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constitutional & admin law – academic > Withdrawal of the UK from EU > Flashcards

Withdrawal of the UK from EU Flashcards

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1
Q

What has happened to the bulk of EU law that has been retained by the EU Withdrawal Act?

A

Has been retained and converted into domestic law

Can be amended or repealed in same way as any other domestic law

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2
Q

What are the 6 categories that EU law can be broken into?

A
  1. Primary sources - EU Treaties and Charter of Fundamental Rights
  2. Secondary sources and acts - regulations, directives, decisions
  3. Tertiary acts
  4. Case law
  5. International agreements (international treaties)
  6. Non-binding acts (soft law)
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3
Q

What are the general principles of EU law?

A

Overarching legal principles derived from EU treaties and case law?

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4
Q

What are the two EU treaties?

A
  1. Treaty on the Functioning of the EU (TFEU)
  2. The Treaty of European Union (TEU)

EU’s primary legislation

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5
Q

What is the Charter of Fundamental Rights and how does it apply?

A
  • The authoritative statement of fundamental rights within the EU
  • Only regulates the activities of the EU and those of MS when implementing EU law

Only can be used to interpret EU law/determine lawfulness of EU’s acts or of national measures giving effect to EU law

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6
Q

What is the EU’s secondary legislation?

A

Legislative acts adopted using a legislative procedure - regulations, directives and decisions

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7
Q

What is the difference between regulations, decisions, and directives?

A
  • Regulations = is binding and directly applicable in all MS
  • Directives = MS must implement through enacting own legal measures to to meet desired result
  • Decisions = Directly binding (same as regulations but only on those to whom they are addressed
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8
Q

What does directly applicable mean?

A

Regulation applies in MS without a MS having to enact own legal measures

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9
Q

What is the deadline for implementing a directive?

A

Specified in directive itself but typically 2 years after adoption

20 days if not specified

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10
Q

What are decisions?

Another form of secondary legislation

A

A decision binding in its entirety - specifies to whom it is addressed and only binding on them

E.g. Google in breach of competition law for abusing dominant position

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11
Q

What are the 2 forms of tertiary act?

A
  1. Delegated acts - enables secondary legislation to delegate power to European Commission to adopt delegated acts
  2. Implemented acts -enables legally binding EU acts to confer on Cpmmission the power to adopt acts for implementing those legal binding EU acts where uniform conditions for implementation are needed
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12
Q

Is there an appeal from national courts of MS to the EU courts?

A

No - but national courts can make preliminary references to the Court of Justice

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13
Q

What is a preliminary reference?

A

Qs about EU law which are referred to Court of Justice by national court, who make a preliminary ruling. This ruling is then applied by the national court

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14
Q

Is case law of EU law legally binding in MS?

A

Yes

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15
Q

Does the EU have legal personality?

A

Yes - so it can act on own behalf within realm of public international law and enter into treaties

Treaties will be binding on EU institutions and MS

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16
Q

How are the general principles of EU law used?

A
  • To aid interpretation of more specific rules of EU law
  • To assess lawfulness of those activities of MS falling within scope of EU law
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17
Q

What are some examples of general principles of EU law?

A
  • Equality and non-discrimination
  • Respect for fundamental rights (found in ECHR and Charter)
  • Proportionality (act must be suitable and necessary to attain objective it pursues and cannot go further)
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18
Q

What are the 3 different methods for enforcing EU law in national courts?

A
  1. Direct effect
  2. Indirect effect
  3. State liability

Independent from one another and has own conditions which must be satisf

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19
Q

What is the difference between direct and indirect effect?

A
  • Direct = requires EU legal acts that satisfy certain criteria to be directly enforced in national courts
  • Indirect = requires national courts to interpret national law in a way that is compatible with EU law as far as possible to do so
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20
Q

What is state liability?

A

Enables individuals to recover compensation in national courts from a MS where they have suffered loss as a result of a sufficiently serious breach of EU law by MS

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21
Q

What happens where a conflict arises between domestic and EU law?

A

EU law must prevail

Will only conflict if there is a requirement to enforce it

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22
Q

Will EU law take precednece even over national constitutions of MS inc fundamental rights they provide?

A

Yes!

But EU law itself must be interpreted in accordance with fundm’l rights

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23
Q

Can national courts wait until national law is disapplied? Does it invalidate MS law?

A

No! EU law must be given precedence (and national law must be disapplied) immediately! Also does not invalidate, just means EU law must be applied

24
Q

What happened during the transition (implementation) period?

A

EU law continued to apply in the UK until 31 Dec 2020

ECA continued to give effect to EU law as it had during membership

25
Q

What happened to domestic law that was incompatible with the Withdrawal Agreement during the transition period?

A

It would have to be disapplied by the courts

26
Q

What happens to subordinate legislation made under statute when that statute is repealed?

A

Is a presumption that the subordinate legislation is also repealed

27
Q

What is EU-derived domestic legislation?

A

Any UK legisltion which was enacted for the purpose of implementing obligations/legal rights under EU law - was preserved during transition period

28
Q

What two different legal regimes govern application of EU law in UK following end of transition period?

A
  1. Withdrawal Agreement - provides some EU law to continue to apply to certain specific matters (notably NI Protocol and rights of Union citizens)
  2. Application of rest of EU law - (no longer preserved by Withdrawal Agreement but) governed by a separate regime

I.e. EU law that continues to apply under Withdrawal Agreement and retained EU law are two separate things

29
Q

What does the Withdrawal Agreement say about the rights of Union citizens (and their family members) who were resident in UK at end of transition period?

Union citizen = any national of a MS of EU

A

EU law continues to apply to them

30
Q

What does the Withdrawal Agreement say about statutes incompatible with EU law after the transition period?

