Unit 6

Question 1

What are the 3 categories of retained EU law?

Answer 1

1. EU – derived domestic legislation (s. 2 EU(W)A 2018)
2. Direct EU legislation (s. 3 EU(W)A 2018)
3. Rights arising under s 2(1) of the ECA 1972

Question 2

What is EU derived domestic legislation?

Answer 2

EU- derived domestic legislation is the laws that the UK adopted in order to implement its obligations under EU law.

Includes secondary legislation enacted by the UK Government (often in the form of regulations) to implement EU obligations, for example, those contained within EU Directives.

Question 3

What is Direct EU legislation?

Answer 3

Broadly, direct EU legislation comprises of any EU regulation or decision in force immediately before IP completion day.

S. 3 EUWA 2018 converts ‘direct EU legislation’ into UK law so far as ‘operative’ (i.e., in use) immediately before ‘IP completion day’.

Section 3 EUWA 2018 ensures that, where appropriate, EU legislation continues to have effect in the UK legal system by converting ‘direct EU legislation’ into domestic legislation at IP completion day.

Question 4

What are the rights arising under S 2(1) ECA 1972?

Answer 4

Essentially, a residual category of EU rights and obligations. These comprise of rights and obligations that were enforceable in the UK during its EU membership, apart from those already preserved by the previous two categories.

Inclues:

1) Directly effective rights contained within EU treaties

2) Rights contained within directives:
Where rights arising under directly effective provisions of Directives have been recognised by a UK or EU court or tribunal before IP completion day, rights of that kind become retained EU law. If, however, the right has not been recognised by a court, then it is excluded from retained EU law (EUWA 2018, s4(2).

Question 5

What are excluded from retained EU law?

Answer 5

• Charter of Fundamental Rights setting out the EU’s human rights framework
• Francovich Damages
• S 4 excludes directly effective rights arising under directives, unless they are of a kind recognised by the Court of Justice of the European Union or ‘any court or tribunal’ in the UK in a case decided before IP completion day.

Question 6

How is retained EU law interpreted?

Answer 6

Section 6(3) of the EUWA 2018 = questions on the meaning of retained EU law that remains ‘unmodified’ on or after IP completion day by UK law will be determined by UK courts in accordance with relevant ‘retained case law’ and ‘retained general principles of EU law’.

Principle of Indirect Effect = Has been carried on over into retained EU law.

Key Case: In Re Allied Wallet (2022), the High Court applied indirect effect to retained UK regulations originally made to implement a Directive, so that those regulations had to be interpreted in a manner consistent with the Directive that they aimed to implement.

NOTE – During the UK’s membership of the EU the principle of indirect effect applied to all UK legislation but is now limited to retained EU law.

Question 7

How is retained EU cause law to be interpreted?

Answer 7

o Retained EU law is to be interpreted in line with retained case law.

o Retained case law consists of retained domestic case law and retained EU case law.

Retained domestic case law = the principles and decisions laid down by the UK courts and tribunals before the end of IP completion day in relation to retained EU law.

Retained EU case law = the principles and decisions laid down by the Court of Justice of the European Union (CJEU) before IP completion day in relation to retained EU law.

NOTE – It is no longer possible for UK courts to make references to the CJEU on questions of EU law. However, the CJEU’s judgements on retained EU case law remain binding on all UK courts below the level of the Court of Appeal.

Question 8

Can retained EU law be interpreted in light of retained general principles of EU law?

Answer 8

As well as being interpreted in line with retained EU case law, retained EU law can also be interpreted in light of retained general principles of EU law.

NOTE – No general principle of EU law will be retained unless it was recognised as such by EU case law before IP completion day.

General Principles:

• Proportionality
• Equality
• Fundamental rights
• Subsidiarity

Question 9

Where a general principle is retained, can failure to comply with it give rise to a right of action?

Answer 9

Even where a general principle is retained, failure to comply with it cannot give rise to a right of action.

Many general principles have been incorporated into the Charter of Fundamental Rights of the European Union (2000) (“The Charter”). The charter does not form part of retained EU law (EUWA 2018, s 5(4). Therefore, a claim based on the violation of any of the general principles cannot give rise to a right of action.

