The European Union Withdrawal Act 2018 (EUWA) provides a new constitutional framework for the continuity of « RETAINED EU law » in the UK and replaces the EU treaties that were in force in the UK until now. At the same time, thousands of amendments to retained EU law have entered into force. The maintenance of the EU`s direct main legislation is treated as a primary right for the purposes of challenges under the Human Rights Act 1998 (HRA 1998), i.e. it may be considered incompatible, but this conclusion has no bearing on its continued validity. Conversely, retained direct eu minor legislation is treated as ancillary legislation for the purposes of the 1998 HRA, so that it cannot be applied if it is found to be incompatible (EU(W)A 2018, Sch 8, paragraph 30). The law also treats retained « main » EU direct legislation as if it were « primary » legislation within the meaning of the Human Rights Act 1998. This immunizes them against the declaration of invalidity for incompatibility with the European Convention on Human Rights. Most of the challenges are likely to be related to changes to EU law retained by ministers under the powers conferred by the EU(W)A in 2018. Article 8 of the EU(W)A 2018 confers broad powers to amend retained Union law in order to ensure its proper functioning or to remedy other shortcomings in Union law. Gaps are prevalent in Article 8(2) of the EU(W)A 2018.
Although they do not fall within the definition of RETAINED EU law, many aspects of the Brexit agreements between the UK and the EU are directly applicable in the UK legal system in the same way as EU law before. Where the reference refers to a provision of another type of Union law, such as an EU directive, which is not maintained, it shall be understood as a reference to the provision as it entered into force immediately before the date of completion of the intellectual property (EU(W)A 2018, Sch 8, paragraph 2), unless: an SI prepared in accordance with EU(W)A 2018 provides that the provision must be interpreted in a certain way. If direct EU legislation is maintained, the English text of that legislation will prevail. Recitals may also be used in the interpretation of Union rules directly maintained, in particular where those provisions have not been amended. The 2018 Eu Withdrawal Act contains several time-limited delegated powers, specifically with regard to changes to EU law retained in anticipation of the withdrawal date. As part of the withdrawal from the EU, more than 550 legal regulations have been issued (mainly according to § 8 EUWA, the so-called « right of rectification »). Kieran Laird examines its meaning, scope and status, and gives important advice for navigating and interpreting EU law that has been retained. EUWA also provides for a system that determines the constitutional status of those elements of EU law. Whereas, in the past, the principle of the primacy of EU law would have given priority to all EU law over all national legislation, that is not the status accorded to EU law retained. Furthermore, no general principle of EU law is maintained unless it has been recognised as such by EU case-law before the date of completion of the intellectual property and, even if it is maintained, non-compliance with that right cannot give rise to a right of action (EU(W)A 2018, Sch 1, points 2 to 3]. These legal instruments deal with a wide range of issues and hundreds of instruments of MAINTAINED EU law. Some make relatively minor editorial changes, such as .
B clarifying the meaning of the references to `Member States`. However, these instruments are also responsible for more significant changes, such as the transfer of functions previously exercised by the EU institutions to national bodies, or even the repeal or repeal of parts of Union law retained even before its entry into force. Where the reference refers to a provision or part of a direct EU law that becomes EU law retained under Article 3 of the EU(W)A 2018 (i.e. the retained EU regulations, decisions, tertiary legislation or provisions of the EEA Agreement), the reference shall follow the retained version as amended from time to time by UK law (EU(W)A 2018, Sch 8, paragraph (1). However, EU law maintained in Sections 3 and 4 of EUWA is neither primary nor secondary law. Rather, it is a new single category of national law with new tailor-made rules that determine how it can be changed. EUWA sets out those rules in Section 7 and Annex 8. Compare Regulation (EU) 2019/2088 on sustainability disclosures in the financial services sector, which is phased in application, with most of the provisions applicable after the closing date of the intellectual property. Only provisions applicable before the date of conclusion of the intellectual property (by way of derogation) fall within the scope of retained UNION law (and national legislation has been introduced to repeal these specific provisions, so that the Regulation as a whole is not maintained). The EU(W)A 2018 also provides powers for government and decentralised legislators to amend undisclosed EU law by means of legal instruments (SI) to ensure that undisclosed EU law functions effectively after the date of conclusion of the intellectual property. These powers have been extended so that amending rules can be introduced for a period of up to two years after the date of closure of the intellectual property. Stored in UK law under the EU(W)A 2018, Article 4, retention rights, etc.
