Conversion and Retention of EU Law

Repeal of the European Communities Act 1972

The Withdrawal Act repeals the European Communities Act on exit day. The ECA is the principal piece of domestic legislation passed by the UK Parliament which gives effect to EU law in the UK and gives EU law supremacy over UK domestic law. The main effects of repealing the Act are to reflect the end of the supremacy of EU law in domestic law and to remove the mechanism which enabled the flow of new EU law into UK law.

Saving for EU-derived domestic legislation

The Withdrawal Act provides that existing domestic legislation which implements EU law obligations (EU-derived domestic legislation, also referred to in these notes as ‘preserved legislation’) remains on the domestic statute book after the UK leaves the EU. Generally, secondary legislation lapses automatically when the primary legislation under which it is made (for instance, section 2(2) ECA) ceases to have an effect unless saved expressly). More widely, there would be doubt as to whether legislation which presupposes membership of the EU would work if the UK is not a member of the EU. The same applies to legislation which relates or refers to the EU or the EEA. This section makes it clear that these categories of legislation fall within retained EU law so that the powers in the Act can be used to ensure that they still function properly after exiting from the EU.

The Withdrawal Act provides that EU-derived domestic legislation will remain in place and continue to have an effect on and after exit day, as it has effect before exit day. This will include legislation that has been passed or made but is not yet in force. This will also include amendments to EU-derived domestic legislation made under the ECA.

This is in contrast to section 3 where it is only direct EU legislation that is “operative” immediately before exit day that is converted.

Preserved Legislation

The Withdrawal Act describes the types of legislation which will form part of this ‘EU-derived domestic legislation’, or preserved legislation. It  preserves secondary legislation which has been made under the dedicated power in  the ECA to implement the UK’s obligations under EU law, and under the ECA. It allows for ambulatory cross-references to EU instruments “as amended from time to time”, which means the references to the EU instruments will automatically update when that EU instrument is amended.

The Act, however, makes further provision about such ambulatory references to EU legislation, so that modifications made by the EU on or after exit day do not form part of UK domestic law.

The Act is designed to cover legislation which, while not made under section 2(2) of  the ECA, was either specifically passed (e.g. by an Act of Parliament) or made under other secondary legislation making powers for the purpose of implementing EU obligations.For example, domestic health and safety law is often made to implement EU obligations but is normally made under the powers in the Health and Safety at Work etc. Act 1974 rather than the ECA.

The reference to ‘operating’ is designed to include legislation which was not  specifically passed or made to implement our EU obligations (for example, because the EU had not legislated in that area at the time the legislation was made) but has since become part of the way in which we demonstrate compliance with EU requirements.

The Act covers enactments which are connected to, but do not fall within, the definitions of domestic legislation preserved by the Act or converted EU law. It is designed to ensure that provisions which are tied in some way to EU law, or to the domestic law which implements EU law, can continue to operate properly post-exit.

For example, it will ensure that a provision which goes beyond the minimum needed to comply with requirements under EU law (a so-called ‘gold-plated’ provision) is not considered to be excluded from the scope of ‘EU derived domestic legislation’. This will allow such a provision to be amended by the powers in the Act so that it still works effectively once the UK has left the EU.

The definition of preserved legislation does not include the ECA itself. Amendments made under the ECA are preserved.

Extent of Preservation

The category of domestic legislation that is preserved is widely drawn. However, under the relevant provision, domestic legislation is only preserved so far as it is operating for any of the purposes set out in it . If it is not operating for those purposes, it will not fall  within the ambit of the provision.

For example, where an Act of Parliament contains cross-references to an EU instrument this does not mean that the Act as a whole becomes EU derived domestic legislation (and by extension retained EU law), rather than only those parts of the Act which operate for any of the purposes set out above do. In the same way, only those parts of domestic legislation which implement EU rules (or fall within the other limbs of the definition) form part of retained EU law (whichever power or powers the instrument was made under).

Section 2(2)(a) of the ECA is used for the purposes of implementing (or enabling the implementation of) any EU obligation of the UK or enabling rights to be enjoyed under the EU treaties. Section 2(2)(b) is used for dealing with matters which arise out of or are related to those obligations or rights.

Incorporation of Direct EU legislation I

EU legislation does not form part of the UK  legal system in the same way as domestic legislation – it is given legal effect in the UK via section 2(1) of the ECA, which describes how such legislation is to have an effect “in accordance with the EU Treaties”. It is this which ensures that, for example, EU regulations are directly applicable and fully binding in all member states.

This legal order is possible because the UK is a member of the EU and subject to the treaties. Upon exit, the UK will no longer be bound by the treaties and so EU legislation can no longer have effect in accordance with them. The Act ensures that, where appropriate, EU legislation continues to have effect in our legal system post-exit.

Section 3  of the Withdrawal Act addresses this, by converting ‘direct EU legislation’ into domestic legislation at the point of exit. Where legislation is converted under this section, it is the text of the legislation itself which will form part of domestic legislation. This will include the full text of any EU instrument (including its recitals.

The Withdrawal Act describes the types of legislation which form part of this ‘direct EU legislation’  Subsection (2)(a) converts EU regulations, certain EU decisions and EU tertiary legislation (now known as delegated and implementing acts), as they have effect immediately before exit day.

