Withdrawal of UK from EU Flashcards
What is a court required to do if an Act is incompatible with an EU regulation preserved by the Withdrawal Agreement?
The court is required to disapply the Act of Parliament as it is incompatible with EU Regulation
When does the supremacy of EU law apply?
Withdrawal Agreement provides for some EU law to continue to apply and the supremacy of EU law continues to apply for regulations preserved by the Withdrawal Agreement.
Under this principle, where national law is incompatible with EU law, the national courts are required to disapply the national law
What is a court required to do if an EU Regulation which is not preserved by the Withdrawal Agreement (and s7 REULA does not apply) is incompatible with an Act?
The court would be required to apply the Act of Parliament instead of the EU Regulation as the principle of EU law no longer applies
Is the principle of supremacy of EU law applicable where assimilated EU law is involved?
No, law retained as assimilated law is not subject to principle of supremacy of EU law
What happens if assimilated law cannot be interpreted in a way compatible with Act of Parliament?
If it cannot be interpreted in a way which is compatible with an Act of Parliament, it will be overridden by the Act.
The court will also make an incompatibility order
What is a tertiary act under article 290 TFEU
An act made under a power delegated by an EU Regulation to the European Commission to make a decision to supplement that EU Regulation
Are tertiary decisions retained?
Yes, they have been retained by s3 EUWA and are classified as assimilated direct EU legislation
What assimilated law continues to have effect in the UK?
- EU-derived domestic legislation
- Direct EU legislation: any EU regulation, EU decision or EU tertiary legislation which is in force and applicable in domestic law immediately before end of transition period
What is the binding effect of tertiary decisions retained as assimilated direct EU legislation?
The decisions can be relied upon as a kind of delegated act which has been retained as assimilated law
What judgments are domestic tribunals bound by when dealing with assimilated law?
They are bound by judgments in cases decided by Court of Justice of European Court before the end of the transition period
When did the transition period end?
31 December 2020
What are domestic tribunals required to do in relation to judgements of Court of Justice in cases decided after the end of the transition period?
Domestic tribunals only need to have regard to judgments made after the transition period
Domestic tribunals will not be bound by EU cases that are decided after the end of 2020
Are domestic tribunals permitted to make preliminary references to Court of Justice in relation to assimilated law now the transition period has expired?
No, domestic tribunals cannot refer the questions to the Court of Justice (after end of the transition period)
Are directives retained as assimilated law?
No, directives will not have effect as they are not retained as assimilated law by EUWA
REULA 2023 repealed the previous position on this
What is the position if a directive and an Act of Welsh Senedd are incompatible?
(The directive has not been preserved by Withdrawal Agreement)
The directive will not have effect as it has not been retained as assimilated law
