ELS - Unit 6 - Retained EU Law (1)
Is the following statement TRUE or FALSE in relation to the application of EU law in a Member State? An EU Directive can only be enforced against a public organisation, for example, a government department or a state hospital. a) True b) False
A EU Directives can only be enforced against public organisations (the state and emanations of the state). The ECJ's decision in Marshall v Southampton & SW Hampshire Area Health Authority, confirmed that directives have vertical direct effect NOT horizontal direct effect.
The UK government wishes to correct a deficiency in a piece of retained EU law, because it contains EU references that are no longer appropriate. At the same time, the UK government wishes to make changes of substance to the retained EU law. Which of the following options best describes whether the UK government can correct the deficiency and make changes of substance to the retained EU law? a) The UK Government can make secondary legislation to correct the deficiency in the retained EU law, which includes EU references that are no longer appropriate. However, the UK Government does not have the power to make changes of substance to retained EU law. b) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because EU references that are no longer appropriate are not considered to be deficiencies. However, the UK Government does have the power to make changes of substance to retained EU law. c) The UK Government can make secondary legislation to correct the deficiency in the retained EU law, which includes EU references that are no longer appropriate. The UK Government also has the power to make changes of substance to retained EU law. d) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because retained EU law cannot be amended. Also, the UK Government does not have the power to make changes of substance to retained EU law. e) The UK Government cannot make secondary legislation to correct the deficiency in the retained EU law, because EU references that are no longer appropriate are not considered to be deficiencies. Also, the UK Government does not have the power to make changes of substance to retained EU law.
A Option A is correct because section 8 of EU(W)A 2018 (European Union (Withdrawal) Act 2018), grants temporary powers for UK Government ministers to make secondary legislation that corrects 'deficiencies' in retained EU law. Deficiencies are defined to include EU references that are no longer appropriate. The power can only be used to correct deficiencies arising from the UK's withdrawal from the EU; it is not a power to make changes of substance to retained EU law. Option B is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law. Option C is wrong because the UK Government does not have the power to make changes of substance to retained EU law. Option D is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law. Option E is wrong because the UK Government can make secondary legislation to correct the deficiency in the retained EU law and EU references that are no longer appropriate are considered to be deficiencies.
A woman is paid less by her employer than a male colleague doing work of equal value. This is permitted by a (fictitious) Act of Parliament enacted in 2015. The woman claims that the employer newspaper has infringed her right to equal pay for work of equal value under Art 157 TFEU. Can the woman make a claim against her employer relying on Art 157 TFEU? a) Yes, because directly effective rights arising under the TFEU become retained EU law. b) Yes, because directly effective rights arising under the TFEU become direct EU legislation. c) No, because UK Acts of Parliament, whenever enacted, prevail over retained EU law. d) No, because rights arising under the TFEU fall within one of the exclusions from retained EU law. e) No, because the UK has left the EU so rights arising under the TFEU are irrelevant.
A Option A is the correct answer. Rights etc. arising under s 2(1) of the ECA 1972 become retained EU law (s 4 EU(W)A), and the right to equal pay is a prime example of such a right. Option B is wrong because they do not become direct EU legislation; an example of direct EU legislation is an EU regulation that has become retained EU law. Option C is wrong as retained EU law has a limited form of supremacy over UK legislation (including Acts of Parliament) enacted pre-IP completion day. Option D is wrong as there is no applicable exclusion. Option E is wrong as it clear from s 4 of EU(W)A 2018 that Treaty rights do remain relevant in the UK legal system.
Is the following statement TRUE or FALSE? Judgments of the Court of Justice of the European Union handed down after IP completion day that are relevant to the interpretation of retained EU law are persuasive for UK courts. a) True b) False
A UK courts may take such judgments into account when interpreting retained EU law, but are not bound by them.
