Unit 8 & 9: Retained EU Law

Question 1

TRUE OR FALSE:
Retained EU law is a snapshot of EU law as it applied in the UK immediately before the UK’s exit from the EU.

Answer 1

FALSE

Retained EU law is a snapshot of EU law immediately before IP completion day (11.00pm on 31 December 2020). Although the UK left the EU on 31 January 2020, the Withdrawal Agreement provided for a transition period during which EU law continued to apply in the UK.

Question 2

TRUE OR FALSE:
Judgments of the Court of Justice of the European Union handed down after IP completion day that are relevant to the interpretation of retained EU law are persuasive for UK courts.

Answer 2

TRUE
UK courts may take such judgments into account when interpreting retained EU law, but are not bound by them.

Question 3

What is the status of an EU regulation in force immediately before IP completion day?

Select ONE of the following options.

A) In the absence of any domestic implementing legislation, it will cease to apply in the UK.
B) It will become direct EU legislation, a category of retained EU law.
C) It will become EU derived domestic legislation, a category of retained EU law.
D) It will fall into the category of retained EU law described as ‘rights and powers available in UK law prior to IP completion day’.

Answer 3

CORRECT ANSWER B

Pursuant to s 3 EU(W)A 2018, direct EU legislation includes any EU regulation in force immediately before IP completion day. Option A is wrong as direct EU legislation does not require implementation in the UK to be retained.

Option C is wrong as EU-derived domestic legislation is UK legislation that was enacted to implement the UK’s EU obligations (s 2 EU(W)A 2018).

Option D is wrong as it describes the residual category of retained EU law defined in s 4 EUWA 2018 that does not fall within s 2 or s 3 EU(W)A 2018.

Question 4

The High Court in England is hearing a case in which the parties are disputing the meaning of a provision of retained EU law. There is a decision of the CJEU that pre-dates IP completion day interpreting the provision in question.

Which ONE of the following statements is CORRECT?

A) The High Court may depart from the decision of the CJEU if it considers that it is right to do so.
B) The High Court should follow the decision of the CJEU as a binding precedent.
C) The High Court should follow the decision of the CJEU as a binding precedent unless it considers it is incorrect.
D) The High Court may ignore the decision of the CJEU as the UK is no longer an EU Member State.

Answer 4

CORRECT ANSWER B

EU(W)A 2018 provides that any question as to the meaning of any retained EU law is to be decided in accordance with any relevant retained EU case law (i.e. decisions of the CJEU) and any retained general principles of EU law. The Court of Appeal and Supreme Court may depart from decisions of the CJEU when it appears right to do so, but the High Court is bound by retained EU case law. Option A is therefore wrong as it sets out the circumstances in which the Court of Appeal and Supreme Court may depart from retained EU case law, but is not applicable to the High Court.

Options C and D are wrong as the High Court is bound by retained EU case law.

Question 5

An EU Regulation in force immediately prior to IP completion day requires the UK government to consult with the European Commission before undertaking a given course of action. The EU Regulation has been converted into direct EU legislation.

Which one of the following statements is CORRECT?
Hide answer choices

A) The obligation to consult the Commission automatically lapsed on IP completion day.
B) The UK government is likely to have adopted a UK regulation correcting the ‘deficiency’ in the EU Regulation.
C) The obligation to consult the Commission was automatically replaced by an obligation to consult the appropriate UK regulator.
D) The UK courts will interpret the reference in the EU Regulation to the Commission as a reference to the appropriate UK regulator.

Answer 5

CORRECT ANSWER B

EU(W)A 2018 has given the UK government the power to correct deficiencies in retained EU law by way of statutory instrument. It will almost certainly have done so, as there are a large number of UK regulations which amend references to EU institutions which are no longer appropriate. It is probable that the UK regulations will have replaced the reference to the Commission with a reference to the appropriate UK regulator, but this does not happen automatically or as a matter of statutory interpretation, so options C and D are wrong.

Option A is wrong as the obligation to consult the Commission would remain in force unless amended, even if it would be inappropriate following the UK’s exit from the EU.

Question 6

TRUE OR FALSE:
The Withdrawal Agreement covers the terms of the UK’s exit from the EU and the transition period, but has no legal force after IP completion day.

Answer 6

FALSE

Many provisions of the Withdrawal Agreement continue to apply after IP completion day, in particular those relating to the Northern Ireland Protocol, the financial settlement and citizens’ rights.

Question 7

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?

A) The retained EU law will not be supreme over the UK legislation because post IP completion day, EU law is no longer supreme over UK legislation.
B) The retained EU law will be supreme over the UK legislation because all retained EU law is supreme over UK legislation, no matter when enacted.
C) The retained EU law will not be supreme over the UK legislation because retained EU law is only supreme over UK legislation enacted after IP completion day and not before.
D) The retained EU law will be supreme over the UK legislation because retained EU law is supreme over all UK law which has been enacted after IP completion day
E) 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

Answer 7

CORRECT ANSWER E

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.

Question 8

A woman is paid less by her employer than a male colleague doing work of equal value. This is permitted by a (fictitious) Act of Parliament enacted in 2015. The woman claims that the employer newspaper has infringed her right to equal pay for work of equal value under Art 157 TFEU.

