Public Law - EU Law & Brexit Withdrawal

Question 1

What are the different sources of EU Law?

Answer 1

Primary sources - (European Charter on Fundamental Rights + 2x EU Treaties - TEU and TFEU).
Secondary sources - Regulations, Directives, Decisions
Tertiary acts
Case Law
International Treaties/Agreements
Non-binding acts (“soft law”) [e.g. communications, declarations, notices, programmes or resolutions from different bodies].

NOTE! The European Convention on Human Rights (ECHR) and the European Court of Human Rights (ECtHR) are ENTIRELY SEPARATE. This is governed by the wider “Council of Europe”. Some of the signatories to the ECHR are NOT members of the European Union.

Question 2

What’s the difference between Regulations, Directives and Decisions

Answer 2

Regulations - immediately directly applicable in all Member States
Directives - NOT directly applicable but States have a deadline to implement and choose the method of implementation
Decision - decisions taken by EU Commission, e.g. that a company is in breach of EU Rules + can impose fines.

Question 3

What are “tertiary acts”?

Answer 3

TFEU - delegated acts

TEU - implementing acts

TFEU/TEU enables secondary legislation (Regulations, Directives, Decisions) to delegate power to the EU Commission, or sometimes the Council of the EU.
- This can be for supplementing or amending Secondary Legislation [TFEU - delegated acts]
- Adopting acts/laws/regulations to fully implement Secondary Legislation [TEU - implementing acts]

Question 4

What are preliminary references?

Answer 4

Preliminary references can be made by EU or national courts to confirm a point of law / application of EU law.

Question 5

What are general principles of EU law? [3]

Answer 5

Equality and non-discrimination

Respect for fundamental rights

Proportionality

Question 6

What is EU law enforced? [3]

Answer 6

Direct effect (direct enforcement in national courts; EU law takes supremacy over national law, even if enacted pre-EU Law)

Indirect effect (interpreting national law in a way that is compatible with EU law, so long as possible to do so)

State liability (individuals can get compensation for a sufficiently serious breach of EU law by the State)

Question 7

Can retained EU law be amended after the transition period out of the EU?

Answer 7

Yes. Retained EU law is capable of being amended following the end of the transition period (EU Withdrawal Act 2018).

Question 8

What are the 3 methods which can amend retained EU law?

Answer 8

• 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.

Question 9

What is a Henry VIII power?

Answer 9

These are clauses in an Act of Parliament that enable a government/executive minister to AMEND or REPEAL an Act of Parliament using secondary legislation.

EXAMPLE:
s.10(2) HRA 1998: If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.

Question 10

True or False - The Court of Appeal is no longer bound by retained EU case law which existed at the end of the transition period.

Answer 10

True.

Even where EU law has not been preserved by the Withdrawal Agreement, UK courts and tribunals continue to be bound by retained EU case law which existed at the end of the transition period (s.6(3) EUWA 2018). However, the Court of Appeal is not bound by this (European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020).

Question 11

What is the main difference between “RETAINED Direct principal EU legislation” and “RETAINED Direct minor EU legislation”?

Answer 11

• “Direct minor EU legislation” which covers retained EU decisions or tertiary legislation.
• Contrast with “Direct principal EU legislation” which is EU Regulations and Directives.

Principal retained EU law must be modified or amended by primary legislation (Acts of Parliament) or Henry VIII powers.
Minor retained EU law can be modified or amended with secondary legislation.