The English Legal System - Retained EU Law (Chapter 11) Flashcards
When was IP completion day?
What does IP stand for?
31 December 2020
Implementation Period
Date referendum EU
23 June 2016
Result of EU referendum
52% in favor of leaving
Article used to withdraw
Article 50(2) of the Treaty on the European Union
What happened after withdrawal of EU was given to the EU on UK side?
Government agreed a Withdrawal Agreement with the EC, which was rejected by the UK Parliament in two subsequent votes in 2019, resulting in agreements between the EC and the UK government to extend the Art. 50 process
There were two EU Withdrawal Acts: From 2018 and 2020 (Withdrawal Agreement Act). Why was it necessary to have two acts?
Upfront: The 2020 EUWAA is an amendment to the 2018 EUWA.
The 2018 EUWA came into force on 31 January 2020 (this is counter-intuitive), while the 2020 EUWA came into force on 23 January 2020, nine days before the UK left the EU.
The 2020 EUWAA saved the effect of the European Communities Act 1972 (ECA 1972) during the implementation period and formally ratified and incorporated the Withdrawal Agreement (bilateral treaty) into domestic law after the United Kingdom formally left the European Union.
The 2020 EUWAA implemented the provisions of the Withdrawal Agreement, which required EU laws to have domestic legal effect during the implementation period, despite the fact that the UK was no longer a Member State.
What is a “knock-on effect”?
Dominoeffekt
What are the three reasons why the UK had to retain UK law?
1) Secondary EU legislation (regulations, decisions, directives) would no longer have been effective since they have been dependent on the European Communities Act 1972
2) Secondary domestic legislation that was dependent on primary legislation (introduced through the European Communities Act 1972) would have no longer been effective
3) Private individuals would no longer have been able to assert their rights in domestic courts under the doctrine of direct effects
What did the EUWA 2018 do?
1) It repealed the European Community Act 1972
2) It transformed EU law into domestic statutory law by taking a “screenshot” of the EU law on the day of the exit
What is the UK-EU Withdrawal Agreement?
A bilateral treaty between the UK and the EU
The 2020 EUWAA implemented the provisions of the Withdrawal Agreement, with what two steps did the act ensure a smooth transition of Brexit?
1) It provided authority to make secondary legislation, where appropriate, to incorporate the Withdrawal Agreement
2) It delayed statutory instruments amending deficiencies in retained EU laws that would otherwise have been applied on exit day
The 2020 EUWAA, aside from the Withdrawal Agreement, implemented two other international agreements. Which?
EEA EFTA Separation Agreement
Swiss Citizens’ Rights Agreement
What was the problem with the EU regarding parliamentary sovereignty?
The EU undermined the parliamentary sovereignty (e.g., decisions of the CJEU increasingly determined and codified sections of UK law)
The 2020 EUWAA, aside from protecting rights of EEA, EFTA and Swiss citizens, also held provisions regarding Northern Ireland. To what act did the EUWAA make reference to? What rights were protected?
Relating to Northern Ireland Act 1998
The revisions relate to the subject of rights, safeguards and equality of opportunity contained in the Belfast Agreement 1998 (also known as the Good Friday Agreement)
It contains terms allowing access for Northern Ireland goods to the British market with added conditions to ensure existing agreements for North-South (of Ireland) co-operation can be varied
What is the difference between exit day and IP completion day?
Exit day was on 31 January 2020, when EU law effectively was supposed to cease to have effect in the UK
IP completion day was introduced with 2020 EUWAA. It marked the end of the implementation period: 31 December 2020
In regard to the EU law, what impact did IP completion day have on the UK?
Although the ECA was repealed with effect from 31 January 2020, the EUWAA 2020 introduced provisions into EUWA 2018 that most of the effects of the 1972 ECA would be retained until IP completion day. Effectively, “exit day” was replaced in the EUWA 2018 with “IP completion day”.
Between exit day and IP completion day, how did EU law retain effect on the UK?
