European Union Law

When will EU law apply after Brexit?

Fiona ParkerPosted by

After 11.00pm on Brexit day (i.e. 29 March 2019 unless parliament and the EU decides otherwise), EU law will stop applying in the UK.

What does it mean when EU law stops applying?

This means that:

  • No one in the UK will be able to rely on, or enforce, EU law in its current form; and
  • The UK will not be bound to accept any judgement made by EU institutions such as the European Court of Justice or the European Commission; but
  • There will be no change to the rights and obligations that come from the European Convention on Human Rights and the role of the European Court of Human Rights (e.g. freedom of expression), although similar rights and obligations set out in the Charter of Fundamental Rights will no longer apply (e.g. some broader social and workers rights).

Instead, most of the content of EU law, as it stands at 11.00pm on Brexit day, should become part of UK law. Broadly speaking this means that individuals and companies should have substantially similar rights and obligations at 11.01 on Brexit day as they had at 11.00. The main difference will be that people will only be able to turn to the UK courts, not the EU, to rely on and/or enforce those rights and obligations.

What are the different types of EU law?

‘EU law’ comes in many different forms and there are various ways in which its rights and obligations will be turned into UK law. Anyone looking to understand when and how EU law will apply to them or their client will therefore need to consider the form as well as the content of that law.

Does (pre-Brexit) EU law apply here?

Important differences will emerge as cases test the exact post-Brexit workings of EU law. However, here is a rough starting point for answering the question:

Form – What’s the source of EU law?
Content – Does the right / obligation etc you are considering meet the following test?Example
Treaty (if listed in the European Communities Act 1972) Been recognized, made available, enforced, allowed and followed in UK law pre-Brexit?
Right to equal pay (Art. 157 TFEU)
Regulations, decisions, tertiary legislation or annex to the EEA agreement
Applied to the UK pre-Brexit. Rules on securitization deals (2017/2402)
Directives
Been incorporated into UK law by UK statute / statutory instrument or found by the courts to be directly effective pre-Brexit.Rules on carbon capture and storage (2009/31)
Case law and general EU law principle Been applied under one of the other categories above?
NB: Such EU case law will remain binding on all UK courts except the Supreme Court and the High Court of the Justiciary. All UK courts will be able to have regard to EU case law after Brexit.
Government action must be ‘proportionate’.

What other factors are important?

Other factors that it will be important for anyone to consider are:

Not all EU law will come across into UK law

It seems likely that law contained in at least the following will simply fall away and no longer form part of the ‘the law’ in the UK:

  • Anything which had not been fully commenced or translated into English by 11.00pm on Brexit day.
  • Rights which individuals have under a directly effective term of a directive that has not yet been the subject of a court judgement.
  • Decisions directed to any one member state that’s not the UK.

It is also yet not clear how, if at all, ‘softer’ forms of EU law, e.g. guidance or opinions on the interpretation of harder rules, will become part of UK law in the future.

Rights which individuals have under a directly effective term of a directive that has not yet been the subject of a court judgement.

Decisions directed to any one member state that’s not the UK.

It is also yet not clear how, if at all, ‘softer’ forms of EU law, e.g. guidance or opinions on the interpretation of harder rules, will become part of UK law in the future.

The content of EU law will have to change as it becomes part of UK law

If the terms of EU law, as written, were simply copied and pasted into UK law, there would be gaps, inconsistencies and unintended consequences that could make parts of the law unworkable. This means that EU law will have to be adapted as it transforms into UK law.

A simple example is where pre-Brexit EU law gives an EU agency the power to gather information, interpret something or make a decision – in those cases the law will have to be changed to specify a UK government body instead. That body will also have to be given additional powers to recover the money that it needs to perform its new functions.

More complicated decisions will be required where EU or existing UK law requires people or companies from ‘third countries’ to do or not do certain things, e.g. to declare any interests in strategically important infrastructure or register the import of certain goods. Without new laws, existing permissions for cross-border European arrangements may fall away and so detailed new ‘saving’ rules will be required to allow the status quo to continue.

For up to 10 years after Brexit Day, the UK government will have a general power to amend laws as it thinks appropriate in consequence of Brexit, without having to go through the usual parliamentary procedures. For the first two years it will also have a specific power to change the content of EU law to help its integration into UK law. Considerable work is underway to find and make adjustments to each place where such changes are needed and all UK rules should be read with that in mind.

Transition period

The EU (Withdrawal) Act 2018 does not provide for a transition period. If there is to be a transition period, then the legal definition of ‘Brexit’ (ie. ‘exit day’) will probably have to change under the planned Withdrawal Agreement Bill, deferring the point in time at which EU law is to be ‘turned into’ UK law until the end of any transition period.

UK Government Liability

There is a new time limit on an individual’s right to pursue the UK Government for breaching EU law pre-Brexit, e.g. by failing to implement a directive. Individuals will now have 2 years from Brexit day to identify and bring any such claims.

Shepherd and Wedderburn’s dedicated Brexit advisers will continue to interrogate the regulatory and commercial issues. We are advising clients on next steps and helping them understand how developments in the economic and constitutional space will affect them.

Please get in touch – we look forward to continuing the discussion.

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