Sources and Impact of EU Law on UK after Brexit

0
EU Law

1
Introduction
The European Union (Withdrawal) Act 20181 is the legislation which has been enacted by
the Parliament of the United Kingdom. The introduction of this act resulted in repealing the
European Communities Act 1972,2 and it is formed based on the negotiation between HM
Government and the European Union. After withdrawing of Britain from the European
Union (EU), Brexit, the laws which govern the nation has changed. The vote for Brexit was
made on 23rd June 2016, and the referendum was advisory rather than mandatory, and this
decision did not have immediate legal consequences. This essay will focus on evaluating the
extent up to which the sources of EU law which include both existing and future laws apply
in the UK after the withdrawal. This essay will analyse all sources of EU law and consider
various factors such as supremacy, enforcement, direct effect, indirect effect and state
liability. The information regarding withdrawal of Britain from the EU will be discussed in the
essay along with information on the history of the EU or the institutions. In order to
evaluate this topic, the proposed European Union (Withdrawal Agreement) Bill will be
analysed in the essay.
Sources of EU Law
European Union is referred to an organisation which is formed by the combination of some
European countries that cater to common factors including military, economic and political
that affects the member states. The EU law was initially referred as European Community
Law; it is a body which comprises treaties, judgements and laws which act together along
with other legislation of member states.3 This law is highly respected by member states, and
in case a conflict arise based on political, economic or human rights factors, then the EU law
is given priority than compared to the national laws of member states. The sources of EU
law are categorised into three types which include primary law, secondary law and
supplementary law.
1 European Union (Withdrawal) Act 2018
2 European Communities Act 1972
3 Matthew J. Goodwin and Oliver Heath, 'The 2016 Referendum, Brexit And The Left Behind: An Aggregate-
Level Analysis Of The Result' (2016) 87 The Political Quarterly.

2
Primary Law
Firstly, the primary law in EU comes from treaties which form the European Union. These
treaties were adopted by the member states to establish the European communicates and
the union. The member states continue to adopt these treaties in order to expand the EU
territories and amend the functions of EU law and constitution. These treaties must be
agreed by all member states. The founder treaty of the European Union was the Paris treaty
which was signed in 1951 and the Rome treaty of 1957.4 Based on these treaties, the
member states completed adequate negotiations, and they agreed to lay down various
guidelines in the form of treaties which are subject to rectification which can be made by
the member states and parliaments. Various guidelines and provisions are given under
these treaties. For instance, they define the role of each member state and institutions
which are found in the EU. These treaties also provide provisions for bodies which are
involved in the decision making process and the legislation, executive and other practices
which result in constituting the community law and the appropriate implementation of the
law. The protocols given in these treaties are binding whereas the declarations are non-
binding on member states. The treaties are directly applicable to the operations of member
states which mean that once a treaty is formed or incorporated, then there is no need for
implementation of individual articles.5 Article 48 of the Treaty of European Union (TEU)
provides provisions for revisions made in those treaties. The primary law of EU also include
the amending EU treaties in which changes are made by the government and member
states. The protocols annexed to the founding treaties along with the amending treaties are
a part of the primary sources of law of European Union as well. The treaties which are
formed on accession or consent of new countries to the EU are also a part of the primary
source of EU law.
Secondary Law
The secondary law of EU is constituted of acts and agreements which are signed by member
countries which are a part of the European Union in order to govern their activity to achieve
the pre-determined goal set by the parties. The secondary law of EU comprises agreements
and unilateral acts. The unilateral acts given in the secondary law are further classified into
4 Dermot Hodson and John Peterson, The Institutions Of The European Union (Oxford University Press 2017).
5 Akiva Fishman and Krystof Obidzinski, 'European Union Timber Regulation: Is It Legal?' (2014) 23 Review of
European, Comparative & International Environmental Law.

3
two categorised which include those are listed in Article 288 of the Treaty on the
Functioning of the Union (TFEU).6 These include regulations, directives, decisions, opinions
and recommendations. Moreover, there are various unilateral acts which are also included
in secondary law but not listed in Article 288 of TFEU which include ‘atypical’ acts such as
white and green papers, communication and recommendations. Moreover, conventions and
agreements are a part of the secondary law of EU as well which include international
agreement, which is signed by the EU and another country or an outside organisation.
Furthermore, agreement which is formed between EU countries and ‘interinstitutional’
agreement, which are the agreements between the EU institutes, is a part of the secondary
law as well.
Supplementary Law
The law category of sources of EU law is the supplementary law. The supplementary law is
referred to the general principles of the law which are not written, and they are a part of
case laws. These principles are not specifically mentioned in the treaties formed between
the member states. This category includes various factors such as case laws of the Court of
Justice of the EU (CJEU). 7 Moreover, this category includes international laws which are
often considered as a source of inspiration for the CJEU when they are entertaining a case
law. In these cases, factors such as international written law, custom and usage are cited by
the CJEU. Furthermore, the general principles of law which are considered as unwritten
sources of law which are developed by the case-law of the CJEU are a part of the
supplementary sources of EU law. These laws enable the CJEU to implement rules in
different areas which are not covered under the treaties formed between member states.
Brexit (Withdrawal from the EU)
Brexit is the shorthand way of saying the leaving of UK from the EU. The decision for leading
the EU was taken on 23 June 2016 in which everyone who is of voting age can take part
decided that Britain should leave the European Union and the leave won by 51.9 percent to
48.1 percent votes. Withdraw of Britain from the EU is scheduled for Friday, 29th March
2019 and this time can be exceeded if all the EU members agree for the same. The decision
6 Stephen Weatherill, Cases And Materials On EU Law (Oxford University Press 2014).
7 R. Daniel Kelemen and Susanne K. Schmidt, 'Introduction – The European Court Of Justice And Legal
Integration: Perpetual Momentum?' (2012) 19 Journal of European Public Policy.