provision in question.
Which ONE of the following statements is CORRECT?
A. The High Court may depart from the decision of the CJEU if it considers that it is right to do so.
B. The High Court should follow the decision of the CJEU as a binding precedent.
C. The High Court should follow the decision of the CJEU as a binding precedent unless it considers it is incorrect.
D. The High Court may ignore the decision of the CJEU as the UK is no longer an EU Member State.
Option B is correct.
EU(W)A 2018 provides that any question as to the meaning of any retained EU law is to be decided in accordance with any relevant retained EU case law (i.e. decisions of the CJEU) and any retained general principles of EU law. The Court of Appeal and Supreme Court may depart from decisions of the CJEU when it appears right to do so, but the High Court is bound by retained EU case law. Option A is therefore wrong as it sets out the circumstances in which the Court of Appeal and Supreme Court may depart from retained EU case law, but is not applicable to the High Court.
Is the following statement TRUE or FALSE?
The Withdrawal Agreement covers the terms of the UK’s exit from the EU and the transition period, but has no legal force after IP completion day.
The statement is FALSE.
Many provisions of the Withdrawal Agreement continue to apply after IP completion day, in particular those relating to the Northern Ireland Protocol, the financial settlement and citizens’ rights.
A woman is suing her employer in an English court. She wishes to rely on a piece of retained EU law. Her employer wishes to rely on UK legislation enacted before IP completion day that is not retained EU law. There is a conflict between a provision of the retained EU law and the UK legislation. The court is not sure whether under the circumstances EU law is supreme over the UK legislation.
Which of the following options best describes whether under the circumstances the retained EU law or the UK legislation is supreme?
A. The retained EU law will not be supreme over the UK legislation because post IP completion day, EU law is no longer supreme over UK legislation.
B. The retained EU law will be supreme over the UK legislation because all retained EU law is supreme over UK legislation, no matter when enacted.
C. The retained EU law will not be supreme over the UK legislation because retained EU law is only supreme over UK legislation enacted after IP completion day and not before.
D. The retained EU law will be supreme over the UK legislation because retained EU law is supreme over all UK law which has been enacted after IP completion day
E. The retained EU law will be supreme over the UK legislation because the UK legislation is enacted before IP completion day and is not retained EU law
Option E is in fact correct. Although following the end of the transition period EU law itself no longer has supremacy over UK law, retained EU law will have supremacy in limited circumstances. For this purpose there are three categories of law:
retained EU law;
UK legislation enacted before the end of the transition period that is not retained EU law; and
all UK legislation enacted after the end of the transition period.
Should a conflict occur between a provision of retained EU law and a piece of UK legislation (that is not retained EU law) enacted before the end of the transition period, then EU law will prevail over national law.
Option A is wrong because the retained EU law will be supreme to the UK legislation because retained EU law is supreme over UK legislation enacted before the end of the transition period that is not retained EU law.
Option B is wrong. It is not the case that all retained EU law is supreme over UK legislation.
A woman is paid less by her employer than a male colleague doing work of equal value. This is permitted by a (fictitious) Act of Parliament enacted in 2015. The woman claims that the employer newspaper has infringed her right to equal pay for work of equal value under Art 157 TFEU.
Can the woman make a claim against her employer relying on Art 157 TFEU?
A. Yes, because directly effective rights arising under the TFEU become retained EU law.
B. Yes, because directly effective rights arising under the TFEU become direct EU legislation.
C. No, because UK Acts of Parliament, whenever enacted, prevail over retained EU law.
D. No, because rights arising under the TFEU fall within one of the exclusions from retained EU law.
E. No, because the UK has left the EU so rights arising under the TFEU are irrelevant.
Option A is the correct answer. Rights etc. arising under s 2(1) of the ECA 1972 become retained EU law (s 4 EU(W)A), and the right to equal pay is a prime example of such a right.
Option B is wrong because they do not become direct EU legislation; an example of direct EU legislation is an EU regulation that has become retained EU law.
Option C is wrong as retained EU law has a limited form of supremacy over UK legislation (including Acts of Parliament) enacted pre-IP completion day.
Option D is wrong as there is no applicable exclusion.
Option E is wrong as it clear from s 4 of EU(W)A 2018 that Treaty rights do remain relevant in the UK legal system.
An EU directive (fictitious) adopted in 2017 provides that Member States must ensure that the use of latex gloves is prohibited in restaurants, cafeterias and other places that serve hot food for consumption on the premises. The directive was adopted due to medical evidence that latex gloves were causing an allergic reaction. The directive further provides that Member States should implement it by 30 November 2019. The UK government took no steps to implement it. In May 2020 the CJEU ruled that the provisions of the directive have direct effect.
