March 07
2021

EU Law in the UK

Sylvia de Mars

review by

Anjum Shabbir

This is a special book review because it concerns an almost 500-page higher education textbook, but it is important, first, for the purpose of glimpsing the beginnings of the rupture between UK and EU law – being the first such textbook to come out upon withdrawal, and second, to see how students studying EU law in the UK (in particular) may perceive it in the wake of Brexit.

It is actually a highly recommendable text for the average UK lawyer and politician who needs a moderately detailed but crystal clear and legalese-free introduction to or update of the labyrinth of EU law: that interest having embarrassingly been ramped up only after the date of the Brexit referendum, on 23 June 2016 – but, which on a more positive note is an interest that now persists. And persist it should, foundational knowledge being the starting point to understand the EU-UK fissure, and to deal with any future legal development or dispute pertaining to either the EU-UK Withdrawal Agreement or recently approved EU-UK Trade and Cooperation Agreement.

As is typical in such textbooks, it commences with a series of chapters on the history and functioning of the EU – but it is in fact unique in depicting specifically how the UK’s ‘Brexit’ history weaves into that narrative  – the UK declining the invitation to join the project in the 1950s; followed by three failed attempts to be admitted to the bloc; how that altered significantly depending on the specific UK leader and party in power (including Margaret Thatcher’s unrelenting use of vetoes which ironically – and perhaps as Brexit has caused now – resulted in greater cooperation between all other Member States); and pointing out that the UK’s objections have consistently and for several decades been immigration and sovereignty.

Being as it is designed for higher education purposes, the Socratic questions punctuated throughout – such as those focused on whether the EU is really undemocratic, whether the subsidiarity principle is effective, and on limits to EU legislative-making powers – are rather useful because they provoke thought-processes pertinent to understanding Brexit complaints. References to the arguments raised during the Leave-Remain campaigns are indeed thinly veiled – chapter 3 for example commences with an email from a mock ‘remain’ campaign, and there is clear debunking of ‘Brexit myths’ at various points (see for example p. 283). The book nonetheless manages to be fairly balanced.

Much of the book provides the run of the mill explanations of EU law that are expected considering its purpose – including general principles, the principles of subsidiarity, proportionality, conferral, sincere cooperation, and a substantial devotion of 200 pages to EU fundamental rights, citizenship, the internal market and competition law.

But the most interesting parts come in short bursts at the end of most chapters, on how EU law applies during the transition period, the complexities of retained EU law, what CJEU case law should be drawn upon, and importantly the different situation that applies in Northern Ireland under the Ireland/Northern Ireland Protocol in the Withdrawal Agreement.

For example, it is pointed out that a combination of retained law and ‘active EU law’ will apply, and must be interpreted in line with the Charter in Northern Ireland (a possible break between developing case law with respect to Northern Ireland when compared with the remainder of the UK). And, in a section on EU law enforcement (chapters 6-8), the issue of whether retained EU law could still be directly and indirectly effective is discussed – different rules will apply depending on what type of EU law is concerned under the UK’s domestic EU (Withdrawal) Act 2018. More specifically, UK law that implemented EU law before withdrawal only has direct effect if a Court of Justice judgment had expressly ruled as such – showing that divergences can be expected to arise here between CJEU and UK case law; and it is highlighted that indirect effect does not seem to have been discussed by the EU or UK at all. Such explanations will become increasingly important as the consequences of Brexit continue to be litigated.

What the book does not include is examination of more specialised and specific legal areas such as State aid, data protection law, environmental law and employment law; the impact of the COVID-19 pandemic; Gibraltar; or the EU-UK Trade Agreement (having been published before it was agreed) – although it does often successfully calculate what the future agreement would cover – such as by pointing out that even if there are no post-Brexit trade tariffs, UK producers will still have to comply with checks to ensure products and services meet EU standards. There is also a section on the possible EU-legal bases available to negotiators that is rather useful to examine in an analysis of the EU-UK Trade and Cooperation Agreement.

Overall, this is a solid foundational EU law textbook that is appropriately updated for the new reality of the Brexit-divorce that we find ourselves in, useful far beyond the intended audience.

 

Anjum Shabbir is an Assistant Editor at EU Law Live

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