Retained EU Law Flashcards
Quick Q:
An EU directive (fictitious) adopted in 2017 provides that Member States must ensure that the use of latex gloves is prohibited in restaurants, cafeterias and other places that serve food. The directive was adopted due to medical evidence that latex gloves were causing an allergic reaction. The directive further provides that Member States should implement it by 31 October 2019. The UK government took no steps to implement it. In June 2020 the CJEU ruled that the provisions of the directive have direct effect.
After IP completion day a woman working in a cafeteria operated by a government department suffered an allergic reaction as a result of wearing latex gloves.
Can the woman make a claim against the government department based on the directive?
Yes, because the rights arising under the directive are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day and so can be relied upon vertically against a state body.
Option A is correct. Directives are capable of having direct effect if they have not been implemented or implemented incorrectly, although only vertically against the state or state bodies. As the rights granted by the directive in this question are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day, the rights it grants will become retained EU law. Option A is a better answer than option B as option B is too simplistic and states the position during the UK’s membership of the EU.
Quick Q:
A woman who is a Portuguese citizen has been resident in the UK for over five years and applies for settled status. Under the terms of the Withdrawal Agreement governing the UK’s exit from the EU, she is entitled to permanent residence in the UK. The Home Office rejects her application on the grounds that a section in an Act (fictitious) of the UK Parliament excludes a person in her position from settled status. The Act does not, however, attempt to override the Withdrawal Agreement.
Can the woman challenge the Home Office’s refusal to grant her settled status?
Yes, because UK legislation has provided for the direct effect of the relevant provisions of the Withdrawal Agreement.
Option C is correct. EUWA 2018 provides for the Withdrawal Agreement, including the citizens’ rights provisions, to have direct effect, so its provisions will override the conflicting UK statute. If the UK statute had expressly and unequivocally overridden the relevant provisions of the Withdrawal Agreement, then UK courts would have applied the statute. However, the question indicates that is not the case, so option B is wrong.
Option A is wrong; although international treaties do not in themselves give rise to rights in UK law, EUWA 2018 has incorporated the Withdrawal Agreement into UK law.
Option D is wrong because international treaties need to be incorporated into UK law to have direct effect. However, the Withdrawal Agreement Act 2020 did this. Option E is wrong because Parliament can legislate contrary to international treaties, as Parliament is sovereign. Nonetheless, any such legislation would breach international law.
Strict liability offences are permitted under Article 6 provided that they are what….
reasonable (Salabiaku v France
Quick Q:
An Act of Parliament introduces a new offence of publishing images of others without consent (‘the Offence’). The Offence is committed by publication of the image, there being no requirement to show mens rea. A media outlet publishes an image of a member of the royal family without their consent. The editor of the media outlet is charged with the Offence. The editor asserts in their defence that the Offence breaches their rights under the European Convention on Human Rights (‘ECHR’).
Which of the following statements best represents whether the editor’s defence will succeed?
The editor’s defence will be unsuccessful provided the Offence is reasonable.
Can UK Courts consider ECJ judgments as persuasive?
Yes as UK Courts can consider ECJ judgments as persuasive., (example) because the County Court is likely to regard the CJEU decision in the French case as persuasive.
Directly effective rights + retained EU law
Rights etc. arising under s 2(1) of the ECA 1972 become retained EU law (s 4 of the European Union Withdrawal Act), and the right to equal pay is a prime example of such a right.
Quick Q:
General principles of EU law include proportionality, equality, fundamental rights and subsidiarity. A case is to be heard by the High Court tomorrow concerning the interpretation of secondary legislation passed by the UK Parliament in 2010 to implement the requirements of an EU directive.
How would the court take account of any relevant retained general principle of EU law?
The court must apply any relevant general principle of EU law, but not any general principles found only in the Charter of Fundamental Rights of the European Union.
Option D is correct. The law in question constitutes retained European Law for the purposes of the European Union (Withdrawal) Act 2018. Section 6(3) of that Act provides that any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it, in accordance with any retained case law and any retained general principles of EU law.
Quick Q:
An employee is suing her employer for age discrimination before an English court. Her employer is relying on English legislation which allows employers to discriminate against employees aged under 21 years on the grounds of age. The English court determines that the English law breaches the principle of equality, however the court does not disapply the English law, and the employee fails in her claim.
Which of the following options best explains why the court does not disapply the English law?
The court did not disapply the English law because although the principle of equality is a part of retained EU law in the UK, the court cannot disapply the English law that is in effect.
