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Con And Admin Law > Retained EU > Flashcards

Retained EU Flashcards

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1
Q

What is retained EU law

A

All of the EU law in force at end of transition period

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2
Q

Which takes priority if there is a conflict between pre brexit domestic law and pre brexit directly effective EU law

A

EU law

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3
Q

What does retained EU law consist of

A

EU derived domestic leg
Direct EU leg
Rights arising under s2(2) ECA 1972

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4
Q

Is EU law still supreme

A

EUWA terminates general supremacy of EU Law

But retained EU laws will remain supreme over domestic leg enacted before end of transition period

But U.K. leg enacted after transition is supreme to retained EU law

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5
Q

3 types of retained EU law

A

S2- EU derived domestic law
S3- Direct EU law
S4- Rights etc arising under s2(2) ECA 1972

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6
Q

What is s2 EU derived domestic leg

A

Domestic Acts and SIs made under ECA 1972 to implement EU obligations

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7
Q

What would have happened to EU derived domestic leg had it not been retained

A

SI would have fallen away when ECA 1972 was repealed

ACt would have remained

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8
Q

Benefit of labelled a law a retained EU law

A

Ministers can amend it to fix deficiencies

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9
Q

Status of EU derived domestic law

A

Retains the same status it had before IP day has secondary or primary leg

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10
Q

Are directives part of retained EU leg

A

No. They will only be retained if they fall under s2 or s4

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11
Q

What is s3 direct EU leg

A

Converts some direct EU leg into new U.K. law so far as operative before IP completion day
Regulations and decisions addressed to UK(not if addressed to other MS)

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12
Q

Does a declaration of incompatibility invalidate retained direct principle EU law

A

No

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13
Q

Two types of direct EU leg

A

Retained direct principle EU leg

Retained direct minor EU leg

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14
Q

How to amend or repeal retained direct minor EU leg

A

Repeal or amend in same way as domestic secondary leg

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15
Q

How to amend or repeal retained direct principal EU law

A

Must be amended or repealed by primary leg or Henry 8th clause

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16
Q

What is a Henry 8th clause

A

Power of ministers to correct deficiencies in retained law using secondary leg

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17
Q

What are s4 rights etc arising under s2(1) ECA 1972

A

Preserves certain rights powers liberties remedies obligations and restrictions recognises immediately before IP completion day under ECA 1972

Includes directly effective rights in EU treaties but not text of articles, just right in treaty

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18
Q

How to interpret unmodified retained EU law after IP day

A

Use retained case law and retained general principles of EU law

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19
Q

How to interpret modified Retained EU law

A

Use retained cases and retained general principles if doing so would be consistent with the intention of the modifications

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20
Q

Are Uk courts bound by CJEU judgements laid down after IP day

A

No but still persuasive

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21
Q

When does retained EU law come into effect

A

End of transition period

31 Dec 2020

22
Q

Is EU law on freedom of movement retained

A

Bulk of this is repealed

23
Q

Does indirect effect still apply

A

Only to retained law

24
Q

Is the charter of fundamental rights retained

A

No

25
Q

What is retained case law

A

Domes to case law regarding EU law and CJEU judgements before IP day

26
Q

Can courts make references to CJEU

A

No

27
Q

Can UK courts depart from Retained case law

A

Yes

28
Q

Should UK courts have regard to CJEU judgements decided post IP day

A

Can have regard to them but not bound by them

29
Q

Which general principles are retained

A

Only those recognised in EU cases before IP day

30
Q

What is the effect of failing to comply with a retained general principle

A

No effect

No right of action

31
Q

What are retained EU law principles

A

Proportionality
Equality
Subsidiary
Fundamental rights

32
Q

Is there still state liability for breach of EU law or failure to implement directive (francovitch damages)

A

No EUWA removes this

Claims can go ahead if began within 2 years of IP day relating to something occurring before IP day

33
Q

What powers does s8 EUWA give ministers

A

Temporary powers for gov ministers and devolved administrations to make secondary leg to correct deficiencies in retained EU law

Only to correct deficiencies arising from withdrawal not to make changes of substance to retained EU law

34
Q

What are deficiencies arising from withdrawal

A 
Provisions of no practical effect 
Arrangements no longer in place
Functions previously carried out by EU
References to EU 
Similar things not on list
35
Q

Can UK courts make s267 references after IP day

A

they can make s267 references concerning citizen’s rights in the withdrawal agreement for up to 8 years after IP day but it is discretionary.
If they choose to make a reference the decision of the CJEU is binding

36
Q

are the rights in the withdrawal agreement enforcable

A

s7A EUWA provides for enforcement of rights arising under the withdrawal agreement

37
Q

does the withdrawal agreement have supremacy

A

yes under s7A EUWA

38
Q

impact of declaration of incompatibility on retained direct EU law

A

retained principal direct EU law - will not invalidate it

retained minor direct EU law - declared invalid if held to be incompatible

39
Q

on what grounds can primary leg retained under s2 EUWA be challenged

A

only on the ground that it contravenes an EU retained law that should prevail over it

40
Q

one what grounds can you challenge secondary leg that is retained under s2 EUWA

A

any JR grounds

41
Q

can you challenge retained EU leg on the basis that the EU instrument (regulation or decision was invalid)?

A

no
unless CJEU found instrument to be invalid before IP day
or regs allow challenge
courts can decide challenges to validity of EU instruments that began before IP day but concluded after it

42
Q

when did the withdrawal agreement enter into force

A

1 Feb 2020

43
Q

is the withdrawal agreement legally binding

A

yes in international law

the declaration setting out the framework of the future UK-EU partnership

44
Q

what effect do the provisions of the withdrawal agreement and the EU law it incorporates have in UK law

A

they will have the same effect in UK law as they do in EU and EU MS

45
Q

are the provisions contained in or referred to in the withdrawal agreement directly effective

A

yes - individuals and businesses can rely on them directly if they meet the criteria for direct effect under EU law

46
Q

can EU citizens living in the UK after IP day rely on the direct effect of citizen’s rights provisions in the withdrawal agreement

A

yes

47
Q

what does the withdrawal agreement cover

A

citizen’s rights
financial statement
NI protocol
governance and sipute resolution

48
Q

what does the withdrawal agreement say about citizen’s rights

A

right to continue living and working in host state including those who moved in transition period.
They may need to apply for residence status (EU Settlement Scheme)

49
Q

what does the WA say about the finances

A

UK will abide by financial commitments including contributions to the EU budget

50
Q

What does the WA NI Protocol say

A

this aims to avoid a hard border on Ireland should UK and EU fail to agree a free trade agreement that deals satisfactorily with the border issue

51
Q

what does the WA say about dispute resolution

A

a joint committee will oversee the WA and resolve dispute between EU and UK
if not resolution then they can refer it to an arbitration panel

Con And Admin Law (6 decks)

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