Retained EU Flashcards
What is retained EU law
All of the EU law in force at end of transition period
Which takes priority if there is a conflict between pre brexit domestic law and pre brexit directly effective EU law
EU law
What does retained EU law consist of
EU derived domestic leg
Direct EU leg
Rights arising under s2(2) ECA 1972
Is EU law still supreme
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
3 types of retained EU law
S2- EU derived domestic law
S3- Direct EU law
S4- Rights etc arising under s2(2) ECA 1972
What is s2 EU derived domestic leg
Domestic Acts and SIs made under ECA 1972 to implement EU obligations
What would have happened to EU derived domestic leg had it not been retained
SI would have fallen away when ECA 1972 was repealed
ACt would have remained
Benefit of labelled a law a retained EU law
Ministers can amend it to fix deficiencies
Status of EU derived domestic law
Retains the same status it had before IP day has secondary or primary leg
Are directives part of retained EU leg
No. They will only be retained if they fall under s2 or s4
What is s3 direct EU leg
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)
Does a declaration of incompatibility invalidate retained direct principle EU law
No
Two types of direct EU leg
Retained direct principle EU leg
Retained direct minor EU leg
How to amend or repeal retained direct minor EU leg
Repeal or amend in same way as domestic secondary leg
How to amend or repeal retained direct principal EU law
Must be amended or repealed by primary leg or Henry 8th clause
What is a Henry 8th clause
Power of ministers to correct deficiencies in retained law using secondary leg
What are s4 rights etc arising under s2(1) ECA 1972
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
How to interpret unmodified retained EU law after IP day
Use retained case law and retained general principles of EU law
How to interpret modified Retained EU law
Use retained cases and retained general principles if doing so would be consistent with the intention of the modifications
Are Uk courts bound by CJEU judgements laid down after IP day
No but still persuasive
When does retained EU law come into effect
End of transition period
31 Dec 2020
Is EU law on freedom of movement retained
Bulk of this is repealed
Does indirect effect still apply
Only to retained law
Is the charter of fundamental rights retained
No
What is retained case law
Domes to case law regarding EU law and CJEU judgements before IP day
Can courts make references to CJEU
No
Can UK courts depart from Retained case law
Yes
Should UK courts have regard to CJEU judgements decided post IP day
Can have regard to them but not bound by them
Which general principles are retained
Only those recognised in EU cases before IP day
What is the effect of failing to comply with a retained general principle
No effect
No right of action
What are retained EU law principles
Proportionality
Equality
Subsidiary
Fundamental rights
Is there still state liability for breach of EU law or failure to implement directive (francovitch damages)
No EUWA removes this
Claims can go ahead if began within 2 years of IP day relating to something occurring before IP day
What powers does s8 EUWA give ministers
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
What are deficiencies arising from withdrawal
Provisions of no practical effect Arrangements no longer in place Functions previously carried out by EU References to EU Similar things not on list
Can UK courts make s267 references after IP day
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
are the rights in the withdrawal agreement enforcable
s7A EUWA provides for enforcement of rights arising under the withdrawal agreement
does the withdrawal agreement have supremacy
yes under s7A EUWA
impact of declaration of incompatibility on retained direct EU law
retained principal direct EU law - will not invalidate it
retained minor direct EU law - declared invalid if held to be incompatible
on what grounds can primary leg retained under s2 EUWA be challenged
only on the ground that it contravenes an EU retained law that should prevail over it
one what grounds can you challenge secondary leg that is retained under s2 EUWA
any JR grounds
can you challenge retained EU leg on the basis that the EU instrument (regulation or decision was invalid)?
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
when did the withdrawal agreement enter into force
1 Feb 2020
is the withdrawal agreement legally binding
yes in international law
the declaration setting out the framework of the future UK-EU partnership
what effect do the provisions of the withdrawal agreement and the EU law it incorporates have in UK law
they will have the same effect in UK law as they do in EU and EU MS
are the provisions contained in or referred to in the withdrawal agreement directly effective
yes - individuals and businesses can rely on them directly if they meet the criteria for direct effect under EU law
can EU citizens living in the UK after IP day rely on the direct effect of citizen’s rights provisions in the withdrawal agreement
yes
what does the withdrawal agreement cover
citizen’s rights
financial statement
NI protocol
governance and sipute resolution
what does the withdrawal agreement say about citizen’s rights
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)
what does the WA say about the finances
UK will abide by financial commitments including contributions to the EU budget
What does the WA NI Protocol say
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
what does the WA say about dispute resolution
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