The Act provides that certain instruments are exempt EU instruments. These exemptions reflect that certain EU instruments did not apply to the UK because the UK did not adopt the Euro, or because the UK did not participate in certain aspects of the EU acquis, in the area of freedom, security, and justice.

EU decisions which are addressed only to a member state other than the UK are also not converted into domestic law. Additionally, so far as EU-derived domestic legislation under section 2 reproduces the effect of an EU regulation, decision or tertiary legislation, these instruments are not converted under this section. This is to avoid duplication on the statute book after exit.

The Withdrawal Act ensures the conversion into domestic law of any relevant EU regulations, decisions and tertiary legislation as they apply to the EEA. The European Economic Area Act 1993 makes the EEA Agreement one of the ‘EU treaties’ for the purposes of the ECA.

Because of this, section 2(1) and (2) of the ECA applies to provisions of the EEA Agreement. In essence, direct EU legislation applies to the EEA by virtue of its inclusion in the Annexes to the EEA Agreement, with any adaptations that are necessary for it to apply in the EEA context. This direct legislation, as adapted, then flows into UK domestic legislation as a result of section 2(1) of the ECA.

Protocol 1 to the EEA Agreement contains horizontal adaptations which set out general interpretative provisions that apply throughout the Annexes to the Agreement. For instance, whenever EU acts refer to nationals of an EU member state, the references shall, for the purposes of the EEA Agreement, also be understood as references to nationals of EFTA states.

Incorporation of Direct EU legislation II

Under section 3, direct EU legislation is only converted and incorporated into domestic law “so far as operative immediately before exit day”. The default position is that direct EU legislation is operative if it is in force immediately before exit day.

However, some EU legislation applies in a staggered way over time, and the Act ensures that, so far as a relevant instrument has entered into force and applies before exit day, it will be converted into domestic legislation. It is only if the provision is “stated to apply” from a later time (see section 3(3)(a)), and that time falls on or after exit day, that the provision would not fall within the ambit of the section.

So, where there is a stated date of application, and this date falls after exit day, the provision is not converted. This means that, provided it is not expressly stated to apply from a date falling on or after exit day, EU legislation which is in force before exit day will be converted even if it has some effect which crystallises after exit day.

In the case of EU decisions which specify to whom it is addressed, if the date of notification to the addressee (for example the UK or a person in the UK) falls before exit day then that decision is converted

The Withdrawal Act clarifies that section 3 will only convert the English language version of existing direct EU legislation into domestic legislation. However, other language versions can continue to be considered as aids to interpretation by the courts.

The Withdrawal Act provides that the saving of direct EU legislation is subject to the exceptions provided.

Saving for rights etc. under the ECA I

The Withdrawal Act ensures that any remaining EU rights and obligations which do not fall within the above provisions continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties.

Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional as to confer rights directly on individuals and which can be relied on in national law without the need for implementing measures. Where directly effective rights are retained under this section, it is the right which is retained, not the text of the Article itself.

For example, the UK Government considers that the following TFEU articles contain directly effective rights which would be converted into domestic law as a result of this section (this is an illustrative list and is not intended to be exhaustive).

  • Article 18 Non-discrimination on the ground of nationality
  • Article 20 (except Article 20(2)(c)) Citizenship rights
  • Article 21(1) Rights of movement and residence deriving from EU citizenship
  • Article 28 Establishes customs union, prohibition of customs duties, common external tariff
  • Article 30 Prohibition on customs duties
  • Article 34 Prohibition on quantitative restrictions on imports
  • Article 35 Prohibition on quantitative restrictions on exports
  • Article 36 Exception to quantitative restrictions
  • Article 37(1) and (2) Prohibition on discrimination regarding the conditions under which goods are procured
  • Article 45(1), (2) and (3) Free movement of workers
  • Article 49 Freedom of establishment
  • Article 56 Freedom to provide services
  • Article 57 Services
  • Article 63 Free movement of capital
  • Article 101(1) Competition
  • Article 102 Abuse of a dominant position
  • Article 106(1) and (2) Public undertakings
  • Article 107(1) State aid
  • Article 108(3) Commission consideration of plans regarding state aid
  • Article 110 Internal taxation
  • Article 112 Non-discrimination in indirect taxes
  • Article 157 Equal pay

Saving for rights etc. under the ECA II

In addition, directly effective rights may also arise under other treaties which are brought into domestic law by virtue of the ECA, such as the EEA Agreement and Euratom. These include international agreements made by the EU with third countries, as well as certain multilateral agreements to which either or both of the EU and UK are a party.

The Withdrawal Act also retains things other than rights, to the extent they have direct effect by virtue of section 2(1) ECA. For example, Article 346 of TFEU may be regarded as containing a restriction whose effect is retained by section 4; and Article 123 as imposing certain restrictions on what national central banks may do.

Any directly effective rights retained in domestic law as a result of this section would be subject to amendment or repeal via statutory instrument made under section 8. For example, where the resulting provision has no practical application or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions.

This of itself does not affect whether the treaty right or other thing is retained under section 4 in the first place.

The Withdrawal Act sets out exceptions to the conversion. First, it provides that the section does not bring in any rights, powers etc. if they already form part of domestic law by virtue of section 3. Secondly, the section excludes directly effective rights arising under an EU directive (including as extended to the EEA by the EEA agreement).

This Article draws on UK Parliamentary material. UK public sector information is reproduced pursuant to the Open Government Licence  The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available  at (the UK Licence).

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