Can the woman make a claim against her employer relying on Art 157 TFEU?

A) Yes, because directly effective rights arising under the TFEU become retained EU law.
B) Yes, because directly effective rights arising under the TFEU become direct EU legislation.
C) No, because UK Acts of Parliament, whenever enacted, prevail over retained EU law.
D) No, because rights arising under the TFEU fall within one of the exclusions from retained EU law.
E) No, because the UK has left the EU so rights arising under the TFEU are irrelevant.

Answer 8

CORRECT ANSWER A

Rights etc. arising under s 2(1) of the ECA 1972 become retained EU law (s 4 EU(W)A), and the right to equal pay is a prime example of such a right.

Option B is wrong because they do not become direct EU legislation; an example of direct EU legislation is an EU regulation that has become retained EU law.

Option C is wrong as retained EU law has a limited form of supremacy over UK legislation (including Acts of Parliament) enacted pre-IP completion day.

Option D is wrong as there is no applicable exclusion.

Option E is wrong as it clear from s 4 of EU(W)A 2018 that Treaty rights do remain relevant in the UK legal system.

Question 9

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 hot food for consumption on the premises. 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 30 November 2019. The UK government took no steps to implement it. In May 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?

A) Yes, because the directive was due to be implemented before IP completion day, it has direct effect, so it can be relied upon vertically against a state body.
B) 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.
C) Yes, because the directive was due to be implemented before IP completion day, it has become retained EU law and so can be relied upon vertically against a state body.
D) No, because directives do not become retained EU law and so cannot be enforced in the UK after IP completion day.
E) No, because rights arising under directives cannot be enforced in the UK after IP completion day as they are covered by an exclusion as regards enforcement in UK legislation.

Answer 9

CORRECT ANSWER B

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 B is a better answer than option A as option A is too simplistic and states the position during the UK’s membership of the EU.

Option C is wrong as directives do not become retained EU law, as normally they are implemented into domestic law by primary or secondary legislation. Where rights under a directive are preserved, it is the rights themselves that become retained EU law rather than the directive.

Option D is wrong as, although it correctly states that directives do not become retained EU law, it ignores the fact that rights arising under directives can become retained EU law, as set out in option B.

Option E is wrong. Although rights arising under directives are only retained in limited circumstances, there is no exclusion relating to the enforcement of any rights that are retained. Regarding other sources of EU law, the main exclusions relate to the Charter of Fundamental Rights and the enforcement of general principles.

Question 10

The High Court will have to make a reference to the European Court of Justice to determine the case.The (fictional) Regulation 2010/564 on Banking Capital Restrictions (‘the 2010 Regulation’) was an EU regulation which has become retained EU law. In 2017 Parliament passed the (fictional) Banking Act (‘the 2017 Act’). The 2017 Act is not EU-derived domestic legislation. In a case to be heard this week, the High Court is considering a conflict between provisions in the 2010 Regulation and the 2017 Act.

How will it decide the case?

A) The 2010 Regulation will be supreme as a result of direct effect.
B) The 2010 Regulation will be supreme because it is retained EU law and has supremacy over a piece of pre-IP completion day legislation that is not retained EU law.
C) The 2017 Act will be supreme as a result of Parliamentary Supremacy.
D) The 2017 Act will be supreme because it is retained EU law passed after the 2010 Regulation.
E) The High Court will have to make a reference to the European Court of Justice to determine the case.

Answer 10

CORRECT ANSWER B

The 2010 Regulation will be supreme because it became retained EU law under section 3 of the European Union (Withdrawal) Act 2018. Retained EU law takes precedence over domestic law passed prior to the end of the Implementation Period that is not retained EU law.

Option A is wrong because, after IP completion day, the principle of direct effect has no application to the 2010 Regulation.

Options C and D are both wrong because the 2017 Act will not take precedence in this situation.

Option E is wrong because the reference procedure is no longer relevant.

Question 11

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?

A) 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.
B) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because EU references that are no longer appropriate are not considered to be deficiencies. However, the UK Government does have the power to make changes of substance to retained EU law.
C) 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. The UK Government also has the power to make changes of substance to retained EU law.
D) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because retained EU law cannot be amended. Also, the UK Government does not have the power to make changes of substance to retained EU law.
E) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because EU references that are no longer appropriate are not considered to be deficiencies. Also, the UK Government does not have the power to make changes of substance to retained EU law.

Answer 11

CORRECT ANSWER A

because section 8 of EU(W)A 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.

Option B is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law.

Option C is wrong because the UK Government does not have the power to make changes of substance to retained EU law.

Option D is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law.

Option E is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law and EU references that are no longer appropriate are considered to be deficiencies.

Question 12

A client has tendered for a contract to supply imaging equipment to the UK Department of Health (‘DoH’). The tendering process is regulated by the EU’s Directive on Medical Equipment Tendering 2018/456 (fictitious) which has been incorporated into English law. As part of the tendering process companies must lodge a deposit of £50,000 with the DoH to ensure compliance with relevant procedures. The DoH forfeits the deposit alleging that it did not receive the client’s incorporation certificate on time. However, the client commences legal action in the local County Court for recovery of the deposit on the grounds that it complied with all relevant deadlines and there was no legal basis for forfeiting the deposit. The court is presented with a recent decision by the Court of Justice of the European Union (‘CJEU’) in a French case where on similar facts it was held the forfeit of the deposit was disproportionate.

