Retained EU Law (UK Exit)

Exit day is 31st October (this date is in a Statutory Instrument)

The European Union (Withdrawal) Act 2018 is the governing Law.

Some EU legislation will continue to have effect in the UK legal system post-exit. This is called ‘Retained EU Law’.

EU regulations (not EU directives), certain EU decisions and EU tertiary legislation (now known as delegated and implementing acts), will be retained (converted and incorporated) in the UK legal system as they have effect immediately before Exit day.

EU-derived domestic legislation that reproduces the effect of an EU regulation, decision or tertiary legislation, are not retained. This is to avoid duplication on the statute book after exit.

EU legislation is only converted and incorporated into domestic law “so far as operative immediately before Exit day”.

The default position is that 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, 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.

For example the EU fluorinated greenhouse gases regulation [No. 517/2014]. the whole of which is in force and – by virtue of its Article 27 – is stated to apply from 1 January 2015, prohibits the supply of equipment containing certain substances from specified dates, several of which fall after Exit day. These future prohibitions apply now, even though they do not take effect until after Exit day. They are therefore converted under the Act and will take effect on the specified dates.

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.

In the case of EU directives – these are not part of EU retained law in any event. EU directives will have dates by which member states should have domestic legislation in place. If these dates are beyond Exit day, then it will be a matter of enforcement of non- implementation by the European Commission (on an action, for example, taken by an aggrieved party).