What does the team think?: the Brussels "opt in" Regulations after Brexit

This is a technical posting designed to open up debate on the residual opportunities offered by the EU (Withdrawal) Act 2018 (EUWA).

S. 3 EUWA reads as follows:

"3. Incorporation of direct EU legislation

(1) Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day.

(2) In this Act “direct EU legislation” means—

(a)any EU regulation, EU decision or EU tertiary legislation, as it has effect in EU law immediately before exit day and so far as—

(i)it is not an exempt EU instrument (for which see section 20(1) and Schedule 6),

(ii)it is not an EU decision addressed only to a member State other than the United Kingdom, and

(iii)its effect is not reproduced in an enactment to which section 2(1) applies,…"

Subsections 4 and 5 read as follows:

"(4)This section—

(a) brings into domestic law any direct EU legislation only in the form of the English language version of that legislation, and

(b) does not apply to any such legislation for which there is no such version,

but paragraph (a) does not affect the use of the other language versions of that legislation for the purposes of interpreting it.

(5)This section is subject to section 5 and Schedule 1 (exceptions to savings and incorporation)."

If anything, section 5 strengthens the argument to follow.

Schedule 6 reads as follows:

"EU regulations

  1. An EU regulation is “an exempt EU instrument” so far as it is, in accordance with a relevant Protocol, not applicable to the United Kingdom immediately before exit day."

Taken from that perspective , most of the “Opt in” Regulations would appear to have the status equivalent to UK Acts of Parliament after Brexit and to have retained their status in the laws of the United Kingdom on that basis alone. There appears to be no statutory requirement of reciprocity.

Grosso modo, that means on the face of it that Brussels 1 mod and the EU Service Regulation should continue to apply and be enforced by the law, the legal administrative machinery and the Courts of any part of the United Kingdoms as equivalent to an act of Parliament unless repealed or modified in accordance with s.7 EUWA.

I leave Colleagues in the Insolvency and Family area to make comments as to the position in which their clients may find themselves in matters of maintenance etc.

There is no requirement of reciprocity in EUWA, and the Act of Parliament appears to apply to incoming service from the EU, not to outgoing service into the Union: obtaining any such service in the EU will be a separate issue.

On the face of it, in relation to the extra-judicial service of Authentic Instruments, the Chapter IV of Brussels 1 Mod (Regulation (EU) No 1215/2012) enforced through Regulation (CE) N° 1393/2007 would continue to apply notwithstanding any issue of “reciprocity”.

I have just served two French authentic instruments under Chapter IV and Regulation (CE) N° 1393/2007 in Scotland so as to establish absolute proof of content and substance, and am intent upon retaining that evidential option after Brexit, no matter what…

It would be interesting to have the views and approaches that others are taking in relation to the Brexit legal aftermath.

R.P. Harris

Overseas Chambers