16th March 2021
The European Commission announced yesterday that it had ‘launched legal proceedings’ against the United Kingdom.
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.
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.
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.
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.
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’.
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.
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.
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.
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.
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.
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.
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.
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