Parliamentary sovereignty, the European Union, and Brexit

Problem scenario

Given the result of the 2016 referendum to leave the European Union, the Stilton Cheese Producers Association were concerned about the impact of Brexit on the businesses of its members. In particular they are concerned about what happens now, as the UK left the EU on 31^st January 2020.

This is because under EU Regulation 1151/2012¹ Stilton cheese is protected by ‘Protected Designation of Origin’ status which means that Stilton cheese can only be produced in the English counties of Leicestershire, Derbyshire, and Nottinghamshire and must be produced according to the traditional method. Even if a producer of cheese, elsewhere in the UK or in another EU Member State, uses exactly the same ingredients and production methods as the producers who are based within those three counties, it is unlawful for them to call their cheese ‘Stilton’. Essentially, EU law protects the name ‘Stilton’ and ensures that consumers of Stilton cheese can be sure that what they buy in the supermarkets is genuinely Stilton cheese produced according to traditional methods.

Analysing the scenario

Imagine that you were presented with this scenario and asked to discuss any issues arising from it that concern the status of EU law after the UK’s withdrawal from the EU.

The objectives of the EU include the internal market and the common agricultural policy. A concern is that if goods can flow freely across member states of the EU, then products that are closely associated to particular places or localities could be exploited. For example, the very term “champagne” is an indicator of a sparkling wine that has particular characteristics and quality from wines produced in the Champagne region in north west France. This means that consumers can purchase a bottle of champagne confident that it will have those characteristics. The concern is that under the free movement of goods, if goods are lawfully produced in one Member State, then, in principle, they are able to be sold without restriction in all other Member States. This means that in principle, a sparkling white wine produced in Portugal (for example) could also be called ‘champagne’, however due to different production techniques and climatic conditions, it would be unlikely to share the characteristics expected of champagne produced in France. The result is that consumers could end up being confused, and the value of the term “champagne” as an indicator of quality would be diluted.

Consequently, the EU has decided that certain food products should be protected from being exploited in this way. Regulation 1151/2012 is the way in which foods, known for their quality are protected. This establishes a common system of protection across all Member States, and producers of foods that qualify for protection can be registered under this scheme. As the problem scenario outlines, Stilton cheese is one such product.

Under the EU treaties, as a regulation, Regulation 1151/2012 is directly applicable across all Member States of the EU. This means that once it was adopted it automatically became part of the law of each Member State. Consequently, once foods such as Stilton are registered for protection under Regulation 1151/2012, they are automatically protected in each Member State. The principle of the supremacy of EU law means that even if a Member State passes legislation which seeks to exclude the Regulation from their law, or even exclude certain foods from being protected by the Regulation, EU law and the Regulation would take precedence.

To give effect to the UK’s entry into (what later became) the EU in 1973, the UK enacted the European Communities Act 1972, section 2 of the Act states that

‘all rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly’.

Regulation 1151/2012 is covered by section 2 of the 1972 Act, recognising that the regulation is directly applicable. This means that foods protected by the regulation, including Stilton cheese are protected in the UK, even though no other legislation has been passed in the UK.

Following the referendum, and the decision of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union,² the UK Parliament enacted the European Union (Notification of Withdrawal) Act 2017. The 2017 Act was required to trigger the process of leaving the EU as laid down in the Treaty on European Union, Article 50. This set out a two-year period within which to negotiate the UK’s terms of withdrawal, and framework for the longer-term, future relationship between the UK and EU.

The then Prime Minister, Theresa May notified the EU of the UK’s intention to leave on 29^th March 2017, starting the two-year negotiation period. At this point the status of EU law remained entirely unchanged, the Regulation continued to apply with full effect as during the negotiation period, and the UK’s membership of the EU continued.

