Withdrawal of the UK from the EU Flashcards

1
Q

What is the purpose of the Withdrawal Agreement in relation to EU law?

A

The purpose of the Withdrawal Agreement is to ensure that certain specific matters, such as the rights of Union citizens and their family members who were resident in the UK at the end of the transition period, continue to be governed by EU law.

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1
Q

What is the case of Costa v E.N.E.L. and what did it establish?

A

The case of Costa v E.N.E.L. (Case 6/64) established the supremacy of EU law. In this case, the Court of Justice rejected the argument made by the Italian government that national courts could override national law based on its incompatibility with the EEC treaty. The Court held that the law stemming from the Treaty could not be overridden by domestic legal provisions, establishing the principle of the supremacy of EU law.

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2
Q

How does the Withdrawal Agreement affect the application of EU law in the UK?

A

The Withdrawal Agreement provides for some EU law to continue to apply to certain specific matters in the UK. However, the rest of EU law, which is no longer preserved by the Withdrawal Agreement, is now governed by a separate legal regime.

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3
Q

What is the definition of a directive with direct effect?

A

A directive with direct effect is one that is capable of being directly enforced in a national court.

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4
Q

What are the two forms of tertiary acts in the EU?

A

The two forms of tertiary acts in the EU are delegated acts and implementing acts. Delegated acts allow the European Commission to adopt acts to supplement or amend EU secondary legislation, while implementing acts enable legally binding EU acts to be adopted for implementing other legally binding EU acts where uniform conditions for implementation are needed.

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5
Q

What is the principle of the supremacy of EU law?

A

The principle of the supremacy of EU law states that EU law cannot be overridden by national law. If national law is incompatible with EU law, the national law must be disapplied. This principle was established in the case of Costa v E.N.E.L. and has been reinforced in subsequent cases.

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6
Q

How can rights arising under a particular directive be relied upon by individuals who are not parties to a case?

A

Rights arising under a particular directive that have been recognized by a court before the end of the transition period as having direct effect could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address.

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7
Q

How does the Court of Justice enforce EU law in national courts?

A

The Court of Justice has developed three methods of enforcing EU law in national courts: direct effect, indirect effect, and state liability. The principle of the supremacy of EU law ensures that EU law takes precedence over national law and must be immediately given effect.

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8
Q

What are the principal courts of the EU?

A

The principal courts of the EU are the Court of Justice of the European Union (CJEU) and the General Court. While there is no appeal from the national courts of the Member States to the EU courts, national courts can make preliminary references to the Court of Justice, which will then make a ruling on the referred question.

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9
Q

When did the UK leave the EU?

A

The UK left the EU on January 31, 2020.

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10
Q

What is the significance of international agreements in EU law?

A

The EU has legal personality and can enter into international agreements (treaties) on its own behalf within the realm of public international law. Article 216(1) TFEU empowers the EU to enter into international agreements in various circumstances. These agreements are binding upon the EU institutions and the Member States.

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11
Q

What is the status of the Charter of Fundamental Rights under UK law?

A

The Charter of Fundamental Rights is not retained by the EUWA 2018 and is no longer part of UK law since the end of the transition period. However, s5(5) clarifies that this does not affect the retention of any fundamental rights which existed under EU law at that time, irrespective of the Charter.

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12
Q

What is the legal framework governing the UK’s withdrawal from the EU?

A

The legal framework governing the UK’s withdrawal from the EU was established by the European Union (Withdrawal) Act 2018 (EUWA 2018). This Act repealed the European Communities Act 1972 and provided for the legal consequences of the UK’s withdrawal. The relationship between the UK and the EU following Brexit was initially governed by the Withdrawal Agreement.

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13
Q

What is retained EU law and how is it defined?

A

Retained EU law refers to EU-derived domestic legislation, direct EU legislation, and other EU law that continues to have effect in the UK. It is defined in the EUWA 2018 as any UK legislation enacted under Section 2(2) of the ECA or for one of the purposes in Section 2(2) of the ECA, or which otherwise relates to the EU.

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14
Q

What is the principle of the supremacy of EU law and how does it apply in the UK?

A

Under s5 EUWA 2018, the principle of the supremacy of EU law continues to apply in relation to any British law made in the UK before the end of the transition period. However, it does not apply to any British law made after the end of that period.

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15
Q

What are non-binding acts in the EU?

A

Non-binding acts in the EU are acts that are not legally binding on anyone. They include recommendations, opinions, communications, declarations, notices, programmes, and resolutions. These acts are colloquially known as ‘soft law’, although they are not forms of law and are not enforceable in national courts.

