EUDUG General Meeting and AGM
12 June, online
The EU Databases User Group held a meeting on 12 June 2023, at which talks were given about the EFTA Implementation Status Database and the UK’s EU Retained Law Bill.
After the talks, EUDUG held its AGM.
EFTA Implementation Status Database
Catherine Howdle (Deputy Director, EFTA Surveillance Authority) and Kjersti Sneve (Data Protection Officer & ESA Archives Officer, EFTA Surveillance Authority)
Catherine Howdle started by outlining what the EFTA Surveillance Authority (ESA) does and why it does it, before Kjersti Sneve demonstrated both EEA-Lex https://www.efta.int/eea-lex and the ESA Implementation Database https://web-st.eftasurv.eworx.gr/internal-market/implementing-eea-law-national-law/implementation-status-database.
Catherine Howdle described how the ESA monitors the compliance of the three EFTA member states (Iceland, Norway, and Liechtenstein) with legislation, with a view to ensuring the EEA Agreement https://www.efta.int/eea/eea-agreement works properly.
The EEA is a two-pillar structure, consisting of EFTA and the EU. The EEA Agreement creates an internal market, achieved through the incorporation of EU law into EEA law and the law of the EFTA member states. This is achieved through negotiation and agreement by the EFTA institutions on the one hand and the EU institutions on the other via the EEA Joint Committees and Council. The EEA legal order is an international structure, so legislation has to be incorporated into the annexes of the EEA Agreement via a decision of the Joint Committee.
EU acts with potential EEA relevance are scrutinised by the EEA EFTA states. There is a Joint Committee decision, after which an act is incorporated into the EEA Agreement, and must be implemented in national law. Sometimes the scrutiny and negotiation process between EFTA and the EU is straightforward, but in other cases it can be very drawn out and take up to five years.
Kjersti Sneve spoke next about EEA-Lex, the database of the EFTA Secretariat. EEA-Lex provides an overview of acts pending incorporation and already incorporated into the EEA Agreement, Joint Committee Decisions, and Annexes to the EEA Agreement. The process under which EU legislation is incorporated into the EEA Agreement is handled by the EFTA Secretariat.
Acts under consideration are entered into EEA-Lex, and clicking on the link for each act displays a timeline, setting out each step towards incorporation in the EEA Agreement, and there are links to relevant documentation. The ESA starts work when this process is complete.
For example, a search for Commission Implementing Regulation (EU) 2022/888, about geographical indications for brandy, links to a timeline that shows that it has been incorporated into the EEA Agreement and is in force, with links to the EU Act and to the Joint Committee Decision in English, Icelandic, German and Norwegian, and a history of the adoption process.
Catherine Howdle then described how the ESA, as a compliance body, looks at whether the act is actually in force in the EFTA states, which requires incorporation into their national legal orders.
So, the ESA asks firstly whether the Directive or the Regulation has been implemented in the national law of the EFTA states, and secondly, whether that implementation has been notified to the ESA. Both steps are required. If it has not been incorporated into national law, the ESA can open an infringement action, as failure to make these acts part of the national order goes to the heart of whether or not citizens can exercise their rights under EEA law.
Transposition is fundamental. Once directives or regulations become part of national law, the ESA can look at how the rules are being implemented on the ground, and if they have not been applied correctly, take complaint and own initiative cases. The ESA provides an annual implementation scoreboard, which is a major source of public information providing an overview of what the States have been doing and what their transposition deficit is (see https://www.eftasurv.int/esa-at-a-glance/publications/scoreboard/internal-market-scoreboard-51-april-2023).
Next, Kjersti Sneve demonstrated the ESA Implementation Status Database https://web-st.eftasurv.eworx.gr/internal-market/implementing-eea-law-national-law/implementation-status-database, which provides an overview of acts incorporated into the EEA Agreement. The database is refreshed every night, so the information is never more than one day out-of-date. It uses colour coding to indicate the status of each act: green indicates that the member state has notified the ESA of full implementation (FUL); yellow indicates notification of partial implementation (PAR); red denotes no notification (NON), and grey that an act does not need to be implemented by national legislation (NAN).
