16th March 2021
The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.
We have just launched legal proceedings against the United Kingdom for breaching the Withdrawal Agreement and IE/NI Protocol.
— European Commission 🇪🇺 (@EU_Commission) March 15, 2021
Unilateral action undermines trust.
The EU is committed to making the Protocol work for all.
More info here: https://t.co/c38rUrR13K pic.twitter.com/pQ4TkCQmc1
What has happened is that a formal legal notice has been sent by the European Commission to the United Kingdom.
To say this is ‘launch[ing] legal proceedings’ is a little dramatic: no claim or action has been filed – yet – at any court or tribunal.
But it is a legally significant move, and it is the first step of processes that, as we will see below, can end up before both a court and a tribunal.
This blogpost sets out the relevant information in the public domain about this legal move – a guided tour of the relevant law and procedure.
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Let us start with the ‘legal letter’ setting out the legal obligations that the European Commission aver the United Kingdom has breached and the particular evidence for those breaches.
This is an ‘infraction’ notice.
As the European Commission is making some very serious allegations – for example, that the United Kingdom is in breach of the Northern Ireland protocol – then it is important to see exactly what these averred breaches are.
This information would be set out precisely in the infraction letter – informing the ministers and officials of the United Kingdom government of the case that they had to meet in their response.
But.
We are not allowed to see this letter.
Even though the European Commission is making serious public allegations about the United Kingdom being in breach of the politically sensitive Northern Ireland Protocol, it will not tell us the particulars of the alleged breaches.
This is because, I am told, the European Commission does not publish such formal infraction notices.
There is, of course, no good reason for this lack of transparency – especially given what is at stake.
The European Commission should not be able to have the ‘cake’ of making serious infraction allegations without the ‘eating it’ of publishing them.
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And so to work out what the alleged breaches are, we have to look at other, less formal (and thereby less exact) sources.
Here the European Commission have published two things.
First, there is this press release.
Second there is this ‘political letter’ – as distinct from the non-disclosed ‘legal letter’.
What now follows in this blogpost is based primarily on a close reading of these two public documents.
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We start with the heady international law of the Vienna Convention on the law of treaties.
Article 26 of the Vienna Convention regards the delightful Latin phrase Pacta sunt servanda.
In other words: if you have signed it, you do it.
Agreements must be kept.
You will also see in Article 26 express mention of ‘good faith’.
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We now go to the withdrawal agreement between the United Kingdom and the European Union.
There at Article 5 you will see that the United Kingdom and the European Union expressly set out their obligation of good faith to each other in respect of this particular agreement:
So whatever ‘good faith’ may or not mean in a given fact situation, there is no doubt that under both Article 26 of the Vienna Convention generally and under Article 5 of the withdrawal agreement in particular that the United Kingdom and the European Union have a duty of good faith to each other in respect of their obligations under the withdrawal agreement.
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The European Commission not only allege that the United Kingdom is in breach of its obligation of good faith but also that the United Kingdom is in breach of specific obligations under the Northern Ireland protocol (which is part of the withdrawal agreement).
The press release says there are ‘breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland’.
The ‘political letter’ says:
So it would appear that the relevant provisions of the withdrawal agreement are Articles 5(3) and (4) of the Northern Ireland and Annex 2 to that protocol.
Here we go first to Annex 2.
This annex lists many provisions of European Union law that continue to have effect in Northern Ireland notwithstanding the departure of the United Kingdom.
Article 5(4) of the protocol incorporates the annex as follows:
‘The provisions of Union law listed in Annex 2 to this Protocol shall also apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland.’
As such a breach of Article 5(4) is a breach of the European Union laws set out in that annex.
Article 5(3) of the protocol is a more complicated provision and it is less clear (at least to me) what the European Commission is saying would be the breach:
My best guess is that the European Commission is here averring that the United Kingdom is in breach of the European Union customs code (which is contained in Regulation 952/2013.)
