Q&As

What is the status of EU directives in the context of retained EU law? Are there any circumstances where EU directives or provisions of directives (and associated case law) are retained?

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Produced in partnership with Michael Bimmler of No 5 Chambers
Published on LexisPSL on 06/01/2021

The following Public Law Q&A produced in partnership with Michael Bimmler of No 5 Chambers provides comprehensive and up to date legal information covering:

  • What is the status of EU directives in the context of retained EU law? Are there any circumstances where EU directives or provisions of directives (and associated case law) are retained?
  • Case law
  • Ambulatory and non-ambulatory references

What is the status of EU directives in the context of retained EU law? Are there any circumstances where EU directives or provisions of directives (and associated case law) are retained?

Sections 2 to 7 of the European Union (Withdrawal) Act 2018 (EU(W)A 2018), as amended by the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020), make provision for the retention of existing EU law in domestic law after the end of the Brexit transition/implementation period (IP completion day), namely:

  1. EU-derived domestic legislation, including legislation that implements EU directives (see EU(W)A 2018, s 2)

  2. direct EU legislation, such as Regulations, Decisions and other EU tertiary legislation (see EU(W)A 2018, s 3)

  3. certain rights, powers, etc. available under section 2(1) of the European Communities Act 1972 (see ECA 1972) (EU(W)A 2018, s 4)

EU directives are not themselves retained by EU(W)A 2018—EU directives are not within the scope of retained EU law. However, UK domestic legislation that implements EU directives is within the scope of retained EU law.

Moreover, by EU(W)A 2018, s 4(1) ‘any rights, powers, liabilities, obligations, restrictions, remedies and procedures’, which before IP completion day were recognised and available in domestic law by virtue of ECA 1972, s 2(1), and enforced, allowed and followed accordingly, continue to be so recognised and available. They thus also form part of retained EU law.

However, by

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