Chapter 10: Retained/Assimilated EU Law

What does EUWA 2018 do?

Creates "retained EU law" (a snapshot of EU law operative immediately before IP completion day) to keep the statute book working after exit. It also repealed the ECA 1972.

When is IP completion day?

11pm on 31 December 2020, the end of the transition period.

What did REULA 2023 do and when did it take effect?

From 1 January 2024 it renamed retained EU law as "assimilated law" and removed its special features (supremacy, general principles, s 4 rights).

Why did the original wholesale sunset in the REULA Bill get dropped?

Criticism of the risk of inadvertent omission, i.e. instruments lapsing unnoticed because departments failed to identify them.

What did s 1 REULA 2023 do?

Revoked 587 instruments of retained EU law listed in Sch 1 at the end of 31 December 2023 (the sunset).

What is the TCA and what does it provide?

The Trade and Cooperation Agreement between the UK and EU: a free trade agreement giving quota and tariff free trade in goods, but with more trade barriers than UK membership.

What is s 29 EU(FR)A 2020?

A "sweeping-up" provision: any modification of UK domestic law (statute or common law) needed to implement the TCA is deemed to have been made, so far as not implemented by another mechanism.

What does the Product Regulation and Metrology Act 2025 allow?

Ministers (s 1(2)) can align domestic product regulations with EU standards, particularly for environmental impact mitigation.

What are the three main categories of retained EU law?

(1) EU-derived domestic legislation (s 2 EUWA), (2) direct EU legislation (s 3 EUWA), (3) rights etc under s 2(1) ECA 1972 (s 4 EUWA).

What is EU-derived domestic legislation?

Secondary legislation (and some Acts) made to implement EU obligations, e.g. the Working Time Regulations 1998 and parts of the Equality Act 2010. Preserved by s 2 EUWA.

What is direct EU legislation?

EU Regulations and certain decisions that applied directly in the UK, converted into domestic law by s 3 EUWA so far as operative before IP completion day (e.g. Reg 261/2004 on air passenger compensation).

Which EU decisions were not converted under s 3?

Decisions addressed only to a Member State other than the UK. Also not converted: anything already reproduced by s 2 legislation.

What did s 4 EUWA preserve?

Rights, powers, liabilities etc recognised under s 2(1) ECA 1972 not covered by ss 2 and 3, mainly directly effective treaty rights (e.g. equal pay under Art 157 TFEU).

Were Directives themselves retained EU law?

No, generally excluded (s 4(1)). Directly effective rights under them were retained under s 4 only if of a kind already recognised by a UK or EU court before IP completion day (s 4(2)).

What happened to s 4 EUWA and what is the effect?

Repealed by s 2 REULA from the end of 2023. Individuals can no longer rely on directly effective treaty or directive rights, unless ministers have codified them (e.g. Art 157 TFEU).

What is the VAT and excise exception?

The Finance Act 2024 keeps s 4 EUWA for interpreting VAT and excise law, so Marleasing consistent interpretation still applies. Direct effect is abolished, so legislation cannot be quashed or disapplied for EU incompatibility. Supremacy and general principles are also kept for certain VAT and excise purposes.

What is the status of s 2 assimilated law?

It keeps the same status it had before IP completion day, as either primary or secondary legislation (s 7(1) EUWA).

What is assimilated direct legislation?

A new category of domestic law (neither primary nor secondary) for law converted under s 3 EUWA. Divided into principal (most EU Regulations) and minor (tertiary legislation and decisions).

What is the HRA 1998 difference between principal and minor assimilated direct legislation?

Principal is treated as primary: only a declaration of incompatibility (s 4 HRA), validity unaffected. Minor is treated as subordinate: can be declared invalid.

How does a court interpret unmodified assimilated law?

In accordance with relevant retained (assimilated) case law (s 6(3) EUWA).

How does a court interpret modified assimilated law?

Can use retained case law if consistent with the intention of the modifications (s 6(6) EUWA).

What did Lord Sales call the tension in interpreting assimilated law?

A "double movement": courts must treat it as part of the domestic legal system while maintaining continuity with its prior operation under EU law.