As regards the specific European Union laws set out in Annex 2 that the European Commission also says that the United Kingdom is in breach of, we do not know for certain because of the refusal of the commission to publish the formal infraction notice.
On the basis of information in the press release and the ‘political letter’ it would appear that the problems are set out in these three paragraphs:
Certain keyword searches of Annex 2 indicate which actual laws the European Commission is saying being breached, but in the absence of sight of the formal infraction notice, one could not know for certain.
The reason the detail of what laws are at stake matters is because each instrument of European Union law may have its own provisions in respect of applicability, enforceability and proportionality that could be relevant in the current circumstances.
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So: what next.
Two things – the European Commission is adopting a twin-track, home-and-away approach.
One process will deal with the substantive provisions of European Union law – and the other process will deal with the matter of good faith.
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In respect of the alleged substantive breaches of European Union law, the European Commission has commenced infraction proceedings – as it would do in respect of any member of the European Union.
As the ‘political letter’ pointedly reminds the United Kingdom:
The United Kingdom is still subject to the supervisory and enforcement powers of the European Union in respect of breaches of European Union law in Northern Ireland.
You thought Brexit meant Brexit?
No: the government of Boris Johnson agreed a withdrawal agreement that kept in place the supervisory and enforcement powers of the European Union – including infraction proceedings of the European Commission and determinations by the Court of Justice of the European Union.
And so in 2021 – five years after the Brexit referendum – the European Commission is launching infraction proceedings against the United Kingdom under Article 258 of the Treaty of Rome:
This means there could well be a hearing before the Court of Justice of the European Union.
One does not know whether this would be more wanted or not wanted by our current hyper-partisan post-Brexit government.
One even half-suspects that they wanted this all along.
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The other track – with the European Commission playing ‘away’ – is in respect of the general ‘good faith’ obligation – as opposed to the substantive European Union law obligations under Annex 2.
Here we are at an early stage.
In particular, we are are at the fluffy ‘cooperation’ stage of Article 167:
If this fails, then the next stage would be a notice under Article 169(1):
Article 169(1) provides that such a formal notice shall ‘commence consultations’.
And if these Article 169 consultations do not succeed, then we go to Article 170:
The arbitration panel – and not the European Commission nor the European Court of Justice – would then determine whether the United Kingdom is in breach of its general obligation of good faith.
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We could therefore end up with two sets of highly controversial proceedings.
The European Commission has intimated the processes for both to take place in due course.
From a legalistic perspective, the European Commission may have a point – depending on what the alleged breaches actually are.
A legal process is there for dealing with legal breaches – that is what a legal process is for.
But.
When something is legally possible, it does not also make it politically sensible.
A wise person chooses their battles.
And if the European Commission presses their cases clumsily, then the legitimacy and durability of the withdrawal framework may be put at risk.
Brace, brace.
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The list of breaches of the Protocol by the UK government seems already to be out of date. In an interview in the Belfast Newsletter last weekend, the NI Secretary of State stated that the UK government had no intention on ever enforcing a ban on fresh meat products or British soil being sent from GB to NI.
So perhaps the EU refrained from publishing the legal letter just yet, because they anticipated it might need to be updated to add further infractions to the list?
Is there any provision in the WA that could be argued covers unilateral action, such as thst carried out by UK in relation to NIP?
UK government could have triggered Article 16 – the same article they have spent the last six weeks criticising the EU for (contemplating) triggering.
“When something is legally possible, it does not also make it politically sensible.”
Clearly you are suggesting that there is a downside to the EU pursuing this issue
I am all in favour of discretion being exercised when the law is broken, especially if I have been stopped for speeding
But what are the unintended consequences that you are alluding to?
The French for “cakeism” is:
Avoir le beurre et l’argent du beurre: shades of the butter mountain of yore, perhaps.
Or indeed “vouloir le beurre, l’argent du beurre et le sourire de la crémière”, and more crude variants.
In German, it appears to be “auf zwei Hochzeiten tanzen”. Perhaps you cannot attend the second wedding after eating cake at the first?
