Explanatory Notes

Clause 4: Saving for rights etc. under section 2(1) of the ECA

87 Clause 4 ensures that any remaining EU rights and obligations which do not fall within clauses 2 and 3 continue to be recognised and available in domestic law after exit. This includes, for example, directly effective rights contained within EU treaties.

88 Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional to confer rights directly on individuals which can be relied on in national law without the need for implementing measures. Where directly effective rights are converted under this clause, it is the right which is converted, not the text of the article itself.

89 For example, the Government considers that the following TFEU articles contain directly effective rights which would be converted into domestic law as a result of this clause (this is an illustrative list and is not intended to be exhaustive).

Article 18

Non-discrimination on ground of nationality

Article 20 (except article 20(2)(c))

Citizenship rights

Article 21(1)

Rights of movement and residence deriving from EU citizenship

Article 28

Establishes customs union, prohibition of customs duties, common external tariff

Article 30

Prohibition on customs duties

Article 34

Prohibition on quantitative restrictions on imports

Article 35

Prohibition on quantitative restrictions on exports

Article 36

Exception to quantitative restrictions

Article 37(1) and (2)

Prohibition on discrimination regarding the conditions under which goods are procured

Article 45(1), (2) and (3)

Free movement of workers

Article 49

Freedom of establishment

Article 56

Freedom to provide services

Article 57

Services

Article 63

Free movement of capital

Article 101(1)

Competition

Article 102

Abuse of a dominant position

Article 106(1) and (2)

Public undertakings

Article 107(1)

State aid

Article 108(3)

Commission consideration of plans re: state aid

Article 110

Internal taxation

Articles 111 to 113

Non-discrimination in indirect taxes

Articles 120 to 126

Economic co-operation

Article 157

Equal pay

Article 308 (first and second sub-paragraphs)

European Investment Bank (EIB)

Article 325(1) and (2)

Combatting fraud on the EU

Article 346

Disclosure of information and national security

Protocol 5 - Articles 3, 4, 5, 7(1), 13, 15, 18(4), 19(1) and (2), 20(2), 23(1) and (4), 26, 27 (second and third sub-paragraphs)

EIB

Protocol 7 - Article 21

Privileges and immunities of the EIB

90 In addition, directly effective rights may also arise under other treaties which are brought into domestic law by virtue of the ECA, including the EEA Agreement and Euratom. These include international agreements made by the EU with third countries, as well as certain multilateral agreements to which either or both of the EU and UK are a party. For example, the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children contains a number of directly effective provisions in relation to cross-border children cases, such as jurisdiction rules and rules for cross-border recognition and enforcement of children judgements.

91 Any directly effective rights converted into domestic law as a result of this clause would be subject to amendment or repeal via statutory instrument made under clause 7. For example, where the resulting provision has no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions.

92 Subsection (2) sets out exceptions to the conversion under subsection (1). First, it provides that the clause does not bring in any rights, powers etc. if they already form part of domestic law by virtue of clause 3. Secondly, the clause excludes directly effective rights arising under an EU directive (including as extended to the EEA by the EEA agreement). In particular, the CJEU has held that in certain circumstances, when a member state has not properly implemented a directive, that directive can confer rights on individuals that the national courts must protect. Where directly effective provisions of directives have been recognised by a court or tribunal before exit day, these will be converted into domestic law. However, any directly effective provisions of directives that have not been recognised prior to exit day (to the extent these might exist) will not be converted by this clause (subject to the transitional etc. provision in Schedule 8, paragraph 26.

93 Subsection (3) clarifies that this clause is also subject to the exceptions in clause 5 and Schedule 1.

 

Prepared 13th July 2017