Option C is correct. During the UK’s membership of the EU, UK courts would have been required to disapply legislation, including primary legislation, that breached the principle of equality. However, after the transition period, this is no longer the case.
Although the principle of equality is retained EU law in the UK, failure to comply with it cannot give rise to a right of action.
Option A is wrong because the principle of equality was a recognised general principle of EU law before the end of the transition period and will therefore be a part of retained EU Law in the UK.
Option B is wrong because the principle of equality was a recognised general principle of EU law before the transition period, and it is relevant law in the UK as retained EU law.
Option D is wrong because the court did not make an error in judgment. The principle of equality is a part of retained EU law in the UK but since the transition period, any English law cannot be disapplied, if it breaches this principle.
Option E is wrong because disapplying national law that breaches EU law was a procedure available in English courts before the transition period, but is not a procedure available in English courts after the transition period.
Quick Q:
The UK government wishes to correct a deficiency in a piece of retained EU law, because it contains EU references that are no longer appropriate. At the same time, the UK government wishes to make changes of substance to the retained EU law.
Which of the following options best describes whether the UK government can correct the deficiency and make changes of substance to the retained EU law?
The UK Government can make secondary legislation to correct the deficiency in the retained EU law, which includes EU references that are no longer appropriate. However, the UK Government does not have the power to make changes of substance to retained EU law.
Option A is correct because section 8 of EUWA 2018 (European Union (Withdrawal) Act 2018), grants temporary powers for UK Government ministers to make secondary legislation that corrects ‘deficiencies’ in retained EU law. Deficiencies are defined to include EU references that are no longer appropriate. The power can only be used to correct deficiencies arising from the UK’s withdrawal from the EU; it is not a power to make changes of substance to retained EU law.
Quick Q:
A woman is suing her employer in an English court. She wishes to rely on a piece of retained EU law. Her employer wishes to rely on UK legislation enacted before IP completion day that is not retained EU law. There is a conflict between a provision of the retained EU law and the UK legislation. The court is not sure whether under the circumstances EU law is supreme over the UK legislation.
Which of the following options best describes whether under the circumstances the retained EU law or the UK legislation is supreme?
The retained EU law will be supreme over the UK legislation because the UK legislation is enacted before IP completion day and is not retained EU law.
Option E is correct. Although following the end of the transition period EU law itself no longer has supremacy over UK law, retained EU law will have supremacy in limited circumstances. For this purpose there are three categories of law:
retained EU law;
UK legislation enacted before the end of the transition period that is not retained EU law; and
all UK legislation enacted after the end of the transition period.
Should a conflict occur between a provision of retained EU law and a piece of UK legislation (that is not retained EU law) enacted before the end of the transition period, then EU law will prevail over national law.
Option A is wrong because the retained EU law will be supreme to the UK legislation because retained EU law is supreme over UK legislation enacted before the end of the transition period that is not retained EU law.
Option B is wrong. It is not the case that all retained EU law is supreme over UK legislation.
Option C is wrong because retained EU law will not be supreme over UK legislation enacted after the transition period.
Option D is wrong because retained EU law is not supreme over all UK law which has been enacted after the end of the transition period.
Quick Q:
As a result of the increasing number of accidents caused by uninsured drivers, in 2015 the EU issued the (fictitious) Vehicle Compensation Directive requiring all member states to provide replacement value compensation to those drivers whose vehicles were deemed damaged beyond repair in road traffic accidents (‘the Directive’). Member States were required to implement the Directive by June 2017. The UK failed to implement the Directive preferring instead to rely on a (fictitious) pre-existing UK Act, The Motor Compensation Act (‘the Act’). The Act provides a fixed sum of £1,000 to drivers who lose their vehicle as a result of an accident caused by an uninsured driver. In 2017 the CJEU ruled that the Directive had direct effect.
In 2021 a woman’s car was deemed damaged beyond repair as a result of her being involved in a collision with an uninsured driver. The collision was not the woman’s fault. The car was a new car and had a value of £10,000. She made a claim to the Motor Compensation Board (the body set up by the UK Government under the Act to administer the compensation scheme) and received the fixed sum of £1,000. She would like to bring a claim against the Motor Compensation Board on the grounds that £1,000 is not ‘replacement value compensation’, given that her car was valued at £10,000.
Will the woman be able to make the claim against the Motor Compensation Board?
Yes, because the Directive is retained EU law.
