Brexit IV – Why the 'Great Repeal Bill' Will Not Be So Great
in: The End of the Ever Closer Union, Hannes Hofmeister (ed.), Nomos/Hart, 2018, pp. 95-105
14 Pages Posted: 12 May 2017 Last revised: 25 Nov 2018
Date Written: 2018
The UK’s “Great Repeal Bill” will transpose the entire body of EU law to the UK’s legal order at the moment of withdrawal from the EU. This paper argues that the UK faces a choice at that moment, but both alternatives available have serious drawbacks. The Great Repeal Bill can either recognize that new case law of the EU’s Court of the Justice coming down after the UK’s withdrawal continues to be authoritative in the UK. This alternative goes against the grain of bringing back “judicial sovereignty” to the UK, which has been a strong motivation in Brexit; but it maintains a sustainable link to the EU’s internal market, which is in the interest of the UK economy. Alternatively, the Great Repeal Bill can clearly sever the ties to the case law of the EU’s Court of Justice. However, the EU law the Great Repeal Bill will have transposed to the UK will then rapidly go out of sync with the EU’s own internal market law, thus putting in question the very rationale of the Great Repeal Bill. The paper’s argument is based on practice and experience from similar transpositions of EU law to Switzerland and the European Economic Area. It concludes with a recommendation to the UK legislature.
Keywords: Brexit, Withdrawal, Secession, European Union, internal market, Court of Justice of the European Union, ECJ, case law, Switzerland, European Economic Area, Great Repeal Bill
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