Thursday 28 January 2021

EU law and Domestic law: the on-going relationship (1)

The separation of the UK from the EU has resulted in a complex relationship between UK domestic law and EU law. It is rather like the mixing of colours on a watercolourist's palette: intricate and difficult to analyse but nonetheless crucial.

 This post sets the scene for an overview, over three subsequent posts, of the situation.

Brief history:

On 1 January 1973, the United Kingdom

acceded to three European Communities - Economic Coal and Steel (ECSC), Economic Community (EEC), and Atomic Energy Community (Euratom). The ECSC came to an end in 2002.

The ECSC was created by the Treaty of Paris 1951 which also provided for the European Court of Justice (ECJ). The EEC and Euratom were created in 1957 (Treaty of Rome and Euratom Treaty) and the ECJ then became a court with jurisdiction over all three communities.The United Kingdom acceded to the European Communities on 1 January 1973. 

As a result of the Maastricht Treaty (1992), the European Communities became the European Union (EU) with effect from 1 November 1993. The ECJ was renamed Court of Justice of the EU.

In the years 1951 to 1973 the ECJ was at the forefront of the development of European community law. For example, cases such as Van Gend en Loos (see Note) developed the principle of the primacy of community law over the domestic law of Member States. Certain principles of EU law were therefore well established by the time the UK's membership began.

Tides and Conduits:

Community law began, like an incoming tide, to "flow into the estuaries and up the rivers" - per Lord Denning MR in Bulmer (HP) Ltd v J Bollinger SA [1974] Ch 40.  At least since the Miller 1 case [2017] UKSC 5, the incoming ride metaphor has been mostly replaced by the notion that the European Communities Act 1972 created conduits along which community law could flow into the UK's domestic legal systems.

Whatever the hopes of Brexit supporters, the actual outcome of Brexit is that the conduit pipes are NOT closed entirely and, in fact, several new conduits have been constructed.

The implementation of Brexit has created an incredibly complex legal labyrinth. Exploration of this requires consideration of the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020, and the European Union (Future Relationship) Act 2020. Each of those Acts creates ways in which the law of the EU continues to have influence within the UK. 

Links to the relevant agreements and legislation are provided below. Links are also provided to the subsequent blogposts on this topic and to "Other Reading" of interest.

Agreements and legislation:

Previous post 4 January 2021 - Brexit - Agreements, Legislation, Key dates, and blogposts.

Agreements -

Withdrawal Agreement 2019

The Draft EU-UK Trade and Cooperation Agreement 

The Draft EU-UK Security of Information Agreement 

The Draft EU-UK Civil Nuclear Agreement  

Draft EU-UK Declarations

Acts - 

European Union (Future Relationship) Act 2020

European Union (Withdrawal Agreement) Act 2020

European Union (Withdrawal) Act 2018  

Posts in this series:

EU law and Domestic law: the on-going relationship (1)

EU law and Domestic law: the on-going relationship (2) - Retained EU Law 

EU law and Domestic law: the on-going relationship (3) - Relevant Separation Agreement Law

EU law and Domestic law: the on-going relationship (4) - Future relationship

Other reading:

Pavlos Eleftheriadis (Professor of Public Law, Mansfield College) – Eleven types of post-Brexit EU law

EU Law Analysis blog - Professor Steve Peers

Monckton Chambers - EU Relations Law and the series by barrister Jack Williams - EU Relations Law - Relevant Relationship Agreement Law: a guide for the perplexed

House of Commons Library 30 July 2019 - The status of retained EU law

Update ..... 23 September 2022


"The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the Community."

Van Gend en Loos 1963

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