Posted on by Jack Williams

Accrued EU law rights: a guide for the perplexed

In this post, Jack Williams of Monckton Chambers explains accrued EU law rights that remain enforceable in domestic courts after the transition period.

This is the fourth blog post in a series of ‘guides for the perplexed’ concerning the domestic implementation of the UK’s new relationship with the EU:

  • The first blog post concerned “retained EU law” – the converted and preserved EU law as now retained, modified and applicable in domestic law after Brexit and the transition period pursuant to the EU (Withdrawal) Act 2018 (the “EU(W)A 2018”). 

This blog post concerns rights from EU law that have accrued and remain enforceable in domestic courts after the Brexit transition period. These are distinct rights from those found in retained EU law, relevant separation agreement law, and relevant relationship agreement law. They are not new rights. Their utility will expire once their relevant limitation periods expire. Nonetheless, their continued existence, enforceability, and their interaction with retained EU law, in particular, has generated confusion.

This guide aims to dispel that confusion. It proceeds in four sections: first, I set out the relevant provisions of the Interpretation Act 1978, which ensure the continued enforceability of certain accrued EU law rights; second, I then apply those provisions to the EU(W)A 2018 and EU(WA)A 2020, and explore the circumstances in which accrued EU law rights apply; third, I discuss four cases in which the principles have been applied correctly and three cases in which they have, unfortunately, not; and finally, I summarise the four, key takeaways from this blog post.

The Interpretation Act 1978

Section 16 of the Interpretation Act 1978 is key to understanding accrued EU law rights. That section provides that where an Act repeals an earlier enactment, “unless the contrary intention appears”, the repeal does not (amongst other things):

  1. “affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment”;
  2. “affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment”; or
  3. “affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment”.

In such circumstances, “any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed”.

In short, this section provides various saving provisions where legislation has been repealed. In simplified terms, unless the contrary intention appears in the repealing Act, an individual can continue to enforce an accrued right even after the repeal.

Application to the EU(W)A 2018 and the EU(WA)A 2020

In order to understand the implications of section 16 of the Interpretation Act for the ongoing application of EU law in the United Kingdom even after the transition period, it is necessary to consider three scenarios: first, facts / breaches arising before ‘Exit Day’; second, facts / breaches arising between ‘Exit Day’ and ‘IP Completion Day’; and third, facts/ breaches arising after IP Completion Day. Each is addressed in turn.

(i) Facts / breaches before ‘Exit Day’

Exit Day. ‘Exit Day’ is defined in section 20(1) of the EU(W)A 2018 as 11 p.m. on 31 January 2020. This mirrors the time at which the United Kingdom formally left the EU under Article 50 TEU.

Governing law. As we have seen, by virtue of section 16 of the Interpretation Act 1978, rights which have accrued under a repealed statute remain enforceable thereafter unless the contrary intention appears in the repealing Act. Whilst the EU(W)A 2018 repealed the European Communities Act 1972 (the “ECA 1972”) from Exit Day onwards (see section 1 of the EU(W)A 2018), there is no general provision in the EU(W)A 2018 which provides that all accrued EU rights which applied to activity prior to Exit Day do not remain enforceable after Exit Day. There is also no suggestion that the repeal of the ECA 1972 in section 1 is intended to apply retrospectively. Indeed, this general position is affirmed by the provision of express, narrow exceptions that we are about to explore which do evince the “contrary intention” for the purposes of the Interpretation Act 1978. Therefore, the provisions of the ECA 1972 in force at the time of the relevant facts / breaches in question prior to Exit Day remain applicable to the situation and enforceable after the transition period – subject, of course, to any applicable limitation period (generally six years for breach of statutory duty).

Exceptions where the contrary intention appears. There are, however, express provisions in the EU(W)A 2018 that retrospectively amend or repeal the law applicable to facts arising before Exit Day, and thus extinguish or modify accrued EU law rights that would have otherwise continued to be enforceable even after Exit Day pursuant to section 16 of the Interpretation Act 1978. (NB. There may also be other provisions in other domestic laws in specialised fields that apply bespoke arrangements beyond the default ones found in the EU(W)A 2018.)

