Will the UK continue to implement EU law pending Brexit?

Helen Davies QC

Until the UK completes the process of withdrawal from the European Union, it remains subject to all of its EU obligations, including the obligation to transpose EU Directives into UK law (Article 288 TFEU). There are a range of Directives which require implementation during the course of the two-year period prescribed for withdrawal following the service by the UK of a notice under Article 50 TEU. These include, for example, the competition law Damages Directive 2014/104/EU (to be implemented by 27 December 2016), the new Data Protection Directive (EU) 2016/680 (to be implemented by 6 May 2018) and the Trade Secrets Directive (EU) 2016/943 (also to be implemented by May 2018). Prior to the referendum result, the view that was being expressed by the Department of Business, Innovation and Skills was that the UK would have to press ahead with implementation in any event. However, in a speech this week (which can be found here) Baroness Neville-Rolfe DBE CMG, Minister for Data Protection, made some comments in relation to data protection which might suggest some change in view.

In particular, in referring to the Data Protection Regulation (EU) 2016/679, which is due to take effect in the UK by 25 May 2018, “we — all of us, I mean you here as well as government — need to consider carefully what might be done either to replace it if and when it ceases to have effect or, instead, if in the event it never comes into force”. Perhaps the Baroness had in mind the possibility that the UK’s withdrawal from the EU will be effected more quickly than the two-year period prescribed by Article 50 TEU, but her comments might equally suggest the possibility that the UK will not continue to implement EU law in the interim.

Pursuant to Article 288 TFEU, EU Regulations are directly applicable in all Member States from the date prescribed in the Regulation. Not all provisions of EU Regulations will however have direct effect: Case C-403/98 Azienda Agricola Monte Arcosu Srl. Unimplemented Directives can have vertical direct effect (Case 41/74 van Duyn), and if they embody a general principle of EU law be invoked in litigation between private parties: Case C-144/04 Mangold. If the UK were to decide not to continue to take steps to implement EU law pending Brexit, there would appear nonetheless to be scope for at least some rights created by such unimplemented legislation to be invoked in the UK courts.