RETAINED EU LAW

Question 1

Why did Parliament enact the EU (Withdrawal Agreement) Act 2020?

Answer 1

• because the Withdrawal Agreement (the agreement made before UK left EU) is an international treaty the UK govt needed to ensure that its provisions were implemented into UK domestic law

Question 2

What does the Trade and Cooperation Agreement do?

Answer 2

• the TCA governs the relationship between the UK and the EU following the UK’s leave from EU
• it is a free trade agreement and provides for quota and tarif free trade in goods between EU and UK
• covers movement of services, competition, state subsidies , air and road transport, energy and sustainability, data protection and social security

Question 3

What does the EU (Future Relationship) Act 2020 do?

Answer 3

• implements the TCA into domestic UK law
• s29 has had an impact on application of retained EU law
• it is a ‘sweeping up’ mechanism
• any amendment that is required to be made in existing UK law in order to implement provisions of TCA is deemed to have been made

Question 4

What is retained EU law?

Answer 4

• retained EU law is therefore effectively a snapshot of EU law that was in force in the UK immediately before IP (implementation period) completion day and that law continues in force despite the UK’s leave from the EU

Question 5

List the three types of retained EU law

Answer 5

• EU derived domestic legislation
• Direct EU legislation
• Rights and powers available in UK prior to IP Completion day ie ECA 1972

Question 6

EU derived domestic legislation is retained EU law. Where can you find EU derived domestic legislation? What is it?

Answer 6

• preserved by s2 of EUWA 2018
• it comprises of laws that UK adopted to implement its obligations under EU law
• eg legislation that was enacted to implement EU Directives

Question 7

Under s2(2) of European Communities Act 1972 what did ministers have the power to do? Why was it essential to convert this into retained EU law?

Answer 7

• implement EU Directives into UK law through secondary legislation (a law not passed by Parliament)
• it was essential to convert the secondary legislation into retained EU law because otherwise it would’ve left huge gaps in UK law

Question 8

Some Acts of Parliament also fall within the scope of EU-derived domestic legislation. Give an example.

Answer 8

• parts of the Equality Act 2010 were enacted to implement EU anti discrimination Directives

Question 9

What is an EU directive?

Answer 9

• it is a type of EU secondary legislation that instructs Member States to take national measures by a specified date to achieve the aims set out in directive
• govt usually enacted domestic regulations in order to implement directives under ECA 1972
• after leaving EU they could no longer do this as the ECA was repealed

Question 10

Direct EU legislation is another eg of retained EU law. Where can you find it? What does it do?

Answer 10

• under s3 of EUWA 2018
• it comprises any EU regulation or decision in force immediately before IP completion day will continue to have effect in UK legal system by converting direct EU legislation into domestic legislation at IP completion day

Question 11

Give an example of direct EU legislation.

Answer 11

• Regulation (EC) 261/2004 which protects air passenger rights

Question 12

Rights and powers available in UK prior to IP completion day is aslo retained EU law. Where can it be found? What does it do?

Answer 12

• s4 (1) EUWA 2018
• essentially a residual category of EU rights and obligations that aren’t implemented by previous two types
• the most significant of these rights are directly effective rights provided for by the Treaty on the Functioning of the European Union (‘the TFEU’)
• a prime example is Article 157 TFEU which grants men and women the right to equal pay. So if UK legislation existing on IP completion day on above equal pay falls short of what Article 157 requires, then it will still be possible for employees to rely on the rights granted by Article 157. It is, however the rights that are preserved, not the actual article itself.

Question 13

What is the general rule regarding Directives having direct effect on national law? Is there an exception?

Answer 13

general rule: because directives are implemented into national law by domestic legislation which is preserved as EU derived domestic legislation they are not themselves considered retained EU law

It will only have direct effect if they have not been implemented properly or not at all

Question 14

What does s4(2) of EUWA 2018 say?

Answer 14

• where rights arising under directly effective provisions of Directive are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day = will become retained EU law
• IF NOT RECOGNISED BY ANY COURT then excluded from retained EU law

Question 15

When can a Directive be relied upon/ have direct effect?

Answer 15

• after the deadline for implementation has passed, only then can Directive have direct effect
• must be clear, precise and unconditional
• must only have vertical effect (public sector)
• wont apply to private employer

Question 16

What two categories does section 7 of the EUWA 2018 divide retained direct legislation into?

