Can the European Commission Secure UK Compliance with the Northern Ireland Protocol? (And why we should be worried if it can)

In this blog post, Professor Kenneth Armstrong of the University of Cambridge explores what options the European Commission has to secure compliance with the Northern Ireland Protocol in light of the UK Government’s Internal Market Bill.

It was unsurprising that the European Commission would respond to the publication of the United Kingdom Internal Market Bill and its provisions – in particular Clauses 42-45 – that seek to empower the Secretary of State to disapply particular provisions of the Protocol on Ireland/Northern Ireland and to insulate any conflicts with the terms of the Protocol from review and disapplication by UK courts pursuant to Article 4 of the Withdrawal Agreement. In his post on the subject, Jack Williams has set out what the options might be from a domestic legal perspective to circumvent the provisions of the Bill that the Government seeks to implement. But what options does the European Commission have?

A statement from the European Commission following an extraordinary meeting of the Joint Committee on 10 September noted:

“If adopted as proposed, the draft bill would be in clear breach of 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). In addition, the UK government would be in violation of the good faith obligation under the Withdrawal Agreement (Article 5) as the draft Bill jeopardises the attainment of the objectives of the Agreement.”

As is clear from the Withdrawal Agreement (see, for example, Articles 164 – 166), the Joint Committee is part of the mechanism established to seek a resolution of disputes between the EU and the UK. If there is no solution within the Joint Committee process, an arbitration panel may be convened.

However, the dispute resolution mechanisms available to the European Union are not limited to those of the Joint Committee and any arbitration panel. Indeed, as the Commission statement reminded the UK, the Withdrawal Agreement contains: “a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text – which the European Union will not be shy in using.”

The EU has called upon the UK to remove the offending elements of the Bill no later than the end of September. Given the timetable for the scrutiny of the Bill in the Commons – scheduled to complete by 22 September – and barring potential delays and blockages in the Lords, the Bill could become law by next month.

The obvious legal route for the European Commission would be to launch infringement proceedings against the UK. Pursuant to the Withdrawal Agreement, during the transition period, the UK remains bound by EU obligations as if it were a Member State. Article 131 of the Agreement confirms that the institutions of the Union have the powers conferred on them by the EU treaties and the Court of Justice has jurisdiction as provided for in the treaties. That means that the European Commission can bring infringement proceedings against the UK and, ultimately, the matter may be brought before the Court of Justice.

Indeed, back in May, the European Commission sent the UK a letter of formal notice complaining that UK legislation limiting the beneficiaries of EU free movement rights and limited their right to appeal administrative decisions restricting free movement rights were contrary to Union law. However, it is one thing to bring infringement proceedings based on alleged violations of existing Union law made applicable by virtue of the Withdrawal Agreement and another to seek to bring infringement proceedings alleging a breach of new obligations arising under the Protocol on Ireland/Northern Ireland.

That the European Commission also has the power to bring infringement proceedings in respect of violations of the Protocol arises directly from Article 12 of the Protocol which states in paragraph 4:

“As regards the second subparagraph of paragraph 2 of this Article, Article 5 and Articles 7 to 10, the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect.”

This is a more particular application of the enforcement powers set out in Article 131 of the Agreement. So notwithstanding the attempt to circumvent domestic judicial review and notwithstanding the mechanisms for dispute resolution through the Joint Committee and arbitration panels, the Protocol permits the European Commission to bring infringement proceedings against the UK if it proceeds to legislate contrary to the terms of the Agreement and the Protocol.

Nonetheless, while Article 12 of the Protocol is the basis for the European Commission to launch infringement proceedings against the UK for its substantive breaches of the Protocol (in respect of the potential disapplication of EU rules on the movement of goods from NI to GB and EU state aid rules), Article 131 would be the basis for infringement proceedings to remedy additional breaches.

Firstly, the Bill’s attempt to prevent domestic judicial enforcement of the obligations arising under the Agreement (including the Protocol which is an integral part of the Agreement) is itself a breach of Article 4 of the Withdrawal Agreement and would form the basis for infringement proceedings based on Article 131 of the Agreement.

Secondly, and as trailed in the Commission’s statement on the UKIM Bill, the Commission is likely to allege a breach of Article 5 of the Agreement which states (emphasis added):

“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. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement. This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.”

It is a principle of Union law that Member States shall refrain from actions which would seriously jeopardise their ability to fulfil their obligations. So, while the Protocol may not be operational until the end of the transition period, during that period – in which the UK is treated as if it were a Member State – the obligation to refrain from action which would jeopardise its proper implementation of the Protocol would apply. Indeed, the European Commission makes a similar argument in its May letter of formal notice to the UK concerning citizens’ rights and future implementation of the Withdrawal Agreement. Again, Article 131 would be a basis for infringement proceedings.

Should the European Commission initiate infringement proceedings, and should the UK persist in legislating in its intended manner, the Commission could seek to have the case expedited before the Court of Justice. It could also seek interim measures to suspend the application of any UK Internal Market Act. The obvious precedent for this is also ominous. It arose in the context of infringement proceedings brought by the European Commission against Poland for its rule of law violations including the adoption of domestic legislation on the Polish Supreme Court that compromised the independence of the judiciary. The Court accepted the European Commission’s request for an interim order requiring the immediate suspension of the domestic legislation and ordered the Polish Government to report to the European Commission the steps it had taken to comply with the order.

An interim order requiring the suspension of domestic UK legislation could become the subject of domestic legal proceedings to enforce the order. That is likely to bring us back to arguments about Clause 45 of the Bill and its attempt to exclude judicial enforcement. The arguments would include the extent of Clause 45’s reach to exclude judicial review of the obligations arising from, for example, Article 4(3) TEU  (the obligation of sincere cooperation which also applies to courts) and Article 19(1) TEU (effective legal protection) which continue to apply to the UK and its courts during the transition period.

It would be remarkable and worrying if the European Commission and the United Kingdom found themselves embroiled in infringement proceedings similar to those which have surrounded rule of law violations in current EU states. It is, of course, entirely possible that the UK would simply refuse to comply with any interim orders or judgments. And as is clear from rule of law violations in other Member States, it can be difficult for the EU to follow through on its actions. The EU could suspend its participation in any trade talks with the UK pending the removal of the offending provisions of domestic legislation. In which case, it is hard to see how this situation can be de-escalated. In that regards, the European Commission may prefer to see whether domestic political or legal routes can make the problem go away.

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