NOTE – The exclusion of the charter does not, however, ‘affect the retention in domestic law on or after IP completion day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter’ (EUWA 2018, s 5(5).

Question 10

How are rights contained within directives treated ?

Answer 10

1) Where the rights under directly efective provisions of Directives have been recognised by a UK or EU court or tribunal before IP completion day, they become RETAINED EU LAW.

2) Where the right has not been recognised by a court, then it is excluded from retained EU law.

Question 11

What is the principle of indirect effect and has it been carried over into retained EU law?

Answer 11

Yes.

It means that any directive which should have been implemented by the UK, needs to be interpretetd in a manner that is consistent with the directive they aimed to implement.

Indirect effect only applied to retained EU law.

Question 12

When is retained EU law supreme?

Answer 12

Although on IP completion day, EU law itself no longer has supremacy over UK law, retained EU law will have supremacy in limited circumstances. For this purpose, there are there categories of law:

1. Retained EU law;
2. UK legislation enacted pre-IP completion day that is not retained EU law; and
3. All UK legislation enacted after IP completion day.

Question 13

Where there is a conflict between retained EU law and UK legislation enacted pre-IP completion day that is not retained EU law, what prevails?

Answer 13

1) Retained EU law.

Retained EU law has supermacy over UK legislation enacted pre-IP completion day that is not retained EU law.

Question 14

What is the structure the UK courts will follow to apply retained EU law?

Answer 14

1) Determine status of EU law

2) Consider whether amended by a domestic law

3) Give purposive construction

4) Consider pre-IP EU case law

5) Consider any general principles of EU law

6) Cosider whether amended by or superseded by TCA or EU(FR)A 2020

Question 15

Which courts can depart from retained EU case law?

Answer 15

– Court of appeal and courts of equivalent and higher status.

Question 16

For a court of appeal or higher court that is not supreme court, what do they need to do to depart from retained EU case law?

Answer 16

1) Same process as above

2) apply the principles in the practice statement

Question 17

Are UK courts bound by principles laid down by the CJEU / or any decisions made by the court after IP completion day?

Answer 17

No, but their judgements may have persuasive effect.

Question 18

When did the withdrawal agreement come into force?

Answer 18

1st Feb 2020.

Question 19

Is the withdrawal agreement legally binding in international law?

Answer 19

Yes.

Question 20

Is the political declaration legally binding?

Answer 20

NO – Sets out the parameters of the negotiations for the future relationship between the UK and EU.

Question 21

What is Article 4 of the withdrawal agreement and what is its effect?

Answer 21

o The provisions of the Withdrawal Agreement (and the provisions of EU law it incorporates) will have the same effect in UK law as they produce within the EU and Member States.

o The biggest effect of this is that EU citizens living in the UK at the end of the transition period will be able to rely on the direct effect of the citizens’ rights provisions in the Withdrawal Agreement.

Question 22

Under the withdrawal agreement do citizens’ rights have direct effect?

Answer 22

Yes. This means that:

UK and EU27 citizens and their respective family members are able to rely on them even if national legislation implementing those provisions is defective. For example, suppose UK immigration legislation denies an EU citizen some rights granted to them by the Withdrawal Agreement. The EU citizen will be able to enforce those rights in a UK court and possibly also claim damages under the Francovich principle for any loss suffered.

Question 23

What are the basic principles of EU Law in relation to free movement of persons?

Answer 23

Fundamental EC Treaty right = Gave the right of free movement within the Union to people who wished to take up offers of employment made outside their home state.

Article 20 TFEU = Every EU national shall be a citizen of the European Union.

Article 21 TFEU = The Union citizen has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions in the Treaty and in other legislation.

Question 24

What is article 45 TFEU?

Answer 24

Article 45 = gives the EU worker the right of entry and residence for the purpose of taking up employment.
‘work and employment’ interpreted widely and includes sportspeople

Question 25

What are the key provisions of the withdrawal agreement on free movement?

