Retained EU Law Flashcards
What is Retained EU Law?
Retained EU law is the law that was in force immediately before the end of the transition period and is the law that will continue in force
Huge body of retained EU law which may be kept or replaced
Three main categories of retained EU law:
- EU-derived domestic legislation
- Direct EU legislation
- Rights arising under s2(1) ECA 1972
What is EU derived domestic legislation?
Certain parts of this type of legislation are retained under s2 EUWA (Withdrawal Act) 2018
- For example, those contained in EU directives
This secondary legislation implements EU obligations and prevents gaps in the law by being retained
What is direct EU legislation?
S3 EUWA converts some direct EU legislation into UK law
- Some EU legislation applied directly to UK without implementation, like EU regulations which are automatically binding on member states
- S3 ensures EU legislation of this type continues to have effect as domestic law
What are rights arising under s2(1) ECA?
S4 EUWA preserves certain rights arising under s2(1) ECA
- Includes directly effective rights contained within EU treaties which confer rights directly on individuals
- These can be enforced before national courts without the need for implementing national measures
- Example – Art 157 TFEU right to equal pay for men and women
What is the status of retained EU law?
S7(1) EUWA – confirms s2 retained EU law has the same status as it had pre end of the transition period
EU law retained under s3 and s4 is subdivided into new categories of domestic law
(1) Retained direct principal EU legislation
- Must be amended or repealed by primary legislation, save for where the primary legislation has granted ministers a Henry VIII power or where ministers are using powers to correct deficiencies in retained EU law
- Treated as primary legislation for the purposes of HRA to prevent a declaration of incompatibility with ECHR rights
(2) Retained direct minor EU legislation
- Can be amended or repealed in the same way as ordinary domestic secondary legislation
How will questions about retained EU law be interpreted?
S6(3) states that questions about the meaning of retained EU law will be determined by UK courts in accordance with relevant retained EU case law and retained general principles of EU law
Retained case law = domestic case law and retained EU case law prior to end of transition period
- Judgments of the Court of Justice of EU remain binding on all UK courts, except Supreme Court and High Court of Justice in Scotland
- Courts can give regard to post transition judgments of CJEU, but they won’t be bound by them
Retained general principles = proportionality, equality, fundamental rights and subsidiarity
- Failure to comply with one of these cannot give rise to a cause of action
How has the UK dealt with the principle of state liability?
EU law gives individuals the right to claim damages from a member state if it has failed to implement a directive properly or at all or for other breaches of EU law
- The EUWA has excluded this right
How can deficiencies with retained EU law be remedied?
S8 EUWA allows government ministers and devolved administrators to make secondary legislation to correct deficiencies in retained EU law
Deficiencies include:
- 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, such as by an EU agency
- Provisions on reciprocal arrangements on rights between the UK and another member state that are no longer in place or no longer appropriate
- Any other arrangements or rights that are no longer in place or no longer appropriate
- EU references that are no longer appropriate
Power to correct deficiencies can only be used to correct deficiencies arising from UK’s withdrawal from the EU
- Cannot be used to make changes of substance to retained EU law
How does the principle of supremacy work in relation to retained EU law? How can retained EU law be challenged?
EU law no longer has primacy over UK law
Retained EU law will have supremacy in some limited circumstances
- Provision of retained EU law would prevail in conflict with pre-completion, non-EU retained law
Primary legislation under s2 EUWA can only be challenged on the grounds that it contravenes another provision of retained EU law which should prevail over it
Secondary legislation under s2 EUWA can be challenged on the same basis, as well as by judicial review
EUWA provides no provision of retained EU law can be challenged on or after end of transition period, on the basis than an EU instrument was invalid
- Unless the instrument was ruled invalid by CJEU before end of transition period
What did the Withdrawal Agreement set out?
The Withdrawal Act 2018 is distinct from the Withdrawal Agreement of 2019
The agreement:
- Set out the terms for the UK’s exit from the EU
- Agreement is legally binding in international law
- Protects citizens’ rights
- Details the financial settlement between UK and EU, such as contributions to EU budget
- Discusses Northern Ireland Protocol – avoids hard border between NI and Republic of Ireland
- Provides for governance and dispute resolution
Provisions seem to have direct effect, so EU citizens can rely on them in national courts should domestic UK legislation fail to adequately protect them