After IP completion day a woman working in a cafeteria operated by a government department suffered an allergic reaction as a result of wearing latex gloves.
Can the woman make a claim against the government department based on the directive?
A. Yes, because the directive was due to be implemented before IP completion day, it has direct effect, so it can be relied upon vertically against a state body.
B. Yes, because the rights arising under the directive are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day and so can be relied upon vertically against a state body.
C. Yes, because the directive was due to be implemented before IP completion day, it has become retained EU law and so can be relied upon vertically against a state body.
D. No, because directives do not become retained EU law and so cannot be enforced in the UK after IP completion day.
E. No, because rights arising under directives cannot be enforced in the UK after IP completion day as they are covered by an exclusion as regards enforcement in UK legislation.
Option B is in fact correct.
Directives are capable of having direct effect if they have not been implemented or implemented incorrectly, although only vertically against the state or state bodies. As the rights granted by the directive in this question are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day, the rights it grants will become retained EU law. Option B is a better answer than option A as option A is too simplistic and states the position during the UK’s membership of the EU.
Option C is wrong as directives do not become retained EU law, as normally they are implemented into domestic law by primary or secondary legislation. Where rights under a directive are preserved, it is the rights themselves that become retained EU law rather than the directive.
Option D is wrong as, although it correctly states that directives do not become retained EU law, it ignores the fact that rights arising under directives can become retained EU law, as set out in option B.
Option E is wrong. Although rights arising under directives are only retained in limited circumstances, there is no exclusion relating to the enforcement of any rights that are retained. Regarding other sources of EU law, the main exclusions relate to the Charter of Fundamental Rights and the enforcement of general principles.
An employee is suing her employer for age discrimination before an English court. Her employer is relying on UK legislation (fictitious) brought in after the Implementation Period completion date which allows employers to discriminate against employees aged under 21 years on the grounds of age. The English court determines that the UK legislation breaches the principle of equality; however the court does not disapply the UK legislation, and the employee fails in her claim.
Which of the following options best explains why the court does not disapply the UK legislation?
A. The court did not disapply the UK legislation because the principle of equality was not a recognised general principle of EU law before IP completion day and will therefore not be a part of retained EU Law in the UK.
B. The court did not disapply the UK legislation because although the principle of equality was a recognised general principle of EU law before IP completion day, it is no longer relevant law in the UK.
C. The court did not disapply the UK legislation because although the principle of equality is a part of retained EU law in the UK, the court cannot disapply the UK legislation that is in effect.
D. The court did not disapply the UK legislation because they made an error in judgment. The principle of equality is a part of retained EU law in the UK and any UK legislation must be disapplied, if it breaches this principle.
E. The court did not disapply the UK legislation because disapplying national law that breaches EU law has not been a procedure available in English courts before IP completion day, and will therefore not be a procedure available in English courts after IP completion day.
Option C is in fact correct. During the UK’s membership of the EU, UK courts would have been required to disapply legislation, including primary legislation, that breached the principle of equality. However, after IP completion day, this is no longer the case. Although the principle of equality is retained EU law in the UK, failure to comply with it cannot give rise to a right of action.
Option A is wrong because the principle of equality was a recognised general principle of EU law before the end of IP completion day and will therefore be a part of retained EU Law in the UK.
Option B is wrong because the principle of equality was a recognised general principle of EU law before IP completion day, and it is relevant law in the UK as retained EU law.
Option D is wrong because the court did not make an error in judgment. The principle of equality is a part of retained EU law in the UK but since IP completion day, any UK legislation cannot be disapplied, if it breaches this principle.
Option E is wrong because disapplying national law that breaches EU law was a procedure available in English courts before IP completion day, but is not a procedure available in English courts after IP completion day.
Assane is a French national who has applied for a job as a clerical officer with the fire service in Tallinn, Estonia. His application for the post is rejected on the grounds that he is not an Estonian national, as employment in key public sector posts is limited to Estonian nationals.
Which ONE of the following options CORRECT?
A. Assane is unable to challenge the rejection of his application as Article 45 does not apply to employment in the public service.
B. Assane is unable to challenge the rejection of his application as the Tallinn fire service will be able to rely on the public policy exception in its defence.
C. Assane is able to challenge the rejection of his application as the ECJ has construed the public service exception narrowly and it is very unlikely that it would apply to a clerical post.
D. Assane is able to challenge the rejection of his application as Member States are not able to exclude EU nationals from any public sector posts at all.
