Repeal of the European Communities Act
The European Union (Withdrawal) Act 2018 (EUWA) repeals the European Communities Act 1972 (ECA) effective on “exit day” (originally 29 March 2019, now 31 October 2019).1 In so doing, it removes the domestic constitutional basis for EU law having effect in...
1. Contents:
2. 1. Current status of EU law
3. 2. Effect of repealing the European Communities Act
1972
4. 3. What is retained EU law?
5. 4. EU-derived domestic legislation (section 2 EUWA)
6. 5. Direct EU legislation (section 3 EUWA)
7. 6. Otherwise retained EU law (section 4 EUWA)
8. 7. Limits on retention of EU law (section 5 and
Schedule 1)
9. 8. Interpretation of retained EU law (section 6)
10. 9. Transition
, 3. 1. Current status of EU law 6
4. 1.1 Implementation of EU treaties in the UK 6
5. 1.2 Supremacy of EU law generally 7
6. 1.3 Current relationship between EU law and the UK constitution 8
7. Parliamentary sovereignty 8
8. European Communities Act 1972 9
9. Factortame and disapplication of incompatible domestic law 10
10. Constitutional statutes and implied repeal 11
11. European Union Act 2011 12
12. 2. Effect of repealing the European Communities Act 1972 15
13. 2.1 Repealing the 1972 Act 15
14. 2.2 Retaining law arising from the 1972 Act 16
15. 2.3 When is exit day? 16
16. 3. What is retained EU law? 17
17. 3.1 Definition 17
18. 3.2 Exceptions 17
19. 3.3 Omissions 18
20. 3.4 How retained EU law might change 18
21. 4. EU-derived domestic legislation (section 2 EUWA) 19
22. 4.1 What is it? 19
23. 4.2 Examples of what it will include 20
24. 4.3 How can EU-derived domestic legislation be changed? 20
25. 5. Direct EU legislation (section 3 EUWA) 24
26. 5.1 What is it? 24
27. 5.2 Examples of what it will include 25
28. 5.3 How can retained direct EU legislation be changed? 25
29. 5.4 Human Rights Act and retained direct EU legislation 26
30. 5.5 The “appropriate” status of retained direct EU legislation 27
31. 6. Otherwise retained EU law (section 4 EUWA) 30
32. 6.1 EU “law” beyond legislative instruments 30
33. 6.2 What does section 4 EUWA retain? 31
34. 6.3 Which Treaty provisions does section 4 cover? 31
35. 6.4 Exclusion of certain rights and obligations arising under directives 32
36. 6.5 How can EU law retained by section 4 be changed? 32
37. 7. Limits on retention of EU law (section 5 and Schedule 1) 34
38. 7.1 Future status of the principle of supremacy of EU law 34
39. 7.2 Exclusion of the Charter of Fundamental Rights 37
40. 7.3 Exclusion of state liability (“Francovich damages”) 41
41. 8. Interpretation of retained EU law (section 6) 43
42. 8.1 Loss of CJEU jurisdiction 43
, 43. 8.2 Status of CJEU jurisprudence 43
44. 8.3 Limits on rights of action after exit day 45
45. 9. Transition 47
46. 9.1 Preservation of the European Communities Act for transition 48
47. 9.2 Areas in which ECA will not be preserved for transition 48
48. 9.3 Timing of “domestication” and “correction” of EU law 49
49. 9.4 What if there is no deal? 49
Cover page image copyright: CRI-8021 by UK Parliament/Mark Crick image.
Licensed under CC BY 2.0 / image cropped.
Summary
Repeal of the European Communities Act
The European Union (Withdrawal) Act 2018 (EUWA) repeals the European Communities Act
1972 (ECA) effective on “exit day” (originally 29 March 2019, now 31 October 2019).1 In so
doing, it removes the domestic constitutional basis for EU law having effect in the United
Kingdom. The basis in international law for EU law having effect on the UK will simultaneously
have been extinguished by the operation of Article 50 of the Treaty on European Union.
1 In the event of a Withdrawal Agreement being agreed to by the House of Commons, the EU
(Withdrawal Agreement) Bill may postpone this effect until the end of the transition period. See
Section 9 on Transition below.
Retention of some EU law
However, this does not mean that EU law is of no consequence to the UK after that point. The
EUWA also provides for the retention of most of that law, as it stands on exit day, by
“converting” or “transposing” it into a freestanding body of domestic law. The intention of this is
to provide legal certainty in the period immediately following EU exit, by (in effect) adopting a
rulebook and set of institutional arrangements that is initially as close as possible to that which
currently exists.
The EUWA also provides for the retention of most of EU law, as it stands on exit day, by
“converting” or “transposing” it into a freestanding body of domestic law.
The intention of this is to provide legal certainty in the period immediately following EU exit, by
(in effect) adopting a rulebook and set of institutional arrangements that is initially as close as
possible to that which currently exists.
How is EU law retained?
This new body of law is called “retained EU law” and will replicate several different sources of
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