An EU Regulation in force immediately prior to IP completion day requires the UK government to consult with the European Commission before undertaking a given course of action. The EU Regulation has been converted into direct EU legislation. Which one of the following statements is CORRECT? a) The obligation to consult the Commission automatically lapsed on IP completion day. b) The UK government is likely to have adopted a UK regulation correcting the 'deficiency' in the EU Regulation. c) The obligation to consult the Commission was automatically replaced by an obligation to consult the appropriate UK regulator. d) The UK courts will interpret the reference in the EU Regulation to the Commission as a reference to the appropriate UK regulator.
B EU(W)A 2018 has given the UK government the power to correct deficiencies in retained EU law by way of statutory instrument. It will almost certainly have done so, as there are a large number of UK regulations which amend references to EU institutions which are no longer appropriate. It is probable that the UK regulations will have replaced the reference to the Commission with a reference to the appropriate UK regulator, but this does not happen automatically or as a matter of statutory interpretation, so options C and D are wrong. Option A is wrong as the obligation to consult the Commission would remain in force unless amended, even if it would be inappropriate following the UK's exit from the EU.
Is the following statement TRUE or FALSE? The Withdrawal Agreement covers the terms of the UK's exit from the EU and the transition period, but has no legal force after IP completion day. a) True b) False
B Many provisions of the Withdrawal Agreement continue to apply after IP completion day, in particular those relating to the Northern Ireland Protocol, the financial settlement and citizens' rights.
A female employee employed in a private sector company in an EU Member State is paid less than a male colleague doing the same. Legislation in the Member State in question permits the company to pay its female employees less than its male. The employee would like to bring a claim against the company in a national court relying on Article 157 TFEU. Article 157 provides for equal pay for equal work or work of equal value. Which ONE of the following statements is CORRECT? a) The employee cannot claim equal pay from the company as it is in the private sector, as Article 157 can only be used against a public body. b) The employee can claim equal pay from the company, as Article 157 can be used against private and public sector bodies. c) The employee can only sue the state for passing legislation that breaches Article 157, not the company. d) The employee cannot claim equal pay from the company before a national court, but must take her claim to the European Court of Justice.
B Option B is correct as Article 157, as a Treaty article, has both horizontal and vertical direct effect. That means individuals can enforce it against both private sector and public bodies. Under the principle of supremacy of EU law, a directly effective Treaty article will override the contradictory national legislation. Option A is wrong because it incorrectly states that Article 157 only has vertical direct effect. While the employee might have a claim against the state under the principle of state liability for passing legislation that breaches Article 157 (R v Secretary of State for Transport ex p Factortame (No 2)), option C is wrong because it suggests that it is the only remedy; instead the employee would be best advised to sue her employer. Option D is wrong, as the employee must bring her claim before a national court and not the European Court of Justice.
A client has tendered for a contract to supply imaging equipment to the UK Department of Health ('DoH'). The tendering process is regulated by the EU's Directive on Medical Equipment Tendering 2018/456 (fictitious) which has been incorporated into English law. As part of the tendering process companies must lodge a deposit of £50,000 with the DoH to ensure compliance with relevant procedures. The DoH forfeits the deposit alleging that it did not receive the client's incorporation certificate on time. However, the client commences legal action in the local County Court for recovery of the deposit on the grounds that it complied with all relevant deadlines and there was no legal basis for forfeiting the deposit. The court is presented with a recent decision by the Court of Justice of the European Union ('CJEU') in a French case where on similar facts it was held the forfeit of the deposit was disproportionate. Is the court in the client's claim likely to place any weight on the CJEU decision? a) No, because the principle of proportionality under EU law is no longer relevant following the UK's departure from the EU. b) Yes, because the County Court is likely to regard the CJEU decision in the French case as persuasive. c) Yes, because under the terms of the UK's departure from the EU any decisions by the CJEU remain binding on UK courts until 2025. d) No, because the UK's departure from the EU means UK courts now only take note of decisions by other UK courts and those from Commonwealth jurisdictions. e) No, because the terms of the UK's withdrawal from the EU mean that courts must disregard CJEU decisions.
