Legal System: Assimilated EU law Flashcards
When is IP completion day?
11.00pm on 31 December 2020
What are the types of EU law?
Treaty articles (primary legislation)
Regulations (secondary)
Directives (secondary)
Decisions (secondary)
Effect of treaty articles?
Binding
Directly applicable and effective
VERTICLE and HORIZONTAL direct effect
Effect of regulations?
Directly applicable and automatically binding
VERTICLE and HORIZONTAL direct effect
Effect of directives?
○ Binding as to the result to be achieved but leaves choice as to how its achieved (by choosing domestic legislation)
○ VERTICLE direct effect
Effect of decisions
Binding (in same way as regs) but only on those addressed
○ VERTICLE and HORIZONTAL direct effect
3 main categories of retained EU law?
- EU- derived domestic legislation
- Direct EU legislation
- Rights etc arising under s 2(1) of the ECA 1972
Categories of EU law: what is included within ‘EU- derived domestic legislation’
Preserves mostly domestic secondary leg enacted by UK gov to implement EU DIRECTIVES
Categories of EU law: what is included within ‘Direct EU legislation’
Converts certain ‘direct EU leg’ into UK law so far as ‘operative’ immediately before ‘IP completion day’.
Were regulations
Categories of EU law: what is included within ‘Rights ect arising under s2(1)ECA 1972’
Preserves certain rights, powers, liabilities, obligations, restrictions, remedies and procedures recognised and available in UK law immediately before IP completion day
Were within EU TREATY ARTICLES and unimplemented/incorrectly implemented DIRECTIVES
What status does EU derived domestic legislation have?
Same status it had pre IP completion day
What status does ‘direct EU legislation’ have?
New category of law
a. Assimilated direct ‘principal’ legislation: inc most regulations
b. Assimilated direct ‘minor’ legislation: anything thats not principle, inc mostly tertiary legislation/EU decisions
What status does ‘rights ect arising under s2(1)’ have?
WA repealed rights/obligations but gave gov power to enact statutory instruments to codify rights that had been retained on IP completion day (eg. A157 TFEU on equal pay)
How is retained law interpreted
In accordance with relevant ‘retained case law
If modified by EU law, can also use retained case law if doing so is consistent with the intention of the
modifications.
What is ‘assimilated case law’?
Assimilated domestic case law: UK decisions pre IP completion day in relation to assimilated law
Assimilated EU case law: CJEU case law pre ip completion day in relation to assimilated law
To what extent are Court of Justice
of the European Union (CJEU) decisions now binding?
On all courts below the CoA
What are examples of the general principles of EU law?
Proportionality
Equality
Fundamental rights
Legitimate expectation/legal certainty
Can EU general principles still be used?
Only in relation to retained EU law
Is there still state liability for failing to implement a directive (Francovich damages)
No except claims which began within 2y beginning with IP completion day so long as it relates to something that happened before IP completion day
How is supremacy of EU law abolished and from what date ?
From the end of 2023, assimilated direct legislation must
1. be read so far as possible in a way which is compatible with all domestic enactments
2. Is subject to all domestic enactments if incompatible with them
(basically whenever enacted, UK law has supremacy)
What is an incompatibility order?
If court finds conflict between retained direct EU legislation and domestic legislation, it must issue an incompatibility order which may:
1. set out the effect in the case concerned of one provision taking priority over another;
2. delay the order coming into force; or
3. remove or limit the effect of the operation of the relevant provision in any other way before the coming into force of the order
What is horizontal and vertical direct effect?
Vertical: EU law being enforced against state/state body
Horizontal: between private individuals
Conditions for direct effect to apply?
Law must be sufficiently clear, precise and unconditional and must not required additional measures
Does the Withdrawal Agreement have supremacy over UK law?
Yes if meets the criteria for direct effect, they will be directly effective so will override conflicting national law
Effect of Withdrawal Agreement on freedom of movement
Ok if arrived before IP completion day, even if arrived after Brexit
What are ministerial powers from REULA 2023?
- Restate retained secondary assimilated law via:
* resolving ambiguities
* removing doubts/anomalies
* facilitating improvement in clarity/accessibility - Reproduce directly effective rights that became retained EU law via s 4 EUWA 2018
What cant ministers do with their powers do restate EU law?
cannot reproduce the principle
of supremacy or general principles
When can UK courts make references to the CJEU?
Courts are still able to make references to the CJEU concerning the citizens’ rights provisions in the Withdrawal Agreement for eight years from the end of the transition period; i.e. until 31 December 2028.
