Explanatory Notes

Schedule 1: Further provision about exceptions to savings and incorporation

151 This Schedule sets out some further exceptions to the preservation and conversion of EU law provided for under clauses 2, 3 and 4. This Schedule should be read together with Part 4 of Schedule 8, which makes specific transitional, transitory and saving provision.

Challenges to validity of retained EU law

152 Paragraph 1 provides that, post-exit, no challenge can be brought in the UK courts to retained EU law on the basis that immediately before exit day, an EU instrument (for example, an EU regulation or decision) was invalid. This restriction is, however, subject to the exceptions at sub-paragraphs (2) and (3). First, any decisions of the CJEU which pre-date exit day about the validity of the instrument will not be affected. Secondly, a minister of the Crown has the power to describe in regulations types of challenge to validity which will be capable of being brought on or after exit day. Sub-paragraph (3) provides that any such regulations may enable challenges which, prior to exit, would have proceeded against an EU institution to proceed against a UK public authority following exit.

General principles of EU law

153 Paragraph 2 provides that only EU general principles which have been recognised in CJEU cases decided before exit, will form part of domestic law after exit. These include, for example, fundamental rights, non-retroactivity, and proportionality. More detail on general principles is set out at paragraph 50 of these notes.

154 Paragraph 3 provides that there is no right of action in domestic law post-exit based on failure to comply with EU general principles. Courts cannot disapply domestic laws post-exit on the basis that they are incompatible with EU general principles. Further, domestic courts will not be able to rule that a particular act was unlawful or quash any action taken on the basis that it was not compatible with the general principles. Courts will, however, be required under clause 6 to interpret retained EU law in accordance with retained general principles.

Rule in Francovich

155 In Francovich1 the CJEU established that in some circumstances states have to compensate individuals for damage that they suffer as a result of the State’s breach of EU law. EU law confers a right to reparation where 
the rule of law infringed is intended to confer rights on individuals, the breach is ‘sufficiently serious’, which means that the member state has manifestly and gravely disregarded the limits of its discretion and where there is a direct causal link between the breach and the damage.

156 Paragraph 4 provides that the right to claim damages against the state for breaches of EU law (Francovich damages) will not be available after exit. This provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law (for example, under the Public Contracts Regulations 2015 ) or the case law which applies to the interpretation of any such provisions.


157 Paragraph 5 clarifies that references in clause 5 and this Schedule to the principle of supremacy of EU law, the Charter of Fundamental Rights, any general principle of EU law or the rule in Francovich are to be read as references to that principle, Charter or rule as they stand at exit day, not as they will operate in EU law in the future.

1 Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357


Prepared 13th July 2017