B Option B is correct as UK courts can consider CJEU judgments as persuasive. Option A is wrong because retained EU law (such as the Directive in this question) is to be interpreted in the light of retained general principles of EU law. The principle of proportionality is a long-established general principle and will therefore still be relevant in interpreting retained EU law post-Brexit. Option C is wrong as the terms of the UK's departure contain no such provision. Option D is wrong because UK courts can still take note of CJEU decisions. Option E is wrong because withdrawal arrangements do not provide for this.
The High Court in England is hearing a case in which the parties are disputing the meaning of a provision of retained EU law. There is a decision of the CJEU that pre-dates IP completion day interpreting the provision in question. Which ONE of the following statements is CORRECT? a) The High Court may depart from the decision of the CJEU if it considers that it is right to do so. b) The High Court should follow the decision of the CJEU as a binding precedent. c) The High Court should follow the decision of the CJEU as a binding precedent unless it considers it is incorrect. d) The High Court may ignore the decision of the CJEU as the UK is no longer an EU Member State.
B Option B is correct. EU(W)A 2018 provides that any question as to the meaning of any retained EU law is to be decided in accordance with any relevant retained EU case law (i.e. decisions of the CJEU) and any retained general principles of EU law. The Court of Appeal and Supreme Court may depart from decisions of the CJEU when it appears right to do so, but the High Court is bound by retained EU case law. Option A is therefore wrong as it sets out the circumstances in which the Court of Appeal and Supreme Court may depart from retained EU case law, but is not applicable to the High Court. Options C and D are wrong as the High Court is bound by retained EU case law.
What is the status of an EU regulation in force immediately before IP completion day? Select ONE of the following options. a) In the absence of any domestic implementing legislation, it will cease to apply in the UK. b) It will become direct EU legislation, a category of retained EU law. c) It will become EU derived domestic legislation, a category of retained EU law. d) It will fall into the category of retained EU law described as 'rights and powers available in UK law prior to IP completion day'.
B Option B is correct. Pursuant to s 3 EU(W)A 2018, direct EU legislation includes any EU regulation in force immediately before IP completion day. Option A is wrong as direct EU legislation does not require implementation in the UK to be retained. Option C is wrong as EU-derived domestic legislation is UK legislation that was enacted to implement the UK's EU obligations (s 2 EU(W)A 2018). Option D is wrong as it describes the residual category of retained EU law defined in s 4 EUWA 2018 that does not fall within s 2 or s 3 EU(W)A 2018.
The (fictional) Regulation 2010/564 on Banking Capital Restrictions ('the 2010 Regulation') was an EU regulation which has become retained EU law. In 2017 Parliament passed the (fictional) Banking Act ('the 2017 Act'). The 2017 Act is not EU-derived domestic legislation. In a case to be heard this week, the High Court is considering a conflict between provisions in the 2010 Regulation and the 2017 Act. How will it decide the case? a) The 2010 Regulation will be supreme as a result of direct effect. b) The 2010 Regulation will be supreme because it is retained EU law and has supremacy over a piece of pre-IP completion day legislation that is not retained EU law. c) The 2017 Act will be supreme as a result of Parliamentary Supremacy. d) The 2017 Act will be supreme because it is retained EU law passed after the 2010 Regulation. e) The High Court will have to make a reference to the European Court of Justice to determine the case.
B Option B is correct. The 2010 Regulation will be supreme because it became retained EU law under section 3 of the European Union (Withdrawal) Act 2018. Retained EU law takes precedence over domestic law passed prior to the end of the Implementation Period that is not retained EU law. Option A is wrong because, after IP completion day, the principle of direct effect has no application to the 2010 Regulation. Options C and D are both wrong because the 2017 Act will not take precedence in this situation. Option E is wrong because the reference procedure is no longer relevant.
