Brussels could threaten legal action against Britain over breaches of the Brexit withdrawal treaty – possibly leading to sanctions, reports suggest.
EU legal advice – seen by The Times – claims that “infringement proceedings” could begin before the controversial Internal Market Bill is passed by parliament.
More leaked legal opinion – published by The Guardian – reveals that the European Commission believes that Boris Johnson has already violated the terms of the Withdrawal Agreement – simply by taking the first steps to pass new laws that would negate key parts of the treaty.
“Already by tabling the draft bill and pursuing the policy expressed therein, the UK government is in violation of the good faith obligation under the withdrawal agreement (article 5) because this bill jeopardises the attainment of the objectives of the agreement”, Commission lawyers wrote.
The Commission has advised the EU27 that there are grounds to take “legal remedies” against Britain through the European Court of Justice before the transition period ends, possibly leading to significant fines or trade sanctions.
‘Breach of obligations’
Ahead of an emergency meeting with Michael Gove today, Commission vice-president Faros Sefcovic was expected to tell the British government that Brussels views the Internal Market Bill as a “clear and substantive… breach of obligations”.
“The withdrawal agreement is not open for renegotiation and we expect that the letter and the spirit of the withdrawal agreement will be fully respected,” Sefcovic said.
EU lawyers have reportedly found that Johnson’s legislation – which ministers admitted would break international law – would be in “clear breach of substantive provisions of the protocol”.
They said: “Once the bill is adopted (as proposed), the commission may initiate infringement proceedings against the UK for breach of the good faith obligations. Even before the bill is adopted, it could be defendable to bring infringement proceedings on the same grounds.”
The lawyers added: “Given the length of the pre-litigation phase, it is unlikely that the case against the UK can be brought to the court before the end of the year.
“However, infringement procedures for facts occurred before the end of the transition period can be brought to the court during four years after the end of the transition.”
‘How can we reproach Russia or China?’
The paper explains that the ECJ could “impose a lump sum or penalty payment” on Britain, or Brussels could use a dispute settlement mechanism included in the Withdrawal Agreement, “which may ultimately also result in the imposition of financial sanctions by the arbitration panel”
Meanwhile, EU chief negotiator Michel Barnier and his counterpart from Downing Street, Lord Frost, will meet for the final day in the eighth round of trade deal negotiations.
Johnson has argued that the UK Internal Markets Bill tabled this week is necessary to preserve unfettered trade within the UK and prevent a border between Britain and Northern Ireland. But he has dismayed Brussels by threatening to breach international law.
There is also widespread criticism at home, with Lord Howard becoming the third Conservative former party leader to criticise Johnson’s plans as he accused the Government of damaging the UK’s “reputation for probity and respect for the rule of the law”.
“How can we reproach Russia or China or Iran when their conduct falls below internationally accepted standards, when we are are showing such scant regard for our treaty obligations?” he told the House of Lords.
Irish Taoiseach Micheal Martin called the Prime Minister to express his concerns, including “the breach of an international treaty, the absence of bilateral engagement and the serious implications for Northern Ireland”.
Anger in the US
The move has also angered some in the US, where Nancy Pelosi, the speaker of the House of Representatives, said there is “absolutely no chance” of Congress passing a trade deal with the UK if it threatens the Northern Ireland peace process.
“Whatever form it takes, Brexit cannot be allowed to imperil the Good Friday Agreement, including the stability brought by the invisible and frictionless border between the Irish Republic and Northern Ireland,” Pelosi said.
“If the UK violates that international treaty and Brexit undermines the Good Friday accord, there will be absolutely no chance of a US-UK trade agreement passing the Congress.”
Related: A guide to Boris Johnson’s uneasy relationship with the law