Sources of Retained EU Law

Introduction

This chapter forms part of **Unit 4: The Place of EU Law in the UK Constitution**. The UK joined the European Communities in **1973** and left the EU in **January 2020** pursuant to a **Withdrawal Agreement**. When the **transition period** ended at the close of **31 December 2020** (the **'IP completion day'**), a vast body of EU law was frozen into UK domestic law as **retained EU law**. This chapter explains **what retained EU law is**, the **three main categories** preserved by the **European Union (Withdrawal) Act 2018 ('EUWA 2018')**, the **status** and **interpretation** of retained EU law, the powers to **modify and withdraw** it, the **exclusions** (Charter, general principles, state liability), and the **relationship between parliamentary sovereignty and retained EU law**.

Assessment focus

For the SQE1 FLK1 assessment, you must understand how EU law was domesticated by **EUWA 2018** (as amended by the **European Union (Withdrawal Agreement) Act 2020**). You should be able to identify the **three categories** of retained EU law — **EU-derived domestic legislation** (s. 2), **direct EU legislation** (s. 3), and **rights preserved under s. 4** (derived from s. 4(1) ECA 1972) — and to apply them to client scenarios involving **Treaty articles, Regulations, Directives and Decisions**. Examiners frequently test the **direct effect of Directives** (vertical only, against the state) and whether a right has been **recognised by a court before IP completion day** (s. 4(2)). You must also know the **exclusions**: the **Charter** (s. 5(4)), **general principles** as a free-standing cause of action, and **Francovich state liability**. Questions are single best answer questions (SBAQs) set in **realistic client-based scenarios**; this is a **closed-book** assessment.

Study tips

1) Memorise the **three categories** of retained EU law and their EUWA 2018 sections: **s. 2** (EU-derived domestic legislation), **s. 3** (direct EU legislation), **s. 4** (preserved rights). 2) Remember the key date — **IP completion day = end of 31 December 2020**; retained EU law is a **snapshot** of EU law in force immediately before that date. 3) **Directives are NOT themselves retained EU law**, but rights of a kind **recognised by a court before IP completion day** are preserved under **s. 4(2)** and may be relied on **vertically** against the state. 4) Know the **status split** under **s. 7**: retained direct **'principal'** legislation (most EU Regulations; treated as primary legislation for HRA 1998) vs retained direct **'minor'** legislation (amendable like secondary legislation). 5) Learn the **exclusions**: the **Charter** (s. 5(4)), **general principles** as a cause of action, and **Francovich** state liability (with a **two-year** saving). 6) Note **supremacy** under **s. 5(2)** is **backwards-facing only** — it benefits retained EU law against **pre-IP completion day** law, not against later Acts.