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16
Q

What is the role of Section 7A of the EUWA 2018?

A

Section 7A of the EUWA 2018 is drafted in similar terms to Sections 2(1) and 2(4) of the ECA 1972. It allows UK courts to disapply statutes that are incompatible with any EU law preserved by the Withdrawal Agreement after the end of the transition period.

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17
Q

How can retained direct EU legislation and other retained EU law be modified?

A

Retained direct EU legislation and other retained EU law can be modified by an Act of Parliament, by any other primary legislation (including primary legislation of the devolved assemblies in Scotland, Wales, and Northern Ireland), or by subordinate legislation made under a Henry VIII power to modify such retained EU law or to amend primary legislation.

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18
Q

What are the general principles of EU law?

A

The general principles of EU law are overarching legal principles that apply generally across EU law. They are used to aid the interpretation of specific rules of EU law, assess the lawfulness of EU activities and secondary legislation, and determine the lawfulness of Member State activities falling within the scope of EU law. Examples of general principles include equality and non-discrimination, respect for fundamental rights, and proportionality.

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19
Q

Under what circumstances can subordinate legislation modify retained direct minor EU legislation?

A

Subordinate legislation can modify retained direct minor EU legislation if the amendment is supplementary, incidental, or consequential to any modification of retained direct minor EU legislation. It cannot modify retained direct principal EU legislation or other retained EU law in any other circumstance.

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20
Q

What are the sources of EU law?

A

The sources of EU law can be categorized into six categories: primary sources (EU Treaties and the Charter of Fundamental Rights), secondary sources and acts (regulations, directives, and decisions), tertiary acts, case law, international agreements, and non-binding acts (soft law). Additionally, there are general principles of EU law derived from the EU treaties and case law.

21
Q

How does Section 7C of the EUWA 2018 ensure compliance with the Withdrawal Agreement?

A

Section 7C of the EUWA 2018 requires questions as to the validity, meaning, or effect of provisions in the EUWA 2018, anything which is part of domestic law by virtue of those provisions, and anything else falling within the scope of the Withdrawal Agreement to be decided in accordance with the Withdrawal Agreement. This ensures compliance with the obligation in Article 4(2) of the Withdrawal Agreement to ensure the disapplication of domestic law incompatible with the Withdrawal Agreement.

22
Q

What is the role of UK courts and tribunals in determining the validity, meaning, or effect of retained EU law?

A

UK courts and tribunals are required by s6(3) of the EUWA 2018 to determine any questions as to the validity, meaning, or effect of retained EU law (insofar as it remains unmodified) in accordance with the case law of the Court of Justice that existed at the end of the transition period. This case law is referred to as ‘retained EU case law’.

23
Q

What are the methods of enforcement of EU law in national courts?

A

The Court of Justice has developed three methods of enforcing EU law in national courts: direct effect, indirect effect, and state liability. Direct effect allows certain EU legal acts to be directly enforced in national courts. Indirect effect requires national courts to interpret their national law in a way that is compatible with EU law. State liability enables individuals to seek compensation from a Member State for loss suffered as a result of a serious breach of EU law by that Member State.

24
Q

What is the principle of direct effect in EU law?

A

The principle of direct effect in EU law means that certain provisions of EU law can be invoked directly by individuals before national courts. This allows individuals to rely on their rights under EU law and seek remedies in national courts without the need for further legislation.

25
Q

Are UK courts and tribunals bound by retained EU case law?

A

The Supreme Court and the High Court of Justiciary in Scotland are not bound by retained EU case law. They must apply the same test as they would apply in deciding whether to depart from their own case law when deciding whether to depart from retained EU case law. Other courts specified in the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 are also not bound by retained EU case law.

26
Q

What is the significance of s38 of the EUWA 2020?

A

Section 38 of the EUWA 2020 reasserts that Parliament remains sovereign despite the insertion of sections 1A and 7A into the EUWA 2018. This means that Parliament retains the right to override EU law and the Withdrawal Agreement by using express or specific words that disclose a deliberate intention to do so.

27
Q

What is the Charter of Fundamental Rights?

A

The Charter of Fundamental Rights is an authoritative statement of fundamental rights within the EU. It has the same legal status as the EU treaties and is a primary source of EU law. However, it is more limited in its application than the EU treaties and only regulates the activities of the EU and Member States when implementing EU law.

28
Q

What is the principle of indirect effect in EU law?