Is the court in the client’s claim likely to place any weight on the CJEU decision?

A) No, because the principle of proportionality under EU law is no longer relevant following the UK’s departure from the EU.
B) Yes, because the County Court is likely to regard the CJEU decision in the French case as persuasive.
C) Yes, because under the terms of the UK’s departure from the EU any decisions by the CJEU remain binding on UK courts until 2025.
D) No, because the UK’s departure from the EU means UK courts now only take note of decisions by other UK courts and those from Commonwealth jurisdictions.
E) No, because the terms of the UK’s withdrawal from the EU mean that courts must disregard CJEU decisions.

Answer 12

CORRECT ANSWER B

correct as UK courts can consider CJEU judgments as persuasive.

Option A is wrong because retained EU law (such as the Directive in this question) is to be interpreted in the light of retained general principles of EU law. The principle of proportionality is a long-established general principle and will therefore still be relevant in interpreting retained EU law post-Brexit. Option C is wrong as the terms of the UK’s departure contain no such provision.

Option D is wrong because UK courts can still take note of CJEU decisions.

Option E is wrong because withdrawal arrangements do not provide for this.

Question 13

An employee is suing her employer for age discrimination before an English court. Her employer is relying on UK legislation (fictitious) brought in after the Implementation Period completion date which allows employers to discriminate against employees aged under 21 years on the grounds of age. The English court determines that the UK legislation breaches the principle of equality; however the court does not disapply the UK legislation, and the employee fails in her claim.

Which of the following options best explains why the court does not disapply the UK legislation?

A) The court did not disapply the UK legislation because the principle of equality was not a recognised general principle of EU law before IP completion day and will therefore not be a part of retained EU Law in the UK.
B) The court did not disapply the UK legislation because although the principle of equality was a recognised general principle of EU law before IP completion day, it is no longer relevant law in the UK.
C) The court did not disapply the UK legislation because although the principle of equality is a part of retained EU law in the UK, the court cannot disapply the UK legislation that is in effect.
D) The court did not disapply the UK legislation because they made an error in judgment. The principle of equality is a part of retained EU law in the UK and any UK legislation must be disapplied, if it breaches this principle.
E) The court did not disapply the UK legislation because disapplying national law that breaches EU law has not been a procedure available in English courts before IP completion day, and will therefore not be a procedure available in English courts after IP completion day.

Answer 13

CORRECT ANSWER C

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 IP completion day, 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 IP completion day 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 IP completion day, 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 IP completion day, any UK legislation 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 IP completion day, but is not a procedure available in English courts after IP completion day.

Question 14

A man who is a Danish 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, he is entitled to permanent residence in the UK. The Home Office rejects his application on the grounds that a section in an Act (fictitious) of the UK Parliament excludes a person in his position from settled status. The Act does not, however, attempt to override the Withdrawal Agreement.

Can the man challenge the Home Office’s refusal to grant him settled status?

A) No, because an Act of Parliament will automatically override conflicting provisions in the Withdrawal Agreement
B) No, because the Withdrawal Agreement is an international treaty which does not give rise to rights in UK law.
C) Yes, because international treaties are automatically incorporated into UK law when ratified by the UK government.
D) Yes, because UK legislation has provided for the direct effect of the relevant provisions of the Withdrawal Agreement.
E) Yes, because the UK Parliament cannot legislate contrary to international treaties.

Answer 14

CORRECT ANSWER D

EU(W)A 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 A is wrong.

Option B is wrong; although international treaties do not in themselves give rise to rights in UK law, EU(W)A 2018 has incorporated the Withdrawal Agreement into UK law.

Option C 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.

Question 15

Jürgen, a German citizen, travels to Sweden to take up a post to work part-time 12 hours per week for a Swedish newspaper as a photographer.

Which ONE of the following statements is CORRECT?

A) After his initial right of residence for three months, he no longer has a right of residence in Sweden as he is working part-time.
B) After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months provided he has comprehensive sickness insurance.
C) After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months provided he is not an undue burden on the host State’s resources.
D) After his initial right of residence for three months, he has a right of residence in Sweden for longer than three months as he is a worker.

Answer 15

CORRECT ANSWER D

As all the options suggest, Jürgen has an initial right of residence for up to three months (Article 6(1) of Directive 2004/38). After that, although he is only working part-time, he has a right of residence for more than three months under Article 7(1)(a) of Directive 2004/38.

Option A is therefore wrong as it suggests that part-time workers do not qualify as workers.

Options B and C are wrong because the provisos set out in them do not apply to workers.

Question 16

Gabrielle, a Belgian national, married Louise, a British citizen, three months ago. Gabrielle moved last week from Belgium to Amadora, Portugal, to work there and Louise would like to join her.

Which ONE of the following statements is CORRECT?

A) Louise cannot join Gabrielle as Louise is not a national of an EU Member State.
B) Louise can join Gabrielle as she is the spouse of Gabrielle who has moved from her home State to a host State.
C) Louise can join Gabrielle as she is a national of a former EU Member State and so has continuing rights of free movement.
D) Louise can join Gabrielle provided she has comprehensive sickness insurance.

