Brexit: EU launches legal action against UK for breaching withdrawal agreement

By Daniel Boffey

The EU has launched legal action against the UK after Boris Johnson failed to respond to Brussels’ demand that he drop legislation that would overwrite the withdrawal agreement and break international law.

Ursula von der Leyen, the European commission president, announced that the UK had been put on formal notice over the internal market bill tabled by the prime minister last month.

Brussels had given Johnson until the end of September to drop the contentious clauses in the draft legislation, and Von der Leyen said the deadline had lapsed.

By seeking to unilaterally change the terms of the agreement signed last year with Brussels, the UK had failed to live up to its obligations to act in “good faith”, Von der Leyen said.

The German former defence minister said the UK now had a month to respond to the commission’s letter of notice, which marks the beginning of a formal infringement process.

“We had invited our British friends to remove the problematic parts of their draft internal market bill by the end of September,” she said. “This draft bill is, by its very nature, a breach of the obligation of good faith laid down in the withdrawal agreement. Moreover, if adopted as is, it will be in full contradiction to the protocol on Ireland and Northern Ireland.”

She added: ”The problematic provisions have not been removed. Therefore this morning the commission has decided to send a letter of formal notice to the UK government. This is the first step in an infringement procedure.”

The internal market bill would give ministers legal powers to override two elements of the Northern Ireland protocol, which Johnson agreed to last October to avoid the return to a hard border on the island of Ireland.

Ministers would decide whether to notify the commission of any government subsidy decisions that could affect goods trade in Northern Ireland and whether to waive the need for export summary declarations when sending goods from Northern Ireland to the rest of the UK.

The two sides are examining these issues in a joint committee but the UK government has said it needs the legislation as a “safety net” should the EU act unreasonably.

The commission’s letter is the start of a lengthy process that could ultimately end in the European court of justice. The EU court in Luxembourg could impose huge daily fines for continued breaches.

The UK agreed to be bound by decisions of the court on cases that began before the end of the transition period on 31 December, and for four years after that point.

A government spokesperson said: “We will respond to the letter in due course. We have clearly set out our reasons for introducing the measures related to the Northern Ireland protocol. We need to create a legal safety net to protect the integrity of the UK’s internal market, ensure ministers can always deliver on their obligations to Northern Ireland and protect the gains from the peace process.”

The infringement procedure is a common tool used by the commission against member states. Last year there were 800 open cases. Germany had 47 pending cases and France 34. Each procedure takes an average of 35 months to complete.

The EU had initially suggested the internal market bill was an impediment to the ongoing trade and security negotiations but has in recent weeks decoupled the issues.

This week Ireland’s foreign minister, Simon Coveney, admitted that many of the EU’s concerns would “fade away” if the joint committee was able to do its work and a wider trade deal was secured.

The Irish government spokesman on European affairs, Neale Richmond, said on Thursday the move was regrettable but “absolutely the right decision”.

“Time is running out, but it is not too late for a trade agreement to be reached between the EU and UK; that is where the focus should be rather than on legislation like the internal market bill,” he said.

Von der Leyen said work would continue with the UK to ensure the withdrawal agreement was fully implemented by the 1 January deadline. “We stand by our commitments,” she said.

Von der Leyen later met Micheál Martin, the Irish prime minister, for talks before a summit of the 27 heads of state and government being held in Brussels to discuss foreign affairs.

The commission has also said it might bring a separate action against the UK through enforcement mechanisms in the withdrawal agreement, resulting in fines or suspension of parts of a future trade deal.

Talks between the UK’s chief negotiator, David Frost, and his EU counterpart, Michel Barnier, continue over trade and security.

The most likely outcome of the row over the internal market bill is that in the event of a successful negotiation, the EU will give the UK the option of leaving without a deal or dropping the legislation.