Acts are added to the ESA database as soon as they are incorporated into the EEA Agreement, and the most recent acts therefore often have red coding. It Is a dynamic database that changes every day.
Returning to example of 2022/888, the live demonstration of the database showed that Norway had already notified the ESA of implementation and provided the national legislation, which was cited in the database record. Iceland had not yet done so, and Liechtenstein did not need to implement the Act. States report implementation via an electronic portal, and the information is then checked before upload to the database.
Replying to a question from the floor, Catherine Howdle explained that EUR-Lex remains the source to go to for an EU Act itself. The EFTA Secretariat’s database EEA-Lex will show whether an EU act has become part of the EEA legal order. Incorporation in the EEA Agreement triggers the obligation for the EFTA member states to bring the law into their national legal orders. An EFTA state will not normally incorporate an EU act into its own law ahead of the EEA Agreement: what normally happens is that an EU act becomes part of the EEA Agreement first and the incorporation and notification processes follow on from that. States are sometimes a little slow to notify, and so the ESA sends reminder letters to member states.
Frederico Rocha commented on how user-friendly the database is and asked about plans for future development or integration with other databases? Kjersti Sneve said that they are continuing to look at ways of jumping between EEA-Lex and the ESA database. Links to national legislation are more problematic, as the links may only be current for a very short time, which is why for the moment they have opted to provide citations for the national legislation.
Catherine Howdle concluded by saying how much they welcome feedback from users, such as a suggestion in the Zoom chat that alerts for changes to acts, which are not possible at present, would be useful; at present, the way to keep up-to-date is to check the database regularly. The first goal was for the database to meet the majority of users’ needs, before looking at further enhancements such as making it easier to follow particular pieces of legislation.
There are inks to the Implementation Status Database, EEA- Lex, and the ESA Publications Database on the EUDUG website under Useful Links https://eudatabaseusergroup.wordpress.com/useful-links/council-of-europe-efta-wto/.
The UK’s EU Retained Law Bill
Professor Catherine Barnard (University of Cambridge)[1]
Professor Barnard began by describing the background to the UK’s Retained EU Law (Revocation and Reform) Bill and the reasons that it has generated such huge interest: one of the benefits promised by Brexit was that the UK would be able to ‘take back control’ by removing from the statute book legislation derived from European Union directives and regulations that Brexiteers suspected to have been adopted undemocratically. Secondly, some Brexiteers saw Brexit as an opportunity to deregulate, and thus diverge from EU law.
Successive prime ministers have found it difficult to deliver all of the Brexit freedoms promised while at the same time protecting the UK economy and Northern Ireland. Theresa May was followed first by Boris Johnson, then Liz Truss and finally by Rishi Sunak. Under Rishi Sunak, the Government has shown greater realism about Brexit and better rapport with EU, as manifested in the Windsor Framework, which delivered changes to operation of Northern Ireland protocol and showed, symbolically, that there was now a more co-operative relationship between the UK and the EU. Although it is not publicised, the level of divergence between EU law and UK law at the moment is very small: active divergence is very little, although there is passive divergence, where the EU is legislating anew.
Retained EU law is the jargon term for the entire corpus of EU law that the EU Withdrawal Act 2018 (EU(W)A 2018) dumped into the UK statute book. EU(W)A 2018 was essentially about continuity, ensuring that the day before and the day after Brexit the law would be the same, providing stability and legal certainty. This is despite the expectation by some that Brexit would result in the wholesale shredding of ‘EU legislation’. Liz Truss, when she became Prime Minister, wished to remove all the remaining EU law by the end of 2023, and on November 9 2022 Jacob Rees Mogg published an article in the Telegraph entitled ‘A bonfire of EU laws is easily achieved’. However, those laws cover things as fundamental as food standards, gas safety certificates, employment law, environmental law, airline safety, and so on and so forth.
The Retained EU Law Bill (largely an amending statute to the 2018 Act), laid before Parliament under Liz Truss, was a sunset bill with the four objectives of: turning off all the retained EU legislation, and the principles of supremacy of EU law; turning off principles of legitimate expectation and proportionality; introducing powers to rewrite any remaining legislation, and encouraging courts to depart from EU case law more readily. The Government has made a major concession on the first of these, but not the others, which are less dramatic, but very significant.