Answer 16

CORRECT ANSWER B

As Louise is Gabrielle’s spouse, she is a family member of Gabrielle (Article 2(2)(a) of Directive 2004/38). Under Article 6(2) she has the right of residence as for up to three months as the family member of a Union citizen who has exercised their right of free movement, and she has the right of residence for more than three months under Article 7(2) as the family member of a migrant worker in Portugal, the host State.

Option A is wrong as family members can accompany and join migrant Union citizens irrespective of their nationality.

Option C is wrong as UK citizens lost their rights of free movement at the end of the transition period due to the UK’s decision to leave the EU.

Option D is wrong as the rights of family members of workers are not contingent on their having comprehensive health insurance.

Question 17

Assane is a French national who has applied for a job as a clerical officer with the fire service in Tallinn, Estonia. His application for the post is rejected on the grounds that he is not an Estonian national, as employment in key public sector posts is limited to Estonian nationals.

Which ONE of the following options CORRECT?
Hide answer choices

A) Assane is unable to challenge the rejection of his application as Article 45 does not apply to employment in the public service.
B) Assane is unable to challenge the rejection of his application as the Tallinn fire service will be able to rely on the public policy exception in its defence.
C) Assane is able to challenge the rejection of his application as the ECJ has construed the public service exception narrowly and it is very unlikely that it would apply to a clerical post.
D) Assane is able to challenge the rejection of his application as Member States are not able to exclude EU nationals from any public sector posts at all.

Answer 17

CORRECT ANSWER C

While Article 45(4) does provide for a public service exception, the ECJ has held that it applies only to ‘‘posts involving the exercise of official authority and functions related to safeguarding the general interests of the State’ (Case 149/79 Commission v Belgium).

Option A is therefore wrong as it construes the public service exception too widely.

Option D is wrong because it ignores the existence of the public service exception.

Question 18

Karin, a Danish national working in Valencia, Spain, is convicted of avoiding a bus fare of €2.50. She is fined €50.00.

Can the Spanish authorites deport her?

A) Yes, because they can rely on the public policy exception in Article 45(3) to deport her as she has committed a criminal offence.
B) Yes, because on her conviction she forfeited her status as a worker under Article 45.
C) No, because Member States can only invoke the public policy exception in Article 45(3) to deport someone who has been convicted of a serious offence and remains a serious threat to society.
D) No, because it would be discriminatory for the Spanish authorities to deport a Danish national when they cannot deport Spanish nationals.

Answer 18

CORRECT ANSWER C

Member States can deport nationals from other Member States on public policy grounds, but deportation must be a proportionate sanction. It would be disproportionate to deport someone for committing a minor offence.

Option A is wrong as Karin’s offence is not sufficiently serious to justify her deportation.

Option B is wrong as Karin’s conviction does not change her status as a worker.

Option D is wrong. While arguably it is discriminatory for a state to deport foreign nationals when it cannot deport its own, Article 45(3) and Directive 2004/38 do permit Member States to deport nationals from other Member States, albeit in narrowly defined circumstances.

Question 19

Maryam, a Swedish national, is working in Ostrava, the Czech Republic. The local municipality’s library service offers Czech nationals free access to its computers, but charges non-nationals 10 koruna (about 35p) per hour to use its computers. The municipality says that it cannot afford to extend free access to non-nationals.

Which ONE of the following is CORRECT?
Hide answer choices

A) As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’.
B) Maryam cannot challenge the requirement to pay a fee as the municipality can rely on the public service exception to justify its policy.
C) Maryam cannot challenge the requirement to pay a fee as the municipality cannot afford to extend free access to non-nationals.
D) As Maryam is a worker, she can rely on Regulation 492/2011 to claim free access to the computers as that is a ‘social’ advantage’, but only because the municipality is a public body.

Answer 19

CORRECT ANSWER A

Article 7(2) Regulation 492/2011 states that workers from other Member states should have ‘the same social and tax advantages as national workers’. A social advantage goes beyond something a worker is entitled to in their contract of employment and would include something like free access to computers in a municipal library (Case 32/75 Cristini v SNCF).

Option B is wrong because the public service exception can only be used to justify a refusal to employ someone in a high-ranking sensitive post in the public sector, while option C is wrong because economic grounds cannot be used to justify discriminatory conduct.

Although the municipality is a public body, option D is incorrect as EU regulations are capable of having direct effect horizontally and vertically. Regulation 492/20011 is therefore enforceable against private bodies, as well as public.

Question 20

TRUE OR FALSE
The citizens’ rights provisions in the Withdrawal Agreement are not enforceable in UK courts

Answer 20

FALSE
Section 7A of EU(W)A 2018 gives direct effect to those citizens’ rights provisions that meet the criteria for direct effect.

Question 21

Petra, a national of Bosnia-Herzegovina, is resident in the UK and has recently applied for settled status, having previously been granted pre-settled status. Her application was rejected. Petra is married to Marko, a Croatian national whose application for settled status was approved.

Which ONE of the following is CORRECT?

A) As Petra is not a national of an EU Member State, she cannot rely on the Withdrawal Agreement to challenge the rejection of her application.
B) Petra can rely on the direct effect of the Withdrawal Agreement as she is the spouse of a migrant Union citizen.
C) Petra cannot rely on the Withdrawal Agreement as it only has effect in international law, not domestic UK law.
D) Petra can rely on the direct effect of the Withdrawal Agreement as she is relying on it against the UK government, and not a private body.

