First and foremost United Kingdom (the“UK”) was considered to be a member state of the European Union (the“EU”). The UK is the first and only country to formally leave the EU in 47 years via proposing a referendum in June 2016. In accordance with Article 50 of the Treaty of European Union (TEU) states that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” As of now only the United Kingdom which was considered a former member state of the European Union has withdrawn from it on 31st January 2020. In the course of the transition, UK remains the subject of EU law and remains part of EU custom unions and single market.
Currently, the major ongoing debate is that since UK has left the European Economic Area (EEA) how to retain UK Competition Policy if the European Communities Act 1972 is intended to be repealed by the UK. Prior to the implementation of Brexit in the UK, there was an enforcement of the European Union (Withdrawal) Act 2018 which retains relevant EU laws as domestic laws which furthermore the UK can amend or repeal anytime. In order to elaborate more on the Act, it is an act of the Parliament of the United Kingdom that consists of both repeal of the Act and parliamentary approval required for any withdrawal agreement negotiated between HM Government and the European Union. In brief, all the EU laws will automatically be unenforceable if the European Communities Act 1972 (“ECA”) is repealed by the UK. Henceforth, when the EU Withdrawal Act 2018 came into effect it automatically repealed the European Communities Act 1972.
The Rights and Obligations mentioned under the EU Treaties which gives effect in domestic law via ECA, 1972 requires exchange between UK and EU Member States which no longer be valid once UK exits from the EU. However, the effect of the EU might be interpreted based on case to case basis. The European Union (Withdrawal) Act 2018 aims to safeguard in domestic law directly applicable EU legislation, principles, and policies that are in force in the UK before the transition period ends. The Act achieves it via generic provision identified under Section 2 which states “Saving for EU derived domestic legislation:
(1) EU-derived domestic legislation, as it has an effect in domestic law immediately before exit day, continues to have an effect in domestic law and after exit day.
(2) In this section “ EU derived domestic legislation” means any enactment so far as:
(a) Made under section 2 (2) of, or paragraph 1 A of Schedule 2 to, the European Communities Act 1972,
(b) Passed or made, or operating, for a purpose mentioned in section 2 (2) (a) or (b) of that Act,
(c) Relating to anything-
(i) Which falls within paragraph (a) or (b), or
(ii) To which section 3 (1) or 4 (1) applies, or
(iii) Relating otherwise to the EU or the EEA,
But does not include any enactment contained in the European Communities Act, 1972.
(3) This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation).”
Furthermore, As per Schedule 1 paragraph 2 prohibits the statutory recognition of any general principle of EU law after exit day “if it was not recognized as a general principle of EU law by the European Court in a case decided before exit day.” However, there are exceptions of savings and incorporation of the EU law in accordance with Section 5 of the Act as below:
(a) It is interpreted that supremacy of EU law is relevant to the interpretation, misapplication, or quashing of any enactment or rule of law if it is passed before the exit day.
(b) Additionally, it does not prevent supremacy of EU law to be applicable to a modification made on or after exit day on any enactment or rule of law passed or made before exit day if the application of the principle is consistent with the intention of the modification.
(c) The Charter of Fundamental Rights is not part of domestic law on or after exit day.
(d) However, irrespective of the abovementioned clause it does not affect retention of EU law in the domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist regardless of the Charter.
Effect on Competition Law and Policy
Competition Law and Policies are vital elements to maintain standard market price in the European Commercial Market. European Commission directly applies competition law and policy to the European member states. The after-effects of Brexit for the EU as well as UK competition law and policy are potentially far-reaching especially when UK exits from European Economic Area (EEA). However, there is a relationship between competition and trade policies. Firstly, competition policy protects and promotes free trade between the member states that automatically results in the free movement of funds. Secondly, trade obstructions can anti-competitively inhibit international rivalry to serve domestic customers contrary to the interest of consumers and producers.
The EU Withdrawal Act aimed to safeguard its implementation of EU Directives in the domestic law of the UK that are directly applicable via EU regulations post-Brexit has failed since UK legislation has repealed the European Communities Act 1972. Therefore even EU-derived domestic legislation as per Schedule 2 of the European Communities Act 1972 is not applicable anymore. In conclusion, the implication of the EU laws in the UK is still grey area and yet to reach the final verdict.
