Section 4: Saving for rights etc. under section 2(1) of the ECA
- Section 4 ensures that any remaining EU rights and obligations which do not fall within sections 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.
- Directly effective rights are those provisions of EU treaties which are sufficiently clear, precise and unconditional as to confer rights directly on individuals and which can be relied on in national law without the need for implementing measures. Where directly effective rights are retained under this section, it is the right which is retained, not the text of the Article itself.
- 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 section (this is an illustrative list and is not intended to be exhaustive).
Article 18 Non-discrimination on ground of nationality Article 20 (exceptArticle 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 regarding state aid Article 110 Internal taxation Article 112 Non-discrimination in indirect taxes Article 157 Equal pay Protocol 5 - Articles 13, 20(2), 23(1) and (4), 26, 27 (second and third sub-paragraphs), 28(4) EIB Protocol 7 - Article 21 Privileges and immunities of the EIB - In addition, directly effective rights may also arise under other treaties which are brought into domestic law by virtue of the ECA, such as 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 judgments affecting children. Section 4 also retains things other than rights, to the extent they have direct effect by virtue of section 2(1) ECA. For example, Article 346 of TFEU may be regarded as containing a restriction whose effect is retained by section 4; and Article 123 as imposing certain restrictions on what national central banks may do.
- Any directly effective rights retained in domestic law as a result of this section would be subject to amendment or repeal via statutory instrument made under section 8. 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. This of itself does not affect whether the treaty right or other thing is retained under section 4 in the first place.
- Subsection (2) sets out exceptions to the conversion under subsection (1). First, it provides that the section does not bring in any rights, powers etc. if they already form part of domestic law by virtue of section 3. Secondly, the section excludes directly effective rights arising under an EU directive (including as extended to the EEA by the EEA agreement). The CJEU has however 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 rights arising under directly effective provisions of directives have been recognised by a UK or EU court or tribunal before exit day, rights of that kind will be retained in domestic law.
- The reference in subsection (2)(b) to rights ‘of a kind’ is intended to ensure that rights are retained if they are of a similar kind to those so recognised. So rights arising under a particular directive that have been recognised by a court before exit day as having direct effect, could be relied upon by other individuals who are not parties to that case, in circumstances which the directive is intended to address. Rights arising from 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 section (subject to the transitional etc provision in Schedule 8, Paragraph 38).
- Subsection (3) clarifies that this section is also subject to the exceptions in section 5 and Schedule 1.