For example, subject to some very important exceptions, caveats and savings in paragraph 39 of Schedule 8 to the EU(W)A 2018, section 5(4) and paragraphs 1 to 4 of Schedule 1 to the EU(W)A 2018 expressly remove or modify what would otherwise be accrued EU law rights in relation, respectively, to: the EU Charter of Fundamental Rights; challenges to the validity of EU law; general principles of EU law; and Francovich damages claims. Paragraph 39(1) of Schedule 8 to the EU(W)A 2018 then states that (subject to some qualifications), section 5(4) and paragraphs 1 to 4 of Schedule 1 to the EU(W)A 2018 “apply in relation to anything occurring before IP completion day (as well as anything occurring on or after IP completion day).”

Let us take the position in relation to Francovich damages as an example: see paragraph 4 of Schedule 1 and paragraph 39(1) of Schedule 8 of the EU(W)A 2018). I have discussed this exception in detail here. In short, these provisions state, respectively, that there “is no right in domestic law on or after IP completion day to damages in accordance with the rule in Francovich” and that this rule applies “in relation to anything occurring before IP completion day (as well as anything occurring on or after” it.

Thus, for the purposes of section 16 of the Interpretation Act 1978, the legislative intention appears to prevent both new Francovich claims for breaches of EU law or EU retained law arising post IP Completion Day and to extinguish, subject to certain exceptions, Francovich damages claims which had accrued before the end of the transition period. One exception is that the removal of the right to claim Francovich damages “does not apply in relation to any proceedings begun within the period of two years beginning with IP completion day so far as the proceedings relate to anything which occurred before IP completion day”. As I have discussed before, this effectively reduces the limitation period (usually six years) for accrued Francovich damages claims and thus extinguishes certain historic claims, which would otherwise have continued to be enforceable.

(ii) Facts / breaches between ‘Exit Day’ and ‘IP Completion Day’

IP completion day. ‘IP Completion Day’ is defined in section 39(1) of the EU(WA)A 2020 at 11 p.m. on 31 December 2020.

Governing law. First, in respect of accrued EU law rights, for new activity taking place after Exit Day but prior to IP Completion Day, the substantive analysis as discussed in relation to facts / breaches before Exit Day applies. That is, accrued EU rights arising during this period remain enforceable in Court even after IP Completion Day and are governed by accrued EU law.

Whilst that may be so, the formal route by which that is achieved is different. As discussed above, the ECA 1972 was repealed on Exit Day (section 1 of the EU(W)A 2018). The UK and EU nevertheless agreed in the Withdrawal Agreement to apply EU law in the UK during the transition period. The EU(WA)A 2020 thus made domestic provision for the legal effects of the Withdrawal Agreement (Part 4 in particular) by amending the EU(W)A 2018 to insert sections 1A and 1B, in particular. In short, these provisions effectively revived the effect of the ECA 1972 (with slight modifications) for the transition period, and thus provided a legal basis for the continued recognition, application, direct effect and primacy of EU law during the transition period.

Therefore, for any facts / breaches occurring between Exit Day and IP Completion Day, the correct starting point for determining the substantive applicable law which is now said to have accrued is sections 1A and 1B of the EU(W)A 2018, rather than the ECA 1972.

Second, relevant separation agreement law from the Withdrawal Agreement (which came into force on Exit Day) also applies to activity after Exit Day (see here).

Exceptions where the contrary intention appears. In connection with accrued EU law rights, the same approach and provisions apply as discussed above in relation to facts / breaches arising before Exit Day, with the added requirement to carefully consider the provisions of Withdrawal Agreement itself and sections 1A and 1B of the EU(W)A 2018 to ensure that the relevant substantive EU law sought to be enforced was, in fact, applicable.

(iii) Facts / breaches after ‘IP Completion Day’

IP completion day. ‘IP Completion Day’ is defined in section 39(1) of the EU(WA)A 2020 at 11 p.m. on 31 December 2020.

Governing law. For new activity taking place after IP Completion Day, no new cause of action in EU law exists. The UK is not an EU member state and is not subject to the TEU or the TFEU. The ECA 1972 remains repealed as from Exit Day (section 1 of the EU(W)A 2018), and sections 1A and 1B of the EU(W)A 2018 are also repealed as from IP Completion Day, as the transition period has ended: see sections 1A(5) and 1B(6).