What is assimilated case law?

Assimilated domestic case law (UK courts before IP completion day) plus assimilated EU case law (CJEU judgments before IP completion day).

What is the status of CJEU judgments made after IP completion day?

UK courts are no longer bound but may have regard to them: persuasive only (s 6(1) and (2) EUWA).

What happened to retained general principles of EU law?

Originally retained only as an aid to interpreting retained EU law (no right of action). Abolished from the end of 2023 by s 4 REULA, so not assimilated law. UK courts can no longer disapply legislation for breach of equality (cf Kücükdeveci).

What happened to Francovich state liability damages?

Excluded by EUWA 2018, with a saving for claims begun within two years of IP completion day relating to pre-IP events.

What was the s 8 EUWA power to correct deficiencies?

A temporary power for ministers to make secondary legislation fixing withdrawal-related defects (e.g. references to Member States or the Commission). It could not make substantive changes and expired on 31 December 2022.

Give an example of a deficiency corrected under s 8 EUWA.

Reg 261/2004 was amended to apply to passengers departing from or arriving at UK airports (rather than Member State airports).

What supremacy did retained EU law have before REULA 2023?

Limited supremacy: it prevailed over pre-IP completion day domestic legislation that was not retained law, but post-IP legislation prevailed over it.

What did s 3 REULA 2023 do to supremacy?

Abolished supremacy of retained EU law from 31 December 2023. Assimilated direct legislation must be read compatibly with domestic enactments and is subject to them where incompatible, so priorities are reversed.

What was the Bar Council's criticism of abolishing supremacy?

It creates legal uncertainty and retrospectively alters the effect of domestic legislation (e.g. a 2018 Act now overriding a 2010 Regulation Parliament never expected it to override).

What happened to the Marleasing principle under REULA 2023?

Removed for all domestic legislation (except VAT and excise). Courts are likely to treat the relevant Directive as an extrinsic aid to interpretation instead.

Can ministers recreate supremacy or general principles?

Only in a limited form: by SI a minister can give assimilated direct legislation priority over a specific enactment, not over domestic legislation in general.

What is an incompatibility order (s 8 REULA)?

Must be issued where assimilated direct legislation conflicts with domestic legislation. It can set out the effect in the case, delay the order or limit the provision's operation, but courts cannot change the order of priority.

Can the validity of assimilated law be challenged because the original EU instrument was invalid?

No, but exceptions apply: the CJEU found it invalid before IP completion day, or SI 2019/673 permits it (challenges begun before and concluded after IP completion day).

What approach did Green LJ set out in Lipton v BA City Flyer for applying retained EU law?

Determine status of the law, check domestic amendments, give a purposive construction, consider pre-IP CJEU case law, consider general principles, then consider the TCA and s 29 EU(FR)A 2020.

What did the Supreme Court say about Lipton ([2024] UKSC 24)?

The EU text of Reg 261/2004 at the date of the claim applied, not the retained version, but Green LJ's analysis remains the most authoritative. It also held that s 29 does not affect TCA provisions expressed in general or aspirational terms.

How would courts apply Lipton to assimilated law?

Similarly, but without general principles, without Marleasing, and having regard to the Supreme Court's view of s 29.

Which courts can depart from assimilated EU case law, and on what test?

The Supreme Court, and the Court of Appeal (and equivalents) under SI 2020/1525. They apply the Practice Statement (Judicial Precedent) 1966 test.

What happened in TuneIn v Warner Music?

The Court of Appeal declined to depart from CJEU case law (hyperlinking is communication to the public): legislation unchanged, international framework unchanged, difficult task, CJEU experience, legal uncertainty.

What happened in Industrial Cleaning v Intelligent Cleaning Equipment?

The Court of Appeal departed from the CJEU's Budvar decision: it was a bald, unreasoned, isolated judgment inconsistent with other cases, and few trade mark owners had relied on it.

How can the Court of Appeal depart from assimilated domestic case law (Merck Serono)?