Option C is in fact the correct answer. While Article 45(4) does provide for a public service exception, the ECJ has held that it applies only to ‘‘posts involving the exercise of official authority and functions related to safeguarding the general interests of the State’ (Case 149/79 Commission v Belgium).
Option A is therefore wrong as it construes the public service exception too widely.
Option D is wrong because it ignores the existence of the public service exception.
Maryam, a Swedish national, is working in Ostrava, the Czech Republic. The local municipality’s library service offers Czech nationals free access to its computers, but charges non-nationals 10 koruna (about 35p) per hour to use its computers. The municipality says that it cannot afford to extend free access to non-nationals.
Which ONE of the following is CORRECT?
A. As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’.
B. Maryam cannot challenge the requirement to pay a fee as the municipality can rely on the public service exception to justify its policy.
C. Maryam cannot challenge the requirement to pay a fee as the municipality cannot afford to extend free access to non-nationals.
D. As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’, but only because the municipality is a public body.
option A is correct.
Article 7(2) Regulation 492/2011 states that workers from other Member states should have ‘the same social and tax advantages as national workers’. A social advantage goes beyond something a worker is entitled to in their contract of employment and would include something like free access to computers in a municipal library (Case 32/75 Cristini v SNCF).
Option B is wrong because the public service exception can only be used to justify a refusal to employ someone in a high-ranking sensitive post in the public sector, while option C is wrong because economic grounds cannot be used to justify discriminatory conduct.
Although the municipality is a public body, option D is incorrect as EU regulations are capable of having direct effect horizontally and vertically. Regulation 492/20011 is therefore enforceable against private bodies, as well as public.
Is the following statement true or false?
The citizens’ rights provisions in the Withdrawal Agreement are not enforceable in UK courts.
The statement is indeed false. Section 7A of EU(W)A 2018 gives direct effect to those citizens’ rights provisions that meet the criteria for direct effect.
Petra, a national of Bosnia-Herzegovina, is resident in the UK and has recently applied for settled status, having previously been granted pre-settled status. Her application was rejected. Petra is married to Marko, a Croatian national whose application for settled status was approved.
Which ONE of the following is CORRECT?
A. As Petra is not a national of an EU Member State, she cannot rely on the Withdrawal Agreement to challenge the rejection of her application.
B. Petra can rely on the direct effect of the Withdrawal Agreement as she is the spouse of a migrant Union citizen.
C. Petra cannot rely on the Withdrawal Agreement as it only has effect in international law, not domestic UK law.
D. Petra can rely on the direct effect of the Withdrawal Agreement as she is relying on it against the UK government, and not a private body.
option B is correct.
It is clear from the Withdrawal Agreement that family members of migrant Union citizens as defined by Article 2(2) of Directive 2004/38 fall within its scope. As she and Marko were granted pre-settled status, it is also clear that they exercised their rights of free movement before the end of the transition period so can rely on the Withdrawal Agreement. Article 4(1) of the Withdrawal Agreement states that its provisions should be capable of having direct effect in EU Member States and the UK, and the UK implemented it via s 7A EU(W)A 2018.
Option A is wrong as non-EU national family members can rely on the Withdrawal Agreement.
Option C is wrong as s 7A EU(W)A 2018 incorporated s 7A EU(W)A 2018 into UK law.
Option D is wrong. Although Petra is relying on the Withdrawal Agreement vertically in this scenario. there is no reason why it should not also have horizontal direct effect.
Charel, a Luxembourgish national, is resident in the UK with settled status. He has applied for a post as a senior social worker with the Birmingham City Council. His application has been rejected as the council only recruits British, Irish and Commonwealth citizens to senior social worker posts.
Which ONE of the following is CORRECT?
A. Although Charel in theory can rely on the principle of non-discrimination set out in the Withdrawal Areement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application, the council will probably be able to invoke the public service exception to justify its policy.
B. Charel cannot challenge the rejection of his application invoking the Withdrawal Agreement as the UK is no longer an EU Member State and access to jobs is outside its scope.
C. Charel can probably rely on the Withdrawal Agreement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application if he can show that there are no sufficiently qualified British, Irish and Commonwealth citizens applying for the job.
D. Charel can probably successfully rely on the principle of non-discrimination set out in the Withdrawal Agreement, Article 45(2) TFEU, Regulation 492/2011 and Directive 2004/38 to challenge the rejection of his application.
Option D is the correct answer. EU citizens with settled status must normally be treated equally to British citizens when it comes to access to jobs.
Option A is wrong, as the post of senior social worker is unlikely to be the type of job to which the public service exception applies, as the ECJ has defined the exception narrowly. (Incidentally, the requirement for British, Irish and Commonwealth citizenship does apply to joining the British army.)