Therefore, the only law applicable to new facts arising after IP Completion Day is: (i) retained EU law, which came into force on IP Completion Day (see here); (ii) relevant separation agreement law from the Withdrawal Agreement, which came into force on Exit Day (see here); and (iii) relevant relationship agreement law from the TCA (see here).

Examples in practice: when it goes right

There are four cases that demonstrate the above principles working well in practice.

(1) Gibfibre v Gibraltar Regulatory Authority [2021] UKPC 31 (“Gibfibre”)

The Gibraltar Regulatory Authority appealed to the Privy Council against a decision of the Court of Appeal of Gibraltar that held that it had power under the EU’s Access Directive (2002/19/EC) and Framework Directive (2002/21/EC) to grant the respondent, Gibfibre, access to a data centre. This followed a decision, in February 2017, of the Gibraltar Regulatory Authority in which it concluded that it did not have the legal powers to grant such access.

Considering that the decision was well before both Exit Day an IP Completion Day, the parties properly “agree[d] that Gibraltar law has properly implemented EU law” and the case was “argued below and before the Board by reference to EU law” ([10]). As the Privy Council stated, the appeal “falls to be decided by reference to the law prevailing at the date of the decision” ([10]), despite the case being heard after IP Completion Day. The Board did not lose its jurisdiction to determine the matter, and it did not apply retrospectively any retained or modified domestic versions of the two Directives.

(2) Fratila v Secretary of State for Work and Pensions [2021] UKSC 53 (“Fratila”)

The case concerned the scope of application of Article 18 TFEU, which prohibits discrimination on grounds of nationality. The applicants had obtained “pre-settled status” under the UK’s EU Settlement Scheme, which created new domestic rights of residence for certain EU citizens in the UK prior to IP Completion Day, but did not satisfy the requirement to have a “right to reside” to claim certain benefits. The applicants argued that they had been subject to direct discrimination on grounds of nationality, contrary to Article 18 TFEU.

The facts of the case thus concerned the position prior to IP Completion Day. As Lord Lloyd-Jones stated for the majority: “[t]his appeal is concerned solely with EU law as it applied in the United Kingdom while the United Kingdom was a Member State and during the transition period following the withdrawal of the United Kingdom from the European Union” ([1]).

In July 2021 (prior to the Supreme Court’s decision), the CJEU ruled in Case C-709/20 CG that an EU citizen could only rely upon Article 18 TFEU if their residence in a host Member State complied with the conditions laid down in the Citizenship Directive (2004/38 EC). The parties to appeal in Fratila agreed that “by virtue of articles 86(2) and 89(1) of the Withdrawal Agreement, which has domestic effect by virtue of section 7A of the European Union (Withdrawal) Act 2018, the judgment of the CJEU in CG will have binding force in its entirety on and in the United Kingdom.”

The Supreme Court duly applied that case. As the applicants in the Fratila case had not complied with those conditions in the Citizenship Directive, the Supreme Court ruled that they could not rely on EU law to claim a right to equal treatment in respect of entitlement to Universal Credit.

Again, therefore, despite the case being heard after IP Completion Day, the Court did not lose its jurisdiction to determine the matter pursuant to EU law, and it did not apply retrospectively any retained or modified domestic versions of EU law. It applied EU law, as subsequently interpreted by the CJEU.

(3) TuneIn Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441 (“TuneIn”)

TuneIn, the internet radio app, was sued for copyright infringement for its use of the streams on which internet radio stations were broadcast. The claim was for an injunction and financial damages. Importantly, it embraced alleged infringements before IP Completion Day and infringement after it.  At the heart of the dispute was the key copyright concept of “communication to the public”, a term that had been the subject of much debate before the CJEU. TuneIn invited the Court of Appeal to take its own path, departing from retained EU case law in accordance with section 6 of the EU(W)A 2018. The Court refused to do so, for reasons discussed here.

What is of present interest, however, is what is recorded at [76] of the judgment:

“He [Counsel for the Appellant inviting the Court to depart from retained EU case law] also explained that TuneIn accepted that it would only be possible for this Court to depart from the CJEU’s case law with effect from 1 January 2021, and thus the point would only be relevant to the continuing availability of an injunction from that date, not to financial remedies for infringements prior to that date.”

