Retained EU Law Flashcards
IP completion day
Retained EU comes into force on IP completion day/end of transition period.
= 11.00pm on 31 December 2020.
What is retained EU law?
Snapshot of EU law that was in force before IP completion day.
Law that was not retained
Repealed with effect from IP completion day:
- UK left the customs union and single market
-free movement
Retained EU law - EU- derived domestic legislation
Includes secondary legislation enacted by the UK Government, often in the form of regulations.
E.g. working time regulations.
Includes some acts of parliament e.g. equality act.
Retained EU law - Direct EU legislation
Converts certain ‘direct EU legislation’ into UK law so far as ‘operative’ immediately before ‘IP completion day’.
EU regulations are directly applicable and binding.
Converts any into domestic legislation at IP completion day.
Retained EU law - Rights etc arising under s 2(1) of the ECA 1972
Rights in provisions of EU treaties that are sufficiently clear, precise and unconditional
to confer rights directly on individuals, which they can enforce before national courts without the need for national implementing measures e.g. right to equal pay.
Type of rights granted by a given Directive must have been recognised by a court
pre- IP completion day.
Status of retained EU law
Same status as
it had pre- IP completion day either as primary or secondary legislation.
Retained direct EU legislation divided into 2 categories:
* retained direct ‘principal’ EU legislation (must be appealed by primary legislation) ; and
* retained direct ‘minor’ EU legislation (can be amended or appealed in the same way as ordinary domestic secondary legislation)
Interpretation of retained EU law
Determined by UK courts
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.
Indirect effect applies to retained law - duty to interpret national law in
accordance with the wording and purpose of EU law.
Retained general principles of EU law
No general principle of EU law will be retained unless it was recognised as such by EU case law before IP completion day.
E.g. proportionality, equality,
fundamental rights and subsidiarity.
Failure to comply cannot give rise to action.
Many principles in charter. This has been excluded.
Correcting ‘deficiencies’ in retained EU law
Temporary powers for govt ministers and developed administration in relation to domestic legislation within areas of devolved competence, to
make secondary legislation that corrects ‘deficiencies’ in retained EU law.
Deficiencies:
* provisions that have no practical application after the UK has 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.
* Of a similar kind to those listed.
Supremacy of retained EU law
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 former will prevail over the
latter.
Challenges to retained EU law
Primary legislation can only be challenged on the
grounds that it contravenes another provision of retained EU law that should prevail over it.
Secondary legislation that falls can be challenged on the same basis, as well as on the same public law grounds.
Departing from retained EU case law
Power used to only be with Supreme Court or the
High Court of Justiciary.
Now also with Court of Appeal and equivalent courts.
Can only depart ‘when it appears right to do so’.
UK courts may have regard to post-IP completion day judgments of
the CJEU, but will not be bound by them.
The Withdrawal Agreement 2020
- Citizens’ rights: protects the rights of UK citizens living in the EU and EU citizens living in the UK at the end of the transition period, as well as their family members. They will have the right to continue to live and work in their host state.
May need to apply for a residence status in
their host state in accordance with the host state’s law. - Financial settlement: The UK agreed to abide by the financial commitments it made as a Member State, including its contributions to the EU budget.
- The Northern Ireland Protocol: This aims to avoid the introduction of a hard border between Northern Ireland and the Republic of Ireland should the
UK and EU fail to agree a free trade agreement that deals satisfactorily with the border
issues. - Governance and dispute resolution: A joint committee oversees the Withdrawal
Agreement. It comprises representatives from – and is co- chaired by – the EU and the UK.
Application of the Withdrawal Agreement in the UK
EU citizens living in the UK and UK citizens at the end of the transition period should be able to rely on the direct effect of the citizens’ rights provisions in the Withdrawal Agreement.
Agreement has supremacy.