Answer 16

1) retained direct ‘principal’ EU legislation
- includes most EU Regulations
- must be amended or repealed by primary legislation and secondary legislation (in rare cases)

2) retained direct minor EU legislation
-any retained direct EU legislation that is not in above division
-can be amended and repealed like normal domestic secondary legislation

Question 17

In what special cases can principal retained direct EU legislation be amended or repealed by secondary legislation?

Answer 17

1) where primary legislation has granted ministers a Henry VIII power
- this gives ministers ability to amend Acts of Parliament

2) where minsters using powers under the EUWA to correct deficiences in retained EU law

Question 18

Why does the EUWA 2018 treat retained direct principal EU legislation as if it were primary legislation?

Answer 18

• for purposes of HRA 1998
• prevents it from being declared invalid for incompatibility from the convention rights

Question 19

What do s6(3) and s6(6) of the EUWA 2018 say?

Answer 19

• s6(3)
• any questions of the meaning of retained EU law that remains ‘uncodified’ on or after IP completion day will be determined by UK courts in accordance with retained case law and retained general principles of EU law
• s6(6)
• any questions on the meaning of retained EU law that has been modified on or after IP completion day by UK law can be determined in accordance with relevant retained case law and retained general principles of EU law if doing so is consistent with the intention of the modifications.

Question 20

Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C- 106/ 89) EU:C:1990:395, [1990] ECR I- 4315,

Answer 20

• where the ECJ held that the national courts of Member States were under a duty to interpret national law in accordance with the wording and purpose of EU law, including Directives not yet implemented in the Member State

Question 21

Kücükdeveci v Swedex GmbH & Co KG

Answer 21

• even if general principle is retained, failure to comply with it cannot give rise to right of action

Question 22

Where have many of the general principles of EU law been incorporated?

Answer 22

• Charter of Fundamental rights of EU 2000
• here certain political, social and economic rights are kept

Question 23

Explain the exclusion of state liability in terms of retained EU law.

Answer 23

• EU law gave individuals the right to claim for damages from a Member State for its failure to implement Directive properly or not at all

Question 24

Section 8 of the EUWA grants temporary powers to UK government ministers and devolved administrators in relation to domestic legislation to do what?

Answer 24

• to make secondary legislation to correct ‘deficiencies’ in retained EU law

Question 25

What are deficiencies defined to include?

Answer 25

• provisions that have no practical application after the UK left the EU
• provisions on functions that during the UK’s membership of the EU were carried out in the EU on the UK’s behalf, for example by an EU agency
• provisions on reciprocal arrangements or rights between the UK and other EU Member States that are no longer in place or are no longer appropriate;
• any other arrangements or rights, including through EU treaties, that are no longer in place or no longer appropriate; and
• EU references that are no longer appropriate.

Question 26

Does retained EU law have any supremacy over UK law?

Answer 26

• only in limited circumstances
• should a conflict occur between a provision of retained EU law and a piece of pre IP completion day legislation that is not retained EU law then the retained EU law will have supremacy over parliament

Question 27

When is the only time primary legislation that falls within s2 of the EUWA 2018 be challenged?

Answer 27

• only on the grounds that it contravenes another provision of retained EU law that should prevail over it
• For example, suppose an Act of Parliament in 2010 that is EU- derived domestic legislation because it implemented a Directive contradicts an EU Regulation adopted in 2015, which has become retained EU law under s 3 of the EUWA 2018 (direct EU legislation). UK courts will apply the contradictory provisions in the retained Regulation in preference to the Act of 2010.

Question 28

When can secondary legislation be challenged?

Answer 28

• on the same basis as primary legislation when it interferes with another provision of retained EU law

Question 29

Is it possible to challenge the validity of retained EU law under s3 of the EUWA 2018?

Answer 29

• cannot challenge it on the grounds that the original EU regulation was invalid

Question 30

What were the guidelines set out in Lipton v BA City Flyer Ltd EWCA regarding how to apply retained EU law?

Answer 30

1) find the relevant EU regulation and ask whether it has become retained EU law
- will it take precedence over any domestic law pre dates IP completion date

2) has it been amended by UK legislation?

3) has it been amended by TCA?
- mention s29 ‘sweeping up mechanism’

4) purposive construction to EU law
- what was the original aim of the EU legislation?