Answer 21

CORRECT ANSWER B

It is clear from the Withdrawal Agreement that family members of migrant Union citizens as defined by Article 2(2) of Directive 2004/38 fall within its scope. As she and Marko were granted pre-settled status, it is also clear that they exercised their rights of free movement before the end of the transition period so can rely on the Withdrawal Agreement. Article 4(1) of the Withdrawal Agreement states that its provisions should be capable of having direct effect in EU Member States and the UK, and the UK implemented it via s 7A EU(W)A 2018.

Option A is wrong as non-EU national family members can rely on the Withdrawal Agreement.

Option C is wrong as s 7A EU(W)A 2018 incorporated s 7A EU(W)A 2018 into UK law.

Option D is wrong. Although Petra is relying on the Withdrawal Agreement vertically in this scenario. there is no reason why it should not also have horizontal direct effect.

Question 22

Charel, a Luxembourgish national, is resident in the UK with settled status. He has applied for a post as a senior social worker with the Birmingham City Council. His application has been rejected as the council only recruits British, Irish and Commonwealth citizens to senior social worker posts.

Which ONE of the following is CORRECT?

A) Although Charel in theory can rely on the principle of non-discrimination set out in the Withdrawal Areement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application, the council will probably be able to invoke the public service exception to justify its policy.
B) Charel cannot challenge the rejection of his application invoking the Withdrawal Agreement as the UK is no longer an EU Member State and access to jobs is outside its scope.
C) Charel can probably rely on the Withdrawal Agreement, Article 45(2) TFEU, Regulation 1612/68 and Directive 2004/38 to challenge the rejection of his application if he can show that there are no sufficiently qualified British, Irish and Commonwealth citizens applying for the job.
D) Charel can probably successfully rely on the principle of non-discrimination set out in the Withdrawal Agreement, Article 45(2) TFEU, Regulation 492/2011 and Directive 2004/38 to challenge the rejection of his application.

Answer 22

CORRECT ANSWER D

EU citizens with settled status must normally be treated equally to British citizens when it comes to access to jobs.

Option A is wrong, as the post of senior social worker is unlikely to be the type of job to which the public service exception applies, as the ECJ has defined the exception narrowly. (Incidentally, the requirement for British, Irish and Commonwealth citizenship does apply to joining the British army.)

Option B is wrong as the Withdrawal Agreement does apply to access to employment.

Option C is wrong as Charel does not have to show the lack of suitably qualified British, Irish or Commonwealth applicants.

Question 23

Bogusia is a Polish national working in the UK. She as brought a claim before the High Court alleging that the Surrey County Council has denied her a ‘social advantage’ as referred to in Article 24(1)(e) of the Withdrawal Agreement and Article 7(2) of Regulation 492/2011. The council denies the benefit in question is a social advantage, and the High Cout judge hearing the case is unsure.

Which ONE of the following is CORRECT?

A) The High Court judge must make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’.
B) The High Court judge may make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’.
C) The High Court judge cannot make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’, but must interpret it herself in the light of retained EU case law.
D) The High Court judge may ask the Supreme Court to make an Article 267 TFEU reference to the ECJ asking for an interpretation of the meaning of ‘social advantage’, as only the Supreme Court may make such references.

Answer 23

CORRECT ANSWER B

UK courts may make Article 267 references to the ECJ regarding the interpretation of the citizens’ rights provisions of the Withdrawal Agreement for eight years from the end of the transition period. However, they are not obliged to do so; they have a discretion whether or not to refer.

Option A is wrong, as making references to the ECJ in this context is discretionary, not mandatory.

Option C is wrong, as the High Court judge may make a reference.

Option D is wrong, as it is the High Court judge’s decision whether or not to make a reference to the ECJ. She does not need the Supreme Court’s permission.

Question 24

Vasil, a Bulgarian national, has settled status in UK. He works as a research scientist for Denton Pharmaceuticals Ltd (Denton), a pharmaceutical company incorporated in England. Lindsay, a British citizen, also works for Denton as a research scientist. Denton would like to send one of them to work for its German subsidiary in Stuttgart for one year.

Which of the following options describes Denton’s most likely course of action?

A) Denton can choose to send either Vasil or Lindsay as they both benefit from EU free movement rules as both would be working for a company based in Germany.
B) Denton can send neither Vasil nor Lindsay as, after the UK’s exit from the EU, the employees of English companies no longer benefit from EU free movement rules.
C) Denton can send neither Vasil nor Lindsay as, according to the Withdrawal Agreement, Vasil’s acquisition of settled status means that he no longer benefits from EU free movement rules and Lindsay does not have any free movement rights as a result of the UK’s exit from the EU.
D) Denton should send Lindsay as, although she will need a German visa, Vasil will lose his settled status if he works in Germany and so would be unable to return to the UK to work for Denton without a UK visa.
E) Denton should send Vasil as Vasil benefits from EU free movement rules as a national of a Member State and Lindsay does not have any free movement rights as a result of the UK’s exit from the EU.

