PLACE OF EU IN UK CONSTITUTION

Question 1

Institutions of EU

Answer 1

*European Council
*Council of the European Union—
*European Commission—
*European Parliament

*Court of Justice of the European Union (‘CJEU’)

Question 2

European Council

Answer 2

—formed of the heads of government
of each member state.

Question 3

*Council of the European Union

Answer 3

sometimes called the
Council of Ministers, it meets in 10 diferent subject con-
fgurations, such as foreign afairs, agriculture, transport,
and environment, to consider issues in that subject area.
Each member state nominates a minister to attend each
confguration, so all transport ministers meet, all foreign
ministers meet, and so on. Ministers attending have pow-
er to make decisions on behalf of their government.

Question 4

European Commission

Answer 4

formed by a representative from
each member state who acts as a commissioner. Togeth-
er the commissioners efectively create the ‘executive’
of the EU. The Commission develops policy initiatives as
mandated by the treaties, making proposals for legisla-
tion where necessary.

Question 5

European Parliament

Answer 5

—formed by elected representa-
tives from each member state and, in conjunction with
the Council of the European Union, plays a key part in
approving and amending proposed regulations and
directives.

Question 6

Court of Justice of the European Union (‘CJEU’)

Answer 6

—provides the authoritative interpretation of EU law. It mainly
achieves this by answering questions on points of EU law
it receives from the courts of member states through a
process known as the preliminary reference procedure.

Question 7

EU Law

Answer 7

1. treaties
2. secondary legislation
3. supremacy of EU Law

Question 8

treaties

Answer 8

the EU was founded by the TEU (Treaty on European Union) and TFEU(the Treaty on the Functioning of the European Union). These provide for the core rules of the EU, establishing and setting out the powers of the institutions and the EU’s key objectives

Question 9

Secondary Legislation

Answer 9

created by EU insitutions
The two main categories of secondary legislation are regulations and directives.These allow for more detailed legislation that seeks to achieve the objectives laid out generally in the
treaties.

Question 10

Regulations

Answer 10

Regulations are automatically binding on member states and are directly applicable, which means that they become the
law of the member states without making any further enact-
ment in their legal systems.

Question 11

Directives

Answer 11

Directives are binding on member states only with respect
to the result that needs to be achieved. This means that
member states implement the objectives of the directive by
making the necessary changes to their own domestic law.

Question 12

Supremacy of EU Law

Answer 12

if a provision of the domestic law of a member
state conficts with EU law, then the member state courts are
required to give efect to EU law over domestic law.

Question 13

Direct Effect

Answer 13

Related to the concept of supremacy is the principle of direct efect. Under the principle of direct efect, certain provisions of EU law (including EU treaty provisions) can directly be relied upon by EU citizens in the courts of member states without the need to rely on domestic law

Question 14

There are two require-ments for a provision of EU law to have direct efect:

Answer 14

1. It must be** clear and precis**e, meaning that the provision must not leave the member state with any fexibility in how to apply or implement the law; and
   2.It must be unconditional, in the sense that the provision must not depend on the discretion or judgment of a public authority.

Question 15

the European Communities Act 1972

Answer 15

1. The UK joined the EU in 1973. To give efect to this, the UK enacted the European Communities Act 1972 (‘ECA 1972’), which made EU law a source of law in the UK legal system.
2. Under the ECA 1972, laws that were automatically binding under EU law, such as regulations and provisions of the treaties that have direct efect, automatically became part of UK
   law via the ECA 1972.
3. In addition, the ECA 1972 gave the government powers to implement EU directives into UK law by passing secondary legislation. Sometimes, the UK has even implemented directives through passing primary legislation.

Question 16

EUROPEAN UNION (WITHDRAWAL) ACT 2018 AND THE EUROPEAN UNION
(WITHDRAWAL AGREEMENT) ACT2020

Answer 16

1. Retention of EU Law During Transition Period
2. Retention of EU Law AfterTransition Period
3. Retained EU Law

Question 17

Retention of EU Law During Transition
Period

Answer 17

To avoid gaps in UK law during the transition period, the Withdrawal Agreement and the European Union (Withdraw-al Agreement) Act 2020 provided that although no longer a member state of the EU, the UK would remain bound byEU law until the transition period ended on 31st December2020.

