Brexit Institute News

The Future of EU Law in UK Law Schools

Stuart MacLennan (Coventry University)

EU law has been an integral part of the legal order of the UK since 1973, and features in every qualifying law degree taught in each of three jurisdictions – Scotland, England & Wales, and Northern Ireland – at the date of the UK’s exit. It is, consequently, necessary for those responsible for teaching EU law within UK law schools to reflect and, potentially, fundamentally redesign their EU law modules and courses in light of the UK’s decision to leave the EU. While the need to adapt to the UK’s new status is most urgent law schools in Great Britain, the bespoke arrangements for Northern Ireland, as well as the enduring importance of the Anglo-Irish relationship means that an understanding of post-Brexit EU law in the UK will be necessary for all law students on the island of Ireland too.

The first significant change to the teaching of EU law necessitated by Brexit is a need for students to appreciate the new sources of law that will exist in the legal system of the United Kingdom. First, the Withdrawal Agreement (WA) between the UK and EU & Euratom constitutes a new EU treaty. Second, while the European Communities Act 1972 is (notionally) repealed on exit day the European Union (Withdrawal) Act 2018 (hereafter the 2018 Act), as amended, preserves the effects of the 1972 Act while transforming what we now know as EU law into a new source of law which has come to be known as retained EU law.

The WA produces direct legal effects both vertically (between individuals and state actors) and horizontally (between individuals). The WA has extensive legal effects, institutional and substantive, both during the transition period and afterwards. Substantive provisions that might be of particular relevance to undergraduate law students include residence rights for UK and EU workers and Citizens, recognition of professional qualifications, circulation of goods placed on the market prior to exit day, and co-operation on judicial, criminal, and commercial matters.

The 2018 Act contains a number of provisions which have the effect of freezing EU law on exit day and incorporating the acquis communautaire of EU law, with limited exceptions, into domestic law. Section 2(1) of the 2018 Act provides that ‘EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.’ Section 3 of the 2018 Act provides for the incorporation of direct EU legislation including any EU regulations, EU decisions, and EU tertiary legislation. Section 4(1) of the 2018 Act provides for a broad general saving of EU rights:

Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before exit day—

(a) are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and

(b) are enforced, allowed and followed accordingly
continue on and after exit day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

Exactly what constitutes recognition and availability in domestic law is open to question. It is not at all clear if recognition by a court or tribunal is necessary in order for an EU law right to be relied upon after Brexit.

Section 4(2) poses arguably the greatest intellectual challenge to the post-Brexit undergraduate student. Under s4(2) rights derived from directives are not retained in UK law unless the right arising under a directive is

of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before exit day (whether or not as an essential part of the decision in the case).

It will therefore be necessary for students to perform an additional step and determine whether or not any right that might be available under a directive has previously been recognised by a court or tribunal prior to exit day.

The second significant change to the teaching of EU law necessitated by Brexit is the contents of EU law modules. The ‘typical’ EU law module tends to include consideration of EU institutions and law-making, the legal effects of EU law, judicial action, the free movement of goods and the free movement of persons.

It is arguable that there remains little need to devote substantial attention to the institutional provisions of the EU. For example, Oslo University, situated outside of the EU but within the European Economic Area, offers two modules – EU Substantive Law and EU Competition Law – which are concerned, principally, with the law of the EU internal market, including the external dimension of the internal market, the Common Commercial Policy. These modules offer little consideration of the institutional legal frameworks of the EU. The Withdrawal Agreement, however, establishes new institutional structures which may be of relevance to law students. Article 164 establishes a Joint Committee to oversee the implementation of the EU withdrawal agreement, while Article 165 establishes a number of specialised committees, including a committee on citizens’ rights, a committee on issues related to the implementation of the Protocol on Ireland/Northern Ireland, and a committee on financial provisions. These committees have the power to make decisions which produce legal effects, as well as recommendations. The Withdrawal Agreement also provides for an arbitration procedure rather than recourse to the Court of Justice. Consequently, it will be necessary for students of EU law to be familiar with these new EU institutions in the future.

While the preliminary ruling procedure will come to an end following the transition period there is no nationality requirement with respect to direct actions before the Court of Justice. It is not unusual for third-country nationals or undertakings to bring actions for annulment before the Court of Justice. Furthermore, the jurisprudence of the Court of Justice will continue to have salience within the UK’s domestic legal order. The incorporation of direct EU legislation and the broad saving for rights under ss3 & 4 of the 2018 Act brings with it the jurisprudence of the Court that interprets it. UK courts or tribunals ‘may have regard to anything done on or after exit day by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal.’ This means that it will not only be necessary for students of EU law to learn pre-Brexit case law; post-Brexit case law is likely to be of salience for years to come.

The study of the free movement of goods will almost certainly have to include the General Agreement on Tariffs and Trade. Students may need to become familiar with key domestic legislation on imports and exports, including the Customs and Excise Management Act 1979 and the Import, Export and Customs Powers (Defence) Act 1939. Similarly, it will likely become necessary for students to study the Common Commercial Policy and the common rules for imports.

It is clear that the United Kingdom intends to end the free movement of persons between the EU and the UK. Part 2 of the WA, however, provides for continued residence rights both for Union citizens residing in the UK and for UK nationals resident in the EU (‘continuing residents’). Residence rights continue on the basis of Article 21, 45, and 49 TFEU as well as Directive 2004/38/EC. Article 12 of the WA effectively imports Article 18 TFEU thereby prohibiting any discrimination on grounds of nationality against continuing residents. Similarly, the rights of workers under Article 45 TFEU and Regulation (EU) No 492/2011 continue to apply, as do the rights of self-employed persons under Articles 49 and 55 TFEU. Article 39 provides that continuing residents shall continue to enjoy the rights contained in part 2 of the Withdrawal Agreement for their lifetime. Given that part 2 also applies to persons born to, or legally adopted by, continuing residents it seems likely that the free movement of persons provisions of EU law will be of continuing relevance to UK law students for generations to come.

It is clear, therefore, that almost all aspects of EU law as it is currently taught in UK law schools will continue to be of relevance both during the Brexit transition period and afterwards. It will be necessary, however, to review both the weighting and content of these topics as the UK’s relationship with the EU loosens. Both the institutional and substantive aspects of EU law produce legal effects vis-à-vis third countries, but these effects are rather different to those produced within the Union. It will be necessary for teachers of EU law to adapt their modules to reflect the new reality in which the UK finds itself.

Dr Stuart MacLennan is Associate Professor of Law, Coventry University as well as Associate Editor of the European Journal of Legal Education (EJLE). This blog article is adapted from a full article, ‘Teaching European Union Law After Brexit’, published in the EJLE in May 2020

Image credit: European Court of Justice by Gwenaël Piaser  via a CC BY-NC-SA 2.0 license