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Brexit is now a reality after the EU Referendum resulted in a 52% ‘Leave’ vote. What remains to be seen is how and when we leave the EU and what the shape of our future relationship with it will be. There are still an enormous number of unknowns but the impact of Brexit on the UK’s legal system could be wide ranging in many areas, whatever form Brexit takes.
Under the Ordinary Legislative Procedure (in somewhat simplified terms), the Executive body, the European Commission (essentially the EU’s civil service and government) proposes new legislation. The proposals are then commented on and revised by the European Parliament (which has directly elected representatives but no legislative initiative) and by the Council of the European Union (Council), the main decision making body made up of ministerial representatives from each Member State. Trilogies then begin between the three bodies to resolve differences and finally agree legislation. Legislation can also be adopted under the more complex Special Legislative Procedure. For legal firms in London, it is necessary to keep a close watch on this part.
Treaties
The Treaties of the European Union set out the constitutional basis of the EU and are the highest level of EU legislation. They create the Single Market based on the four fundamental freedoms of the European Union: freedom of movement of people, services, goods, and capital. EU Treaties are incorporated into UK law by the European Communities Act 1972 (ECA) which also provides the legislative basis for transposing EU law into domestic law and gives precedence to binding provisions of EU law over inconsistent UK legislation and legal firms in London.
Regulations and Directives
At the next level of legislation are EU Regulations. These are directly applicable under the Treaty on the Functioning of the European Union which means they apply in Member States without the need for implementing legislation. Conversely, Directives require Member States to draft legislation to transpose them into their own law. This has resulted in individual Member States taking differing approaches, for example, by ‘gold plating’ legislation, i.e. going beyond the scope of the Directive. As the EU has focused on “ever closer union”, however, Directives have recently tended to be maximum harmonisation measures which means that gold plating is not permitted and guidelines to prevent gold plating were adopted in the UK in 2011.
Decisions
At the lowest end of the legislative scale are Commission Decisions which are binding on the subject, and opinions and recommendations which have no legally binding effect.
Areas of influence
The EU can only legislate in certain areas. It has no discretion to adopt legally binding acts which require Member States to harmonise their laws on areas including healthcare, culture, industry, education and tourism. It has exclusive competence in the areas of customs union, competition and some common policies. Other areas have shared competence (which means Member States can act if the EU has chosen not to). These areas include social policy, agriculture, consumer protection, transport and the environment. The UK has various opt-outs, including one in respect of laws on freedom, security and justice.
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