Usual rules of precedent apply: only if a Young v Bristol Aeroplane exception applies for its own decisions (e.g. conflicting decisions or implicit overruling by the Supreme Court). It remains bound by the Supreme Court.

What is the new test in s 6 REULA 2023 for departing from assimilated EU case law?

Non-exhaustive factors: foreign court decisions not usually binding, relevant changes of circumstances, and the extent to which the case law restricts proper development of domestic law. It also adds a reference system for lower courts.

Is the s 6 REULA test in force?

No. The previous Government's commencement order (1 October 2024) was revoked by the Labour Government, so it may never come into force.

What ministerial powers does REULA 2023 give (ss 11 to 16)?

Restate secondary assimilated law, reproduce s 4 rights (e.g. Art 157 TFEU), and revoke (with or without restatement or replacement with an "appropriate" provision with no new regulatory burdens).

Can ministers reproduce supremacy or general principles when restating?

No, but they can reproduce an equivalent effect.

When do the restate/reproduce and revoke powers expire?

23 June 2026.

What is the legal status of restated or replaced law?

It sits in a domestic SI and is not assimilated law, so ordinary statutory interpretation and precedent apply and assimilated EU case law is only persuasive (risk of relitigation).

What did the Aviation Regulations 2023 (SI 2023/1370) do?

Restated and codified key CJEU principles on Reg 261/2004 so that REULA's changes would not create uncertainty about its interpretation.

What criticism did the House of Lords Secondary Legislation Scrutiny Committee make of the ministerial powers?

They are too wide-ranging, with no consultation and little effective parliamentary scrutiny.

What are the new names for retained EU law terms (Table 10.2)?

Retained EU law becomes assimilated law, retained direct EU legislation becomes assimilated direct legislation (principal and minor), and retained domestic and EU case law become assimilated domestic and EU case law.

Is the Withdrawal Agreement or the Political Declaration legally binding?

The Withdrawal Agreement is binding in international law. The Political Declaration is not.

What are the main areas covered by the Withdrawal Agreement?

Citizens' rights, financial settlement, the Northern Ireland Protocol (now the Windsor Framework), and governance and dispute resolution (joint committee, then arbitration panel).

What residence status do EU citizens get under the Withdrawal Agreement?

They apply through the EU Settlement Scheme. Five years' continuous residence gives permanent residence (settled status).

How does the Withdrawal Agreement take effect in UK law?

Art 4 gives it the same effect as in the EU (including direct effect). s 7A EUWA 2018 gives it supremacy, similar to the ECA 1972 (Re Allister: it prevailed over the Acts of Union).

Can UK courts make Art 267 references on citizens' rights?

Yes, for up to eight years after the transition period, but it is discretionary. If made, the CJEU's ruling binds. R (BZ) v SSWP is the first and only reference so far (Art 17(2)).

Which case shows the direct effect of the Withdrawal Agreement on settled status?

R (IMA) v SSHD [2022]: part of the EU Settlement Scheme was declared unlawful for breaching the Withdrawal Agreement by making permanent residence harder for those with under five years' residence.

What did AT v SSWP [2023] hold?

The Charter of Fundamental Rights applies to EU citizens with pre-settled status within the scope of the Withdrawal Agreement.

What happened in Re Dillon [2024]?

The NI Court of Appeal, using s 7A EUWA, disapplied parts of the Legacy Act breaching the Victims' Directive (the Windsor Framework protects against diminution of victims' rights).

Sample Q1: Can claimants rely on a directly effective Directive against a state body after IP completion day?

Yes, vertically against the state, via s 4 EUWA, only for harm suffered before the end of 2023. After that s 4 is repealed, so harm suffered later gives no claim.

Sample Q2: How does an English court treat an Art 157 TFEU equal pay claim?

It enforces the rights as restated by SI (REULA s 12). The restatement is normal domestic law, not assimilated law.

Sample Q3: Can a Danish citizen with five years' residence challenge a refusal of settled status under a conflicting Act?

Yes, because the Withdrawal Agreement has direct effect via the EUWA, so it overrides a conflicting Act that does not expressly override it. Parliament can legislate contrary to treaties, but this would breach international law.