Legal System: Assimilated EU law

Question 1

When is IP completion day?

Answer 1

11.00pm on 31 December 2020

Question 2

What are the types of EU law?

Answer 2

Treaty articles (primary legislation)
Regulations (secondary)
Directives (secondary)
Decisions (secondary)

Question 3

Effect of treaty articles?

Answer 3

Binding
Directly applicable and effective
VERTICLE and HORIZONTAL direct effect

Question 4

Effect of regulations?

Answer 4

Directly applicable and automatically binding
VERTICLE and HORIZONTAL direct effect

Question 5

Effect of directives?

Answer 5

○ Binding as to the result to be achieved but leaves choice as to how its achieved (by choosing domestic legislation)
○ VERTICLE direct effect

Question 6

Effect of decisions

Answer 6

Binding (in same way as regs) but only on those addressed
○ VERTICLE and HORIZONTAL direct effect

Question 7

3 main categories of retained EU law?

Answer 7

1. EU- derived domestic legislation
2. Direct EU legislation
3. Rights etc arising under s 2(1) of the ECA 1972

Question 8

Categories of EU law: what is included within ‘EU- derived domestic legislation’

Answer 8

Preserves mostly domestic secondary leg enacted by UK gov to implement EU DIRECTIVES

Question 9

Categories of EU law: what is included within ‘Direct EU legislation’

Answer 9

Converts certain ‘direct EU leg’ into UK law so far as ‘operative’ immediately before ‘IP completion day’.
Were regulations

Question 10

Categories of EU law: what is included within ‘Rights ect arising under s2(1)ECA 1972’

Answer 10

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

Question 11

What status does EU derived domestic legislation have?

Answer 11

Same status it had pre IP completion day

Question 12

What status does ‘direct EU legislation’ have?

Answer 12

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

Question 13

What status does ‘rights ect arising under s2(1)’ have?

Answer 13

WA repealed rights/obligations but gave gov power to enact statutory instruments to codify rights that had been retained on IP completion day (eg.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)

Question 14

How is retained law interpreted

Answer 14

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.

Question 15

What is ‘assimilated case law’?

Answer 15

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

Question 16

To what extent are Court of Justice
of the European Union (CJEU) decisions now binding?

Answer 16

On all courts below the CoA

Question 17

What are examples of the general principles of EU law?

Answer 17

Proportionality
Equality
Fundamental rights
Legitimate expectation/legal certainty

Question 18

Can EU general principles still be used?

Answer 18

Only in relation to retained EU law

Question 19

Is there still state liability for failing to implement a directive (Francovich damages)

Answer 19

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

Question 20

How is supremacy of EU law abolished and from what date ?

Answer 20

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)

Question 21

What is an incompatibility order?

Answer 21

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

Question 22

What is horizontal and vertical direct effect?

Answer 22

Vertical: EU law being enforced against state/state body
Horizontal: between private individuals

Question 23

Conditions for direct effect to apply?

Answer 23

Law must be sufficiently clear, precise and unconditional and must not required additional measures

Question 24

Does the Withdrawal Agreement have supremacy over UK law?

Answer 24

Yes if meets the criteria for direct effect, they will be directly effective so will override conflicting national law

Question 25

Effect of Withdrawal Agreement on freedom of movement

Answer 25

Ok if arrived before IP completion day, even if arrived after Brexit

Question 26

What are ministerial powers from REULA 2023?

Answer 26

1. Restate retained secondary assimilated law via:
   * resolving ambiguities
   * removing doubts/anomalies
   * facilitating improvement in clarity/accessibility
2. Reproduce directly effective rights that became retained EU law via s 4 EUWA 2018

Question 27

What cant ministers do with their powers do restate EU law?

Answer 27

cannot reproduce the principle
of supremacy or general principles

Question 28

When can UK courts make references to the CJEU?

Answer 28

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.