Eu Law: Can It Be Repealed?

The European Union (Withdrawal) Act 2018 (EUWA) repealed the European Communities Act 1972 (ECA) on exit day, 31 October 2019, removing the basis for EU law in the UK. The EUWA also provided for the conversion of most EU laws into domestic laws, creating a new category of retained EU law. These laws can be expressly or impliedly modified or repealed by conventional domestic legal instruments. While EU law generally takes precedence over national law, member states do not accept the Court of Justice's authority on constitutional questions. In the UK, Parliament can expressly legislate against EU law, but only in the case of a clear public wish to withdraw from the EU.

The UK's 'express legislate against EU law'

In the United Kingdom, the basic principle is that Parliament, as the sovereign expression of democratic legitimacy, can decide whether it wishes to expressly legislate against EU law. This, however, would only happen in the case of an express wish of the people to withdraw from the EU.

The UK constitution is uncodified, but there could be "fundamental principles" of common law, and Parliament "did not either contemplate or authorise the abrogation" of those principles when it enacted the European Communities Act 1972. The UK Parliament enjoys plenary powers to legislate on constitutionally significant subject matter, for example, legislating to devolve power from Westminster to the UK's nations, the establishment of a Supreme Court, or human rights protections.

The UK's express legislation against EU law can be seen in the context of the country's withdrawal from the EU, which was driven by the express wish of the people to leave the bloc. This resulted in the European Union (Withdrawal) Act 2018, which sets out the circumstances in which EU legislation may continue to apply in the UK with respect to Northern Ireland to maintain the necessary conditions for cooperation and avoid a hard border. The Act also provides for the interpretation of domestic laws in light of agreements with the EU, such as the Trade and Cooperation Agreement and the Agreement on Nuclear Cooperation.

Additionally, the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) removed the principle of supremacy of EU law from UK law. This change means that there is no longer an automatic presumption that retained EU law takes precedence over conflicting pre-2021 domestic legislation. The UK government has used statutory instruments to make amendments to existing legislation, such as replacing references to the European Commission with UK Ministers or regulators.

The European Union (Withdrawal) Act 2018

The Act also required parliamentary approval for any withdrawal agreement negotiated between the UK and the EU. Specifically, it mandated that if, by 21 January 2019, there was no agreement in principle on the substance of the withdrawal arrangements and the future relationship framework, the government must publish a statement outlining its proposed course of action and facilitate a parliamentary debate on the matter.

In response to the European Union (Withdrawal) Act 2018, the National Assembly for Wales passed the Law Derived from the European Union (Wales) Act 2018, which became law on 6 June 2018 but was repealed shortly after on 22 November 2018. Additionally, the Scottish Parliament passed the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 on 21 March 2018 to prepare Scots law for Brexit. However, this bill was referred to the Supreme Court for scrutiny under section 33 of the Scotland Act 1998, and on 13 December 2018, the Court ruled that section 17 of the bill was beyond the legal competence of the Scottish Parliament.

EU Regulations are 'directly applicable in all Member States'

EU Regulations are legal acts defined by Article 288 of the Treaty on the Functioning of the European Union (TFEU). They are part of the EU's secondary law, which is derived from the principles and objectives set out in the EU treaties (primary law). Regulations are binding in their entirety and are directly applicable in all EU member states. This means that they apply immediately as the norm in all member states without needing to be transposed into national law. They create rights and obligations for individuals, who can invoke them directly before national courts.

The process of creating EU regulations involves the European Commission initiating and ultimately deciding on the regulations, with input from a committee of representatives of the member states. The European Parliament and the Council may also authorise the Commission to adopt regulations to ensure consistent implementation across the EU.

The direct applicability of EU regulations in all member states ensures uniformity and legal certainty. It allows for the efficient implementation of EU policies and the creation of a level playing field within the EU market. This is particularly important for areas such as trade, environmental protection, and consumer rights, where consistent standards and rules are required.

However, it is worth noting that there may be variations in how EU regulations are interpreted and enforced across different member states due to differences in legal systems and cultural contexts. While the regulations themselves are directly applicable, their practical implementation and enforcement may vary to some extent.

In conclusion, EU regulations are a powerful tool for implementing EU policies and ensuring uniformity across member states. Their direct applicability bypasses the need for transposition into national law, providing immediate legal effect and creating enforceable rights and obligations for individuals and legal entities.

The Court of Justice of the European Union

The CJEU interprets EU law to ensure it is applied uniformly across all EU countries. It settles legal disputes between national governments and EU institutions and may take action against EU institutions on behalf of individuals, companies, or organisations whose rights have been infringed. The Court of Justice, informally known as the European Court of Justice (ECJ), hears applications from national courts for preliminary rulings, annulment, and appeals. It is composed of one judge from each EU member country, as well as 11 advocates general.

The General Court, on the other hand, hears applications for annulment from individuals, companies, and, less commonly, national governments, focusing on areas such as competition law, state aid, trade, agriculture, and trademarks. It is composed of 2 judges from each member country, although currently, only 49 seats are filled.

The CJEU gives rulings on cases brought before it, with the most common types being interpreting the law (preliminary rulings). National courts of EU countries are required to ensure the proper application of EU law, but different countries might interpret it differently. If a national court is uncertain about the interpretation or validity of an EU law, it can seek clarification from the CJEU. This mechanism also helps determine whether a national law or practice is compatible with EU law.

The UK's exit from the EU

The United Kingdom's exit from the European Union, or Brexit, has had a significant impact on the country's relationship with the EU and the wider world. On June 23, 2016, the UK held a referendum, asking its citizens, "Should the United Kingdom remain a member of the European Union or leave the European Union?" with 51.89% voting to leave. This decision had immediate consequences, with the pound softening and multinationals listed on the FTSE 100 seeing earnings rise.

The UK officially left the EU on January 31, 2020, marking the end of free movement between the UK and the EU. A transition period was put in place until December 31, 2020, to allow for the negotiation of a new trade deal. During this transition period, the UK and the EU agreed on a new divorce deal, with a particular focus on the Irish border. Northern Ireland continues to follow many EU rules to maintain an open border with the Republic of Ireland, which is an EU member state. This has, however, resulted in new checks on goods entering Northern Ireland from the rest of the UK.

The UK's new relationship with the EU, which began on January 1, 2021, includes new rules for how the two parties will live, work, and trade together. While there may not be new taxes at the border, there is additional paperwork, which has the potential to cause delays and backlogs, particularly at ports like Dover. UK nationals now need a visa to stay in the EU for more than 90 days in a 180-day period.

Frequently asked questions