What the last part of this passage reflects is the fact that, pursuant to section 16 of the Interpretation Act 1978, there may well be accrued rights in relation to past copyright infringements – founded on accrued EU law rights as opposed to any retained EU law – that apply up until 11 p.m. on 31 December 2020, which, unless the contrary intention is expressed in legislation otherwise, the Court would then be vindicating (even in a case post Exit Day and IP Completion Day).

In that situation, retained EU law is not engaged, but rather accrued EU law rights as given effect by section 2(1) ECA 1972 or section 1A EU(W)A 2018, the effect of which section 16 of the Interpretation Act 1978 preserves. With no retained EU law in play, the provisions concerning retained EU case law are equally inapplicable.  Instead, in a situation of accrued EU law rights, the Court would, based on [76] of TuneIn, be bound by the CJEU jurisprudence, regardless of how that jurisprudence is, for different purposes, categorised in the EU(W)A 2018.

(4) Epic Games, Inc. and Others v Apple Inc. and Another [2021] CAT 4 (“Epic”)

Epic sought permission for service out of the jurisdiction in respect of claims alleging breaches of EU and UK competition law. These alleged breaches were claimed to be ongoing and to have occurred both prior to and after both Exit Day and IP Completion Day. Importantly for present purposes, Epic’s claimed relief only included forward-looking injunctive relief. Epic did not seek damages for past harm.

In such circumstances, Mr Justice Roth held at [86] – [87] that there was no serious issue to be tried in respect of the allegations of breach of EU competition law and thus refused permission for that aspect. He did so for reasons which demonstrate the distinction between, on the one hand, the continuing possibility of claims for breaches of accrued EU law and, on the other hand, claims for breaches of domestic law taking place after IP Completion Day (and, like TuneIn, the possible different remedies applicable in each instance):

86. … That leaves the claims for injunctions. As noted above, they are based on allegations of infringement of both EU and UK competition law. However, the effect of the transitional provisions set out above is that the jurisdiction of the Tribunal for private claims since 1 January 2021 comprises only breaches (or alleged breaches) of domestic competition law, save that a claim in respect of breach (or alleged breach) of EU competition law that occurred before 1 January 2021 may continue. Accordingly, if the Claimants had sought damages, they could do so in respect of breaches of EU competition law alleged to have occurred up to 31 December 2020. But as I have observed, they have expressly stated that they are not seeking damages. The injunctions are therefore forward looking, and indeed the injunction sought at paragraph (h) of the prayer in the Apple Claim Form is expressly directed at threatened future conduct.

87. It follows that the claims restricting or requiring conduct by the Defendants for the future, and therefore after 31 December 2020, cannot be founded on breach of EU competition law. There is accordingly no serious issue to be tried in respect of the allegations of such breaches. ….”

The “transitional provisions” that Mr Justice Roth refers to are those contained within section 47A of the Competition Act 1998, as amended by the Competition (Amendment etc) (EU Exit) Regulations 2019 (the “2019 Regulations”) and Competition (Amendment etc) (EU Exit) Regulations 2020 (the “2020 Regulations”). They, again, demonstrate the workings of the Interpretation Act 1978.

From 1 January 2021, the jurisdiction of the Competition Appeal Tribunal was reduced to remove jurisdiction to hear claims of EU competition law (see section 47A(2) of the Act and regulation 16 of the 2019 Regulations). Perhaps fearing that that removal would, in context, be sufficient to engage the “contrary intention” in the Interpretation Act 1978 (and, in any event, because the Tribunal depends upon statutory conferral of jurisdiction), paragraph 14(2) of Schedule 4 to the 2019 Regulations (as amended by regulation 39 of the 2020 Regulations) states, for good measure, that:

“Where an EU competition infringement occurs before IP completion day, on or after IP completion day a person may – (a) continue any claim … in relation to that infringement in proceedings before a court or tribunal in the United Kingdom,….”

Examples in practice: when it goes wrong

Gibfire, Fratila, TuneIn and Epic show things working as they should. There have, however, been three ‘delayed flights’ cases (Lipton, Varano and Chelluri) where things have unfortunately not worked as they should have. These go wayward, in my view, by a misplaced, retrospective application of retained EU law in circumstances where the proper legal framework should, on account of the dates of the underlying facts, have been that of accrued EU law rights.

