The European Commission sent the UK a letter of formal notice on 1 October 2020, claiming the UK is breaching its obligations to act in good faith under Article 5 Withdrawal Agreement: The UK Internal Market Bill 2020, if adopted, would violate the Protocol on Ireland/Northern Ireland as it would require the UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the Withdrawal Agreement. This is the essence of the official press release on the occasion of beginning formal infringement proceedings against the UK. However, it leaves a legally tricky and interesting question open: Will these proceedings end up in the Court of Justice of the European Union (CJEU), which the UK would probably like to avoid if possible?
Trying to clear up confusion, these infringement proceedings have to be distinguished from the general dispute resolution procedure of the Withdrawal Agreement, which is found in Part Six, Title III: ‘Dispute Settlement’. There, in principle, exclusivity is established for any dispute arising under the Withdrawal Agreement, so that both the EU and the UK shall only have recourse to the procedures provided for in the Withdrawal Agreement. According to Article 169 Withdrawal Agreement, a party intending to commence proceedings ‘must provide written notice to the Joint Committee’. Then, both parties shall enter into ‘consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution’. Subsequently, ‘if no mutually agreed solution has been reached within 3 months’, a request can be made to set up an arbitration panel.
However, with regard to the infringement proceedings that have just started with the Commission’s letter of formal notice of 1 October 2020, there are separate rules in place for the time during the current transition period according to Article 131 Withdrawal Agreement. Additionally, for the time after the transition period has expired, UK-EU disputes in respect of the Protocol on Ireland/Northern Ireland are subject to comparable jurisdiction under Article 12 of this Protocol. Including this Article, most parts of the Protocol will however only apply from the end of the transition period onwards, Article 185 Withdrawal Agreement. Its specifics with regard to infringement proceedings and the CJEU jurisdiction have been previously discussed, for instance, by Oliver Garner and Stephen Weatherill.
Accordingly, both under Article 131 Withdrawal Agreement and under Article 12 Protocol, the CJEU shall have the jurisdiction ‘provided for in the Treaties’, which includes infringement proceedings under Article 258 TFEU, instead of the Joint Committee proceedings under the Withdrawal Agreement. As in other cases of infringement proceedings, this jurisdiction includes eventually the possibility to hand down a binding judgment on violation of EU law by a Member State, or in the case of the UK a violation of the Withdrawal Agreement and the Protocol.
Due to the fact that the temporal scopes of the two relevant heads of jurisdiction – Article 131 Withdrawal Agreement until and Article 12 Protocol after the end of the transition period – are mutually exclusive, it is understandable that the Commission referred to Article 5 of the Withdrawal Agreement in its letter and corresponding press release of 1 October 2020 during the current transition period. Article 5 Withdrawal Agreement can be claimed under the jurisdiction established by Article 131 Withdrawal Agreement for the time being. Thinking ahead, for the time after the end of the transition period, it would be possible to refer to Article 5 of the Protocol on Ireland/Northern Ireland (regulating customs and movement of goods).
In this context, it should moreover be borne in mind in procedural terms that, according to Article 86 Withdrawal Agreement, the CJEU ‘shall continue to have jurisdiction in any proceedings brought by or against the UK before the end of the transition period.’ Furthermore, according to Article 87 Withdrawal Agreement, if the Commission considers that the UK has failed to fulfil an obligation under the Withdrawal Agreement’s rules concerning the transition period, it may still bring the matter before the CJEU under Article 258 TFEU within four years after the end of the transition period.
Hence, the European Commission, represented by the Commission President Ursula von der Leyen, has the power to instigate infringement proceedings against the UK on the basis of the Withdrawal Agreement (and subsequently on the basis of the Protocol on Ireland/Northern Ireland) in conjunction with Article 258 TFEU, claiming that the UK is in breach of its obligations under specific provisions of the Withdrawal Agreement and the Protocol.
Now that the infringement procedure has begun, first of all out of court, with a request for information (a ‘letter of formal notice’ has been sent to the UK), an answer is expected within a specified period, usually two months. The Commission requested a response within one month only, which is short but can still be considered as acceptable. If the Commission is not satisfied with a response by the UK, and if the UK continues not to comply with its obligations under the Withdrawal Agreement and the Protocol, the Commission may then send a formal request to comply (a ‘reasoned opinion’), calling on the UK to inform the Commission of the measures taken to comply within a specified period, again usually two months. However, it can be questioned whether this escalation would have a meaningful effect as such. The Commission might rather need to refer the case to the CJEU under Article 258 TFEU, eventually.
For the EU, clearly it would be best if the Internal Market Bill were to be amended (or not be passed at all). This decision is mainly a political issue for the UK, who might consider amending or dropping the Bill as an aspect in the ongoing negotiations about the future EU-UK relations. Insofar it is important to keep the surrounding timeframe in mind: An agreement on the future relations is required by the end of October; the Internal Market Bill is unlikely to be passed beforehand. Therefore, for the UK, the best outcome might be to influence the negotiations to its advantage, which might render passing the controversial (parts of the) Bill obsolete.
Johannes Ungerer is the Erich Brost Departmental Lecturer in German Law and EU Law, University of Oxford.
This post continues discussions of the recorded virtual workshop ‘British-European Relations Post-Brexit: A Legal Kaleidoscope’. The author would like to thank Stephen Weatherill for his comments on an earlier draft. Parts of it have been included in the Euronews article ‘EU Brexit infringement case: What is it and should the UK be worried?’.