EU Law Flashcards
What replaced the ECA?
European Union (Withdrawal) Act 2018
EUWA provides that much of EU law continues to have effect in the UK
What can then happen to law under EUWA?
Statutes can be amended or repealed in the same way that any other domestic law is in the UK
Which law would takes precedence between national law versus EU law?
EU law - UK courts must disapply statutes to the extent that they were incompatible with EU law
What initially governed the relationship between the UK and the EU after Brexit?
Agreement on the Withdrawal of the UK…from the EU and European Atomic Energy Community. This was incorporated into UK law by EUWA 2020, which amended EUWA 2018 to this end.
Until what date did EU law then apply in the UK, and on what grounds? What consequences did this have?
EU law continued to apply in the UK until 31 December 2020 - often called the ‘implementation period’
EU law continued to have an effect in this period in the same way as previously - including UK courts being apply to disapply any domestic law incompatible with Withdrawal Agreement
What did Section 1B of the EUWA prevent regarding repeal of ECA
Any subordinate legislation made underneath EU law would NOT be repealed if the parent act was repealed / for the purposes of the ECA or which otherwise relates to the EU
Examples; UK law put on books to give effect to a directive
Post-December 2020, what two legal regimes govern the application of EU law in the UK?
Withdrawal Agreement - EU law still applies to some specific matters in the UK
Application of EU law not subject to the Withdrawal Regime - governed by a different legal regime
Give examples of some parts of EU law kept by Withdrawal Agreement?
Rights of union citizens
Protocol on NI
How has UK law kept by the withdrawal agreement been retained?
S7A of the EUWA 2018
UK courts remain able to disapply statutes where they are incompatible with any EU law which continues to be preserved by WA after end of transition period
Supremacy of EU law is preserved in so far as it is required by the Withdrawal Agreement
What must be decided in accordance with the Withdrawal Agreement?
Provisions of EUWA 2018 providing for implementation of WA
Anything which is part of domestic law by virtue of those provisions
Anything else which is part of domestic law for the purposes of the WA
Give particular examples of law which must be decided with reference to the withdrawal act
Article 4: WA provisions must be interpreted in conformity with case law of Court of Justice
Article 158: enables UK courts and tribunals to continue to make preliminary references to court of justice on questions regarding rights of Union members in cases which commenced at first instance within 8 years of the end of the transition period
”” regarding EU law preserved by the Protocol in Northern Ireland
How can Parliament override sections of EUWA if it wanted to?
Using express words / specific words that disclose a deliberate intention to override
What makes up the second half of the post-Brexit EU law settlement?
Assimilated Law - this does not include any EU law which continues to apply under WA after the end of the transition period
What forms of assimilated law are there?
EU derived domestic legislation
Direct EU legislation - any EU regulation, decision or tertiary legislation in force and applicable in domestic law immediately before the end fo the transition period
What changes has REULA 2023 made to the applicability of EU law?
Principle of supremacy of EU law ceased to be applicable where assimilated EU law is involved
Courts have an interpretative obligation to read and give effect to assimilated Direct EU legislation in a way which is compatible with all domestic enactments in so far as it is possible to do so
If a compatible interpretation is not possible - assimilated direct EU legislation is subject to domestic enactments in so far as it is incompatible with them
How has the abolition of the principle of supremacy been qualified?
S7 REULA - only applies to very specific legislative points
When it applies:
Courts and tribunals will be under an interpretative obligation to give effect to a domestic enactment in a way which is compatible with assimilated direct EU legislation in so far as it is possible to do so - if not possible, EU law wins if flagged by S7
What happens if domestic law proves to be incompatible with retained EU law?
Incompatibility order under EUWA: this will:
Set out the effect of the relevant provision in its operation in relation to that particular case
Delay the order itself, so that any relevant provision can be removed before coming into force
How can assimilated EU law be amended?
By both primary and secondary legislation
What specific powers do EUWA and REULA give to amend assimilated EU law?
UK ministers have power to make regulations to deal with deficiencies in assimilated EU law, or which restate, reproduce, revoke or replace assimilated EU law
EU law can be updated to take account of changes in technology / developments in scientific understanding
How is the case law of the CJEU now approached after EUWA?
Initially had to consider in light of case law of CJEU which existed at the end of the transition period - now referred to as assimilated EU case law
- No longer able to make preliminary references to the Court of Justice on questions of assimilated EU law
- Supreme Court is not bound by retained EU case law
What test should the Supreme Court apply in deciding whether to depart from case law of CJEU?
Must apply same test as would be decided in considering whether to depart from their own case law
What courts are specifically not bound by assimilated EU case law?
Court of Appeal in England and Wales
Court Martial Appeal Court
Various other courts in Regulations
Are any courts / tribunals in the UK bound by any cases decided after the end of the transition period?
No, but they can have regard to them
What key provisions of REULA 2023 have not yet been brought into force?
Will change test for deciding if courts should depart from assimilated EU case law
New REULA test: Courts must have regard to
- The fact that decisions of a foreign court are not binding
- Any changes of circumstances which are relevant to the retained EU case law
- The extent to which the assimilated EU case law restricts the proper development of domestic law
New system of preliminary references: lower courts will be able to make references to the Supreme Court and other domestic appeals on questions of assimilated EU law