(1) Lipton v BA City Flyer Ltd [2021] EWCA Civ 454 (“Lipton”)

Passengers whose flights are cancelled or significantly delayed are entitled to compensation under EU Regulation 261/2004/EC. The payment of compensation is not payable where the cancellation or delay was caused by “extraordinary circumstances”. The delayed flight in question in Lipton took place on 30 January 2018 i.e. before both Exit Day and IP Completion Day.  The Court held that the cause of the delay, the captain’s non-attendance for work due to illness, was inherent in the air carrier’s activity and was thus not an “extraordinary circumstance”. No compensation was therefore payable.

Unlike the approach taken in Gibfibre and Fratila, the Court analysed the law through the prism of retained EU law (as opposed to applying acquired EU law rights). It therefore applied (retrospectively) the new, domestic version of retained EU Regulation, which had also been amended by domestic legislation (the Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019). See [71] – [72] and [82] where Green LJ held that “the present governing law is Regulation 261/04 as amended”..

The flaw in reasoning which led to this conclusion is apparent from [3] and [53]:

“Following the United Kingdom’s departure from the EU, a question arose as to the status of the Regulation. Counsel were agreed that the Regulation formed part of domestic law by virtue of the European Union (Withdrawal) Act 2018.”

and

“Submissions and argument advanced to us during the appeal proceeded very much as it would have done in 2019, when the UK was a member of the EU, or even in 2020 when the transitional period (“the Transitional Period”) governing the extrication of the UK from the EU was still in force (until 11pm 31st December 2020). However, the hearing took place in February 2021 when the transitional Period had expired. As at this point in time a new set of legal arrangements are in place which governed the relationship of the UK to EU law. The Court cannot therefore assume that the old ways of looking at EU derived law still hold good.  We must apply the new approach. There is much that is familiar but there are also significant differences.”

I have previously described the Judgment (especially [52]-[84]) as an “admirably succinct and helpful distillation of the principles” relevant to retained EU law and an “excellent summary of the analytical stages” for considering that category of law. It is. But the problem is that, whilst Green LJ’s judgment is an excellent route map for considering retained EU law (everything he says is correct and very helpful in that context), it was unnecessary to say it or apply it in connection to the underlying facts in Lipton. The case concerned a flight prior to the entering into force of retained EU law.

The better view, therefore, is that the applicable law was that of the original EU Regulation in force at the time of the flight. There is nothing in the EU(W)A 2018 or the Air Passenger Regulations 2019 which express the contrary intention for the purposes of the Interpretation Act 1978, or the intention to apply the modified, new law retrospectively (the domestic 2019 Regulations only came into force on 31st December 2020 i.e. circa 2 years after the relevant facts).

(2) Marjolyn Varano v Air Canada [2021] EWHC 1336 (QB) (“Varano“)

Varano demonstrates the grave dangers – and errors – arising from applying retrospectively the incorrect (retained EU law, as potentially then modified) version. It can make a fundamental difference to the substantive content of the law and/or applicable remedies.

Varano concerned a delayed flight in April 2016 i.e. well before Exit Day and IP Completion Day. The claim was issued in August 2019 – again, before Exit Day and IP Completion Day.

Citing Lipton, the Court held that it was the domestic version of the EU Regulation 261/04/EC (as then amended by the Air Passenger Regulations 2019) that fell to be applied, even to pending claims which were commenced prior to 31 December 2020: see [57] – [66]. Whilst, applying the domestic, amended version made no substantive difference to the outcome of the case on proper application of the law in this instance ([74]), it did mean that Ms Varano was entitled to compensation claimed in respect of her delayed flight “albeit in the sum of £520, being the sum provided for by the Amended Regulation 261, rather than €600 as would have been due under Regulation 261”: [95].

It is recorded in the judgment that the submissions of both parties initially had proceeded on the basis that the EU Regulation, rather than domestic, retained version as amended by Regulation 8 of the Air Passenger Regulations 2019, was the governing law ([67]). This was the correct approach. In light of Lipton, however, the Court provided the parties the opportunity to comment on the effect of that judgment. In light of those submissions, the Judge held at [73] that:

“I do not consider that the relevant analysis as to the applicable Regulation in Lipton can properly be treated as obiter, albeit that the analysis was perhaps primarily concerned with setting out “basic principles” of more general application. I therefore consider that this court is bound to treat this claim as brought under the Amended Regulation 261, as now contended by the Claimant.”

