Place of EU law

Question 1

Sources of EU law? Primary?

Answer 1

Primary sources of EU law
Treaty of Lisbon 2007
Treaty of functioning of European union – treaty of Rome.
UK retained that law

Question 2

Sources of EU law - secondary?

Answer 2

Regulations, directives –
- regulations are directly applicable without enacting any legal measures to implement them. Have direct effect.
- Decisions – only binding on party dates to. Enforces in national courts.
- Directives – binding as to result but left to national authorities to choose method and form.
- Failure to follow directive – infringement proceedings may be stated by European commission, and determined by CJEU.
- Could lead to direct effect, indirect effect) obligation on domestic courts to interpret it compatibly) or state liability a form of compensation.
Case law made in CJEU.

Question 3

How is application of EU law governed?

Answer 3

• Withdrawal agreement provides for some EU law to continue to apply
  1. UK courts remain able to disapply statutes where they are incompatible with any EU law which continues to be preserved by the Withdrawal Agreement after the end of the transition period.
• All other – governed by separate legal regimes.
  2. retained the bulk of this EU law – that is the EU law which was not preserved by the Withdrawal Agreement – and has converted it into domestic UK law. This retained EU law is now capable of being amended or repealed by subsequent domestic legislation in much the same way as any other law in the UK.

CJEU - is persuasive not binding authority on UK courts. So it can choose to follow it.

Question 4

Supremacy of EU law and parliamentary sovereignty?

Answer 4

COSTA - supremeacy of EU LAW

Withdrawal agreement - reserves
the ability of the courts to disapply statutes where they are incompatible with the Withdrawal
Agreement and with any EU law that is preserved by it - BUT Parliament retains the right to OVERRIDE EU law, as well as the
Withdrawal Agreement, by using express words or at least specific words that disclose a
deliberate intention to do so.

Question 5

Retained EU law? Can it be modified?

Answer 5

(a) EU-derived domestic legislation
(b) Direct EU legislation
(c) Other EU law

specifically permits retained direct EU
legislation and other retained EU law to be modified by the following methods:
* By an Act of Parliament
* By any other primary legislation. This refers to primary legislation of the devolved assemblies in
Scotland, Wales and Northern Ireland (see s 20)
* By subordinate legislation where it is made under a Henry VIII power to modify such retained
EU law or to amend primary legislation.
* Section 7 of the EUWA 2018, together with sch 8, also permits retained direct minor EU
legislation to be modified by subordinate legislation where that subordinate legislation was not
made under such Henry VIII enabling powers