Question 18

Retention of EU LawAfterTransition Period

Answer 18

To prevent gaps in UK law after the transition period, effectively the European Union (Withdrawal) Act 2018 took a
‘snapshot’ of all EU law that was part of the UK legal system at the end of the transition period and converted it to a new
body of UK law known as retained EU law.

Question 19

Retained EU Law

Answer 19

a.Section 2: EU-Derived Domestic Legislation
b.Section 3: Direct EU Legislation
c.Section 4: Directly Effective EU Law
d.Section 5: Supremacy and Retained EU Law
e.Section 7A: Supremacy and Direct Effect of
Withdrawal Agreement
f.Section 6: Interpretation of Retained EU Law
g.Section 7: Status of Retained EU Law
h.Section 8: Addressing Defciencies from
Withdrawal

Question 20

Section 2: EU-Derived Domestic Legislation

Answer 20

The 2018 Act categorises all secondary legislation implementing EU directives as ‘EU-derived domestic legislation’ and preserves these laws as UK law. This category also includes any primary legislation that was enacted to imple-
ment EU directives

Question 21

Section 3: Direct EU Legislation

Answer 21

Recall that EU regulations were automatically binding on member states without any domestic legislation being passed. At the end of the transition period, by default, these regulations would no longer have been law in the UK. The 2018 Act converted these EU regulations into UK law, as ‘direct EU legislation’.

Question 22

Section 4: Directly Effective EU Law

Answer 22

Also as discussed previously, certain other provisions of EU law (such as treaty provisions) had direct effect and could be directly relied upon in UK courts. As the link between EU law and UK law was broken at the end of the transition period,
these provisions would have also disappeared. The 2018 Act preserves these provisions of EU law as ‘directly efdfective EU law’.

Question 23

Section 5: Supremacy and Retained EU Law

Answer 23

In relation to retained EU law, the 2018 Act also preserves the principle of supremacy as discussed above for EU law as it stood before the end of the transition period. This means that if there is a confict between UK law enacted before the end of the transition period and retained EU law, then the retained EU law will prevail. However, legislation enacted after the transition period is not subject to the principle of suprem-acy, which means that the UK can now legislate contrary to EU law.

Question 24

Section 7A: Supremacy and Direct Effect of
Withdrawal Agreement

Answer 24

the Withdrawal Agreement addresses
a range of important issues that arise from the UK’s exit from the EU, including the rights of EU citizens. As a consequence of this, the UK and EU agreed that the principles of suprem-
acy and direct effect would apply to the Withdrawal Agreement. Thus, under Section 7A, any provision of UK law that is inconsistent or incompatible with the Withdrawal Agreement will be disapplied in favour of the Withdrawal Agreement.
Moreover, any provision of the Withdrawal Agreement will have direct effect if it meets the requirements for EU law (that is, if it is clear, precise, and unconditional).

Question 25

Section 6: Interpretation of Retained EU Law

Answer 25

1. Other than with respect to the Withdrawal Agreement,
   in general, the courts are not bound by any principles or
   decisions made by the CJEU after the end of the transition
   period. Instead, courts may ‘have regard’ to any decisions
   made by the CJEU (in other words, treat the decisions as
   persuasive precedent).
2. In any case, decisions from the CJEU and the domestic courts made before the end of the transi-
   tion period are important when determining any questions
   regarding the meaning, validity, or efect of retained EU law.
   Cases decided before the end of the transition period relat-
   ing to retained EU law are known as retained case law.

Question 26

Retained EU Case Lawvs. Retained Domestic Case Law

Answer 26

1. Retained case law is formed of two categories. So far as they relate to retained EU law, the decisions of the CJEU form the category of retained EU case law, while the de-cisions of the UK’s domestic courts form the category of retained domestic case law.
2. This distinction is important because** retained EU case law is binding on all domestic courts other than the Supreme Court and Court of Appeal. **The Supreme Court and Court of Appeal can depart
   from retained EU case law when it appears right to do so
3. No special status is granted to retained domestic case law,
   which means that other than the Supreme Court, courts are bound by decisions from courts that are higher or equivalent to them.