Answer 24

CORRECT ANSWER E

EU citizens with settled status can move to EU Member States to work pursuant to Article 45 TFEU and Directive 2004/38. British citizens do not have rights of free movement any longer, so Lindsay would need a visa to work in Germany for one year.

Option A is wrong, as working for a company in an EU Member State does not give non-EU nationals such as Lindsay any rights of free movement.

Option B is wrong, as Vasil does not lose his EU rights of free movement by working for a non-EU company outside the EU.

Option C is wrong as settled status does not deprive Vasil of ihs EU rights of free movement. However, option C does set out the position regarding Lindsay correctly.

Option D is wrong as Vasil can can spend up to five years in a row outside the UK without losing his settled status.

Question 25

The EU adopted a directive setting a cap on fees that can be charged to hospital patients using hospital car parks. The directive’s implementation date was 30 November 2020, but the UK government took no steps to implement it.

A patient using an NHS hospital car park over the past three months has been charged car parking fees well in excess of those permitted by the directive. There is no pre-IP completion day CJEU case law regarding this particular directive, but you may assume for this question that there is case law to the effect that directives that impose caps on charges for the provision of services are capable of direct effect. The provisions in this directive are very clearly drafted.

Which of the following statements best summarises the patient’s right to claim back the excess fees?

A) As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees as the rights granted by the directive have become retained EU law, as they are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
B) Although the UK government should have implemented the directive before IP completion day, it is unlikely that the patient can recover the excess fees as the rights granted by the directive probably have not become retained EU law.
C) As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
D) As the UK government should have implemented the directive before IP completion day, the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law as the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.
E) As the UK government should have implemented the directive before IP completion day, whether the patient can recover the excess fees by relying on the direct effect of the directive as retained EU law depends on whether UK courts consider the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day.

Answer 25

CORRECT ANSWER C

Pursuant to s 4(2)(b) EU(W)A 2018, directly effective rights granted by a directive are only preserved as retained EU law if they are of a kind that have been recognised by the CJEU or a UK court or tribunal in a case decided before IP completion day. The meaning of ‘of a kind that have been recognised’ is ambiguous; it could mean that the actual rights granted by the particular directive must have been recognised in case law (narrow meaning) or merely that the general nature of the rights granted by the directive in question must have been recognised in case law (broad meaning). Option C reflects this ambiguity which will only be resolved once a UK court has ruled on the issue.

Option A is wrong as it is uncertain whether the rights granted by the directive are of a kind that have been recognised by the CJEU in a case decided before IP completion day. On the narrow interpretation of s 4(2)(b) they have not, but on the broad interpretation (which this option adopts) they have. It is not yet known, though, whether the broad interpretation is correct.

Option B is wrong as, if UK courts do adopt a broad interpretation of s 4(2)(b), the rights granted by the directive will become retained EU law.

Option D is wrong, even if a broad interpretation of s 4(2)(b) is adopted. It is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.

Option E is wrong for the same reason as option D, even though (unlike option D) it summarises the ambiguity in s 4(2)(b) correctly. As stated above, it is not the directive that becomes retained EU law, but rather the directly effective rights granted by the directive.

Question 26

Chioma, a British citizen, is living in Verona, Italy with her husband, Pierre, a French national working there. The couple met three months ago while Chioma was on holiday in France and moved to Verona last month a few days after their wedding. She works part-time in a bar and plans to spend the rest of her time sight-seeing. She discovers that low paid EU nationals working in Verona are entitled to free entry to all museums in Verona that are under the control of the Italian government or Verona municipality. Chioma falls within the definition of low paid worker but is refused free entry.

Is Chioma entitled under EU law to claim free entry to the museums in Verona?

A) No, because she is a British citizen and has no rights under EU law following the UK’s exit from the EU.
B) Yes, because as a family member of a Union citizen working in Italy, she is entitled to equal treatment with Italian nationals irrespective of her nationality.
C) No, because only family members of Union citizens who themselves are nationals of an EU Member State are entitled to equal treatment with host State nationals.
D) Yes, because under the Withdrawal Agreement she is entitled to equal treatment with Italian nationals.
E) No, because only family members of Union citizens who work full-time are entitled to equal treatment with host State nationals.

Answer 26

CORRECT ANSWER B

Pursuant to Article 24(1) of Directive 2004/38, the family members of migrant Union citizens are entitled to equal treatment with the host Member State’s nationals, irrespective of their nationality. As Chioma is married to Pierre, she is a family member of a migrant Union citizen (Article 2(2)(a) of Directive 2004/38). The museums concerned are public bodies, so Chioma can rely on the directive’s vertical direct effect. (As free entry to museums is most probably a ‘social advantage’ within the scope of Article 7(2) of Regulation 492/2011, Chioma would probably have been able to rely on Article 7(2) if her claim had been a horizontal one, as she is a spouse of a migrant worker.)

Option A is wrong because Chioma does have rights under EU law even though the UK has left the EU, albeit her rights are contingent on her being the family member of a migrant worker. She does not have any free-standing rights of her own, unlike the position during the UK’s membership of the EU.

Option C is wrong as Directive 2004/38 makes it clear that the provisions regarding family members apply equally to non-EU nationals.

Option D is wrong as the Withdrawal Agreement protects the rights of British citizens who were resident in the EU at the end of the transition period. Chioma therefore does not come within its scope.