A

The principle of indirect effect in EU law means that national courts are required to interpret national law in line with EU law, even if the national law does not explicitly reflect EU law. This ensures that the objectives of EU law are achieved and that national law is compatible with EU law.

29
Q

What are the principles of EU law that continue to have effect in the UK?

A

UK courts and tribunals continue to be bound by retained general principles of EU law. These are the general principles of EU law that had effect in EU law immediately before the end of the transition period. However, they are not bound by any general principles that were not recognized by the Court of Justice before the end of the transition period.

30
Q

What is the status of state liability as a method of enforcing EU law?

A

State liability is no longer available as a method of enforcing EU law

31
Q

What forms of law are collectively referred to as retained EU law?

A

Retained EU law includes EU-derived domestic legislation, direct EU legislation, and other EU law that was applicable in UK law by virtue of Section 2(1) of the ECA immediately before the end of the transition period, and which does not constitute direct EU legislation under Section 3 of the EUWA 2018.

32
Q

What are regulations, directives, and decisions in EU law?

A

Regulations, directives, and decisions are forms of secondary legislation in EU law. Regulations are directly applicable and binding in their entirety in all Member States. Directives are binding as to the result to be achieved but leave the choice of form (but they do contain detailed rules) and methods to the national authorities for implementation. Decisions are binding in their entirety and may be addressed to specific entities or individuals.

33
Q

What are the different forms of soft law in the EU?

A

The different forms of soft law in the EU include recommendations, opinions, communications, declarations, notices, programmes, and resolutions. These acts are non-binding and are not forms of law. While they are not enforceable in national courts, they can be used to aid the interpretation of other forms of EU law.

34
Q

What is the definition of direct EU legislation?

A

Direct EU legislation refers to any EU regulation, EU decision, or EU tertiary legislation that is in force and applicable in domestic law immediately before the end of the transition period. Tertiary legislation refers to EU legislation made under powers conferred by EU secondary legislation, excluding EU directives.

35
Q

What is the legal framework governing Brexit and the effect of EU law in the UK?

A

The legal framework governing Brexit and the effect of EU law in the UK has been laid down by the EUWA 2018 (as amended by the EUWA 2020) and by a Withdrawal Agreement between the UK and the EU. Following the UK’s withdrawal from the EU in January 2020, there was initially a transition (or implementation) period that ran until the end of 2020. Since the end of the transition period, there have been two legal regimes governing the effect of EU law.

36
Q

What are the two categories of direct EU legislation?

A

Direct EU legislation is divided into two categories: direct principal EU legislation, which refers to EU Regulations that were not tertiary legislation, and direct minor EU legislation, which covers any other direct EU legislation that is not direct principal EU legislation.

37
Q

What is the role of Section 7C of the EUWA 2018 in relation to retained EU law?

A

Section 7C of the EUWA 2018 requires questions as to the validity, meaning, or effect of provisions in the EUWA 2018, anything which is part of domestic law by virtue of those provisions, and anything else falling within the scope of the Withdrawal Agreement to be decided in accordance with the Withdrawal Agreement. This includes the validity, meaning, and effect of any EU law that is preserved by the Withdrawal Agreement and remains part of domestic UK law.

38
Q

What is the effect of the Charter of Fundamental Rights under UK law?

A

The Charter of Fundamental Rights has not been retained as part of UK law since the end of the transition period. However, s5(5) makes it clear that this does not affect the retention of any fundamental rights which existed under EU law at that time, irrespective of the Charter. References in case law to the Charter are treated as if they were references to such retained fundamental rights.

39
Q

How does the European Union (Withdrawal) Act 2018 convert EU law into domestic UK law?

A

The European Union (Withdrawal) Act 2018 converts EU law into domestic UK law by preserving some EU law to fulfill the requirements of a Withdrawal Agreement and retaining the bulk of EU law. This converted law can be amended or repealed in the same way as any other domestic law in the UK.

40
Q

What is the difference between delegated acts and implementing acts in the EU?

A

Delegated acts and implementing acts are two forms of tertiary acts in the EU. Delegated acts allow the European Commission to adopt acts to supplement or amend EU secondary legislation, while implementing acts enable legally binding EU acts to be adopted for implementing other legally binding EU acts where uniform conditions for implementation are needed. The power to adopt implementing acts can also be conferred on the Council of the European Union in certain circumstances.

41
Q

What is the effect of the EUWA 2020 on the ability of courts to disapply statutes?

