“What is retained EU law?” Mathias Cheung for Lexis Nexis

This Q&A, produced by Mathias Cheung in partnership with LexisNexis, outlines the scope and meaning of retained EU law (including retained legislation, principles and case law) under the European Union (Withdrawal) Act 2018. It also considers the key exclusions and relevant transitional provisions.

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Definition of retained EU law

In order to work out what qualifies as retained EU law and what is excluded therefrom, the first port of call would be sections 2 to 7 of the European Union (Withdrawal) Act 2018 (EU(W)A 2018).

Section 6(7) of the EU(W)A 2018 defines retained EU law as ‘anything which, on or after exit day, continues to be, or forms part of, domestic law by virtue of section 2, 3 or 4’. In other words, this body of retained law includes:

EU-derived domestic legislation, as it has effect in domestic law immediately before exit day (section 2 of the EU(W)A 2018);
Direct EU legislation (including EU regulations, EU decisions, EU tertiary legislation, Annexes to the EEA agreement, and Protocol 1 to the EEA agreement) so far as operative immediately before exit day (section 3 of the EU(W)A 2018);
Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day, are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972 (ECA 1972), and are enforced, allowed and followed accordingly (section 4 of the EU(W)A 2018).

EU directives per se do not form part of retained EU law, unless their provisions and/or effect fall within section 2 or section 4 of EU(W)A 2018. For further details about the nature and direct effect of EU directives, see our Practice Note: Direct effect of EU law.

The EU law rights falling within section 4 of the EU(W)A 2018 will include, inter alia, directly effective treaty articles such as on free movement of goods, competition law and state aid. For a non-exhaustive list of such rights, see paragraphs 92 to 95 of the Explanatory Notes to section 4 of the EU(W)A 2018.

Finally, section 6(7) defines ‘retained general principles of EU law’ as the general principles which have effect in EU law immediately before exit day and relate to any of the retained EU law specified in sections 2, 3 and 4 of the EU(W)A 2018, subject to the exclusions in section 5 and Schedule 1 of the EU(W)A 2018.

The status and procedure for amendment of the different categories of retained EU law is set out in section 7 of the EU(W)A 2018.

For further information on EU law in the UK after Brexit, see our Practice Note: The status of EU law in the UK after Brexit.

Exclusions and transitional arrangements

Section 5 and Schedule 1 of the EU(W)A 2018 provide a number of exclusions from the body of retained EU law, including:

The principle of supremacy of EU law in relation to any law made on or after exit day (see our Practice Note: The Supremacy of EU law);
Rights and freedoms derived exclusively from the Charter of Fundamental Rights of the EU (see our Practice Note: Charter of Fundamental Rights of the EU and European Convention on Human Rights);
Challenges to the validity of retained EU law, unless the Court of Justice of the EU (CJEU) has ruled on the invalidity of the instrument before exit day or the challenge is of a kind specifically provided for in any delegated legislation in the future;
General principles of EU law not recognised by the CJEU before exit day (see our Practice Note: Overview of the EU legal system);
Any right of action in domestic law based on an incompatibility or a failure to comply with any of the general principles of EU law; and
Any right to damages in domestic law based on the rule in Joined Cases C-9/90 and C-9/90 Francovich v Italy (see our Practice Note: Overview of the EU legal system), including anything occurring before exit day.

The above are subject to a number of transitional provisions in Schedule 8 of the EU(W)A 2018. For instance:

Paragraph 38 preserves the effect of a EU directive recognised by the UK courts after exit day if proceedings have been commenced before exit day.
Paragraphs 39(1) to (3) preserve Francovich claims and other claims relying on excluded parts of EU law, insofar as the relevant proceedings have been commenced before exit day.
Paragraph 39(5) preserves claims for a failure to comply with general principles of EU law where proceedings have been commenced within three years of exit day, unless it involves the disapplication of a statute or an enactment necessitated by a statute.
Paragraph 39(7) preserves Francovich claims commenced within two years of exit day.

Definition of retained EU case law

Section 6(7) of the EU(W)A 2018 defines ‘retained domestic case law’ and ‘retained EU case law’ as decisions of the UK courts and CJEU respectively before exit day, insofar as they relate to retained EU law under sections 2, 3 or 4 and are not excluded by section 5 or Schedule 1. Pursuant to section 6(3), the validity, meaning and effect of retained EU law are to be decided in accordance with any retained case law or retained general principles.

The UK courts are not bound by CJEU decisions made after exit day and can no longer refer any matter to the CJEU for a preliminary ruling, but the courts are allowed to have regard to such CJEU decisions if they are relevant (sections 6(1) to (2) of the EU(W)A 2018).

Section 4(a) of the EU(W)A 2018 provides that the Supreme Court is not bound by any retained EU case law, and the High Court is not bound in the limited circumstances defined in section 4(b). None of the UK courts are bound by any retained domestic case which it would not otherwise be bound by. In deciding whether to depart from any retained EU case law, the test is the same as that for departing from the UK courts’ own case law (section 6(5) of the EU(W)A 2018).

For further information on this topic, see the House of Commons Briefing Paper: The status of “retained EU law”.

12/03/2019

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