An EU directive (fictitious) adopted in 2017 provides that Member States must ensure that the use of latex gloves is prohibited in restaurants, cafeterias and other places that serve hot food for consumption on the premises. The directive was adopted due to medical evidence that latex gloves were causing an allergic reaction. The directive further provides that Member States should implement it by 30 November 2019. The UK government took no steps to implement it. In May 2020 the CJEU ruled that the provisions of the directive have direct effect. After IP completion day a woman working in a cafeteria operated by a government department suffered an allergic reaction as a result of wearing latex gloves. Can the woman make a claim against the government department based on the directive? a) Yes, because the directive was due to be implemented before IP completion day, it has direct effect, so it can be relied upon vertically against a state body. b) Yes, because the rights arising under the directive are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day and so can be relied upon vertically against a state body. c) Yes, because the directive was due to be implemented before IP completion day, it has become retained EU law and so can be relied upon vertically against a state body. d) No, because directives do not become retained EU law and so cannot be enforced in the UK after IP completion day. e) No, because rights arising under directives cannot be enforced in the UK after IP completion day as they are covered by an exclusion as regards enforcement in UK legislation.
B Option B is in fact correct. Directives are capable of having direct effect if they have not been implemented or implemented incorrectly, although only vertically against the state or state bodies. As the rights granted by the directive in this question are of a kind that have been recognised by a UK or EU court or tribunal before IP completion day, the rights it grants will become retained EU law. Option B is a better answer than option A as option A is too simplistic and states the position during the UK's membership of the EU. Option C is wrong as directives do not become retained EU law, as normally they are implemented into domestic law by primary or secondary legislation. Where rights under a directive are preserved, it is the rights themselves that become retained EU law rather than the directive. Option D is wrong as, although it correctly states that directives do not become retained EU law, it ignores the fact that rights arising under directives can become retained EU law, as set out in option B. Option E is wrong. Although rights arising under directives are only retained in limited circumstances, there is no exclusion relating to the enforcement of any rights that are retained. Regarding other sources of EU law, the main exclusions relate to the Charter of Fundamental Rights and the enforcement of general principles.
Is the following statement TRUE or FALSE? Retained EU law is a snapshot of EU law as it applied in the UK immediately before the UK's exit from the EU. a) True b) False
B Retained EU law is a snapshot of EU law immediately before IP completion day (11.00pm on 31 December 2020). Although the UK left the EU on 31 January 2020, the Withdrawal Agreement provided for a transition period during which EU law continued to apply in the UK.
Is the following statement TRUE or FALSE in relation to the application of EU law in a Member State? An EU Regulation can only be enforced against a public organisation, for example, a government department or a state hospital. a) True b) False
B The statement is FALSE. EU Regulations can be enforced against public and private organisations. They have vertical AND horizontal direct effect.
The following sentence describes a type of EU legislation: 'It is binding on Member States as to the result to be achieved. The way in which it is implemented however is left to the individual Member State.' What type of legislation is it? Select ONE of the following options. a) Treaty Article b) Regulation c) Directive d) Decision
C C is the correct answer, as the sentence describes a directive. The other types of legislation do not have to be implemented into national law.
An employee is suing her employer for age discrimination before an English court. Her employer is relying on UK legislation (fictitious) brought in after the Implementation Period completion date which allows employers to discriminate against employees aged under 21 years on the grounds of age. The English court determines that the UK legislation breaches the principle of equality; however the court does not disapply the UK legislation, and the employee fails in her claim. Which of the following options best explains why the court does not disapply the UK legislation? a) The court did not disapply the UK legislation because the principle of equality was not a recognised general principle of EU law before IP completion day and will therefore not be a part of retained EU Law in the UK. b) The court did not disapply the UK legislation because although the principle of equality was a recognised general principle of EU law before IP completion day, it is no longer relevant law in the UK. c) The court did not disapply the UK legislation because although the principle of equality is a part of retained EU law in the UK, the court cannot disapply the UK legislation that is in effect. d) The court did not disapply the UK legislation because they made an error in judgment. The principle of equality is a part of retained EU law in the UK and any UK legislation must be disapplied, if it breaches this principle. e) The court did not disapply the UK legislation because disapplying national law that breaches EU law has not been a procedure available in English courts before IP completion day, and will therefore not be a procedure available in English courts after IP completion day.