Question 27

Status of Retained EU Law

Answer 27

As indicated, at the end of the transition period, retained EU
law came into efect as a type of domestic law. However, the UK can repeal or amend retained EU law.

Question 28

Section 8: Addressing Defciencies from
Withdrawal

Answer 28

the 2018 Act
gives the government power to adopt secondary legislation
to deal with ‘defciencies’ in retained EU law that arise from
the withdrawal and that prevent the government from operat-
ing efectively

Question 29

Limitations on Regulations Dealing with
Defciencies

Answer 29

Regulations dealing with defciencies generally can make any provision that an Act of Parliament could make
and can provide for a function once exercised by an EU institution to now be exercised by a public authority in
the UK. However, regulations made under this section cannot:
*Impose or increase taxes;
*Make retrospective provision;
*Create criminal ofences;
*Create a new public authority; or
*Amend or repeal the HRA, Scotland Act 1998, Northern Ireland Act 1998, or Government of Wales Act 2006.

Question 30

Section 12: Retained EU Law and Devolution
Legislatures

Answer 30

During the UK’s membership in the EU (and up until the end of the transition period), if the Scottish Parliament, Welsh Par-liament, or Northern Ireland Assembly legislated contrary to EU law, the legislation would be invalid. However, the devolu-tion legislatures may now legislate contrary to EU law falling within their legislative competence. They may also repeal or amend retained EU law falling within their legislative compe-
tence, unless they are specifcally excluded from doing so by regulations made by the UK government.

Question 31

Assimilated Law

Answer 31

The European Union (Revocation and Reform)Act 2023 repealed some retained EUL law, the surviving retained EU law was not renamed as “assimilated law’

Question 32

assimilated direct legislation

Answer 32

EU regulations that were automatically binding on Member states without domestic legislation are now called ‘assimilated direct legislation’

Question 33

principle of supremacy abolished
assimlated law

Answer 33

1.as the end of 2023, the principle of EU law supremacy in the UK was aboloshied, and assimilated direct legislation is now inferiour to other sources of domestic law. If assimilated direct EU legilslation is found incompatible with other legislation then the otehr legislation will take effect.
2. Minister may create exceptions (until 23rd June, 2026)

Question 34

assimilated case law

Answer 34

CJEU decision from before the end of the transition are now known as assimilated EU law. and decisions of the UK domestic courts are konwn as assimilated domestic case law.

Question 35

Departing from assimilated EU Case Law

Answer 35

assimilated EU case not is not binding on the court of appeal and the supreme courut. They may depart from assimilated EU case law by having regard to the following factors:
1. the fact that decisions of fa foreign court are not normally binding on domestic courts
2. any reevant chagnes of circumstances
3. the extent to which teh assimilated case law restrict the propert development of domestic law

Question 36

Departing from Assimilated Domestic Case law

Answer 36

when it appears right to do so, either the Supreme Court or CoA may depart from assimilated domestic case lae, by having regard to the following factors:
1. the extent to which the assimilated domestic case law is determined or influenced by assimilated EU case law from which the court ahs departed or woud depart
2. any changes in circamstances which are relevant to the assimilated case law
3. the extent to which the assimilated case law restricts the propert development of domestic law

Question 37

compatibility references

Answer 37

1. lower courts can refer a point of law(that is, ask a higher court for guidance)involving assimilated case law if (1) the lower court is bound by the assimilated case law (2) the court deems teh point of law to be of general public importance
2. reference usually made to CoA, and supreme court
3. can be made by court, or parties or law officers

Question 38

incompatibility orders

Answer 38

if a provision of assimilated direct legislation is incompatible with a domestic enacment , a court may decide to make an “incompatibility order”

Question 39

power to restate Secondary Assmilated Law

Answer 39

1. from the end of 2023 til 23rd June 2026, national authorities can restate ‘secondary assimilatred law’, meaning any assimilated law which is not primary legistation, In particular this includes Eu-derived domestic legislation, meaning secondary legislation enacted to incorpoarte EU directives into uk laq.
2. A ‘restatement’ can involve rephrasing concepts, or making any changes,.
3. any restatement would not form paert of retained EU law or assimilated law.