Conflict between assimilated EU legislation and an Act of Parliament after 2023 (EUWA 2018 s.5)
In 2026 a tribunal in England finds an irreconcilable conflict between a provision of a 2017 EU Regulation, which forms part of domestic law as assimilated direct legislation, and a provision of a 2015 Act of the UK Parliament. Before the end of 2023 the Regulation would have prevailed under the principle of the supremacy of EU law. Assume that no regulations have been made under s.7(1) of the Retained EU Law (Revocation and Reform) Act 2023 for this provision, and that the Withdrawal Agreement is not relevant.
Which of the following best describes which provision prevails?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: The 2015 Act prevails: assimilated direct legislation must be read compatibly with domestic enactments so far as possible and is subject to them where incompatible.
THE RULE TO REMEMBER
Since the end of 2023 EU supremacy is not part of domestic law; assimilated direct legislation is read compatibly with, and is subject to, domestic enactments whenever made.
Conflict between assimilated EU legislation and an Act of Parliament after 2023 (EUWA 2018 s.5)
Section 5(A1) of the European Union (Withdrawal) Act 2018, inserted by the Retained EU Law (Revocation and Reform) Act 2023, provides that the principle of the supremacy of EU law is not part of domestic law, and that this applies after the end of 2023 in relation to any enactment or rule of law, whenever passed or made. Section 5(A2) reverses the old priority rule: any provision of assimilated direct legislation must, so far as possible, be read and given effect compatibly with all domestic enactments, and is subject to all domestic enactments so far as incompatible. A 'domestic enactment' is an enactment other than assimilated direct legislation (s.5(8)), so the 2015 Act is one. Since the conflict cannot be resolved by interpretation, the Regulation is subject to the 2015 Act. The exceptions in s.5(A3) and the Withdrawal Agreement position in s.5(7) are excluded by the facts.
Why A is wrong: Section 5(A1) removes supremacy after 2023 in relation to any enactment whenever passed, including Acts passed before exit.
Why B is wrong: Section 6(1)(b) of the 2018 Act provides that a court or tribunal cannot refer any matter to the CJEU on or after IP completion day.
Why D is wrong: There is no power to declare an Act incompatible with assimilated law; under s.5(A2) the Regulation is subject to the Act.
Why E is wrong: Section 5(A2) is a specific priority rule: assimilated direct legislation is subject to domestic enactments whatever their dates.
A little more practice done.
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