Legislating for Brexit: directly applicable EU law

What is ‘directly applicable’ EU law?

Directly applicable EU law does not need further domestic transposition in order to apply in the Member States. It applies as soon as it enters into force (either on the date stipulated in the act or, failing this, on the twentieth day following its publication in the Official Journal of the European Union, L series).

The Treaty on the Functioning of the European Union (TFEU) states in Article 288 that EU regulations are binding and directly applicable. EU directives are in principle not directly applicable, but they may be so, and EU decisions may be directly applicable on the same basis as directives.

In 1963 the EU Court of Justice established the principle of “direct effect” of EU Treaty obligations, provided they are intended to confer rights on individuals, are precise, clear and unconditional, and do not entail any additional national or European measures (i.e. are directly applicable).

How many EU laws are directly applicable?

According to the EU’s Eur-lex website there are at present nearly 20,000 EU legislative acts in force. These are mainly directives, regulations, decisions and international agreements, but they include a range of other instruments. Of these, around 5,000 EU regulations are directly applicable in all EU Member States.

Directly applicable EU law in the UK

Section 2(1) of the European Communities Act 1972 (ECA) gives the authority for directly applicable EU law to have legal effect in UK law without needing further UK enactment. Sometimes the effects of directly applicable law do need further UK implementation. EU regulations are often implemented in the UK by non-legislative or ‘soft law’ measures such as administrative rules and regulations.

The Great Repeal Bill

As Commons Briefing Paper Legislating for Brexit: the Great Repeal Bill, CBP7793, 21 November 2016, explains, a major issue for Brexit is what to do with the thousands of EU laws that are directly applicable. This is because if there is no specific provision for them, they will no longer apply in the UK as soon as the European Communities Act 1972 is repealed.

According to the Government, the proposed ‘Great Repeal Bill’ will make provision for the EU acquis – the body of existing EU law and obligations – to be “converted” into UK law “wherever practical”. Directly applicable laws will need to be ‘saved’ to ensure that they continue to operate until the Government (and Parliament?) decides what to do with them (which will depend largely on the outcome of the EU-UK withdrawal negotiations and the UK’s future relationship with the EU).