Retained EU Law

Question 1

When is the implementation period (IP) completion day?

Answer 1

11pm 31 December 2020

Question 2

What are the key types of EU legislation?

Answer 2

Treaty articles
Regulations
Directives
Decisions

Question 3

What are the three main categories of retained EU law?

Answer 3

EU-derived domestic legislation (s 2 EUWA 2018)

Direct EU legislation (s 3 EUWA)

Rights etc arising under s 2(1) ECA 1972 (s 4 EUWA)

Question 4

What is “EU-derived domestic legislation”

Answer 4

Predominantly secondary legislation enacted by the UK Government to implement EU obligations

Also includes some Acts of Parliament

Question 5

What is the principle from the CJEU case Francovich v Italian Republic regarding state liability for non-implementation of EU law? Has this been retained?

Answer 5

UK Government could be liable to pay damages arising from Parliament’s failure to pass legislation giving effect to EU law, or the defective implementation of EU law in an Act of Parliament

There is now no possibility of brining state liability claims after IP completion day

Question 6

What is “direct EU legislation”?

Answer 6

EU legislation which applied directly in the UK legal system without the need for any implementing UK legislation (i.e. EU Regulations and some decisions of the EU, which are binding on who they’re addressed to, or Directives then deemed to have direct effect)

Question 7

What does s 7(1) of EUWA do?

Answer 7

Provides that EU law retained under s 2 EUWA has the same status as it had prior to IP completion day, either as primary or secondary legislation

Question 8

What is the status of EU law retained under ss 3 and 4 EUWA?

Answer 8

They fall under a new category of domestic law, and fall under either:

Retained direct principal EU legislation, or

Retained direct minor EU legislation

Question 9

What is the key difference between “principal” or “minor” retained EU legislation?

Answer 9

Minor can be amended or appealed in the same way as ordinary domestic secondary legislation

Principal must be amended or appealed by primary legislation

Question 10

What happens if elements of retained minor EU law do not make sense or are not appropriate after IP completion day?

Answer 10

Ministers have the power to correct these deficiencies through secondary legislation

Question 11

If it is found that in correcting a deficiency, a minister has used the power to make significant changes to retained EU law, what would be the likely outcome?

Answer 11

Challenges to the secondary legislation via judicial review

Question 12

What happens if elements of retained principal EU law do not make sense or are not appropriate after IP completion day?

Answer 12

Ministers have the power to correct these deficiencies through primary legislation

Question 13

What is the significance of s 3 of the Withdrawal Agreement?

Answer 13

It converts direct EU legislation in UK law

Question 14

What is the significance of s 4 of the Withdrawal Agreement?

Answer 14

It preserves certain rights arising under s 2(1) ECA, e.g. directly effective rights in EU treaties which confer rights directly onto individuals (and which they can enforce before national courts without the need for implementing national measures)

Question 15

What is an example of a directly effective right which has been preserved by s 4 EUWA?

Answer 15

Article 157 TFEU - right to equal pay

Question 16

If there is a question regarding the meaning of the wording of retained EU law, how will it be interpretated?

Answer 16

By UK courts in accordance with relevant retained EU case law and retained principles of EU law

Question 17

What is considered relevant case law?

Answer 17

Domestic case law and retained EU case law prior to IP completion day

[Not bound by judgments post-IP completion day however can give consideration to them]

Question 18

What are the key general principles for interpretation of retained EU law?

Answer 18

Proportionality, equality, fundamental rights and subsidiarity

Question 19

Are the judgements of the Court of Justice of the EU binding on all UK courts?

Answer 19

Yes, other than Supreme Court (or High Court of Justiciary in Scotland)

Question 20

What is the difference between the EU Withdrawal Agreement 2019 and EU Withdrawal Act 2018?

Answer 20

The EUWA 2019 is legally binding in international law and contains a number of issues such as protection of citizens rights and financial settlement between UK and EU - these provisions have direct effect and therefore EU citizens can rely on them in national courts should UK domestic legislation fail to protect them adequately

Question 21

If rights granted by a directive are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day, what is their status?

Answer 21

They become retained EU law