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UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021

The different forms of EU law and the ECA

13.The EU Treaties are the primary source of EU law and under the Treaties, the EU may adopt a number of different forms of legislation. The most commons forms are EU Regulations and EU Directives but other forms include decisions, recommendations and opinions.

14.EU Regulations contain detailed legal rules and have “direct effect” in member states. This means, in principle, they do not need to be specifically implemented domestically and can be applied based on the text of the Regulation itself. Until IP completion day EU Regulations were automatically applied in the UK without the need for specific implementing legislation by virtue of section 2(1) of the ECA.

15.EU Directives set out a legal framework which member states have to follow but which leave discretion to member states about how to make them part of their law. Directives do not generally have direct effect and require to be implemented through domestic law, frequently this was done using the powers provided for this purpose in section 2(2) of the ECA.

16.The EU can also adopt binding decisions. These may be addressed to a particular party or parties (e.g. to individuals or to member states), in which case it may have been necessary for domestic legislation to give effect to the decision. It is also possible for a decision to have no addressee. In those circumstances, a decision may or may not have been directly and generally applicable: it would have depended on the context and the particular wording of the decision.

17.The EU institutions can also adopt recommendations and opinions, which are not legally binding although they may have legal effects (e.g. in so far as domestic courts are required to take them into account in interpreting domestic legislation designed to implement them or where they may have legal effects in the interpretation of legally binding instruments).

18.EU tertiary legislation refers to when EU secondary legislation (e.g. EU Regulations and Directives) makes provision for a further power to make detailed tertiary rules to be adopted at EU level. There are two types of tertiary legislation: delegated acts and implementing acts. The power to make a delegated act is a power to supplement or amend non-essential elements of the legislative act whereas implementing acts are used where uniform conditions for implementing legally binding Union acts are needed. Tertiary legislation may take the same form as secondary legislation (i.e. regulations, directives, decisions, recommendations or opinions).

19.As noted above, until IP completion day the ECA was the principal statute which gave domestic effect to the various types of EU law. The two main provisions of the ECA were section 2(1) and section 2(2). The key part of section 2(1) provided that certain rights or obligations created or arising by or under the EU Treaties (i.e. those which are, in EU law, of direct application or direct effect in the member states) applied automatically in the UK without the need for additional implementing legislation.

20.As above, other types of EU law (such as Directives) were implemented through domestic law, frequently using the powers provided for that purpose in section 2(2) ECA. The power in section 2(2)(a) could be used to implement EU obligations and the power in section 2(2)(b) could be used to deal with matters ‘arising out of or related to’ EU obligations.

21.As a consequence of amendments made to the EUWA by the 2020 Act, section 2(1) of the ECA continued to apply and the powers in section 2(2) remained available during the implementation period but these provisions ceased to apply from IP completion day.

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Explanatory Notes

Text created by the Scottish Government to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills.


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