Insights

Brexit and the repatriation of EU laws

Written by David Marchese
31/03/2017

The Government’s White Paper “Legislating for the United Kingdom’s withdrawal from the European Union” has confirmed the general approach that the proposed “Great Repeal Bill” will take. Whilst the UK will no longer be subject to the jurisdiction of the European Court of Justice (CJEU), EU laws existing at the time Brexit takes effect will in fact continue to apply, unless or until they are overturned by subsequent UK legislation.

The European Communities Act 1972 (ECA), which made the domestic law of the UK subject to that of the EU, imposed on the UK Government the duty to implement EU Directives, and required the UK Courts to have regard to EU law, will be abolished. But all UK secondary legislation that has been made under the ECA in order to implement EU Directives will remain in force, as will UK Acts of Parliament that follow EU law (such as the Consumer Rights Act 2015). EU Regulations (which are directly applicable) will be converted into UK domestic law, in so far as they remain relevant. And the directly applicable provisions of the EU Treaties that bestow rights on individuals will also be converted into UK law, but the controversial Charter of Fundamental Rights will cease to apply (though the individual rights of workers will be retained).

Some parts of EU law will simply be irrelevant to the UK after Brexit, or will need to be amended to make sense in a wholly UK context (for instance, references to European agencies, some of which will have to be replicated). The White Paper does not mention those parts of the EU Treaties dealing with the EU competition rules or those relating to the Single Market, but presumably these will no longer apply as part of UK law – although UK companies that infringe them may still find that they are subject to the long arm of the EU authorities, albeit with reduced powers here.

Interestingly, the White Paper confirms that, in interpreting the EU laws that have been converted into UK laws, the UK Courts will still have to have regard to decisions of the CJEU, which will have the same status as decisions of our own Supreme Court. A further area for (hopefully fruitful) discussion will be how the powers repatriated to the UK will be shared with the devolved administrations of Scotland, Northern Ireland and Wales.

As ever, the devil will be in the detail, and it is notable that the Government is not proposing to publish a draft of the “Great Repeal Bill” until a later date.

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David Marchese

I graduated from Oxford University before qualifying as a solicitor at Herbert Smith. I went on to work at Richards Butler and then Davenport Lyons, before joining Gordon Dadds in 2014. I have extensive experience advising on the law of intellectual property, information technology and commercial contracts. I am the author of Business Licensing Agreements (Longman, 1995), the section on Supply of Goods and Services in Practical Commercial Precedents (Sweet & Maxwell) and several published articles including Joint Ownership of Intellectual Property (EIPR, 1999) and Warranties and Covenants in IP Licences (OUP, 2009).

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