Option B is wrong as the Withdrawal Agreement does apply to access to employment.
Option C is wrong as Charel does not have to show the lack of suitably qualified British, Irish or Commonwealth applicants.
The EU adopted a directive setting a cap on fees that can be charged to hospital patients using hospital car parks. The directive’s implementation date was 30 November 2020, but the UK government took no steps to implement it.
A patient using an NHS hospital car park over the past three months has been charged car parking fees well in excess of those permitted by the directive. There is no pre-IP completion day CJEU case law regarding this particular directive, but you may assume for this question that there is case law to the effect that directives that impose caps on charges for the provision of services are capable of direct effect. The provisions in this directive are very clearly drafted.
Which of the following statements best summarises the patient’s right to claim back the excess fees?
A. As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees as the rights granted by the directive have become retained EU law, as they are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
B. Although the UK government should have implemented the directive before IP completion day, it is unlikely that the patient can recover the excess fees as the rights granted by the directive probably have not become retained EU law.
C. As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
D. As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law as the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
E. As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
option C is correct.
Pursuant to s 4(2)(b) EU(W)A 2018, directly effective rights granted by a directive are only preserved as retained EU law if they are of a kind that have been recognised by the CJEU or a UK court or tribunal in a case decided before IP completion day. The meaning of ‘of a kind that have been recognised’ is ambiguous; it could mean that the actual rights granted by the particular directive must have been recognised in case law (narrow meaning) or merely that the general nature of the rights granted by the directive in question must have been recognised in case law (broad meaning). Option C reflects this ambiguity which will only be resolved once a UK court has ruled on the issue.
Option A is wrong as it is uncertain whether the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day. On the narrow interpretation of s 4(2)(b) they have not, but on the broad interpretation (which this option adopts) they have. It is not yet known, though, whether the broad interpretation is correct.
Option B is wrong as, if UK courts do adopt a broad interpretation of s 4(2)(b), the rights granted by the directive will become retained EU law.
Option D is wrong, even if a broad interpretation of s 4(2)(b) is adopted. It is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.
Option E is wrong for the same reason as option D, even though (unlike option D) it summarises the ambiguity in s 4(2)(b) correctly. As stated above, it is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.
Chioma, a British citizen, is living in Verona, Italy with her husband, Pierre, a French national working there. The couple met three months ago while Chioma was on holiday in France and moved to Verona last month a few days after their wedding. She works part-time in a bar and plans to spend the rest of her time sight-seeing. She discovers that low paid EU nationals working in Verona are entitled to free entry to all museums in Verona that are under the control of the Italian government or Verona municipality. Chioma falls within the definition of low paid worker but is refused free entry.
Is Chioma entitled under EU law to claim free entry to the museums in Verona?
A. No, because she is a British citizen and has no rights under EU law following the UK’s exit from the EU.
B. Yes, because as a family member of a Union citizen working in Italy, she is entitled to equal treatment with Italian nationals irrespective of her nationality.
C. No, because only family members of Union citizens who themselves are nationals of an EU Member State are entitled to equal treatment with host State nationals.
D. Yes, because under the Withdrawal Agreement she is entitled to equal treatment with Italian nationals.
E. No, because only family members of Union citizens who work full-time are entitled to equal treatment with host State nationals.
option B is actually correct. Pursuant to Article 24(1) of Directive 2004/38, the family members of migrant Union citizens are entitled to equal treatment with the host Member State’s nationals, irrespective of their nationality. As Chioma is married to Pierre, she is a family member of a migrant Union citizen (Article 2(2)(a) of Directive 2004/38). The museums concerned are public bodies, so Chioma can rely on the directive’s vertical direct effect. (As free entry to museums is most probably a ‘social advantage’ within the scope of Article 7(2) of Regulation 492/2011, Chioma would probably have been able to rely on Article 7(2) if her claim had been a horizontal one, as she is a spouse of a migrant worker.)
Option A is wrong because Chioma does have rights under EU law even though the UK has left the EU, albeit her rights are contingent on her being the family member of a migrant worker. She does not have any free-standing rights of her own, unlike the position during the UK’s membership of the EU.
Option C is wrong as Directive 2004/38 makes it clear that the provisions regarding family members apply equally to non-EU nationals.
Option D is wrong as the Withdrawal Agreement protects the rights of British citizens who were resident in the EU at the end of the transition period. Chioma therefore does not come within its scope.
Option E is wrong. It is clear from ECJ case law that part-time workers are workers and so have the same rights as full-time workers. Moreover, family members of the self-employed, students and persons with sufficient resources also benefit from Directive 2004/38.