And the Spanish are still at the church: “estar en la misa y en la procesión”
In Japanese, it is something to do with chasing two rabbits (and catching neither) – parallels to running with the hare and the hounds, perhaps – trying to have it both ways?
Many cross-cultural variants here: https://en.wikipedia.org/wiki/You_can't_have_your_cake_and_eat_it
It seems to me that Johnson is making the rather foolish assumption that the relationship between the rest of the UK and Northern Ireland is a sovereign matter for the UK, alone. No doubt, this will play well with the usual media suspects, but (even to a lay person) it is incompatible with the international agreements made between the UK and the member states of the EU. This belief perhaps explains with Johnson thinks he can claim not to have set up a (de facto) border in the Irish Sea between NI and the rest of the country when, plainly, he has done just that. Expect to hear much complaining about EU “interference” in sovereign British affairs – red meat to the Brexit Taleban.
My comment on 9th March applies.
I fear that the EU is behaving in exactly the way this govt. intends. Failing to disclose the legal letter is, at best, unhelpful as it offers no objective counter to the inevitable Johnson/Frost narrative of EU aggression/bad faith/arrogance, etc.
Not that people firmly on the Brexit side of the rift in the country will listen to facts or legal opinions (any more than hardline rejoiners).
It would just be helpful to know for the record.
An interview with Thomas Byrne, Irish Minister of State for European Affairs, (I forget which channel) revealed that collaborative work between Dublin and London on the execution of the Protocol and the possibility (even almost certain) temporary relaxation of various regulations in order to address the issues, was abruptly abandoned by London in favour of the unilateral declaration by UK of an extension. TD Byrne was very measured and at no point would he point the finger, but it was clear that Ireland / EU is exasperated with the deliberate aggression and undermining of any cooperation with Dublin by London. It would seem that, as usual, short term political expediency and the desire to maximise DUP antagonism to the agreement (remember they argued against and voted against the GFA) at the potential cost of a still fragile GFA. Neither Frost nor Johnson have any understanding of Irish history and they care even less, as do most Brexiters and their fingers are all over this. They want confrontation as it will look good in the Mail / Express and deflect from the “Project Fear” realities that Brexit is revealing every day. Whatever the legal niceties of the specific claims, every other country in the world will look on and note the lack of “good faith” by London.
Is access to Article 258 TFEU proceedings actually enabled by Article 12(4) NIP? If so, then why does the last sentence of 12(4) explicitly mention reference to Article 267 TFEU proceedings as being being something which shall apply.
It seems that could be read as 267 being explicitly mentioned, as otherwise it would not be available. Which could then seem to imply that only 267 is available, and access to other roles for the ECJ in enforcement is not available.
i.e. it doesn’t seem to be simply clarifying text (something for the avoidance of doubt), but a necessary operative portion.
Is it not the case that Article 258 won’t apply since t he UK is no longer a “member state?”
Astonishing that, despite ECJ jurisdiction having been a red line for the UK all along, it is a necessary implication of the infringement proceedings that the EU believes that the UK in fact consented to that very thing in the Withdrawal Agreement – perhaps my memory is short, but I don’t recall the ERG or anyone else at the time having noticed this. I suppose that somewhere in the WA there must be a clause that makes it irrelevant for the purposes of Art 258 that the UK is no longer a “member State”?
Could you please say why you use the French term “infraction”, when a perfectly good English translation – infringement – has been in use for years? Sorry if I’m missing something obvious.
Because among EU lawyers (of which am – or was – one) it is the usual phrase.
All the Andrews! I think my record is five on the same call, plus one or two non-Andrews.
On a point of information, both “infringement” and “infraction” have been in use in English for a considerable time to mean some sort of breaking. The OED gives an example of “infringement” from 1628, and of “infraction” from 1623 (initially meaning breaking a physical item, but then with a specific example referring to the breaking of a treaty from 1673). Both derive from the Latin infrangere (to break).
