In this post, Professor Kenneth Armstrong of the University of Cambridge comments on the European Commission’s initiation of legal proceedings against the UK in respect of provisions in the Internal Market Bill.
Today the European Commission has taken the first step in the legal process which could ultimately lead to the United Kingdom being brought before the Court of Justice of the European Union. A ‘letter of formal notice’ has been issued in respect of the United Kingdom Internal Market Bill, which was introduced in Parliament in September and which contains provisions inconsistent with the UK’s obligations under the Withdrawal Agreement and Protocol on Ireland/Northern Ireland. This Government’s stance contrasts markedly with what the White Paper, “The United Kingdom’s exit from and new partnership with the European Union”, stated in February 2017 at paragraph 2.3: “We will of course continue to honour our international commitments and follow international law”.
As I explained in an earlier post, the fact that the UK is no longer a Member State does not prevent the European Commission from launching these ‘infringement proceedings’. In the week that the European Commission launched a report on the state of the ‘rule of law’, its decision to take legal action was perhaps inevitable and mirrors action the European Commission has taken in the past against Poland. This post looks more closely at what the European Commission is doing and why.
There is an important distinction to be drawn between the UK’s substantive obligations under the Protocol on Ireland/Northern Ireland and its more general obligations under the Withdrawal Agreement. The distinction is important because, as things stand, the Internal Market Bill – the measure about which the European Commission complains – is simply a Bill. As such, the offending provisions of the Bill – the power for UK ministers to adopt regulations which could disapply provisions of the Protocol and then shield those regulations from judicial review – are not even agreed, let alone in force. Legal action by the European Commission, therefore, appears premature. Indeed, even if the Bill is enacted and enters into force, unless and until UK ministers exercise their powers to adopt conflicting regulations, the substantive breach remains latent. The Bill has completed its Report Stage in the Commons and was introduced into the Lords on 30 September. The UK Government wants the Bill to be in force before the end of the transition period.
So why is the European Commission acting now?
The letter of formal notice complains that the UK is in breach of the ‘good faith’ obligation in Article 5 of the Withdrawal Agreement. Article 5 provides:
“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.‘
The good faith obligation has two requirements that are two sides of the same coin: the parties must actively ensure fulfilment of the obligations arising under the Agreement and must refrain from action that could jeopardise the attainment of those obligations.
For EU lawyers, this is the familiar concept of ‘sincere cooperation’ that is laid down in Article 4(3) TEU. As Article 5 of the Agreement makes clear, that obligation still endures insofar as the Agreement continues to give effect to Union law (for example, during the transition period). What Article 5 does, however, is to apply those familiar requirements to the obligations arising directly under the Agreement itself. In essence, the European Commission is asserting that by taking steps now that will result in a breach of the Agreement and the Protocol, the UK is jeopardising the attainment of the objectives of the Agreement (which would include fulfilment of the obligations arising under the Agreement).
The European Commission has already floated this style of argument in a letter of formal notice against the United Kingdom in May this year. The Commission complained that the UK’s implementation of EU free movement law is inadequate and that this will impact on its future fulfilment of obligations under the Withdrawal Agreement:
“The United Kingdom’s shortcomings in the implementation and transposition of EU free movement law risks therefore also affecting the implementation of the citizens’ rights under the Withdrawal Agreement after the end of the transition period.’
Other experiences of the use of infringement proceedings by the European Commission are instructive. The Commission has, for example, sought and obtained interim remedies against Poland demanding the suspension of the application of domestic legislation interfering with the independence of the judiciary.
However, what is particularly striking about today’s letter of formal notice is that the action complained of is the introduction of a new Bill into the UK Parliament. That has implications for what remedies the European Commission might seek and obtain from the Court of Justice should the UK fail to amend the legislation within the one month time period the European Commission has set before adopting a ‘reasoned opinion’ (the formal legal step before bringing a matter before the Court of Justice). In particular, the Commission might seek interim remedies against the UK. How things develop, however, may depend on what happens within the domestic arena.
Domestic enforcement of any order of the Court of Justice providing interim remedies would confront some obvious obstacles. Firstly, who would bring any domestic proceedings and against whom? Secondly, if the Bill was not yet enacted, an obvious objection to any domestic proceedings might be that it constituted an impermissible interference with proceedings in Parliament. Thirdly, if the Bill is enacted and enters into force, UK courts would be forced to confront the attempt in what is now Clause 47 of the Bill (as introduced into the Lords; it was previously Clause 45 in the Bill introduced in the Commons) to exclude judicial review. A clash between EU and national courts or between UK courts and the UK Government might then ensue.
But perhaps the bigger difficulties are political rather than legal. No doubt, the European Commission felt compelled to act and to seek to maintain pressure on the UK including domestic political pressure as the negotiations on a future trade deal come to an end. But what is not obvious is that the UK Government will consider the threat of legal action to be significant either way. That risks undermining the Commission’s stance as a defender of the rule of law not because it isn’t serious about defending it, but more that it cannot translate those intentions into concrete outcomes.
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