Withdrawal of UK from EU - Consolidation MCQs Flashcards
You are a trainee with a firm of solicitors. You have been asked to deliver an introductory PowerPoint presentation on European Union law to a delegation of lawyers from the United States. You will need to explain the sources of EU law as part of this presentation.
Which of the following should you refer to as being capable of being legally binding secondary forms of EU legislation in relation to the member states of the European Union? (Choose ONE option only.)
Judgments of the EU courts, the Charter of Fundamental Rights, and Opinions.
Regulations, judgments of the EU courts, and Opinions.
Decisions, the Charter of Fundamental Rights, and Directives
Regulations, Directives and Decisions.
Directives, the Charter of Fundamental Rights, and Regulations.
Regulations, Directives and Decisions.
This is correct. They are legally binding secondary legal acts which are provided for by article 288 TFEU. They are classified as legislation where they are made using a legislative procedure (article 289(3) TFEU).
In preparing advice for a client, you have been reading a case in which the court took into account a general principle of EU law. Which ONE of the following provides an accurate definition of the concept of ‘general principles of EU law’?
Legal principles laid down by such acts as declarations, notices, programmes, and resolutions.
Legal principles which produce legal effects on persons identified in a generalised and abstract manner.
All legal principles which are addressed to the Member States in general.
Any legal principles which are expressed in broad or abstract terms.
Overarching legal principles which apply generally across EU law.
Overarching legal principles which apply generally across EU law.
This is correct – The concept of ‘general principles of EU law’ refers to a particular category of overarching legal principles which apply generally across EU law. They are used to aid the interpretation of the more specific rules of EU law, to assess the lawfulness of the activities and secondary legislation of the European Union, and to determine the lawfulness of those activities of the Member States which fall within the scope of EU law.
You are advising a client who wishes to bring a legal action in relation to a dispute concerning employment rights. The dispute concerns events that happened two months ago. The subject matter is not covered by the Withdrawal Agreement, but it does raise issues relating to direct EU legislation. In relation to that, you would like to rely upon the following: the judgment in a case decided by the Court of Justice six months ago, a general principle of EU law which was first established by the Court of Justice in the 1970s, and the Charter of Fundamental Rights.
Which, if any, of them will be binding on the High Court of England and Wales? (Choose ONE option only.)
Both the judgment in the case, and the Charter of Fundamental Rights will be binding.
Only the Charter of Fundamental Rights will be binding.
Both the judgment in the case, and the general principle of EU law will be binding.
Only the general principle of EU law will be binding.
Both the general principle of the EU law, and the Charter of Fundamental Rights will be binding.
Only the general principle of EU law will be binding
This is correct– The High Court continues to be bound by the general principle of EU law as this had effect in EU law immediately before the end of the transition period on 31 January 2021 (ss.6(3) & 6(7) EUWA 2018). However, the High Court is not bound by the judgement in the case decided by the Court of Justice six months ago as this was after the end of the transition period, although they may have regard to that judgment (s.6(1)(a)). Neither is the High Court bound by the Charter of Fundamental Rights as under s.5(4) of the EUWA, the Charter has not been part of UK law since the end of the transition period.
You are advising a client who is a national of an EU member state and, therefore, is a Union citizen under EU law. She has resided in the London since 2011. She has sought your advice about an Act of Parliament which was enacted two months ago. She maintains that the Act of Parliament discriminates against her and other Union citizens in relation to their employment rights. Your research has led you to conclude that this falls within the scope of an EU Regulation which has been preserved by the Withdrawal Agreement. You conclude that a court in England and Wales will be likely to find that the Act is incompatible with that EU Regulation.
If a court in England did find that the Act is incompatible, what would the court be required to do? (Choose ONE option.)
The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law.
The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in the United Kingdom.
The court would be required to refer the issue to the Supreme Court as only the Supreme Court is able to rule on when an EU Regulation will prevail over the Act of Parliament.
The court would be required to invalidate the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation.
This is correct – The issue concerns the rights of a Union citizen who was resident in the United Kingdom at the end of the transition period. The Withdrawal Agreement provides for some EU law to continue to apply in relation to such Union citizens and, indeed, the question confirms that the issue falls within the scope of an EU Regulation which was preserved by the Withdrawal Agreement. As it is preserved by the Withdrawal Agreement, it is governed by s.7A of the EUWA 2018. This, together with s.5(7) of the EUWA 2018, ensures that the supremacy of EU law will continue to apply in this situation. Under that principle, where national law is incompatible with EU law, the national courts are required to disapply national law (Simmenthal; see also the House of Lords in ex p. Factortame).
You have been asked to advise a client who is a UK national and has resided in Manchester for the whole of his life. He has sought advice about an Act of Parliament which was enacted last month. He maintains that the Act of Parliament has undermined his right to privacy in relation to the internet. You are aware that this right was protected by an EU Regulation enacted before the United Kingdom left the European Union. You conclude that a court in England and Wales is likely to find that the Act of Parliament is incompatible with that EU Regulation. However, the EU Regulation has not been preserved by the Withdrawal Agreement.
If a court in England did find that the Act is incompatible with the EU Regulation, what would that court be required to do? (Choose ONE option.)
The court would be required to invalidate the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in this context in the UK.
The court would be required to disapply the Act of Parliament as it is incompatible with the EU Regulation.
The court would be required to issue a declaration of incompatibility which formally notifies Parliament that the Act of Parliament is incompatible with EU law.
The court would be required to apply the Act of Parliament as the EU Regulation will have ceased to have effect in the United Kingdom following Brexit.
The court would be required to apply the Act of Parliament as the principle of the supremacy of EU law no longer applies in this context in the UK.
This is correct – The EU Regulation forms part of the bulk of EU law which is not preserved by the Withdrawal Agreement. It will be classified as Direct EU Legislation under s.3 EUWA 2018 and, as such, will form part of the EU law retained by ss. 3 to 4 of the EUWA 2018. In relation to that retained EU law, s.5 of the EUWA 2018 specifies that the principle of the supremacy of EU law does not apply to any domestic law made after the end of the transition period. The Act of Parliament in the question was clearly passed last month and therefore after the end of that period. It can therefore be amended or repealed by any of the methods in s.7 and Sch.8 of the EUWA 2018. This includes by an Act of Parliament.
Question 1
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
Option B is correct. 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 2
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
A is the correct answer. Rights etc arising under s 2(1) of the ECA 1972 become retained EU law (s 4 EUWA 2018), 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 from 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 EUWA 2018 that treaty rights do remain relevant in the UK legal system.
Question 3
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
Option D is correct. EUWA 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, EUWA 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.