The Court clearly had some difficulties and misgivings with this approach imposed by Lipton, but nonetheless felt bound by higher authority to follow it. At [72] the Judge demonstrates the potency of adopting the (incorrect) position of applying retrospectively retained EU law (particularly where it has been subsequently modified or even repealed):

“The effect of the analysis set out by Green LJ in Lipton is potentially far reaching. Leaving aside wider potential implications, I note that Amended Regulation 261 is limited in scope to passengers departing from an airport located in the UK, rather than (under Regulation 261) to passengers departing from an airport located in the territory of a Member State. It is conceivable, for example, that a claimant might have issued proceedings in 2019 in respect of delay to a flight departing from, say, Paris. If such a claim were heard in 2021 then the defendant airline might seek to rely on the analysis in Lipton to contend that the claimant has no cause of action under the Amended Regulation 261, even though such an argument would not have been available had the claim been heard in 2020. The correct approach to any such claims (including the effect of s.16 of the Interpretation Act 1978) would call for detailed consideration in light of Lipton.”

(3) Chelluri v Air India Ltd [2021] EWCA Civ 1953 (“Chelluri”)

Chelluri once again concerned the scope of Regulation 261/2004/EC providing for compensation for delayed flights. The Court of Appeal held that a series of connecting flights should be taken as a whole for the purposes of the Regulation meaning that the Appellant was not entitled to compensation for a delay on her flight leaving Heathrow which led to a delay on arrival at her final destination in India. The relevant flights were in May 2019 i.e. prior to Exit Day and IP Completion Day.

Two observations about the Court of Appeal’s approach are interesting for present purposes.

First, at [16], Coulson LJ stated:

“Following Green LJ’s summary in Lipton, in Marjolyn Varano v Air Canada [2021] EWHC 1336 (QB) (“Varano”), Geraint Webb QC (sitting as a Deputy High Court Judge) held that it was the amended Regulation which fell to be applied, even to pending claims which were commenced prior to 31 December 2020. Neither counsel in the present case expressly disagreed with that approach, although I would not want to approve it without having heard full argument on the point. In any event, both accepted that the amendments made no substantive difference to this appeal.”

Reading between the lines, this is a subtle and polite suggestion of doubt about the approach in Lipton.

Second, despite that doubt, the Court appears to have (at least partially) fallen down the retained EU law analysis trap. By implication, the Court did, in fact, consider the amended, domestic version of the Regulation as opposed to the EU Regulation. By Ground 2, the Appellant argued that the Court of Appeal should depart from retained EU case law in the interpretation of the Regulation (relying on section 6 of EU(W)A 2018 (discussed here and here)). The Court rejected that invitation ([62]-[63]), but not because such power to depart did not belong to it, but instead because there had been no material change and no recent authority which could justify any departure. But, as we have seen from TuneIn, retained EU case law is only relevant to the validity, meaning or effect of retained EU law from 1 January 2021 (see section 6(3)(a), (4) and (7)(a) of the EU(W)A 2018). There was thus no need to justify the Court’s non-departure from CJEU precedent. It was bound by it in connection with the application of accrued EU law.

Summary: the key takeaways

First, accrued EU law rights are still generally enforceable in domestic law after the transition period (i.e. after IP Completion Day), unless one can point to a provision expressing the contrary intention for the purposes of the Interpretation Act 1978, which removes or alters (retrospectively) that right.

Second, acquired EU law rights are distinct from retained EU law, relevant separation agreement law, and relevant relationship agreement law.

Third, retained EU law should not be applied retrospectively unless the clearest of statutory intention is evinced.

Finally, to work out the governing law applicable to any fact pattern, it is vital to consider the date of the underlying facts. As a rule of thumb: if the facts are before Exit Day, then it’s likely that accrued EU law rights are in play and that retained EU law is inapplicable; if the facts are between Exit Day an IP Completion Day, then it’s likely that accrued EU law rights are in play as well as possibly relevant separation agreement law, but retained EU law is still inapplicable; if the facts arise after IP Completion Day, then no acquired EU law rights will be in play, but retained EU law (as possibly then modified), relevant separation agreement law, and/or relevant relationship agreement law may well be.

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