Beyond Brexit transition – interpretation of retained EU law

Contacts: Charles Brasted and Andrew Eaton
19 November 2020

What's the issue?

Until now, the process of the UK leaving the EU has had very little direct impact on the law and regulation applicable in the UK.  During the transition period under the Withdrawal Agreement, which came into force from 31 January 2020, EU law – which is currently relevant in a wide range of legal contexts, from financial services regulation to employment law – has largely continued to apply in the UK as before, despite the UK no longer being an EU Member State.  This is about to change dramatically overnight at the end of 2020. 

Where are we now?

From 1 January 2021, EU law will suddenly cease to apply in the UK and the EU Withdrawal Act 2018, a UK Act of Parliament, will create a new species of UK law to fill the gap where EU law used to be: "retained EU law".  This retained EU law will be based on the equivalent EU rules that it replaces, but the context in which it applies and the rules and principles governing its interpretation, application and interaction with other types of UK law will be new and untested. 

What impact does this have?

This means vast amounts of existing, previously EU-derived law and regulation in the UK will be on a new legal footing and potentially open to reinterpretation in its new post-Brexit context from 1 January 2021, in addition to the potential for new laws to be introduced in the UK that diverge from EU law over time.  Businesses in the UK whose operations are currently affected by EU law should take notice and be prepared to manage the risks and capitalise on the opportunities that could arise from this legal uncertainty.  Any area of law, regulation or policy in the UK previously touched by EU law is potentially affected.



Beyond Brexit transition – litigation and the enforcement of judgments

EU law currently provides a simple, fast and cost-effective mechanism for a party to enforce a judgment of the English courts in the courts of an EU Member State and vice versa. This mechanism will no longer be available for claims commenced in the UK after the 1 January 2021, unless otherwise agreed between the EU and the UK.

Beyond Brexit transition – bilateral investment treaties

This article is part of our 'Beyond Brexit transition' series.

Beyond Brexit transition – the impact on freedom of movement

During the transitional period, the freedom of movement principle continues to apply and employers have been able to employ and recruit EEA nationals and Swiss nationals on the same basis as before Brexit.