include rights under eu treaties and directly effective provisions of EU directives that confer rights without the need to transpose them to national level. Rights arising from EU directives only remain in place if they are of a « type » recognised by the Court of Justice of the European Union or « any other court » in the UK in a case decided before the date of conclusion of the intellectual property (EU(W)A 2018, Article 4(2)(b) – what this means in practice, is open and will certainly be reviewed by the courts. From 2018 to 2020, the UK government adopted more than 600 pieces of national secondary legislation and made around 80,000 changes to retained EU law. These were largely of a technical nature to ensure that the retained EU law is clear and enforceable when applied only in a UK national context. However, there have also been significant changes and some EU laws have been repealed in their entirety. It is therefore important to review an updated version of retained EU law, taking into account any changes, before relying on it. These powers sparked a major debate when the EU(W)A was adopted in 2018 and remained controversial. The Secondary Law Control Committee, for example, has questioned the use of these powers to bring about substantial political change in certain cases. In other cases, the powers appear to have been used to make amendments to provisions of EU directives which are known to fall outside the scope of the EU law adopted. Second, be absolutely clear about what is kept and what is not after the IP closing day. A major problem here will be the rights in EU directives, which, unlike directly applicable EU legislation, are not automatically retained.
Be prepared to dig something into the case law to determine whether a particular right is upheld or not, and be prepared to defend your position. When EU law is applied and argued, the differences between EUWA and the EU Treaties become clear in various ways. Although the principle of primacy applies to the interpretation of direct Union legislation adopted in relation to national legislation adopted before the withdrawal date, the real challenge lies in the interpretation of legislation adopted after the withdrawal date which it can (expressly or implicitly) amend or repeal. The main difference between `minor` direct EU law and retained direct EU law is that, although the former may be systematically amended by secondary law, the latter must be amended by primary law, unless the provisions under which secondary law is adopted provide otherwise. Practitioners will carefully consider whether the changes to retained EU law are part of the powers conferred on the EU(W)A 2018, § 8, and it is almost certain that some will be challenged. Third, be aware of how a particular legal act is maintained. Hundreds of legal acts amending retained EU law have been adopted, with some legislative acts being amended by several different significant Brexit INSTITUTIONS, as well as different rules of interpretation, meaning that different provisions or references to the legislation may be interpreted differently for different purposes. Some of these IIS have since been amended to take account of the requirements of the Northern Ireland Protocol and to take account of the fact that additional EU legislation entered into force and became applicable during the transition period (and is therefore also included in retained EU law).
Finally, pay attention to situations where advice is needed on both retained EU law (in the UK) and EU law (in the EU27). Sometimes clients operating in both jurisdictions are aware of the differences between the two legal entities and the impact these differences may have on the client`s business. According to EU(W)A 2018, Sch 1(1), no provision of EU law retained may be challenged from the date of conclusion of the intellectual property on the ground that an EU instrument, such as . B a regulation or decision of the European Union was invalid. However, this exclusion does not apply if the Court of Justice has declared the EU instrument invalid before the date of conclusion of the intellectual property or if a challenge to its validity has been initiated but not concluded (EU(W)A 2018, Sch 1,1 and The Challenges to the Validity of EU Instruments (Exit from the EU) Regulations 2019), SI 2019/673). Therefore, a UK court will follow the case law of EU courts before the IP completion date when interpreting EU law kept unchanged (although the approach of EU case law differs later). .