Under the terms of the Withdrawal Agreement agreed between the UK and the EU, on leaving the EU on 31^st January 2020, the UK entered into the transition period. During this period, the UK, although no longer a member of the EU, remained bound by UK law. This meant that Regulation 1151/2012 remained part of UK law throughout the transition period. This ensured that the UK was required under the Withdrawal Agreement to maintain the level of protection as provided by Regulation 1151/2012 for the duration of the transition period.³

The transition period ended end 31^st December 2020. At this point, EU law no applied to the UK and would no longer be part of the UK legal system. However, given the deep and complex relationship between EU law and the laws of its Member States, this had the potential to create substantial gaps in the UK legal system as a former Member State of the EU. This is particularly the case with those aspects of EU law that have direct effect or are directly applicable, which rely on their nature as EU law to be part of the domestic law of each Member State. This included Regulation 1151/2012 which protects Stilton cheese.

The European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, sought to ensure legal continuity, so that at the point it no longer applied to the UK, the great majority of EU law continued to be part of the UK legal system. It achieved this by firstly repealing the European Communities Act 1972, ⁴ at which point the majority of EU law continues to be part of the UK legal system by being converted into “retained EU law”, which is a category of UK law. Regulations, such as Regulation 1151/2012, are protected as ‘direct EU legislation’, a subcategory of retained EU law.⁵

The next difficulty is that Regulation 1151/2012 was written to apply to Member States of the EU. Naturally, this meant that it contained references to EU concepts such as ‘Member States’, ‘Commission’, and so on. These made little sense once EU law no longer applied to the UK. As provided for by section 8 of the 2018 Act, these references are known as ‘deficiencies’ which can be amended by secondary legislation. For Regulation 1151/2012 this was achieved by the Food and Drink, Veterinary Medicines and Residues (Amendment etc.) (EU Exit) Regulations 2019, which corrected these deficiencies.⁶

As can be seen, the focus of the 2018 Act was about preserving the status quo at the point once EU law no longer applied and to make the necessary adjustments to take account of the UK’s withdrawal from the EU. This is important, because until the 2018 Act took effect, the UK had no domestic law governing the protection of foods such as Stilton. Consequently, if the status quo was not preserved in this way, not only could the protection of foods such as Stilton in other Member States across the EU be under threat, but in the absence of any UK-specific legislation, all protection within the UK would be lost, and producers from across the UK would be able to produce and sell cheese branding it as Stilton.

Now it is clear that GIs continued to be protected during the transition period, the question is what happened at the end of this period, on 31^st December 2020. The EU-UK Trade and Cooperation Agreement, which took effect at this point, provides for the following, at Article 275,

“Noting the relevant provisions of any earlier bilateral agreement between the UnitedKingdom of the one part and the European Union and European Atomic Energy Community of the other part, the Parties may jointly use reasonable endeavours to agree rules for the protection and effective domestic enforcement of their geographical indications”.

Essentially, the protections from the Withdrawal Agreement continue beyond the end of the transition period. Only now, separate applications will have to made for entry to the UK and EU schemes. However, it is clear that the UK rules will closely mirror EU rules, even though it is no longer a Member State.

For a fuller discussion of the issues raised in the problem scenario, see Craig Prescott, Manuela Pilato, and Claudio Bellia, ‘Geographical indications in the UK after Brexit: An uncertain future?’ (2020) Food Policy (Vol 90, Article 101808), available at https://doi.org/10.1016/j.foodpol.2019.101808.

1 Parliament and Council Regulation (EU) 1151/2012 on quality schemes for agricultural products and foodstuffs [2012] OJ L343/1.

2 [2017] UKSC 5.

3 European Commission, ‘Working document – Consolidated version of the Withdrawal Agreement following revision of Protocol on Ireland/Northern Ireland and technical adaptations to Article 184 “Negotiations on the future relationship” and Article 185 “Entry into force and application” (document TF50 (2019) 64), as agreed at negotiators’ level and endorsed by the European Council’, (TF50 (2019) 66, 17 October 2019), Art 54(2).

4 Technically, the European Communities Act 1972 was repealed on 31st January 2020, however, due to amendments inserted into the 2018 Act by the European Union (Withdrawal Agreement) Act 2020, the “effect” of the 1972 Act remains through the transition period. These saving provisions no longer have effect from the conclusion of the transition period on 31st December 2020.

5 European Union (Withdrawal) Act 2018, s 3.

6 SI 2019/865