A

The EUWA 2020 preserves the ability of courts to disapply statutes that are incompatible with the Withdrawal Agreement and any EU law preserved by it. Section 38 of the EUWA 2020 specifically reasserts that Parliament remains sovereign despite the insertion of sections 1A and 7A into the EUWA 2018.

42
Q

What is the purpose of Sections 2 to 4 of the EUWA 2018?

A

Sections 2 to 4 of the EUWA 2018 provide for the continuation of EU-derived domestic legislation, direct EU legislation, and other EU law in the UK. These sections ensure that retained EU law continues to have effect in the UK and can be amended or repealed by subsequent domestic legislation.

43
Q

What is excluded from retained EU law?

A

Retained EU law does not include any EU law that continues to apply under the Withdrawal Agreement after the end of the transition period. It also excludes any rights and obligations under EU directives that are not recognized by the EU courts or domestic courts in a case decided before the end of the transition period.

44
Q

What is the significance of Section 38 of the EUWA 2020?

A

Section 38 of the EUWA 2020 reasserts that Parliament remains sovereign despite the insertion of sections 1A and 7A into the EUWA 2018. This means that Parliament retains the right to override EU law and the Withdrawal Agreement by using express or specific words that disclose a deliberate intention to do so.

45
Q

What is the purpose of Paragraphs 97 and 98 of the Explanatory Notes to the EUWA 2018?

A

Paragraphs 97 and 98 of the Explanatory Notes to the EUWA 2018 explain that they are designed to exclude rights and obligations conferred by a directive from having direct effect, unless they are of a similar kind to those already recognized by the EU courts or domestic courts as being able to do so.

46
Q

True or false: in EU law Decisions are capable of being classified as secondary legislation

A

True – A decision will be considered to be secondary legislation if it was adopted using a legislative procedure (see article 289(3) TFEU).

47
Q

True or false: The supremacy of EU law applies irrespective of whether the national law of the Member States was enacted before or after the EU legal measure.

A

True

48
Q

The European Union (Withdrawal) Act 2018 (EUWA 2018) provides for retained EU law to be capable of being amended following the end of the transition period.

Which ONE of the following forms of EU law is able to be amended by subordinate legislation irrespective of whether or not that subordinate legislation was made under a Henry VIII power to modify retained EU law or to amend primary legislation?

EU law retained under s.4 EUWA 2018.

Direct principal EU legislation.

Direct minor EU legislation.

EU law which applies under s.7A EUWA 2018.

EU law preserved by s.1A EUWA 2018.

A

Direct minor EU legislation.

Correct – This is one of two forms of direct EU legislation (s.7(6) EUWA 2018). It is preserved by s.3 EUWA 2018. However, unlike direct principal EU legislation, direct minor EU legislation will be capable of being amended by subordinate legislation which was NOT made under a Henry VIII power to modify retained EU law or to amend primary legislation.

49
Q

The following statements concern the current effect of EU law in the UK where that EU law has NOT been preserved by the Withdrawal Agreement. Which ONE of the following statements is correct?

The UK courts and tribunals can still make preliminary references to the Court of Justice on retained EU law.

The principle of the supremacy of EU law ceased to apply to any UK law irrespective of when that UK law was made.

The Charter of Fundamental Rights continues to be part of UK law.

State liability is only available as a method of enforcement against central government.

The Court of Appeal is no longer bound by retained EU case law which existed at the end of the transition period.

A

The Court of Appeal is no longer bound by retained EU case law which existed at the end of the transition period.

Correct – Even where EU law has not been preserved by the Withdrawal Agreement, UK courts and tribunals continue to be bound by retained EU case law which existed at the end of the transition period (s.6(3) EUWA 2018). However, the Court of Appeal is not bound by this (European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020).

50
Q

The European Union (Withdrawal) Act 2018 defines EU-derived domestic legislation as including any UK legislation which was enacted under or for the purposes of which ONE of the following statutory provisions?

Section 2(1) of the European Communities Act 1972.

Section 1B(7) of the European Union (Withdrawal) Act 2018

Section 3(2) of the European Union (Withdrawal) Act 2018.

Section 7C of the European Union (Withdrawal) Act 2018.

Section 2(2) of the European Communities Act 1972.

A

Section 2(2) of the European Communities Act 1972.

This is correct – The definition of EU-derived domestic legislation is laid down by s.1B(7) of the European Union (Withdrawal) Act 2018. This defines it as including any enactment made under s.2(2) of the European Communities Act 1972 or which was passed or made, or is operating, for a purpose mentioned in s.2(2).