European Commission launches legal proceedings against UK

European Commission President Ursula von der Leyen on Thursday morning announced that the Commission had sent a so-called letter of formal notice to the UK Government over the UK Internal Market Bill’s alleged breach of the EU-UK Withdrawal Agreement.

Thursday’s announcement comes after Commission Vice-President Maroš Šefčovič, on 10 September, called on the UK Government to remove a number of contentious clauses from the Government’s UK Internal Market Bill by the end of September at the latest. Failure to do so, Mr. Šefčovič threatened, would solicitate considerable consequences.

Despite UK Secretary of State for Northern Ireland Brendan Lewis’ admission that it would break international law in “specific and limited way,” the UK Internal Market Bill is designed to undermine the EU-UK Withdrawal Agreement. Specifically, the Bill encourages Ministers to break “any provision of the Northern Ireland Protocol [and] any other provision of the EU Withdrawal Agreement”, and make Regulations which disregard “any other legislation, convention or rule of international or domestic law whatsoever, including any order, judgment or decision of the European court or of any other court or tribunal” if they consider so necessary.

The beginning of October was the European Commission’s deadline for Boris Johnson’s Government to remove the relevant clauses. Not only has that deadline now passed, the House of Commons even doubled down on it this week by passing the Bill at first reading by a Conservative-led majority of 84 votes. Now undergoing the legislative process, the Bill is not expected to return to the Commons for a final vote before December.

Thursday’s letter of formal notice is the Commission’s first step along the legal road of an infringement process against the UK Government. While the UK has formally left the EU’s political remit on 1 February, under the EU-UK Withdrawal Agreement it is obliged to continue to abide by all EU legislation until the end of the transition period on 31 December 2020. Under the Agreement the Commission is also empowered to launch legal infringement procedures against the UK in case of breaches of EU law.

While the Commission’s transmission of the formal notice officially begins legal proceedings, an adjudication is not likely before the end of the transition period as infringement processes tend to take months or even years to resolve. The UK Government now has until the end of September to formally respond, stating its case in support of the Bill. If the Commission is unsatisfied with the UK’s justification, it may decide to issue a so-called Reasoned Opinion. If the dispute continues after that, it is likely to be referred to the European Court of Justice.

Meanwhile, the post-Brexit future relations negotiations are entering a critical stage, with self-imposed deadlines looming – 15 October for UK Prime Minister Boris Johnson and end of October for the EU – but neither EU Chief negotiator Michel Barnier nor UK Chief negotiator David Frost are ready to compromise any further on the outstanding roadblocks, namely: state aid rules, fisheries and governance.