Option E is wrong. It is clear from ECJ case law that part-time workers are workers and so have the same rights as full-time workers. Moreover, family members of the self-employed, students and persons with sufficient resources also benefit from Directive 2004/38.

Question 27

Assume that an Act of Parliament (fictitious) enacted three months ago has given public bodies the power to rent land at a discounted rent to businesses owned by people permanently resident in the UK in parts of England which have higher than average unemployment. The aim of the legislation is to boost employment in those areas. The Act makes no reference to any legislation regarding the UK’s exit from the EU or the Withdrawal Agreement betwen the UK and EU.

A man who has Slovenian nationality and owns a business seeks to rent land at a discounted rent from a public body. The public body refuses to give him a discounted rent. Although it accepts the land is an area of above average unemployment, it states that is unable to give him a discount as he only has pre-settled status in the UK and so does not meet the qualifying condition of permanent residence. The public body is correct in stating that pre-settled status does not grant a right of permanent residence.

Can the man challenge the refusal to give him discounted rent?
A) No, because the qualifying condition is contained in an Act of Parliament and so overrides any provision in the legislation regarding the UK’s exit from the EU or the Withdrawal Agreement which would entitle the man to a discounted rent.
B) No, because the man cannot rely on any rights to equal treatment granted to him by the Withdrawal Agreement to claim a discounted rent as international treaties are not enforceable in English courts.
C) ) Yes, because the man can rely on the direct effect of the right to equal treatment granted to him by the Withdrawal Agreement to claim a discounted rent in an English court.
D) Yes, because the man can rely on the directly effective right to equal treatment granted to him by Article 45 TFEU as retained EU law to claim a discounted rent in an English court
E) Yes, because the English courts must disapply the qualifying condition regarding permanent residence in the Act of Parliament as it breaches the principle of equality which is a retained general principle of EU law.

Answer 27

CORRECT OPTION C

Section 7A EU(W)A 2018 gives direct effect to the Withdrawal Agreement, and case law regarding the effect of s 2(1) ECA 1972 indicates directly effective provisions of the Withdrawal Agreement will prevail over inconsistent national legislation in the same way that directly effective provisions of EU law did until IP completion day.

Option A is wrong as the Act would have to override in express and unambiguous terms for it to prevail over directly effective provisions of the Withdrawal Agreement.

Option B is wrong, as the European Union (Withdrawal Agreement) Act 2020 expressly incorporated the Withdrawal Agreeement into UK law.

Option D is wrong as directly effective rights under Article 45 TFEU do not form part of retained EU law, as UK immigration legislation coming into force on IP completion day repealed much EU legislation on the free movement of persons in accordance with the UK government’s policy to leave the single market and end free movement.

Option E is wrong as, although the principle of equality is a retained general principle of EU law, EU(W)A2018 provides that general principles cannot now be used to strike down UK legislation.

Question 28

Assume that an Act of Parliament (fictitious) enacted three months ago has given local authorities the power to rent council houses at a discounted rent to people permanently resident in the UK in parts of England which have high levels of multiple deprivation. The aim of the legislation is to make rents in those areas more affordable. The Act explicitly states that it will override any legislation regarding the UK’s exit from the EU or the Withdrawal Agreement between the UK and EU.

A woman who has Dutch nationality seeks to rent a council house at a discounted rent from her local authority. The local authority refuses to give her a discounted rent. Although it accepts the property is in an area with a high level of multiple deprivation, it states that is unable to give her a discount as she only has pre-settled status in the UK and so does not meet the qualifying condition of permanent residence. The local authority is correct in stating that pre-settled status does not grant a right of permanent residence.

Can the woman challenge the refusal to give her discounted rent?

A) No, because the qualifying condition is contained in an Act of Parliament which expressly overrides any provision in the legislation regarding the UK’s exit from the EU or the Withdrawal Agreement which would entitle the woman to a discounted rent.
B) No, because the woman cannot rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court as Parliament had a good reason for overriding the Withdrawal Agreement.
C) Yes, because the woman can rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court.
D) Yes, because the woman can rely on the direct effect of the right to equal treatment granted to her by the Withdrawal Agreement to claim a discounted rent in an English court as it is contrary to international law for Parliament to override the Withdrawal Agreement.
E) Yes, because the English courts must disapply the qualifying condition regarding permanent residence in the Act of Parliament as it breaches her right to respect for her home under Article 8 ECHR.

Answer 28

CORRECT ANSWER A
Due to the principle of parliamentary sovereignty, Parliament can pass an Act having this effect. Although the EU (Withdrawal) Act 2018 is a constitutional statute, clear and unequivocal words in a later Act would be sufficient to override s 7A.

Option B is wrong as Parliament does not need to have a good reason for passing an Act overriding the Withdrawal Agreement.

Option C is wrong as, although s 7A cannot be impliedly repealed, the clear words in the later Act will override its application in the present case.

Although legislation overriding the Withdrawal Agreement would probably breach international law, Option D is wrong as parliamentary sovereignty means that Parliament can legislate contrary to international law.

Option E is wrong as, even if the Act were to infringe the woman’s Article 8 rights, the courts cannot disapply legislation that infringes Convention rights. Under s 4 HRA 1998 the higher courts can issue a declaration of incompatibility, but that does not have any effect on the validity of the legislation.

