One thing about following EU issues is that you never stop learning – and the statement
by von der Leyen "on the implementation of the Withdrawal Agreement between the EU and the UK" is a case in point.
Having expected the Commission to invoke the Joint Committee procedure, and then move to arbitration, as a result of the Johnson administration's failure to act on the UK Internal Market Bill, the kindly officials of this venerable institution have reminded us that, during the transition period, the ECJ has jurisdiction over the Withdrawal Agreement
(see Article 87).
Furthermore, proceedings for breaches of obligations within the transition period can be brought before the ECJ within four years after the end of the period, during which time any judgements of the ECJ are binding on the UK and can be enforced in the UK civil courts.
Such is the background behind yesterday's statement by von der Leyen, where she asserts that the very act of publishing the UK Internal Market Bill is a breach of the Withdrawal Agreement – Article 5: " The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks
which flow from this Agreement".
Further, the United Kingdom must take all appropriate measures to ensure the fulfilment of the obligations arising from the Withdrawal Agreement, and they must refrain from any measures which could jeopardise the attainment of those objectives.
Nor does it stop there. If the Bill becomes law, the UK could be in breach of the substantive provisions of the Protocol: Article 5 (3) & (4) and Article 10 on custom legislation and State aid, including amongst other things, the direct effect of the Withdrawal Agreement (Article 4). This, presumably could be the subject of a further action, invoking the dispute procedure in the Agreement.
The EU does not accept the argument that the aim of the draft Bill is to protect the Good Friday (Belfast) Agreement. In fact, it is of the view that it does the opposite.
As for this current "breach", von der Leyen observed that the Commission "had invited our British friends to remove the problematic parts of their draft Internal Market Bill by the end of September", and that the deadline had now expired, with the "problematic provisions" of the Bill not having been removed.
The Commission, therefore, has decided to send a letter of formal notice to the UK government, inviting the UK government to send its observations within a month. This, it says, "is the first step in an infringement procedure".
Helpfully, the Commission sets out
details of the procedures, from which we can remind ourselves that, should the UK not respond, or if the Commission is not satisfied with the information and concludes that the UK is failing to fulfil its obligations under EU law, the Commission may then send a formal request to comply with EU law, known as a "Reasoned Opinion".
This, if it is invoked in this current case, would call on the UK "to inform the Commission of the measures taken to comply within a specified period, usually two months".
Given that this would probably bring us into the New Year, those measures, one presumes, would be the removal of what would by then be Sections of the UK Internal Market Act – assuming the Bill had by then received Royal Assent.
That could have profound implications because the UK government could only comply by publishing an amendment Bill and asking Parliament to approve it. Whether Parliament would do so, or not, remains to be seen. Whether, indeed, Johnson's government, would publish such a Bill, also remains to be seen.
In the event that the UK refuses – for whatever reason – to comply with the Reasoned Opinion, the case can then be referred to the ECJ. The outcome of proceedings could then be an order by the court to comply and, if that is ignored, a further hearing. Through this, the court can impose an unlimited fine and/or a daily penalty applied for as long as the Internal Market legislation is in force.
Nevertheless, some pundits are arguing that the proceedings could become irrelevant, as the ECJ takes so long to act. However, the court can apply an expedited procedure
(not to be confused with the "urgent" procedure), which could have it delivering a preliminary ruling within six months of referral, instead of the more usual 35 months.
Predictably, this development has provoked squeals of indignation from the Telegraph
, with accusations of "sabre rattling". One of its commentators is suggesting that we will soon be departing from ECJ jurisdiction, so we can ignore any court ruling.
Only in the event of a complete breakdown of relations with the EU, with the UK walking away with a "no-deal" TransEnd might this become irrelevant, although the Withdrawal Agreement remains in force even if there is no trade agreement with the EU.
That the court's writ extends to the end of 2024 may thus come as a surprise to some, but this is what was written into the "oven ready" Withdrawal Agreement. Johnson agreed to it and the Westminster parliament ratified it. For the UK to ignore any ruling would put it in further breach of international law.
However, given that rulings are also enforceable in British courts (see Article 299 TEU), the Johnson administration could find itself in the embarrassing position of having to defy a domestic court. It could even fall to a successor to resolve the issue, having to pay the bill.
Any which way, this is a serious development which the UK government cannot ignore or shrug off. There is little dispute that Johnson has sanctioned a breach of international law and, on the face of it, the Commission is within its rights to take the action it has initiated.
The Irish government's spokesman on European affairs, Neale Richmond, has endorsed the move, saying that legal action was regrettable but "absolutely the right decision".
Currently, the UK government spokesperson has responded by saying that "We will respond to the letter in due course", adding that, "We have clearly set out our reasons for introducing the measures related to the Northern Ireland protocol".
So far, Johnson himself has not responded in person, but this is just the sort of thing on which he could be questioned in PMQs or directly by a journalist. He may be able to bluster to a domestic audience, but it will be quite another matter having to justify the matter to a court of law, even (or especially) if it is the ECJ.
Letting it go that far would be a risky option. By all accounts, the UK has suffered reputational damage by publishing the Internal Market Bill. To lose such a high-profile case in front of the ECJ would magnify the damage, and possibly have internal political ramifications.
Johnson, though, has put himself in a lose-lose situation. In the unlikely event that he backed down now, the U-turn would be politically damaging. If he is forced to back down later, it is hard to see that he – or his party – would escape damage.
More to the point, Johnson is playing with the UK's international reputation and that is not something we need at this juncture, when we are seeking new trade deals and replacements for other international arrangements which will become void on 1 January 2021. The damage done could be incalculable.
Also published on Turbulent Times