EU-derived laws after Brexit: Focusing on the CRR and CRD IV

Posted in UK and EU legal framework Financial institutions Banking and finance

There are over 100,000 items of legislation in the UK which derive from the EU Treaties. Whether those laws continue to have effect, are repealed or are allowed to lapse following any Brexit – and how that outcome is achieved – will be one of the key challenges for the UK Parliament in the coming years.

EU-derived law comes from four sources:

  • Regulations, which are directly applicable and for which the UK Parliament will not have legislated at all. If the European Communities Act 1972 (ECA) were to be repealed, Regulations would cease to have effect in the UK, unless Parliament takes steps to preserve them.
  • Directives, which are not directly applicable and which need to be implemented into UK law by domestic legislation. That implementation may be by primary legislation or (much more commonly) secondary legislation (using what are known as statutory instruments). Secondary legislation needs to be passed by the Government using powers delegated to it under primary legislation, usually, but not always, under the ECA. If the ECA is repealed, secondary legislation derived from it will cease to have effect unless Parliament takes steps to preserve it.
  • Decisions of the Court of Justice of the European Union: the ability of the CJEU to create binding precedents, and the persuasiveness of its judgments after any Brexit, will be the subject of a separate blog post; and
  • The EU Treaties themselves – in addition to the constitutive treaties, the EU has signed a multitude of international agreements on the Member States’ behalves, relating to trade and other matters. Following Brexit, the UK will no longer be covered by these. It will need to accede to them on its own behalf.

The House of Commons Library has produced this Briefing explaining the process for the UK leaving the EU.

It is likely that, at the time of the passage of any Act repealing the ECA by the UK Parliament, a continuity provision will be included to the effect that existing Regulations and statutory instruments implementing Directives will continue to have the force of law unless repealed by a subsequent Act of Parliament.

We expect that the Capital Requirements Regulation (CRR) would be preserved this way: its source is not the EU itself but rather the Basel 3 Accord as promoted by the Basel Committee on Banking Supervision, which the United Kingdom is, and will remain, a part of. The UK may decide to disagree with the detail of implementation of Basel 3 by the EU under the CRR but this is unlikely if the UK is seeking to maintain equivalence.

The Capital Requirements Directive IV (CRD IV) was implemented in the UK by a series of statutory instruments. The Government’s powers to pass these statutory instruments in some cases derived from the ECA but, in others, from other primary legislation. The latter will survive any repeal of the ECA but the former will need to be preserved expressly. Certain provisions of CRD IV, such as those relating to corporate governance and remuneration, do not stem from the Basel 3 proposals but from the EU’s own policy. Following Brexit, the UK could dispense with these provisions, if it so wished, without departing from the Basel 3 requirements.

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