Answer 25

Union citizens (i.e., nationals of a Member State) moving from one Member state to another also benefit from Directive 2004/38 which provides that:

• Article 5(1): This grants Union citizens moving from their home state the right to enter another Member state (the host State) simply on production of their passport or national identity card.
• Article 6(1): Grants Union citizens a right of residence of up to three months in the host state. During this period, the Union citizen does not have to satisfy any conditions to qualify for the right of residence, save that they must not become an unreasonable burden on the social assistance system of the host Member state.
• Article 7(1): Provides the following with a right of residence for more than three months:
  o Workers and self-employed (Article 7(1)(a);
  o Persons with sufficient resources to support themselves and their family members who have comprehensive sickness insurance (CSI) (Article 7 (1)(b);
  o Students who declare they have sufficient resources to support themselves and their family members of the Union citizens and have CSI (Article 7(1) (c);
  o Family members of the Union citizens referred to in Articles 7(1)(a)-(c) (Article 7(1)(d). This would include children of migrant Union citizens.
• Article 16(1): A right of permanent residence after five years.

Question 26

What are the key provisions of family members of union citizens?

Answer 26

Family members of Union citizens who themselves are not Union citizens also benefit from Directive 2004/38. Article 2(2) of Directive 2004/38 provides that the following are family members:
* Article 2(2)(a): spouse;

• Article 2(2)(b): the Union citizen’s registered partner if the legislation of the host Member State treats registered partnerships as equivalent to marriage;
• Article 2(2)(c): the direct descendants who are under the age of 21 or are dependants and those of the spouse or registered partner (eg children);
• Article 2(2)(d): the dependent direct relatives in the ascending line and those of the spouse or registered partner (eg parents).
  Family members have the right to accompany the migrant Union citizens and have the following rights:
• Article 5(1): the right to enter the host State on production of their passport. The host State may require a visa, but this should be a formality (Article 5(2));
• Article 6(2): a right of residence of up to three months in the host State when accompanying or joining a Union citizen;
• Articles 7(2): a right of residence for more three months when accompanying or joining a Union citizen covered by Article 7(1)(a)–(c);
• Article 16(2): a right of permanent residence after five years.
  The Union citizen has a primary right of residence, while the rights of family members are contingent on the Union citizen’s rights.

Question 27

Do partners / boyfriends / girlfriends etc qualify as a family member for the TFEU?

Answer 27

No.

Exclusion: A partner of a Union citizen does not qualify as a family member. In Netherlands State v Reed, the ECJ ruled that the term ‘spouse’ did not cover non-marital relationships; thus, the cohabitee of a migrant worker was not a ‘family member’ with rights of entry and residence.

However, Article 3(2)(b) of Directive 2004/38 covers ‘the partner with whom the Union citizen has a durable relationship, duly attested’. Although cohabitees are not ‘family members’ as defined in Article 2(2)(b), they do benefit from the lesser rights granted by Article 3(2).

Question 28

What is the effect of relationship breakdown on a spouse’s ability to stay in a member state?

Answer 28

Key Case: Diatta v Land Berlin – Court held the rights of a spouse are not dependent on their residing with the worker, and thus can terminate only if the worker leaves the host state.

If the worker leaves the host State, if the spouse is a Union citizen, they may be able to activate their own primary right of residence under Directive 2004/38, eg by finding a job. However, the situation of a spouse who is not a Union citizen is more precarious.
Article 12(3) of Directive 2004/38 gives a spouse (or registered partner) who has custody of minor children in education a right to remain following the Union citizen’s departure, but it is silent about the position where no children are involved. By implication, the spouse (or registered partner) therefore has no right to remain.

Divorce:

Key Case: Baumbast v Secretary of State for the Home Department – Court held that the mother of children was entitled to remain having been awarded custody.
Directive 2004/38 provides for the spouse (or registered partner) to remain in the country if they have resided for three years, or if they have been awarded custody or access to children, or alternatively, if the court considers that allowing them to remain is warranted in the circumstances.

Question 29

Does the charter of fundamental rights of the european union form retained EU law?

Answer 29

No.

Question 30

Before brexit, did the UK courts have to diasapply UK legislation which conflicedt with EU law?

Answer 30

Yes.

Question 31

Does the UK government have the power to make changes of substance to retained EU law?

Answer 31

No. Just can correct defficiencies through secondary legislation.