EU law advice for businesses trading across borders.
Counsel on assimilated and retained EU law, trade and customs, competition, data protection and regulatory questions affecting UK and EU business.
EU law did not disappear from the United Kingdom. A very large body of EU derived legislation was retained at the end of the transition period and now sits in the statute book as assimilated law, governing competition, data protection, product safety, consumer protection, environmental standards and much of the framework that regulated businesses work within every day.
What changed is how that law is read. The Retained EU Law Act 2023 removed the supremacy principle and the general principles of EU law from the interpretive toolkit, and gave the senior courts wider scope to depart from retained case law. That shift is producing genuine uncertainty in areas where the wording of the domestic instrument was drafted on the assumption that EU concepts would fill the gaps.
Clerk&Counsel introduces independent barristers who can advise on these questions and argue them. Instructions come from solicitors, in house teams and, under the public access scheme, directly from businesses that need a clear answer on how a rule now applies to their operations.
Areas counsel advises on.
- Interpretation of assimilated law and the effect of the Retained EU Law Act 2023.
- Competition law, including agreements restricting competition, abuse of dominance and follow on damages claims.
- Trade and Cooperation Agreement issues, rules of origin, tariffs and customs classification.
- Product conformity, marking and market access requirements for UK and EU sales.
- Data protection under the UK GDPR and international transfer mechanisms.
- Cross border supply, distribution and agency arrangements affected by regulatory divergence.
- Public procurement and subsidy control questions with an EU derived framework.
- Employment rights of EU origin, including working time, transfers of undertakings and equal treatment.
How assimilated law is now read.
The removal of supremacy means a conflict between assimilated law and domestic legislation is resolved in favour of the domestic provision unless Parliament says otherwise. That reverses the position businesses relied on for decades and can change the outcome in cases where two instruments overlap.
Courts may also depart from retained EU case law where it is right to do so, applying tests set out in the legislation and in the case law that has followed. Predicting whether a particular ruling will survive requires an understanding of both the EU jurisprudence and the domestic policy context.
For businesses this matters most in compliance decisions taken now that will be tested later. A written advice recording the reasoning behind a position is valuable evidence of good faith if a regulator or a counterparty challenges it.
Goods, customs and market access.
Trade between the United Kingdom and the European Union is tariff free only where the rules of origin in the Trade and Cooperation Agreement are satisfied. Disputes commonly arise over sufficient processing, cumulation and the evidence required to support a claim to preferential treatment, and the financial exposure on a retrospective customs assessment can be substantial.
Classification and valuation disputes with HMRC follow their own procedure through review and appeal to the First-tier Tribunal. Counsel can advise on the merits of a classification position and represent the business at the hearing.
Conformity requirements differ between the UK and EU markets, and products sold into both must satisfy each regime. Contractual allocation of that risk between supplier and distributor is often the point that ends up in dispute.
How to instruct and what it costs.
Most instructions begin with a defined question and a bundle of documents. Counsel returns a written advice that answers the question, identifies the risks and sets out the practical options, on a fixed fee agreed before work starts.
Where the issue becomes contentious, the same counsel can draft the pleadings and appear in the High Court, the Competition Appeal Tribunal or the relevant specialist tribunal. Hearings are quoted as a brief fee plus refreshers.
Where an issue crosses into another jurisdiction, counsel can work alongside lawyers in the relevant EU member state so that the English law analysis and the local position are consistent.
Specialist areas within this practice.
Send us the question and the documents.
Tell us which rule is causing difficulty and what decision you need to take. We will come back with counsel options and a fixed fee for a written advice.
Common questions.
Does EU law still matter in the UK?
Yes. Large parts of EU derived legislation were retained and are now assimilated law, and they continue to govern areas such as competition, data protection, product standards, consumer protection and parts of employment law. The Retained EU Law Act 2023 changed how that body of law is interpreted, which itself generates disputes.
Can UK courts still follow decisions of the Court of Justice?
They are no longer bound by them for post transition matters, and senior courts can depart from retained case law. Court of Justice rulings remain persuasive in many contexts, particularly where the underlying legislation is unchanged, so the argument is now about weight rather than obligation.
What EU issues arise for businesses trading with the EU?
Rules of origin and tariff treatment under the Trade and Cooperation Agreement, customs classification and valuation, VAT on cross border supplies, product conformity and marking, data transfer arrangements, and the effect of EU competition rules where conduct affects EU markets.
Can you advise on the Northern Ireland arrangements?
Counsel can advise on the practical legal effect of the Windsor Framework on goods movements, regulatory divergence and the application of certain EU rules in Northern Ireland, and on how those issues arise in contractual and regulatory disputes.
How are these instructions priced?
Advisory work is quoted as a fixed fee based on the questions posed and the volume of documents. Litigation and tribunal work is quoted separately for pleadings, applications and hearings.