Professor Barnard clarified that by retained EU law, she means three things: preserved and converted EU law, and law caught by the ‘sweeper’ provision in the 2018 Act; retained general principles; retained case law (that is the pre-Brexit case law of the ECJ and domestic courts applying or interpreting EU law). Professor Barnard further clarified the distinction between preserved and converted EU law. The Working Time Regulations for which the legal basis was Section 2(2) of the European Communities Act 1972, are preserved EU law, thanks to the European Union (Withdrawal) Act 2018 giving the regulations another legal parent. However, the Passenger Rights Regulation (on compensation for cancelled and delayed flights) was an EU Regulation and so it had to be converted into UK law.
These concessions have frustrated Brexiteers who hoped, through Brexit, to remove EU legislation from the statute book. However, it has proved very difficult to ascertain how much EU law is retained on the statute book. Early on there were thought to be about 2,400 pieces of such legislation, which increased by early Autumn 2022 about 3,745, and has now risen to 4,915. So, although about 100 pieces of legislation had been removed by early Autumn last year, more pieces of legislation were being discovered, and the speed of progress was slow. Furthermore, many organisations (including, for example, the RSPB) raised concerns about the impact of suddenly turning off this body of legislation, and under the current Prime Minister the sunset default has switched: instead of everything must go, everything must stay, unless it is listed in the Schedule to the Act, which includes over 500 provisions of largely redundant legacy secondary legislation. (Notwithstanding, there are still concerns that more substantive environmental legislation is included in the Schedule).
Despite this concession the Bill nevertheless removes the supremacy of EU law, the principles of direct effect, and the general principles of legitimate expectation and proportionality. EU law will now be called ‘assimilated’ law, rather than ‘retained’ law.
Turning to case law: under the 2018 Act, courts were obliged to follow pre-Brexit EU case law, unless they had good reason to depart from it, in which case the Supreme Court or the Court of Appeal, or the Northern Irish and Scottish equivalents had to make that decision. So far, the courts have taken a conservative approach and have not generally departed from pre-Brexit case law, an example being TuneIn Inc v Warner Music UK Ltd [2021] EWCA Civ 441.
The Bill tries to encourage the courts to be more enthusiastic about departing from pre-Brexit case law in three ways: it introduces firstly a new test to encourage the courts to depart from it, and secondly a new mechanism to speed up the process of getting such cases to the higher courts. Thirdly, there is a new process whereby the Attorney General can reopen legal points and have them reheard, although it will not affect the outcome of a case. The test reminds the Supreme Court and Court of Appeal that decisions of a foreign court are not usually binding and that they should consider the changed circumstance that we have left the EU, and also the extent to which retained EU case law restricts the proper development of domestic law (it I not clear what is meant by this latter point). The Bill introduces a leapfrog procedure to enable a lower court that both thinks itself bound by pre-Brexit case law and considers the point of law to be of general public importance to make a reference either the Supreme Court (if it’s about Supreme Court case law) or to the Court of Appeal. If the higher court will hear this case, the Attorney General and other Law Officers can also intervene, before the case returns to the lower court.
The Bill also contains significant powers for the Executive (sometimes referred to as Henry VIII powers). The power to restate retained EU law will remain until the end of 2023, after which there will be an equivalent power to restate assimilated law. This includes principles turned off by the ‘sweeper’ provision, which can be turned on by secondary legislation. The most controversial power, in Clause 15 of the Bill, will enable ministers to revoke and replace retained law, on condition that the replacement ‘does not increase the regulatory burden’. If this power is exercised through use of secondary legislation, there will be very little parliamentary scrutiny, and so it has been described as a ‘do what you like’ clause. The risk for the present Government is that future governments, possibly led by other political parties, would have similar powers. At the time of Professor Barnard’s talk, the Bill was in ‘ping pong’ between the Commons and the Lords, with the Lords pressing for caveats to ensure some sort of sitting procedure to check and place limits on what ministers might otherwise do.
[1] At the time of Professor Barnard’s talk (12 June 2023), the Commons was considering the Lords’ amendments to the Bill. The Bill became the Retained EU Law (Revocation and Reform) Act 2023 c.28, and received the Royal Assent on 29 June.
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