Option B is correct. Directives are capable of having direct effect if they have not been implemented or implemented incorrectly, although only vertically against the state or state bodies. As the rights granted by the Directive in this question are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day, the rights it grants will become retained EU law. We are told that the CJEU has ruled that the rights contained in the Directive have direct effect and so the woman will be able to rely on the rights granted by the Directive.
Option A is wrong because under s 2 of the European Union (Withdrawal) Act 2018 only Regulations and Decisions addressed to the UK prior to IP completion day are classified as Direct EU Law; directives do not fall into this category.
Option C is wrong because we are told that the UK did not implement the Directive. Had it done so the woman would instead be relying on the relevant implementing UK legislation rather than any need to rely on the rights in the Directive itself.
Option D is wrong. The EUWA 2018 preserves the right to claim the rights in any directive issued prior to IP completion day provided a UK or EU court or tribunal has confirmed that the rights contained within that directive have direct effect (see above). This is the case on the facts.
Option E is wrong. The Act does not prevail over the Directive, since the Directive was created and the rights therein were confirmed to have direct effect prior to IP completion day, and as such the doctrine of direct effect and the rights in the Directive are preserved as Retained EU law.
Are UK courts bound by decisions made by the CJEU post-withdrawal?
No, because the UK’s departure from the EU means UK courts are not bound by any CJEU decision which is made after the withdrawal.
It is the date of the decision (pre or post withdrawal) that governs whether it is binding, not the date of the directive.
UK courts are bound by decisions prior to the UK’s withdrawal from the EU but not post-withdrawal.
Quick Q:
An academic who is 33 years old applies for the position of Dean of a University. The University denies her application, relying on UK legislation stating that deans of universities must be over the age of 35. The academic believes that this UK legislation is in conflict with the EU general principle of equality – this general principle was recognised by EU case law prior to the UK’s exit from the EU. The academic takes her case to the UK courts.
Which of the following best describes the approach which the UK courts are likely to take?
The UK legislation is in conflict with the EU general principle of equality, which is a retained EU general principle, but the UK courts are not required to disapply the UK legislation following Brexit.
Option B is correct. The EU general principle of equality was recognised by EU case law prior to the UK’s exit from the EU, so it will be classed as a retained general principle of EU law. However, following Brexit, UK courts are no longer required to disapply the conflicting UK legislation.
Option A is wrong as whilst the EU general principle of equality is indeed retained, UK courts are no longer required to disapply conflicting UK legislation following Brexit.
Option C is wrong, as the EU general principle of equality was recognised by EU case law prior to the UK’s withdrawal from the EU. It will therefore be classed as retained and does have some effect in the UK.
Option D is wrong, as the academic’s claim is clearly based on age discrimination, which falls under the EU general principle of equality.
Option E is wrong as the UK courts can still consider areas of retained EU law following Brexit, so the EU general principle of equality may still be relevant.
Conflict occur between a provision of retained EU law and a piece of pre-IP completion day legislation
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. Thus, if there is a conflict between an EU Regulation adopted in 2010 that has become retained EU law under s 3 of the European Union (Withdrawal) Act 2018 and an Act of Parliament enacted in 2018, the Regulation of 2010 will have supremacy over the Act of 2018.
Retained EU legislation and retained case law.
Retained EU legislation is normally to be interpreted in line with retained EU case law and retained general principles of EU law and the UK Court can proceed to do this.
Retained EU legislation is normally to be interpreted in line with retained case law. Retained case law consists of retained domestic case law and retained EU case law.
Quick Q:
The UK joined the European Union (“EU”) on 1 January 1973 (“the Joining Date”), and left the EU on 31 January 2020. The Brexit Withdrawal Agreement between the UK and the EU was implemented on 31 December 2020 (“the Implementation Date”).
Was EU Law considered supreme in the UK during the period of the UK’s membership of the EU?
Yes, because between the Joining Date and the Implementation Date, EU law was binding on the UK courts and this led to decisions where the UK courts had to disapply UK statute where it conflicted with EU law.
Option E is the best answer because it recognises the decision in the Factortame Number 2 case – the Merchant Shipping Act 1986 was disapplied due to a conflict in interpretation with EU law.
Option A is wrong because ECHR law is not binding under the HRA 1998.
Options B and C are wrong because one of the terms of membership of the EU was that EU law was supreme.
Option D is wrong because, due to Parliamentary Supremacy, the Judiciary do not have the power to strike down UK legislation.