In English, the EU seems to prefer infringement nowadays, with infraction perhaps a carry over from the French, for example: the page https://ec.europa.eu/info/law/infringements_fr is headed “Accueil > Législation > Infractions” but https://ec.europa.eu/info/law/infringements_en is headed “Home > Law > Infringements”
That said, I think most people who understand the meaning of the English word “infringement” in this context will also understand what the English word “infraction” means.
Sign a legally binding agreement that you cannot deliver for political reasons and then repent at your leisure. That is what stupid people do.
In more common parlance, don’t talk the talk, (or sign documents) if you can’t walk the walk, (deliver on your obligations.)
The real issue here is what comes down the line if these legal actions succeed? A hard border in Ireland – Johnson was never going to put one up and never will, but will the EU?
These days it is not possible to accede to the EU unless all outstanding border disputes between members or members and potential members have been resolved. (Although the Greek Cyprus accession gives a lie to this – although one could make a case for that dispute being resolved.)
So, these days could the UK even accede to the EU with NI/Eire outstanding? Although again one could make a case for that being settled under the Belfast agreement. However, if a hard border were to be established in Ireland I for one would not want to present the case for that dispute having been settled once and for all.
I think DAG identifies the key issues.
Frost and Johnson would probably prefer not to be constrained by the TCA or the NIP.
Provoking a confrontation with the Commission now – shortly before elections in several European countries – meant the Commission would have no choice but to respond.
It serves Johnson’s electoral purposes in Scotland – and reassures the DUP.
It even raises the prospect of the European Parliament refusing to ratify the TCA.
Behind it all lies the main constraint on Johnson’s room for manoeuvre – the stubborn Remain majority in the polls.
Provoking a crisis should cause a rally round the flag effect – boosting the Leave vote – and distract the populace from the unfolding economic effects of Brexit.
Cynical, short-termist and effective.
I can certainly see it placating the DUP but I flail to see it serving Johnson’s electoral purposes in Scotland, a country that voted overwhelmingly to remain.
There are three places a customs border could be placed between GB and Ireland (north and south). And the battle that the U.K. is kicking up is all about that border in order to achieve many purposes, many of which have been outlined above, for this government.
One is the Irish Sea which the signed WA and NIP has effectively put in place.
The second is the border between Northern Ireland and Eire which would collapse the Belfast Agreement and all the horrors that would ensue.
The third, which is I speculate that for which Frost/Johnson are scheming, is to force that border into La Manche.
As DAG says, brace, brace.
Cummings’ (and now Frost’s) electoral strategy could be said to depend upon one insight from social psychology – our loss aversion is far far greater than our willingness to gamble for gain.
Ergo – Take BACK control – rather than “let’s change our commercial relationships for the past 30 years forcing some businesses to close”.
If you were Scottish, you’d look at this almighty mess in NI and think – “Do I want to do this to Scotland?”
It’s a winning formula for right wing parties – stoke fear and claim to be the party of optimism.
Oversee a transfer of wealth from SMEs and the poorest to the top deciles – and mischaracterise your opponents as elites. As DAG put it today, it’s Orwellian.
It is also cynical, short-termist and effective.
Creating cardboard cut out hate figures is part of the strategy – illegal immigrants, Woke activists, liberal EU lawyers…
You’re engaged and see through it – but you’re not the target audience.
Your comments on this thread are the most depressing I have read for some time
They make me wish I had the means to leave this country permanently, because opposition seems futile, and the ultimate destination could be Robert Mercer’s version of Utopia
“The real issue here is what comes down the line if these legal actions succeed? A hard border in Ireland – Johnson was never going to put one up and never will, but will the EU?”
No – the entire point of the NI Protocol is to avoid a hard border in Ireland, so the EU isn’t going to impose one.
More likely is that, if the ECJ and/or arbitration panel find that the UK government has breached the Protocol in a way which undermines the EU Single Market, then the EU could be entitled to raise tariffs on UK exports to an equivalent value to the estimated cost to the Single Market caused by the breach.
Which for this particular breach might well be nil, or unquantifiable.