1) new statute or statutory instruments that gives legal effect to any international obligation to the UK still holds as a result of the implementation period
2) EU Regulation, Decision, or tertiary legislation, implemented after exit day but before IP completion day
3) EU Directive which may have direct effect, enacted prior to, or after, exit day, for which the effective date happens to be between exit day and IP completion day
4) new case law of the CJEU where a ruling has been issued after exit day but before IP completion day
EUWA 2018 ensured that existing domestic legislation which gives effect to EU-derived domestic legislation remained in place. Did this apply to directly or indirectly effective EU law? What is the difference?
It applied to both directly and indirectly effective EU law
Directly effective EU law refers to provisions that can be relied upon by individuals before national courts without the need for national implementing measures. In other words, directly effective EU law can be invoked by individuals in their national courts without the need for their country to pass any additional laws.
Indirectly effective EU law, on the other hand, refers to provisions that require national implementing measures before they can be applied. In other words, indirectly effective EU law requires Member States to pass laws or take other measures to give effect to the EU law within their national legal systems.
Why did the EUWA 2018 specifically mention which secondary legislation had to be “saved”?
Because secondary legislation based on the ECA 1972 was repealed with the EUWA 2018. With it, all secondary legislation based on the ECA 1972 would have been repealed as well unless specifically “saved” by the EUWA 2018.
What are the three exceptions to savings and incorporation of EU law?
1) Supremacy of EU law was retained in regard to the interpretation of pre-IP completion day law. Retained EU law still takes precedence over pre-IP day completion day domestic legislation which it is in conflict with.
2) The Charter of Fundamental Rights. It was specifically excluded from EU retained law, S.5(5) EUWA emphasizes that any fundamental rights or principles which exist, irrespective of the Charter or any EU law that is retained, will continue to be interpreted according to the underlying principles and rights.
3) Francovich damages: Proceedings commenced two years prior to IP completion day will be enforceable.
What are “Francovich damages”?
Francovich damages refer to a type of compensation that individuals or companies may be entitled to receive under EU law when a Member State has failed to implement EU law correctly, or when they have implemented it in a way that is inconsistent with the requirements of EU law.
The concept of Francovich damages arises from a landmark judgment of the European Court of Justice (ECJ) in the case of Francovich v Italy (1991). In that case, the ECJ held that individuals who have suffered damage as a result of a Member State’s failure to implement EU law correctly may be entitled to compensation from the Member State.
Did UK courts and tribunals still have to consider decisions of the CJEU post IP-completion day?
Section 5(5) of the European Union (Withdrawal Agreement) Act 2020 (EUWA) provides for the interpretation of retained EU law by UK courts and tribunals after the end of the transition period.
Specifically, it states that UK courts and tribunals may have regard to any relevant decisions of the European Court of Justice (ECJ) that were handed down after the end of the transition period, but only if the UK court or tribunal considers it appropriate to do so.
This means that UK courts and tribunals are not bound to follow decisions of the ECJ that were handed down after the end of the transition period, but they may take them into account when interpreting retained EU law. The ultimate authority for interpreting UK law, including retained EU law, lies with the UK courts and tribunals.
Section 5(5) of the EUWA also provides that UK courts and tribunals are not bound by any principles laid down by the ECJ after the end of the transition period, and that they may depart from any retained EU case law if they consider it appropriate to do so. This gives UK courts and tribunals greater flexibility in interpreting retained EU law, and allows them to develop their own jurisprudence in this area.
Could domestic courts still refer to the CJEU on IP completion day?
No.
Although a court may have to regard to CJEU decisions after IP completion day, it cannot have regard to such an extent it considers itself bound by them. What does that mean?
This statement refers to the principle of the UK’s sovereignty in making its own laws after leaving the European Union, as set out in the European Union (Withdrawal) Act 2018.
The statement means that while UK courts may consider decisions made by the Court of Justice of the European Union (CJEU) after the end of the Brexit transition period (known as “IP completion day”), they are not required to follow them blindly. Instead, UK courts must interpret and apply UK law independently and in accordance with their own legal principles and precedents.
This means that while CJEU decisions may be persuasive or informative, they are not binding on UK courts. UK courts must take into account any relevant CJEU decisions, but they may depart from them if they consider it appropriate to do so.
This approach reflects the UK’s desire to maintain its independence in making and interpreting its own laws after Brexit, while recognizing the value of considering the judgments of other courts when appropriate.