A

Courts remain able to disapply statutes if they are incompatible with preserved EU law after transition period

I.e. incompatible with Withdrawal Agreement

31
Q

Must effect continue to be given to decisions of the CJEU after transition period?

A

No - but should be followed by UK courts/tribunals if made before completion of implementation period

(See exception a few cards below)

32
Q

What must decided in accordance with the Withdrawal Agreement in terms of validity, meaning or effect?

A
  • Provisions of the Withdrawal Agreement (implementation of agreement)
  • Anything which is a part of domestic law by virtue of those provisions; and
  • Anything else which is part of domestic law for purposes of Withdrawal Agreement or because it otherwise falls within its scope

I.e. validity, meaning and effect of any EU law preserved by Withdrawal Agreement and remains part of domestic UK law as a result must be decided in accordance with Withdrawal Agreement

33
Q

Must Withdrawal Agreement-preserved EU law be interprted in conformity with CJEU case law before and after transition period?

A

In conformity before, only due regard after

34
Q

What do the UK courts have to do regarding questions concerning the rights of Union citizens in cases commenced at first instance within 8 years of the transition period?

A

Continue making preliminary references to CJEU

35
Q

What must courts do re questions about EU law preserved by Northern Ireland Protocol?

A

Preliminary references to be made to CJEU

36
Q

How does PARL SOV fit into the Withdrawal Agreement?

A

PARL remains sovereign (notwithstanding insertion of s7C etc.) and can override EU law (inc. Withdrawal Agreement) by using express words/words that disclose deliberate intention to do so

37
Q

What happened to EU law that was not preserved by the Withdrawal Agreement?

A

Is retained (by a second legal regime; not WA) and converted into domestic law

Can be amended/repealed by subsequent domestic law as any other UK law

38
Q

Is retained EU law and EU law which continues to apply under the Withdrawal Act after the end of the transition period the same thing?

A

No! Reained EU law is governed by s7A of EUWA

They are different!!!

39
Q

What are the three forms of law collectively referred to as ‘retained EU law’?

A
  1. EU-derived domestic legislation
  2. Direct EU legislation
  3. Other EU law
40
Q

What is EU-derived domestic legislation?

1 retained EU law

A

Any UK legislation that was enacted under/for purposes of the ECA or which otherwise relates to the EU

41
Q

What is direct EU legislation?

2 retained EU law

A

Any EU regulation, decision or tertiary legislation which is in force and applicable in domestic law immediately before end of transition period

42
Q

What does ‘other EU law’ refer to?

3 retained law

A

Any other EU law which was applicable in UK law by virtue of ECA immediately before end of transition period and which does not constitute direct EU legislation

43
Q

Can rights arising under a particular directive that has been recognised before end of transition period as having direct effect be relied upon by individuals who are not parties to that case?

A

Ambiguous - not clear whether
1. Right must have been expressly recognised as having direct effect in a case concerning particular directive or
2. Whether it will suffice that right was of a similar kind to one recognised as having direct effect in a case not dealing with that directive

44
Q

Is the Charter of Fundamental Rights still part of UK law?

A

No

45
Q

What does the supremacy of EU law continue to apply to?

A
  • British law made in UK before end of transition period (and which has not been modified)
  • Not any made after that period
46
Q

How can retained EU law be modified?

A
  1. By Act of PARL
  2. By any other primary legislation (by devolved assemblies)
  3. By subordinate legislation where it is made under a Henry VIII power
47
Q

Can subordinate legislation modify direct retained principal EU legislation?

A

Only to the degree that amendment is supplementary, incidental or consequential to any modification of retained direct minor EU legislation

Cannot modify retained direct principal EU legislation

48
Q

What is meant by ‘retained EU case law’?

A

UK courts are required to determine the validity, meaning or effect of retained and unmodified EU law in accordance with CJEU case law that existed at the end of the transition period

49
Q

Can UK courts still make preliminary references to CJEU on Qs of EU law?

A

No

50
Q

Are UK courts bound by retained EU case law?

Retained EU case law = CJEU case law that existed at the end of the transition period

A
  • Supreme Court is not - will apply same test as if departing from own case law
  • Lower courts remain. bound

NB the second point - BPP Adapt says they are not bound by retained EU case law, but OUP and ChatGPT says what the card says

51
Q

Will cases decided by the CJEU after transition period have any bearing on UK courts when deciding issues of EU law?

A

UK courts may have regard to them

52
Q

Will UK courts be bound by the retained general principles of EU law?

A

Only if they have effect in EU law immediately before end of transition period

Not bound by any general principles not recognised by CJEU before end of transition period

53
Q

How does the Withdrawal Agreement mitigate the fact that the Charter of Fundamental Rights is not retained as part of UK law?

A
  1. Does not affect retention of fundamental rights existing in EU law at that time irrespective of Charter (e.g. general principles)
  2. Any references in case law to Charter will be treated as if they were references to retained rights
54
Q

Is the Charter of Fundamental Rights also disapplied in relation to the Withdrawal Agreement?

A

No

55
Q

What happened to state liability after the transition period?

A

Is no longer available as a method to enforce EU law

56
Q

Will regulations that derive from EU law continue to apply after the completion of the transition period?

A

Yes until modified by UK law

57
Q

Summary of what still applies

A
  • EU law supremacy will continue to apply to UK legislation made before the end of the the transition period (e.g. regulations) - EU law does not cease to have effect after end of transition period
  • If new law is made after this, or old law is modified, EU law will not apply
  • Decisions of the CJEU made before the end of the transition period will remain binding on all courts, bar the Supreme Court

constitutional & admin law – academic (14 decks)

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