This post is the first in a mini-series looking at particular elements of the ‘acquis communautaire’ (the ‘body of EU law’) being transposed by the GRB into UK law. It considers the Treaty provisions, to see what might be retained through the GRB and what might not.
(Later posts will consider other elements of EU law.)
On Brexit, a substantial proportion of the Treaties’ provisions will become irrelevant to the UK, eg those provisions which set out the rules for the functioning of the EU, its institutions and its areas of competence. Clearly, those elements will not need to be transferred into UK law. Similarly, those provisions of the Treaties which govern the UK, as a Member State, in its dealings with other Member States and the EU institutions.
Other Treaty provisions give rights to individuals as EU citizens. The 1963 Van Gend & Loos judgment of the (now) EU Court of Justice established the principle of ‘direct effect’ of 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 (ie are directly applicable). In Defrenne in 1976 the Court held that the right to equal pay in what is now Article 157 TFEU was held to be:
In Barber in 1990 the EU Court ruled:
What will become of these rights post-Brexit?
The Government has indicated its intention (in the GRB White Paper) to preserve ‘rights in the EU treaties that can be relied on directly in court by an individual’ (The White Paper gives the example of equal pay under Article 157 of TFEU). But we do not think all such rights will be preserved in the GRB:
EU law on state aid and competition has its basis in Treaty provisions. The Article 50 letter sets out that the Government wants a ‘Free Trade Agreement … of greater scope and ambition than any such agreement before it’, but is silent as to the extent to which the Government will accept and maintain existing EU rules on competition and state aid (although the Conservatives and Labour have both expressed their willingness to support exporters and industry – which may not be possible while subject to the EU’s state aid rules.). The former Chancellor, George Osborne, was reported as being somewhat critical of this omission at a panel discussion at the BCC:
The European Council’s negotiating guidelines, however, are clear that any future trade deal will need to ‘ensure a level playing field in terms of competition and state aid’ and include ‘safeguards against fiscal, social or environmental dumping’, ie the EU wants to retain state aid, and to prevent the UK leading a ‘race to the bottom’ in Europe on tax, wages/labour laws and environmental standards. The type of trade deal reached will influence the continued application of these rules:
The position is also unclear as regards Treaty provisions which form the basis of EU Common Policies (notably, agricultural, fisheries and transport policies). On the one hand, it seems extremely unlikely (again, given the Government’s ‘hard Brexit’ position) that UK would seek to remain subject to such EU policies. However, on the other hand (as the GRB White Paper acknowledges):
The Welsh government’s own White Paper (which strongly advocates continued membership of the Single Market) echoes this, stating that EU Frameworks provide an element of consistency across the UK internal market. It flags up the need for new UK-wide frameworks (which will in turn require wholly new inter-governmental machinery). Thus it may be that the GRB (or, more likely, separate legislation introduced later) seeks to create a UK Common Agricultural Policy (UKCAP?) to stand in place of the existing EU CAP.