Question 29

A man, a Spanish citizen with settled status in the UK, is claiming before an English court that his right to equal treatment under the Withdrawal Agreement has been breached. The case has been appealed to the Supreme Court as the relevant article in the Withdrawal Agreement is ambiguous.

How should the Supreme Court resolve the ambiguity?

A) The Supreme Court must refer the interpretation of the relevant article to the ECJ pursuant to Article 267 TFEU.
B) The Supreme Court may refer the interpretation of the relevant article to the ECJ pursuant to Article 267 TFEU or interpret the article itself.
C) The Supreme Court must interpret the relevant article itself using standard English principles of statutory interpretation.
D) The Supreme Court must interpret the relevant article itself using principles of statutory interpretation derived from EU law.
E) The Supreme Court should interpret the article itself but the losing party has a right of appeal to the ECJ pursuant to Article 267 TFEU.

Answer 29

CORRECT ANSWER B

The Withdrawal Agreement gives the Supreme Court the power to refer the question of interpretation to the ECJ, but it does not have to do so; it could decide the matter itself. (Note that this is different from the position while the UK was a Member State. Where there was an uncertainty about the meaning of a piece of EU law, the Supreme Court (as the highest court in the UK) would have been obliged to refer the question to the ECJ.)

Option A is wrong as it states the Supreme Court must refer the question to the ECJ whereas the Supreme Court has a discretion whether or not to refer.

Option C is wrong as the Supreme Court does not have to interpret the article itself; it can refer the interpretation to the ECJ. Bearing in mind the context, it is likely that the Supreme Court would take a purposive approach to the Withdrawal Agreement rather than simply applying standard English rules of statutory interpretation. Indeed, if the ambiguous article involves a point of EU law, the Supreme Court should apply EU principles of interpretation.

Option D is wrong as the Supreme Court can refer the interpretation of the article to the ECJ.

Option E is wrong as the Article 267 procedure is not an appeals procedure; there is no further appeal from the Supreme Court’s decision whether or not it refers the question of interpretation to the ECJ.

Question 30

Kate has been discriminated against her by her employer, Arnott Systems plc (Arnott), an English company, on the grounds of her disability. She is suing Arnott in an English court and Arnott’s conduct clearly breaches an EU directive on disability discrimination. However, an Act of the UK Parliament (fictitious) expressly exempts defence manufacturers from disability discrimination claims on the grounds such claims allegedly increase the cost of essential weapons purchased by the UK’s armed forces. There is pre-IP completion day case law that the relevant provisions in directive have direct effect.

The options below compare the position regarding Kate’s claim pre- and post-IP completion day.

Which of the following best summarises the position?

A) Pre-IP completion day: Kate cannot bring a claim against Arnott as her claim is a horizontal one and directives do not have horizontal direct effect.
Post-IP completion day: Kate cannot a bring a claim as even if the rights under the directive have been preserved as retained EU law, her claim is horizontal.

B) ) Pre-IP completion day: Kate cannot bring a claim against Arnott as the Act of Parliament expressly exempts defence manufactures from disability discrimination claims.
Post-IP completion day: The position remains the same.

C) Pre-IP completion day: Kate can bring a claim against Arnott. Although her claim is a horizontal one, the UK legislation breaches the general principle of equality and the English court should disapply the exemption in the UK legislation.
Post-IP completion day: The position remains the same.

D) Pre-IP completion day: Kate can bring a claim against Arnott. Although her claim is a horizontal one, the UK legislation breaches the general principle of equality and the English court should disapply the exemption in the UK legislation.
Post-IP completion day: Kate cannot bring a claim against Arnott. Although the general principle of equality is a retained general principle, English courts can no longer use general principles to disapply an Act of Parliament.

E) Pre-IP completion day: Kate can bring a claim against Arnott. Although her claim is a horizontal one, the UK legislation breaches the general principle of equality and the English court should disapply the exemption in the UK legislation.
Post-IP completion day: Kate can bring a claim against Arnott. The general principle of equality is a retained general principle and English courts can use it principles to disapply an Act of Parliament that pre-dates IP completion day, though not Acts that post-date IP completion day.

Answer 30

CORRECT ANSWER D

Directives do not have horizontal direct effect, but in Kücükdeveci the ECJ ruled that the general principle of equality should have horizontal application and national courts should disapply any national legislation that infringes it. Clearly the exemption in the UK Act infringes the principle of equality so pre-IP completion day an English court would have been under a duty to disapply it. The retained general principles of EU law can, however, only be used for the purposes of the interpretation of retained EU law after IP completion day, and so English courts can no longer disapply any legislation on the basis that it is incompatible with a general principle.

Option A is wrong as the ruling in Kücükdeveci enables victims of discrimination to bypass the lack of horizontal direct effect of directives.

Option B is wrong as pre-IP completion day English courts would have been under a duty to disapply the express exemption in the UK Act.

Although Option C correctly sets out the pre-IP completion day position, it is wrong as regards post-IP completion day; see the explanation for option D above.

Although Option E correctly sets out the pre-IP completion day position, it is wrong as regards post-IP completion day as English courts can no longer disapply any legislation for breaching general principles, not just legislation enacted post-IP completion day.