C Option C is correct. During the UK's membership of the EU, UK courts would have been required to disapply legislation, including primary legislation, that breached the principle of equality. However, after IP completion day, this is no longer the case. Although the principle of equality is retained EU law in the UK, failure to comply with it cannot give rise to a right of action. Option A is wrong because the principle of equality was a recognised general principle of EU law before the end of IP completion day and will therefore be a part of retained EU Law in the UK. Option B is wrong because the principle of equality was a recognised general principle of EU law before IP completion day, and it is relevant law in the UK as retained EU law. Option D is wrong because the court did not make an error in judgment. The principle of equality is a part of retained EU law in the UK but since IP completion day, any UK legislation cannot be disapplied, if it breaches this principle. Option E is wrong because disapplying national law that breaches EU law was a procedure available in English courts before IP completion day, but is not a procedure available in English courts after IP completion day.
A man who is a Danish citizen has been resident in the UK for over five years and applies for settled status. Under the terms of the Withdrawal Agreement governing the UK's exit from the EU, he is entitled to permanent residence in the UK. The Home Office rejects his application on the grounds that a section in an Act (fictitious) of the UK Parliament excludes a person in his position from settled status. The Act does not, however, attempt to override the Withdrawal Agreement. Can the man challenge the Home Office's refusal to grant him settled status? a) No, because an Act of Parliament will automatically override conflicting provisions in the Withdrawal Agreement. b) No, because the Withdrawal Agreement is an international treaty which does not give rise to rights in UK law. c) Yes, because international treaties are automatically incorporated into UK law when ratified by the UK government. d) Yes, because UK legislation has provided for the direct effect of the relevant provisions of the Withdrawal Agreement. e) Yes, because the UK Parliament cannot legislate contrary to international treaties.
D EU(W)A 2018 provides for the Withdrawal Agreement, including the citizens' rights provisions, to have direct effect, so its provisions will override the conflicting UK statute. If the UK statute had expressly and unequivocally overridden the relevant provisions of the Withdrawal Agreement, then UK courts would have applied the statute. However, the question indicates that is not the case, so option A is wrong. Option B is wrong; although international treaties do not in themselves give rise to rights in UK law, EU(W)A 2018 has incorporated the Withdrawal Agreement into UK law. Option C is wrong because international treaties need to be incorporated into UK law to have direct effect. However, the Withdrawal Agreement Act 2020 did this. Option E is wrong because Parliament can legislate contrary to international treaties, as Parliament is sovereign. Nonetheless, any such legislation would breach international law.
A woman is suing her employer in an English court. She wishes to rely on a piece of retained EU law. Her employer wishes to rely on UK legislation enacted before IP completion day that is not retained EU law. There is a conflict between a provision of the retained EU law and the UK legislation. The court is not sure whether under the circumstances EU law is supreme over the UK legislation. Which of the following options best describes whether under the circumstances the retained EU law or the UK legislation is supreme? a) The retained EU law will not be supreme over the UK legislation because post IP completion day, EU law is no longer supreme over UK legislation. b) The retained EU law will be supreme over the UK legislation because all retained EU law is supreme over UK legislation, no matter when enacted. c) The retained EU law will not be supreme over the UK legislation because retained EU law is only supreme over UK legislation enacted after IP completion day and not before. d) The retained EU law will be supreme over the UK legislation because retained EU law is supreme over all UK law which has been enacted after IP completion day e) The retained EU law will be supreme over the UK legislation because the UK legislation is enacted before IP completion day and is not retained EU law
E Option E is correct. Although following the end of the transition period EU law itself no longer has supremacy over UK law, retained EU law will have supremacy in limited circumstances. For this purpose there are three categories of law: retained EU law; UK legislation enacted before the end of the transition period that is not retained EU law; and all UK legislation enacted after the end of the transition period. Should a conflict occur between a provision of retained EU law and a piece of UK legislation (that is not retained EU law) enacted before the end of the transition period, then EU law will prevail over national law. Option A is wrong because the retained EU law will be supreme to the UK legislation because retained EU law is supreme over UK legislation enacted before the end of the transition period that is not retained EU law. Option B is wrong. It is not the case that all retained EU law is supreme over UK legislation.