5) apply to case law
- look at ECJ case law but also international law

Question 31

What did the original version of the EUWA 2018 say about pre IP completion day case law’s precedence in terms of decisions of the Supreme Court?

Answer 31

• originally that the CJEU should be given the same precedent as decisions of the SC meaning only SC could’ve departed from retained EU law
• however, the WA 2020 changed the position and now COA and other UK courts can also depart from EU law

Question 32

Are UK courts bound by judgements of the CJEU?

Answer 32

• no they will be persuasively only, they are not bound by them

Question 33

Can UK courts be be able to consult the CJEU about eu law?

Answer 33

• no under Article 267 TFEU they are no longer able to

Question 34

How likely is it that UK courts will depart from retained EU case law? Use a case to support this answer.

Answer 34

• although they have the power to depart, they use this power sparingly as they are unlikely to overturn an earlier decision merely because it believes the decision is wrong
• overturning the earlier decision could cause considerable difficulties for everyone who had relied on it in good faith, as judicial decisions apply retrospectively.
• the courts are likely to leave it to the legislature to make any changes, as statutes normally apply prospectively only and would not upset existing arrangements.
• The Court of Appeal judgment in TuneIn Inc v Warner Music UK Ltd [2021] EWCA Civ 441 confirms that the courts are likely to take a cautious approach.

Question 35

What does the Brexit Freedoms Bill aim to enable the Government to do? Give some arguments for and against for each.

Answer 35

1) Henry VIII powers to alter retained EU law
- make it easier to amend or remove outdated retained EU law
- govt argued that it often did not reflect the UK’s own priorities or objectives
- changing these outdated laws by primary legislation would take many years even where the changes are minor or technical; accordingly, enabling the Government to change retained EU law by delegated legislation will in its view enable it to capitalise on Brexit freedoms more quickly.
- however, critics of the proposals (eg the Bar Council) have argued that the mere fact that retained EU law has EU law as its origin does not mean its content is unacceptable.
- much EU legislation received thorough scrutiny by the elected European Parliament, and in many cases was supported, or even promoted, by the UK Government

2) Ending the principle of supremacy
- currently, retained EU legislation has priority, should a conflict occur, over UK legislation enacted before IP completion day on the same subject even if the UK legislation was enacted after the EU legislation.
- the Government claims that this is not compatible with the UK’s status as a sovereign, independent country and wants to end it as quickly as possible.
- BFB would mean that the Act of Parliament would prevail over the retained EU Regulation
- the Bar Council has criticised this proposal on the grounds that it creates legal uncertainty.
- Retained EU law remains an important source of the rules governing consumer rights, data protection, health and safety, VAT, employment law and financial services, so it is risky to make a change when the impact of that change is unknown.

(c) Changing approach to retained EU case law
- the Government is consulting on giving the power to depart from retained EU case law courts to courts below the Court of Appeal (or courts of equal status) to reflect the changing circumstances arising from the UK’s departure from the EU.
- This would allow first instance courts to depart from retained EU case law and thereby avoid unnecessary appeals; currently, as first instance courts cannot depart from retained EU case law, then a litigant who wants a CJEU ruling to be overruled must appeal to an appellate court. However, following its own consultation in 2020 on the topic, the Government decided not to extend the power to first instance courts. Moreover, the Bar Council believes that extending the power to depart would create legal uncertainty as departing from retained EU case law would provide an obvious ground of appeal from the decision of the lower court. Also, litigants would become more likely to challenge retained EU case law if they could do so at first instance to persuade the other party to settle or to resist valid tax demands. The Government is also consulting on whether retained EU case law should be binding at all. The Bar Council believes this would cause great legal uncertainty and would undermine the system of precedent. The courts would have to re- visit many settled principles and the outcome of litigation would become much less predictable. The Government has announced that officials across government departments are currently reviewing all EU laws that have been retained to determine if they are beneficial to the UK. The Government will publish a catalogue of retained EU law in due course. It should be very helpful to have a definitive catalogue of retained EU law, as lawyers and government officials do not currently have a full grasp of its scope.

Question 36

What did the Withdrawal Agreement made between EU and UK in Oct 2019 set out?

Answer 36

• terms on which the UK left the EU
• it did not cover long term future relationship following end of transition period

Question 37

Which three provisions in the WA will be enforceable after 31st Dec 2020?

Answer 37

1) citizens rights
- he rights of the EU citizens resident in UK at end of transition period

Question 38

• Finish wa questions